Positive Law Research Articles

Batas Usia Capres-Cawapres Dalam Keputusan MK No. 90/PUU-XXI/2023 Dan Implikasinya Terhadap Dinasti Politik Perspektif Fikih

The Regulation on changing the age limit for presidential and vice presidential candidates by the Constitutional Court (MK) No. 90/PUU-XVIII/2023 has drawn pros and cons, with some people supporting and some rejecting it because it is considered to have the potential to worsen political dynamics, especially regarding the practice of political dynasties. Based on this reality, this study aims to assess whether the Constitutional Court's decision is in line with the Islamic jurisprudence view and to explain the Islamic jurisprudence view regarding the potential for strengthening political dynasties that may arise as a result of this policy. This study uses a literature review approach. The main sources used are the Qur'an, Hadith, the at-turās pole, and the Constitutional Court's Decision No. 90/PUU-XXI/2023. The analysis was carried out qualitatively, with a comparative approach to compare the Islamic jurisprudence perspective on age as a leadership criterion with provisions in positive law. The results of this study show that from a fiqh perspective, the change in the age limit for presidential and vice presidential candidates in the Constitutional Court's decision is in line with Islamic principles in terms of implementing policies that are beneficial. However, even though the Constitutional Court's decision is legally valid, Islamic jurisprudence does not justify the existence of external factors behind the decision, especially those related to conflicts of interest that have the potential to strengthen the practices of political dynasties. The practice of political dynasties is contrary to the Islamic jurisprudence view, which prioritizes governance and is not centered on a handful of groups. Therefore, the government must ensure the existence of regulations that can prevent the dominance of political dynasties and guarantee the election of quality leaders.

PENOLAKAN TERHADAP KEGIATAN PENGADAAN TANAH MENURUT FIKIH DAN UNDANG-UNDANG INDONESIA

ABSTRAK Rejection to Land Procurement activities for public interest purposes are complex issues that require an in-depth understanding from both Islamic law (fiqh) and Indonesian legislative perspectives. This study aims to identify the reasons for land rights holders' Rejection to Land Procurement and analyze the approaches used in fiqh and national law to address these Rejection. A qualitative method with a literature study approach was used in this research. Data collected includes primary, secondary, and tertiary legal materials relevant to Land Procurement issues and the rights of landholders. The study results indicate that, in Islamic fiqh, there is no standardized rule governing Rejection to Land Procurement; however, the principle of maslahat (benefit) serves as a primary basis for considering public interest without neglecting landholders' rights. On the other hand, Indonesian Law No. 2 of 2012 on Land Procurement for Development for Public Interest provides detailed procedures for handling Rejection, including provisions on compensation and legal recourse. In conclusion, fiqh offers greater flexibility based on government policy to balance individual rights with public interest, whereas Indonesian law is more structured in its regulatory resolutions. The novelty of this study lies in its comparative analysis between the normative fiqh approach and the positive law approach in Indonesia. This study recommends the integration of the maslahat principle within national legal practices to achieve fair resolutions and enhance awareness regarding land rights and obligations in the Land Procurement process. Keyword: Rejection, land procurement, fiqh, law legal

آليات الحماية الدولية للمهاجرين في ظل الشريعة الإسلامية والقوانين الدولية

International protection for migrants will not be achieved unless there are mechanisms that guarantee its implementation. Islamic law has established various mechanisms within the framework of legal responsibility, and has established religious rules and provisions for them. It has worked to classify categories of migrants and has determined procedural guarantees and multiple measures governed by practical controls to arrange them, and criminal penalties in the event of their violation, thus preserving the dignity of migrants. The mechanisms have been distributed among individuals, society and the state, resulting in comprehensive mechanisms and practical guarantees for implementing protection and reducing contemporary phenomena that have affected migration. Positive laws within the national framework have sought to support protection for legislative and judicial institutions and diplomatic channels, and have allowed civil and media institutions to participate in supporting them, and have organized practical procedures for their implementation, and have created special facilities to combat the phenomenon of smuggling and trafficking in persons. As for international laws, the international community has gone to establish specialized international agencies, and supported them with practical measures by forming international committees concerned with human rights and monitoring violations that occur in the conditions of migrants, and has involved some channels supporting the implementation of protection, and has been supported in this by multiple regional bodies and international governmental organizations. And non-governmental, and took a set of security and administrative steps to combat criminal phenomena and similar movements at multiple levels, and worked to expand the scope of countries’ participation within the framework of international cooperation. However, protection mechanisms still face many challenges and obstacles.

The Impact Of Financial Technology Service Users On Not Paying Online Loan Bills Is Linked To Positive Law

Financial Technology (Fintech) is a financial service that uses a technology base that makes it easier for transactions to be carried out anywhere and at any time. Currently, one of the services in Indonesia is Financial Technology or Fintech which is developing rapidly, especially online loans because it has been proven that many people are interested. The existence of online loans or peer to peer lending as a form of financial technology (fintech) is the impact of technological advances which offer many loans with easier and more flexible terms and conditions compared to conventional financial institutions such as banks. This development must be accompanied by good legal instruments to avoid existing risks. The research method used is normative research with a statutory approach. The results of this research refer to several articles. Namely. Article 1320 of the Civil Code, so that an agreement arises from an agreement. Then, Financial Services Authority Regulation Number 77/POJK.01/2016 concerning Information Technology-Based Money Lending and Borrowing, Law Number 8 of 1999 concerning Consumer Protection, Law Number 27 of 2022 concerning Personal Data Protection

PERLINDUNGAN HUKUM TERHADAP ANAK YANG LAHIR DI LEMBAGA PEMASYARAKATAN BERDASARKAN HUKUM POSITIF INDONESIA

Basically, law enforcement will always lead to 3 (three) important things, namely the fulfillment of legal certainty, the fulfillment of justice, and the fulfillment of benefits. When these 3 (three) fulfillments are fulfilled, it can be said that law enforcement has succeeded in achieving its objectives. The value of justice in the foundation of the Indonesian state is also contained in the fifth principle of Pancasila. Human life includes physical and spiritual life, so justice also includes justice in fulfilling the essential demands for physical and spiritual life for all Indonesian people equally, especially for children, including children born in correctional institutions, so this research specifically discusses regarding the protection of children born in correctional institutions. The type of research used in this writing is included in the category/type of normative legal research. Normative legal research methods are methods or methods used in legal research which are carried out by examining existing legal sources. So in this research there are several forms of legal protection for children's rights regulated in Indonesian Positive Law. Regulations regarding legal protection of children's rights can be found in the Constitution of the Republic of Indonesia of 1945, and Law of the Republic of Indonesia no. 39 of 1999 concerning Human Rights. If you look at the regulations regarding the rights of children born in prison, then in fact there are many children's rights that are violated by PP No. 32/1999. Furthermore, regulations regarding the protection or guarantee of the rights of children born in prisons in accordance with Article 20 paragraphs (3), (4), and (5) PP 32/1999 are not in accordance with or conflict with the provisions regulated in Article 28B paragraph (2) 1945 Constitution, Article 5 letter g of the Corrections Law and Article 59 paragraph (1) of the Human Rights Law

FAKTOR PENYEBAB PERKAWINAN ANAK DI KABUPATEN MAJENE MENURUT PERSPEKTIF HUKUM ISLAM DAN HUKUM POSITIF

This article examines the factors causing the increase in child marriage in Majene Regency, West Sulawesi Province from 2018 to 2022. Apart from aiming to determine the factors causing child marriage, another aim of this research is to determine the impact of child marriage in Majene Regency. The type of research used was qualitative, which was carried out in Majene Regency, West Sulawesi Province. The approach used is theological-normative and juridical-sociological. Data collection techniques through interviews and documentation. Meanwhile, the analysis used is qualitative descriptive analysis. The research results show that: 1). The main factors causing the increase in child marriage in Majene Regency are: (a) School dropout factor. This is due to a lack of knowledge, so it is easily influenced by the environment; (b). Social factors, such as uncontrolled teenage relationships, which result in teenagers' tendency to marry quickly at a young age; (c). Economic factors, economically disadvantaged families encourage child marriage, with the assumption that marrying their children can help the family's economy. 2). The impact of child marriage according to Islamic law and positive law, including: a). reproductive health impacts, potentially threatening the lives of mother and child when giving birth; b). The mental and psychological impact, because child marriage is a burden on children, is something they are not yet able to face mentally. With so many harms resulting from child marriage, according to Islamic law and positive law, child marriage must be prevented and prohibited from occurring.

Protection of Women's Rights Against Cases of Domestic Violence from an Islamic Perspective

Allah SWT created humans as the most perfect beings and in pairs, instilling affection within the bonds of marriage to achieve the ultimate goal of attaining His pleasure. However, marriage is not without challenges, and one significant issue is domestic violence, where women are often the primary victims. Such occurrences highlight a disregard for women's rights, which are an integral part of human rights. This study aims to explore the position and rights of women as human rights in Islam and examine the legal protections available in cases of domestic violence. Using a normative research method with a statutory approach, this study relies on secondary data collected through literature review and analyzed qualitatively for descriptive presentation. The findings reveal that Islam accords women a high and equal status with men, granting them rights that are fundamental to their humanity. Domestic violence against women is a clear violation of the principles outlined in the Qur'an, As-Sunnah, and Indonesia’s positive law.

Stylus Romanae curiae in Historical and Positive Canon Law

Stylus Romanae Curiae, as an important element influencing, guiding and supplementing the application of the rules of canon law in practice, originally developed from the collections of forms and rules of the Apostolic Office. The popes initially wished that the central administrative and judicial bodies, designed in a centralist manner and established by them, not only exercised control over the application of universal rules, but also supplemented them and acted as a guide to jurisprudence. Thus, the Stylus Romanae Curiae began to influence not only the further development of canon-law science, but also legal practice in a significant manner, which occurred mainly when filling gaps in the law, but also when interpreting and deciding recurring types of cases in terms of administrative instructions or judicial precedents. However, recognition of the value of the source of law by several canonists made it an undesirable element over time, which the papacy managed to eliminate only at the beginning of the 20th century. The main goal of the study is to point out the conceptual definition and practical functioning of the Stylus Romanae Curiae in history and the gradual weakening of its position in the codified law of the Catholic Church, which culminated in the positive law.

Judicial Interpretation of the Inclusion of Standard Clauses in Murabahah Contracts Reviewed from the Principle of Proportionality and Islamic Law

Agreements are an important aspect of law relating to business. An agreement basically must fulfill several conditions for the validity of the agreement, as well as paying attention to the legal principles of the agreement. In practice in banking, including Sharia banking, generally agreements or contracts are made using standard clauses. The aim of this research is to find out Juridical interpretation of the inclusion of standard clauses in murabahah contracts in Islamic banks in terms of proportional principles and Islamic law. This research is normative legal research using statutory approaches, legal principles and Islamic law. The results of this research show that the juridical interpretation of the inclusion of standard clauses in murabahah contracts contains elements of a combination of positive law and Islamic law. The inclusion of standard clauses in a murabahah contract must be interpreted contextually, both in terms of the object being traded or the subject matter of the parties involved in the contract.

Indifferent Wars in International Law? A Hypothesis on Benedetto Conforti’s Legacy Twenty Years Later

Abstract In an article that appeared in Volume XII (2002) of the IYIL, Benedetto Conforti discussed the quandary of “just wars” in contemporary international law, wondering whether – and on which conditions – wars conducted outside the UN framework can be considered “just”. On that occasion, Conforti unearthed a thesis that he had decades prior put in writing in the first edition of his famous Manuale, according to which any use of force performed outside the UN Charter could not be evaluated legally, for it pertained to the realm of “legal indifference”. He thus concluded that, when it comes to assessing the “justness” of wars, the answer can be given only by taking stock of moral considerations, that is by resorting to “natural law”. The present contribution aims to appraise this provoking position expressed at the beginning of this millennium. It is argued that resort to the category of legal indifference must not be appraised from a purely philosophical standpoint, but rather in two complementary ways: first, as implying that the justness of any war cannot be decided on the basis of positive law; second, as a metalegal tool to comprehend and describe fundamental changes in the international community. Conforti’s theory of legal indifference vis-à-vis the justness of wars maintains its fascinating quality and utility today.

PATIENT DATA PROTECTION IN THE DIGITAL ERA (CHALLENGES AND LEGAL SOLUTIONS)

Artificial intelligence (AI) has emerged as a promising technology in the field of healthcare, enabling the development of innovative solutions that enhance the quality and efficiency of medical services. The application of AI in the management of patient data has facilitated the acceleration, optimization, and precision of this process, which can subsequently improve the quality of healthcare services. This study aims to analyse the legal challenges that arise with the use of digital technology and artificial intelligence in patient data management, and to identify relevant legal solutions to overcome these problems. The study employs library research techniques, analysing statutory provisions and drawing on both written and unwritten positive law to examine legal issues. The results show that the integration of AI and digital technology in healthcare has yielded significant advantages, including enhanced efficiency, precision in diagnosis, and the harnessing of big data for patient care. However, a number of significant challenges remain, particularly with regard to the safeguarding of personal data. The formulation of an ethical framework for the utilisation of AI, the establishment of rigorous safety standards and the continuation of research in this domain are vital to enhance the advantages and mitigate the risks associated with the deployment of AI. It is imperative that health institutions and AI developers implement robust cybersecurity standards and periodic assessments for potential system vulnerabilities.

The Existence of The Indigenous People of Passo in The Perspective of Positive Law in Indonesia

The Indonesian state is a state of law as stipulated in Article 1 paragraph (3) of the 1945 Constitution, meaning that as a state of law, all and every action of state administrators and citizens must follow and comply with any applicable regulations or laws. In the concept of a state of law, what is used as the commander in state life is the law itself. As a state of law, Indonesia highly upholds and recognizes the protection of human rights. Protection of human rights means that every citizen and/or community group must be seen as equal. In addition, certain groups that have special needs or vulnerabilities such as indigenous peoples, where the fulfillment of their rights must be treated very extra. This is clearly stated in Article 18B paragraph (2) of the 1945 Constitution. However, empirically, there are rights of indigenous groups that are often violated, such as the indigenous people in Negeri Passo, where their traditional rights in the form of Upulatu or king titles for generations are about to be revoked by parties who are supposed to protect and guarantee their customary legal rights. However, in reality, they actually tried to take away the traditional rights of the indigenous people in Negeri Passo by making new local regulations using their power/office, which resulted in losses to the indigenous people themselves. As a result, these indigenous groups find it difficult to obtain legal certainty as indigenous peoples.

Law Enforcement and the Role of Educational Institutions in Handling Cases of Sexual Harassment in Internships and the Workplace: Victim Perspectives and Policy Recommendations

This research investigates the victim's viewpoint about the efficiency of the judicial system as well as the function of offices and educational institutions in addressing sexual harassment instances that occur in internship and employment settings. using the normative juridical approach of legal study to examine how normative legal rules are applied in each unique legal situation that arises in society. As a result, the literature review and different approaches to comprehending the nation's positive laws serve as the study's main foci. The present research further delineates many obstacles encountered by victims while attempting to get justice and proposes multiple measures for policy enhancement to enhance safeguarding and assistance for sexual harassment victims. In order to avoid and address harassment instances more skilfully, the recommended policy changes include bolstering reporting procedures, providing victim rights counselling, and enhancing training for office managers and educational personnel. It is anticipated that the findings of this research will aid in the creation of more accommodating and sensitive regulations addressing the problem of sexual harassment in internship and employment settings.

Legal Entity State Universities Don't Have the Authority as Goods or Services Providers in the Perspective of Sharia Economic Law

The realization of cooperation ties between Legal Entity State Universities (PTN BH) and work partners, in practice, still has legal ties mechanisms that position PTN BH as goods/services providers. This research aims to determine the competence of PTN BH, which does not have a legal position as a goods/services provider in conducting legal ties with government and non-government partners. This renewable research was conducted to explore/understand PTN BH's competence in managing collaboration. In have rights practice, the realization of cooperation still shows that PTN BH is a provider of goods/services in carrying out cooperative relationships with Government and non-government partners. This research uses a normative doctrinal approach or normative juridical legal research, which examines the internal aspects of positive law or legislation. The data collection technique was carried out through a literature study in the form of secondary data in the form of articles that have been published in journals as basic research material. The results of this research show that there are basic principles for PTN BH in collaborating with partners, namely the non-profit principle, the tri dharma principle of higher education, and the principle of truth and justice from a Sharia perspective. Economic law following Sharia economic law principles.

The Urgency of Strengthening Judges’ Authority in the Rechtvinding Process

The rechtvinding process, or legal discovery, is one of the essential functions performed by judges, particularly when dealing with cases that are not clearly regulated in the laws and regulations. The urgency of strengthening judges' authority in the rechtvinding process is crucial considering the limitations of positive law that often cannot keep pace with the increasingly complex dynamics of society. On the one hand, this authority enables judges to ensure justice and meet the legal needs of the community. However, on the other hand, challenges such as ambiguities in regulations, subjectivity in interpretations, and a lack of accountability can reduce legal certainty. This article aims to examine the urgency of strengthening regulations regarding judges' authority in the rechtvinding process and to identify the weaknesses present in this process. Additionally, this article offers various measures that can be taken to enhance legal certainty, such as developing consistent jurisprudence and implementing stronger accountability principles. Thus, it is hoped that strengthening judges' authority in the rechtvinding process can support the achievement of a more responsive, fair, and trustworthy legal system for society.

Legal Protection for Owners of Well-Known Trademarks Viewed from the Principle of Well-Known Marks

Legal protection for owners of well-known trademarks is a crucial topic in the context of increasingly competitive business environments. Well-known trademarks not only represent the quality of products but also reflect the reputation and image of a company. The principle regarding well-known marks plays an essential role in safeguarding such trademarks from any form of misuse and imitation, which can cause harm to both the trademark owner and consumers. This research aims to delve deeper into the legal protection afforded to owners of well-known trademarks. The methodology employed in this research is normative legal research, focusing on the exposition of concepts and doctrines within legal science. The findings of this study indicate that trademarks meeting the criteria for well-known status, as stipulated in positive law, are entitled to absolute legal protection. This means that if another party uses the same or imitates a well-known trademark, the trademark owner has the right to pursue legal action. In today’s business era, we frequently encounter many well-known trademarks, both domestic and foreign. Therefore, it is essential to secure these well-known trademarks to prevent potential misuse in the trade of goods and services. Such protection is not only beneficial for trademark owners but also for consumers.

Bitcoin's Position as a Digital Currency and Protection of Users According to Positive Law

Bitcoin's Position as a Digital Currency and Protection of Users According to Positive Law

Establishing Usufruct Rights under Statutory Basis in Vietnamese Law

The usufruct rights is a legal right that was imposed on the property of another person, and can only arise based on legal events prescribed by law, called the basis for establishing usufruct rights. The basis for establishing usufruct rights according to the laws of different countries is not entirely the same. In Vietnam, usufruct rights are established based on three legal bases: the basis prescribed by law, the basis of the agreement of the parties, or the basis of a will. This article studies the basis for establishing the right of usufruct according to the statutory basis, in current Vietnamese law (specifically the 2015 Civil Code). By using the methods of written law analysis, historical method, comparative legal method, and survey of the practical application of Vietnamese law, the article provides the content of positive law in Vietnam on the basis for establishing usufruct rights according to the law, aiming to introduce readers to the current legal status, point out the advantages and disadvantages of these regulations, select practical experiences of foreign law, and contribute to building solutions to improve the regulations on the basis for establishing usufruct rights according to the law in Vietnam today.

Comparative Law and Natural Law in the UAE Constitutional Adjudication

Abstract Unlike other comparative jurisdictions that may remain silent on the possibility for supreme courts to use comparative law and natural law, the UAE legislator has allowed the Federal Supreme Court to invoke these two sources in its adjudication since the Court was established in 1973. This paper examines the legal framework that supports this permission, especially in light of Decree-Law Number 33-2022, which brought about a revision affecting it. The paper aims to define the space given to comparative law and natural law vis-à-vis UAE positive law. Furthermore, through an empirical approach, this paper examines the Federal Supreme Court case law to analyse the extent of its recourse to comparative law and/or to natural law in constitutional adjudication.

PRAKTIK JUAL BELI BIBIT LELE DENGAN SISTEM TAKARAN PERSPEKTIF HUKUM ISLAM DAN HUKUM POSITIF

The growing public interest in catfish farming has resulted in an increased demand for catfish fingerlings. This trend has led many individuals to engage in the trade of catfish fingerlings, either as a primary source of income through the establishment of fisheries groups or as a supplementary means of generating additional revenue. This study aims to investigate the implementation of the catfish fingerling trading system based on volume measurement from the perspectives of Islamic law and positive law. Utilizing a qualitative research approach, primary data were collected through interviews and documentation. The primary data sources include informants from fisheries business groups and individuals involved in the trade of catfish fingerlings using the volume-based measurement system. The findings reveal that the volume measurement system is employed to simplify the calculation process, although the initial reference measurement is not consistently aligned with subsequent measurements. Nonetheless, both parties agree to add an additional volume as compensation for potential mortality of the fingerlings. From the perspective of Islamic law, the catfish fingerling trading practices in Gunung Sembung Village, Pegaden Subdistrict, Subang Regency, fulfill the essential elements and conditions required for lawful transactions under Islamic law and are deemed valid according to positive law, as they conform to existing legal regulations.