Positive Law Research Articles

Shifting Paradigms: The Controversy and Complexity of LGBTI Protection in Indonesia as the Biggest Muslim Country

The existence of Lesbian, Gay, Bisexual, Transgender, and Intersexual (LGBTI) as a legal subject in a religious community like Indonesia is very problematic. When religious values control a community, the members will use their holy books to measure whether any commotion or condition is tolerable. Collisions between the law of religion (such as Sharia Law of Muslims) and national law are sometimes unavoidable. Most conservative religious values may not protect and acknowledge the existence of LGBTI people, while national law must recognise the ratified international conventions, especially regarding human rights. It creates a different treatment between national law and religious law. Protection of the rights of LGBTI in Indonesia is barely reported. This study will be important to share how Indonesia copes with LGBTI legal problems and protections. The method of this study is a juridical normative study, by evaluating Indonesian positive law, the living law ruled by the Indonesian Court Decrees, and any decree or decision made by Indonesian executive and judicative bodies, which become the basis for determining the existence of rights and protections of LGBTI people. Classification of the protection from various sectors of laws will be identified, to conclude the protection level of LGBTI people in Indonesian law. Keywords: LGBTI; Indonesia; Positive law; Religious values.

Legal review of the constitutional court decision number 135/PUU-XIII/2015 on the voting rights of people with mental disorders (ODGJ) reviewed from the foundation of positive law

People's participation as citizens in the implementation of government is the main requirement in filling positions. To be able to take part in elections, people must comply with the provisions that have been ratified by law. The KPU "General Election Commission" as the organizer of the democratic party gives the right to vote in elections to People with Mental Disorders (ODGJ). ODGJ are allowed to take part in the 2024 elections as stated in the decision of the MK "Constitutional Court". The aim of this research is to examine juridically "the decision of the Constitutional Court Number 135/PUU-XIII/2015 concerning the voting rights of People with Mental Disorders or ODGJ and the impact that may arise from the participation of ODGJ in taking part in the election". The author chose a normative juridical approach (Legislative Approach). The research carried out by the author used a normative juridical approach (Legislation Approach). The data used in this research uses secondary data, namely data or input sourced from literature and statutory regulations. For this type of research, the author applies qualitative descriptive research. Based on research results, the ruling "Constitutional Court Decision Number 135/PUU-XII/2015" states that people suffering from mental disorders can vote only if they do not experience permanent mental disorders that have prevented them from voting in general elections, according to mental health experts.. Based on this, there is disharmony between the decision of the constitutional court and positive law in Indonesia. Apart from that, the possible impact of ODGJ's participation in the election is the emergence of various frauds in the democratic party process.

Permohonan Itsbat Nikah Untuk Perkawinan Kedua oleh Istri yang Bercerai di Luar Pengadilan Agama (Studi Kasus Padang Pariaman)

Divorces outside the court often occur, resulting in the marriage status remaining valid according to Indonesian positive law. This leads couples who wish to remarry to do so clandestinely and seek marital validation through the religious court. Therefore, the purpose of this research is to understand the process of resolving itsbat nikah petitions for second marriages by wives who divorced outside the court and the legal consequences for the parties from the rejection of itsbat nikah by the religious court. This research employs an empirical juridical method focusing on field realities related to applicable legal aspects. Data analysis is conducted qualitatively to depict the research subjects and objects, with theories developed from the acquired data. The research findings indicate that the itsbat nikah process begins with a petition to the pusbakum, revealing that the couple were single before their secret marriage in 2007. However, during the trial, it was revealed that the wife had legally married in the Office of Religious Affairs (KUA) in 2004 and divorced outside the court in the same year, resulting in the rejection of the itsbat nikah petition. Consequently, the wife's post-divorce iddah maintenance rights are lost, but the child's legal status remains recognized, in accordance with Constitutional Court Decision No. 46/PUU-VII/2010.

A Comparison of Schools of Law in Philosophy: Natural Law, Positive Law, and Modern Schools

A Comparison of Schools of Law in Philosophy: Natural Law, Positive Law, and Modern Schools

Антиномічна реалізація природного права

Each person plans something, designs and tries to implement this program into practical life activities. Of course, not everything planned becomes real, and sometimes things are implemented that were not thoroughly thought about. In the philosophy of law, of particular interest is the completeness and quality of the implementation of natural laws, on the basis of which a person forms natural law for himself according to his intelligible and sensitive endowments. Then comes realization as the implementation of the project of one’s actions and behavior, necessary for the acquisition of spiritual paradigms and material needs. There is a difference between the implementation of natural law and the implementation of positive law. In the first case, a natural-supernatural source unfolds, and in the second, the will of the legislator. Both are mandatory. Only the natural-supernatural source is guided by its own narratives, and the will of the legislator – by state narratives. Both narratives are not immune to antinomies. Therefore, antinomic realization is directed in two directions – natural law and positive law. Of greater interest is the first direction, which is original. Antinomic implementation of natural law means that there are conflicting or opposing interpretations of the observance, implementation, use or application of natural law in different contexts or among different groups of people. This may arise due to differences in how exactly to understand and implement natural law in different situations. First, let’s make it clear: how can and is there a need to implement antinomic norms? Is such scientific thought ontological? We believe that there are three main life positions of the antinomic realization of natural law as one’s intellectual evaluations, about the possibility of acting in a certain way, not seeing evil (non-ontological) intentions in this.

Kantian Maxims in the Theory of Law

Introduction. The article is devoted to the 300th anniversary of the birth of Immanuel Kant, a great representative of German classical philosophy. The article shows how the Kantian philosophical system influenced the methodology of legal science, and especially the study of the problems of the theory of law. The famous “The Pure Theory of Law” by H. Kelsen is based on the distinction between the “is” and “ought”, and also an independent trend called neo-Kantianism was formed in legal science. Theoretical Basis. Methods. The theoretical basis is formed by the works of D. Hume, A. Kaufman, G. Radbruch, E. Husserl. This article used general scientific methods: analysis, synthesis, systematisation. In addition, the author built his judgements on the basis of comparative analysis, formal-legal and hermeneutic methods of research. Results. Kant’s philosophical maxims formed the basis of his concept of positive law. It can be safely noted that it was one of the most significant attempts in the theory of law to substantiate the essence of positive law on rationalistic theoretical and cognitive grounds. In this connection, let us recall that according to Kant, morality is the result of the reflection of man as noumena, an entity free in the absolute sense. Discussion and Conclusion. According to the results of the study, the conclusion is formulated that the philosophical concept of I. Kant laid the methodological foundation for solving the problem of distinguishing law and morality, as well as in the context of his doctrine of logic understanding of the essence and nature of the judgement, which is especially important for the training of specialists for the judicial system.

Just Law Theories Developed by Prominent Representatives of Russian Doctrinal Legal Research in the 19th Century

This article theoretically examines some contradictions and major milestones in the development of the doctrines of just laws as laid out by prominent Russian scholars during the 19th century. It analyzes the problems surrounding different theoretical approaches and conceptions regarding the connection between justice and law through the works of M.M. Speransky, N.M. Karamzin, P.I. Pestel, N.M. Muravyov, K.A. Nevolin, B.N. Chicherin, V.S. Solovyov, and S.A. Muromtsev. The results obtained show that the period under study was marked by the elaboration of a conceptual framework and basic criteria of positive law from the perspectives of liberal (natural law) and ethical beliefs, which align with spiritual (Christian) principles. This strengthened the humanistic and moral foundations of Russian legal understanding. Additionally, a continuing and stable connection is revealed between the philosophical and legal doctrines of the 18th and 19th centuries, indicating the common (abstract, not fully comprehended) motivational grounds and logic in the establishment of legal freedoms.

Codicology and the Transformation of Islamic Law

Abstract In Islamic law, preponderance (tarjīḥ)—a practical method for mujtahids to resolve legal contradictions (taʿāruḍ) between proofs—has been known in the uṣūl tradition from at least the 10th-century jurist al-Jaṣṣāṣ (d. 370/981). Yet, it is in several 17th and 18th-century Arabic and Ottoman manuscripts of Princeton’s Garrett Collection that we encounter summary-like lists labelled “tarjīḥāt al-bayyināt” (“TB s”), which succinctly compile the complex rules of preponderance. Organized into three-columned lists, on loose leaves, as annotations in the margin or separate textual units, the TB s follow a grammatical and visual layout that made them predictable and recognizable for manuscript readers. This paper examines the TB s as a codicological phenomenon, arguing that they served as a shorthand for legal practitioners familiar with evidentiary law and that their presence suggests a broader transformative process of readers’/legal practitioners’ relationship with codices of positive law at this critical moment in the history of Islamic law.

Penarikan Royalti Hak Cipta Sebagai Wujud Jaminan Fidusia Berdasarkan Hukum Positif di Indonesia

The development of human civilization has given birth to a creative economy that is developing simultaneously. Copyright is one type of Intellectual Property that is given to creators and other parties who have rights to their creations to utilize exclusivity both economically and morally. Indonesian laws and regulations have been able to adjust to economic developments. However, in its implementation there are still gaps in terms of the withdrawal of copyright royalties as objects of fiduciary guarantees. This study aims to determine and identify the optimization of regulations for the implementation of copyright royalties as fiduciary guarantees based on positive law in Indonesia. This study was conducted using a normative juridical approach method, by conducting research through literature as the main research material. Based on the research conducted, it was found that although regulations have regulated copyright to be used as objects of fiduciary guarantees, there needs to be optimization of regulations and collaboration between the government and related institutions along with the development of the creative industry era.

The Stand Of Electronic Evidence In Cyber Crime Law Enforcement In Indonesia

Crime in the cyber world certainly has a significant impact. People think that Indonesia has a Criminal Code that cannot cover crimes in cyberspace, which is a new crime. This is what makes the government have to issue regulations regarding cyber crime or cyber crime. With regard to enforcing cybercrime law, of course, a regulation is needed in positive law. It also regulates the punishment and how the evidence for cyber crimes and the position of electronic evidence are. This research method uses the normative method. The existence of electronic evidence in proving cybercrime has been alluded to in Law Number 19 of 2016 concerning Amendments to Law Number 11 of 2008 concerning Information and Electronic Transactions. In Article 5 of Law Number 11 of 2008, it explicitly mandates that "Electronic Information and/or Electronic Documents and/or their printouts are valid legal evidence". This can be interpreted that electronic documents are considered legally valid according to positive law in Indonesia. However, in the amendment to the elucidation of Article 5 paragraph (1) regulated in Law Number 19 of 2016, it is explained that the existence of Electronic Information and/or Electronic Documents is binding and recognized as valid evidence to provide legal certainty for the Implementation of Electronic Systems and Transactions Electronic, especially in proving and matters relating to legal actions carried out through Electronic Systems.

Kesaksian Orang Bisu dalam Perspektif Hukum Indonesia dan Fikih: Tantangan, Peluang, dan Implikasi Terhadap Keadilan

This article examines the testimony of mute individuals from the perspectives of Indonesian positive law and the comparative fiqh of the four major Islamic schools of thought (Hanafi, Maliki, Shafi’i, and Hanbali). The study aims to understand the challenges and opportunities in recognizing the testimony of mute individuals in court and its implications for justice. The research employs a normative approach with doctrinal analysis. The findings indicate that Indonesian positive law provides room for the testimony of mute individuals, but there are still obstacles in its implementation, such as the lack of adequate accommodations and qualified interpreters. On the other hand, Islamic fiqh presents varied views on mute testimony, with the Maliki school being more inclusive than others. The article also discusses opportunities for legal reform to create a more inclusive and just judicial system for persons with disabilities. In conclusion, the testimony of mute individuals requires special attention within the legal system to ensure that the principles of justice and equality are upheld.

Pertanggungjawaban Hukum Pengelola Arisan Online Bermodus Investasi Yang Menimbulkan Akibat Hukum

Online lottery is an activity carried out by several people by utilizing the development of technological advances and information by using smartphones in its implementation. Recently, online lottery has been highlighted because it has caused legal consequences, including losses suffered by members, promises of attractive investments and used as a basis for committing criminal acts. The problem that becomes a case in relation to online lottery is the form of responsibility and legal efforts in overcoming it. This research aims to find out the criminal and civil responsibilities of the perpetrators of online lottery who use the argument of investment in deceiving their victims so that the best legal efforts can be found in overcoming this problem. To discuss the related problems, the author formulates them into two problem formulations: first, how is the regulation of online lottery according to positive law in Indonesia and second, how is the legal responsibility of online lottery managers with the investment mode that causes legal consequences. This research uses normative legal research. This normative legal research collects legal materials from primary legal materials, secondary legal materials and tertiary legal materials which are then collected and analysed and then described through a statute approach and case approach. The result of this research is that there is no specific regulation of online lottery according to positive law in Indonesia. However, it can be interpreted that online lottery is an agreement made based on Articles 1330 and 1338 of the Civil Code and is related to the principles and objectives regulated in Articles 3 and 4 of Law Number 1 of 2024 concerning the Second Amendment to Law Number 11 of 2008 concerning Electronic Information and Transactions.

Juridical Analysis of Build Operate Transfer Agreements at the Mataram Mall Building

The purpose of this research is to identify and analyze the regulation of Build Operate Transfer (BOT) agreements in positive law in Indonesia and the legal issues in the BOT agreement between the Mataram City Government and PT Pacifik Cilinaya Fantacy. The research method used is normative legal research with a legislative approach and a conceptual approach. The types of data used include secondary and primary data. Secondary data consists of literature sourced from primary, secondary, and tertiary legal materials. The regulation of Build Operate Transfer is essentially the same as general contract regulations, which are governed by the third book of the Civil Code regarding obligations. Additionally, Build Operate Transfer is also regulated by several other regulations, including: Government Regulation No. 27 of 2014, Presidential Regulation No. 13 of 2010, Minister of Finance Regulation No. 78/PMK.06/2014, and Minister of Finance Regulation No. 02/PMK.06/2008 concerning the Appraisal of State-Owned Assets. The legal issue in this Build Operate Transfer agreement is that PT Pacifik Cilinaya Fantacy failed to comply with and PT Pacifik Cilinaya Fantacy regarding the management of the APHM Cilinaya Area. PT Pacifik Cilinaya Fantacy did not fulfill its obligation to pay royalties to the Mataram City Government from 2016 to 2019.

Eksistensi Container House sebagai Objek Jaminan Berdasarkan Hukum Jaminan di Indonesia

Container house is a building made of used containers hich is a movable object that can be modified into a house or residential place that is an immovable object. Therefore, if the owner of the Container house ants to collateralize the container it ill cause a gap between positive law and social facts related to hat collateral law ill be charged against the Container house. so the purpose of this study is to analyze the status of the container house in the perspective of existing laws in Indonesia and in the status of the container can the container house be used as a collateral object. The method used in this research is normative research method. The result of the research is that first, a container house is a movable object ith the characteristics of a physical building made from containers that does not require construction ork so it does not require a construction permit, can be transferred and has economic value. However, normatively, there are no laws and regulations governing it so that its ownership has no guarantee of legal certainty. Second, container houses can be charged ith fiduciary guarantees, so the execution of container houses is carried out in accordance ith Article 15 paragraph (2) of the UUJF if there is consent from the fiduciary. However, if the fiduciary grantor does not agree to surrender the object of the fiduciary guarantee, then the execution is carried out based on the Constitutional Court Decision Number 18/PUU/XVII/2019, namely through a court order.

Law Enforcement in Medical Malpractice Cases in The Protection of Doctors’ Rights: Case Study Tonsil Surgery Causing Brainstem Death in a Child Patient

This study aims to determine the regulations related to the protection of the professional rights of a doctor who is often suspected of committing medical malpractice in carrying out health services. In this study, the author analyzes the rules of malpractice based on positive law in Indonesia, then the author analyzes the liability carried out by the doctor’s profession in suspected malpractice in this study the author takes a case study related to tonsil surgery which caused BA’s child patient to experience brain death at the Kartika Husada, Bekasi Hospital. The method used by the author in this research uses normative or dogmatic research methods, which use documents laws, and regulations related to the issues studied and secondary data sources in the form of books and related journals. The results of the research in this case study conclude that there is no single rule that protects the rights of a doctor who is accused of committing malpractice, neglecting these rules only protects the interests of the patient, then the responsibility for the accusation of malpractice must go through the process of proof first, by the provisions of the elements of malpractice both in terms of criminal and civil law, and based on the case study that has been researched by the author, it is concluded that the efforts in dispute resolution made by the family of BA’s child patient who has died, are appropriate with the family by withdrawing the police report and carrying out peaceful efforts in the form of mediation with the hospital.

Penetapan Izin Poligami melalui Pengadilan Agama dalam Perspektif Hukum Positif di Indonesia

Basically everyone wants to get married only once in their life, but there are several reasons why people commit polygamy or get married two or three or four times. The causal factors referred to are internal factors from the family which resulted in the husband choosing to remarry, as regulated in positive law in Indonesia, that polygamy must go through a procedural procedure in a religious court and must fulfill certain reasons and conditions so that the religious court judge can grant the proposed polygamy permit.. This research is qualitative research with a normative juridical type of research, using a library research approach. The results of this research show that the case examination process in this research has been carried out in accordance with the provisions, and in legal fact the wife gave written permission to the husband to carry out polygamy so that the judge gave permission to the husband to carry out polygamy with his second wife.

Dinamika Positivisme Hukum dalam Perspektif Modernisme dan Postmodernisme

In this stud, the dynamics of legal positivism are explored through the perspective of modernism and postmodernism to understand changes in the concept of positive law over time. By analysing the evolution of legal views from these two paradigms, this research aims to identify transformations in the understanding of positive law over time. By paying attention to the influence of modernism which emphasizes rationality and legal certainty and postmodernism which highlights the diversity of interpretations on social contexts, this study will provide in-depth insight into the complexity of the dynamics of legal positivism in the contemporary context.

Problems of Waqf Management in Indonesia: A Review of Positive Law

The implementation of waqf has been happening in many regions in Indonesia. The essence of waqf as a form of worship that brings great rewards and community welfare should be managed properly by professional nadzirs, not the other way around. Various problems have occurred in various regions, resulting in the management of waqf not maximizing and not achieving common goals. This research uses a normative juridical approach that is descriptive analytical by using various theories in legal science related to the process of implementing waqf within the framework of positive legal development in Indonesia. The problems of waqf management in Indonesia so far have been caused by the lack of socialization about waqf by a less aggressive government, waqf management and management that is not in accordance with the rules, limited human resources (nadzir) who meet the requirements and weak control systems in supervision to be less effective in its application in society. The problems that exist so far show that they arise from external factors, namely legal subjects who have not experienced limitations and sufficient knowledge in managing waqf properly and correctly according to the rules of law and Islamic religious law. For this reason, it is necessary to supervise the management of waqf by the government and society so that strict supervision is expected that waqf in Indonesia can be managed properly so that the results can be utilized to empower the quality of life of the people.

Legal Reconstruction of Empirical Juridical Analysis of Unilated Determination of Defense (Study of Pontianak District Court Decision Number 51/Pdt.G/2021/PN Ptk)

Decision case number 51/Pdt.G/2021/Pn Ptk contains a legal problem, namely the unilateral determination of default and the legal consequences (the application for the sale of collateral was also carried out unilaterally). This research basically aims to find out the legality of unilateral determination of default in positive law in Indonesia and the legal construction of Pontianak State Decision No. 51/Pdt.G/2021/Pn Ptk in terms of the theory of legal certainty. This research has a normative juridical character, with a statutory approach and a case approach. Legal materials were obtained from primary legal sources (legislation and decisions) as well as secondary legal materials, namely library sources such as books and journals. The results of this research: The legality of unilateral determination of default in positive law in Indonesia refers to the Supreme Court (MA) Jurisprudence No. 186 K/Sip/1959 and based on the jurisprudence of the Republic of Indonesia Supreme Court Decision No. 852 /K/Sip/1972, in Indonesian law, it is not legal/legitimate/legitimate to carry out unilateral acts of default without a prior summons. The legal construction of the Pontianak District Decision No. 51/pdt.g/2021/pn PTK is viewed from the theory of legal certainty, namely that the judge must grant petitum number 3 "stating that the Defendant's decision stating that the Plaintiff is a bad debt debtor is an unlawful act and cancels the entire series of consequences of the decision. Unilateral default, namely making a Sales Request unilaterally. Because in the theory of legal certainty, compliance or implementation of legal sources (jurisprudence) is a concrete form of legal certainty.

Pripremanje krivičnih djela terorizma Međunarodni standardi i krivično pravo Bosne i Hercegovine

On the basis of several universal and regional international documents, Bosnia and Herzegovina, as well as a number of modern states, foresees the criminal offense of terrorism in several different forms of manifestation, but with identical content, characteristics, elements, legal description, legal nature, that is, forms or types of manifestation. It is an extremely serious, dangerous crime, with an international content, that is, with international basis for prescribing criminal responsibility and punishment. Due to the high degree of social danger of various forms of manifestations of terrorism, all modern criminal legislations move the limit of punishment to the previous stage - to the stage of preparation of criminal offenses, the undertaking of which, through physical or psychological activities, creates the conditions or prerequisites for the perpetration of one of the criminal offenses of terrorism in general, or to a faster, easier, simpler or more efficient way. In the positive law in Bosnia and Herzegovina, numerous preliminary actions that precede the perpetration of criminal offenses of terrorism in general or preliminary actions that contribute to their more efficient, successful or better execution are also provided as independent criminal offenses. The paper investigates and problematizes the system, concept, content, elements and characteristics, and forms of manifestation of the preparation of criminal offenses of terrorism in the criminal legislation of Bosnia and Herzegovina, especially in the context of international standards.