Positive Law Research Articles

Imam Al-Shafi’i: The Founder of Islamic Law

Abu Abdullah Muhammad Ibn Idrees Al-shafi'i is a theologian and renowned Islamic Scholar, who was the first contributor of the principles of Islamic Jurisprudence. He was a famous theologian and it was not his only forte, he also lectured on Poetry, Linguistics and Genealogy as well. His students cane from a varied array of disciplines. Among the four schools of thought of Muslims, Shafi'i is the Imam and founder of his school of thought. He was one of the four great Imams whose legacy on juridical matters and teachings eventually led to the formation of Shafi School of law. He is also the author of several prominent works in the field. Imam Shafi’I wrote many books and according to some narrations, the number is around 123. One of his famous books is Al-Risala. This is a book of his verdict’s specific issues, rather it was a book settling the principles of Islamic jurisprudence upon which every school of thoughts agree. He was one of the first people in the history of Islam who developed this branch of the religion. Another book comprising his rulings called Al-Umm has also become widely popular. Just as his book Al-Risala has the status of the first book and the primary source in the principles of Jurisprudence, like that his book Al-Umm has the status of the primary source in the field of Jurisprudence. The Shafi’i school of Jurisprudence is based on these books. The complete Jurisprudence has been compiled on the basis of these books. Imam Shafi’i write these books in his last year’s, in the early 3rd Century, when he was living in Egypt. In Egypt he not only rearranged Al-Risala, but also revised most of the issues of his Jurisprudence and compiled a collection of them in the form of Kitab Al-Umm. This book was dictated by him to his students and it is through them that it is available today. The four volume book Al-Umm also discussed a special chapter of Jurisprudence, International Islamic Law of War. That’s why it is also used in the formulation of international law. In the Risala which laid down the basis for various legal doctrines, al-Shafi’i established the overriding authority, based only to the Quran and the Sunnah or examples of the Holy Prophet PBUH as transmitted in the traditions. Shafi'i elaborated a system of positive law and a rudimentary legal theory that attracted a number of scholars. His two chief treatises that survived are al-Umm, a collection mainly concerned with positive law and disagreements among the early jurists, and al-Risala, a work on legal theory with particular emphasis on Prophetic Traditions, as a binding source of law. He set a new road towards Islamic Law through these two precious books. His contribution towards Islamic law is able to be discussed and remembered. The article will deal with the contributions of Al- shafi’i in Islamic Law in the light and approach of Al-Umm and Al-Risala.

PHILOSOPHICAL AND ETHICAL METHODOLOGY OF L. I. PETRAZYSKI’S LAW THEORY

The article is devoted to the large-scale L. I. Petrazyski’s theory of law, which is filled with new ideas that introduced into methodology, psychology and philosophy of law. The article is targeted to explore the mental structure of consciousness developed by Petrazyski, which is adaptable to a wide range of legal norms and subjective standards for assessing the content of legal experience. Methodology and methods. The dialectical method of discussion was used, supplemented by the deductive method and the method of critical analysis. Results. According to Petrazyski, law itself contains a dichotomy of individual imperative and external instructions for fulfilling duties. Understanding of internal imperative is formed in the mind under the influence of legal experience gained in everyday life. On this basis, an intuitive right is formed that determines a person’s attitude to social activities and personal behavior. The idea of ​​intuitive law runs through all of Petrazycki’s works, which gives him the opportunity to build the concept of a historically inextricable connection between morality and law, resulting in the correct formation of legal norms, changes in social life, and movement towards the common good and justice. It is concluded that Petrazyski’s main contribution to the theory and philosophy of law lies in his firm belief in the unity of law, morality and psychology, as a distinctive characteristic of intuitive law from positive law. Practical implication. The results of the work can be used for further research into Petrazyski’s philosophical and legal ideas of law.

States, states of nature and the moral law: a comparison between Immanuel Kant’s and Thomas Hobbes’ political and legal theory

This article delves into the philosophical theses on law and ethics as presented by Thomas Hobbes and Immanuel Kant, with a focus on the notion of resistance in a legal context. It contrasts Hobbes’ advocacy for nearly unrestricted state authority and a morality closely tied to the state, against Kant’s emphasis on moral law and natural rights as the underpinnings of legality. A pivotal discussion point is Kant’s perceived contradiction in supporting a fundamental right to freedom while limiting the right to resist laws that infringe upon this freedom. By comparing these philosophical authors, the article posits that Kant’s theory of resistance requires integration with his broader ethical views, suggesting that human rights should constrain positive law.

Age Limit of Marriage in Islamic Family Law: A Comparative Study between Morocco, Pakistan, Malaysia, and Indonesia

The renewal of marriage laws in the Islamic world is not a new thing but has been debated since ancient times. The cause of these differences began with the rise of awareness from the community and scholars that the concept of Fiqh used was no longer in line with the times, so there needed to be a new legal reform that was in line with the demands of the Islamic community, especially in marriage in determining the age limit of marriage that occurred in Asian countries namely Morocco, Pakistan, Malaysia, and Indonesia. The development of knowledge about the situation and conditions of the developing community at that time was one of the factors that triggered family law reform. The method used in this writing is library research, with a legal analysis approach. so it involves an analysis of the legal regulations and provisions that apply in Islam. The regulation analysis carried out involves a comparison of family law in various countries related to the age limit of marriage. The discussion is interesting because it will provide consideration of the ideal age of marriage reviewed from the positive law of the country, and will know the historical side of the provision of age limits in marriage in comparative law in the country so that it is obtained in its application in the Islamic country it is different but not far from the age recommended in reaching adulthood and maturity of thinking, mental readiness because each country has its limits to measure the maturity of children to get married.

Economic existence of home industry worker families in a positive law perspective

Economic existence of home industry worker families in a positive law perspective

Analisis Pelaksanaan Perceraian di Depan Sidang Pengadilan Agama Perspektif Ma’anil Hadis

Divorce is an emergency exit from continuous family conflict. Islam permits divorce but is hated by Allah swt for reasons prohibited by Islamic law. The reality in the community is that there is an incomplete understanding because of the disparity between the provisions of positive law and the hadith that divorce is granted even in jest or in a serious situation and without intention. The position of the court in organising the administration of marriage is very important. The purpose of this study is to examine and analyse the hadith of divorce even in jest or in seriousness and without intention whether it can be used as a basis or is no longer relevant. This research uses a qualitative descriptive approach. Data collection in this research is through literature study. Meanwhile, the data analysis is carried out by examination, classification, verification, analysis and conclusion. The result of the study is that the hadith of the fall of divorce even in jest or in a serious situation and without intention can be used as a basis and as a warning to everyone to be careful in guarding the tongue, especially the issue of divorce. If contextualised with the lives of people in Indonesia, divorce not in front of the court cannot guarantee that it can avoid negative things, especially the fate of women and children after divorce, considering that there are benefits that will be obtained if the divorce is carried out in front of a court session.

PENGAKHIRAN PERJANJIAN SEPIHAK DALAM PERSPEKTIF HUKUM DAN HAK ASAS MANUSIA

Human rights are inherent in every human being to have the same rights, including unilateral termination of agreements, then human rights are disturbed and not protected. The research method uses normative juridical research, namely the doctrinal method, namely taking an inventory of positive law, discovering legal principles and doctrines, synchronizing existing laws and regulations and conducting research by examining and examining various existing literature. With a Legislative Approach, Historical Approach, Comparative Approach, and Conceptual Approach. The research results show that terminating a unilateral agreement can potentially be categorized as an unlawful act if the unilateral termination of the agreement is carried out without a valid reason, violates the principles of propriety and the law, causing harm to the other party. In addition, unilateral termination of an agreement if carried out without a valid reason violates human rights related to the right to guarantee legal certainty and human freedom without discrimination.

Perlindungan Hukum Terhadap Konsumen Yang Dirugikan Dalam Mengkonsumsi Vitamin Penggemuk Badan Tanpa Label Bbpom Dalam Perspektif Hukum Positif Di Indonesia

The purpose of this study is to find out the legal protection that can be provided by consumers if they are harmed by the use of body-fattening vitamins based on Positive Law in Indonesia and to find out the legal responsibilities of business actors towards consumers who are harmed by the use of body fattening vitamins. This research is normative legal research that uses statute, conceptual, and approaches. The result of the study can be concluded; (1) Legal protection for consumers is contained in Article 19 Paragraph (1) of Law Number 8 of 1999 concerning Consumer Protection, which regulates the legal responsibilities of business actors in sales and purchase agreements with consumers. (2) the responsibility of Businessmen who do not display the BBPOM label will be subject to administrative sanctions, imprisonment, or a fine.

Analisis Hukum Mengenai Turunnya Balik Nama Sertifikat Hak Milik Menjadi Hak Guna Bangunan pada Badan Usaha Atau Perseroan Terbatas (PT)

Land is something that is very meaningful for the lives of living creatures, especially humans, from the past until the future. Therefore, it is important to have clear legal rules to regulate it. In Article 16 paragraph (1) of the UUPA, there are several types of land rights, namely: Ownership Rights, Cultivation Rights, Building Use Rights, and Use Rights, Rental Rights, Land Clearance Rights, and Forest Product Harvesting Rights. Land rights are rights owned by every land owner provided they have a certificate as strong evidence. Property rights are the strongest and most fulfilled rights. Business entities in the form of limited liability companies are currently in great demand, but problems often occur regarding land use due to the reduction in the status of Land Ownership Rights to Building Use Rights experienced by limited liability companies. The transition process also often experiences obstacles. For this reason, this research uses normative juridical research methods which focus on studying the application of rules or norms in positive law with a statutory approach and legal norms relating to land rights by Limited Liability Companies.

Criminological Study of Traffic Violations on Numbing Island

Traffic violations are no longer commonplace among society. This often happens in the community, sometimes even causing economic and physical losses due to traffic accidents. Positive law in Indonesia has explicitly regulated traffic safety rules which are regulated in Law Number 22 of 2009 concerning Road Traffic and Transportation. To study this, researchers took the research location Numbing Island, which is one of the islands in the Riau Islands Province. And from a criminological perspective, researchers want to examine in more depth what is the basis for the perpetrator to commit this offense. The research method used is empirical juridical research. As support in building the arguments for this research, researchers used primary and secondary reference materials. Data collection techniques used by researchers include observation methods, interviews and literature review. The research data analysis technique was carried out using a qualitative method, then in developing a line of thinking, the researcher used a deductive method. The results of this research show that the level of traffic violations on Numbing Island is sociologically caused by a lack of public awareness on the grounds that the application of traffic laws in the island area is not necessary, in terms of law enforcement factors, supervision by Bhabinkamtibmas is still not strictly implemented so that there is a form of negligence on the part of the authorities. law enforcers to enforce traffic regulations.

Perlindungan Hukum Terhadap Pemegang Saham Perseroan Terbatas Hasil Konsolidasi

The aim of this research is to determine the regulations for shareholders of consolidated limited liability companies in positive law in Indonesia and to determine the legal protection for minority shareholders of consolidated limited liability companies. The type of research used in this research is normative legal research using a statutory approach and a conceptual approach. In limited company consolidation in Indonesia, Law Number 40 of 2007 regulates shareholders by regulating their election, rights and obligations. Shareholders have rights such as attending the GMS, receiving dividends, and being involved in important company decisions. These rights relate to ownership, including distribution of dividends and liquidation of assets.

Pelindungan Hak Subjek Data Pribadi dalam Kebijakan Penggunaan Ulang Nomor Telepon Seluler Ditinjau Menurut Hukum Positif Indonesia

The practice of reusing mobile phone numbers leads to the transfer of data from previous users to new users of the number, which poses potential risks to privacy and personal data security. This study aims to identify the legal protections for the rights of personal data subjects and the implementation of personal data protection by telecommunications service providers in the policy of reusing mobile phone numbers under positive law in Indonesia. This study uses a normative and comparative juridical approach method with a descriptive-analytical research specification. Data collection techniques are carried out through literature studies. The data analysis method used is qualitative juridical. The results of the study show that the lack of enactment of derivative regulations of the PDP Law can lead to errors and legal loopholes in the application of articles in the PDP Law and in the implementation of personal data protection. Compared to the regulations in Australia, Indonesia has not yet provided adequate protection for the rights of personal data subjects of users in the practice of reusing mobile phone numbers. This can be seen from the many problems that arise in this practice, so it is necessary to make special regulations that regulate the policy on the reuse of mobile phone numbers.

THE ROLE OF LAW AND GOVERNMENT IN LEGAL PRACTICE

The proposed scientific article comprehensively examines the legal analysis of the interaction of the concept of law and power, which provides for a clear application of current legislation in modern society. The need for law has a higher legal purpose fixed and secured by positive legal qualities and legal elements of law, creating a space for free behavior of all participants in public relations in accordance with the principles of freedom, humanism, spiritual wealth and material interests of man and citizen, currently being studied taking into account world legal practice. Currently, the role of law in the system of legal regulation in society represents the role of the state and law in various legal forms, implemented through law, in its imperative power activities. This legal interpretation is due to the influence and development of the legal system of norms-definitions as a legal model of the behavior of subjective rights in modern society, where the implementation of law is defined as the implementation of legal regulations, this is an improved protection of human rights under the current Constitution of modern countries, from the point of view of legal science. The need to study the interaction of the concepts of law and power as a single legal mechanism, their legal norms is widely used in modern society and is contained in legal institutions to build a rule of law state in accordance with the legislative system and legal principles, where it is provided with the positive law necessary for the legal institutions of society. When studying the concept and operation of the legal mechanism applied by state authorities in legal practice, the law itself specifically determines the needs of modern society in the law itself, and vice versa, the entry of legal institutions into the sphere of state power is necessary to maintain imperative principles in the field of law, using the broad powers of law, as a category of law in modern society.

Klithih Restorative Solutions for Minors

Klitih is basically a form of juvenile or child delinquency that is committed at night by randomly abusing or injuring the victim. Klitih has been on the rise again recently with a peak in 2021, namely 58 cases. The purpose of this writing is to explain glitch behavior as part of crimes committed by minors and restorative efforts in the hope that the perpetrators will become aware and improve their behavior. The method used is a normative juridical approach using primary, secondary, and tertiary legal sources. Data analysis was carried out using a qualitative approach. The results of the research show that Klitih is a criminal act where the perpetrator is considered young or underage, so following the reform of the justice system for children, namely Law no. 11 of 2012 concerning the Juvenile Criminal Justice System which replaces Law no. 3 of 1997 concerning Children's Courts and Law Number 35 of 2014 concerning Amendments to Law Number 23 of 2002 concerning Child Protection. The case of Klitih in Yogyakarta is better brought to the realm of diversion, namely taking the judiciary out with the aim of creating a balance of justice or restorative justice. It is hoped that the restorative resolution of glitches can lead to the protection of children's rights and also the protection of society in general, as well as there being elements of positive progressive law through education and guidance.

Tracing The Trialectic: The Process and Influence of Three Laws in The Establishment of Religious Courts in Indonesia

This article discusses the legal trialectic in establishing the Religious Courts in Indonesia. Since its establishment in 1882, the Religious Courts have not fully represented Islamic law as its primary source. To trace this trialectic, the author uses Ebrahim Moosa's theoretical framework of "transculturation, counterpoints, social imaginary, networks, and legal orientalism." For this purpose, the author proposes two problem formulations. First, what is the process of trialectic attraction between Islamic law, positive law, and customary law in the establishment of the Religious Courts? Second, what is the extent of the influence of positive and customary law in limiting the role of Islamic law? The author offers two novelties, namely methodological novelty in Indonesian Islamic studies, by adopting Ebrahim Moosa's theory. Finally, the conclusive novelty is that the Religious Court is not derived from Islam but from the trialectic of three laws. The practical contribution of this study is to re-question the roles of religious courts in formalizing and implementing Islamic law in Indonesia, with the hope that religious courts will become a dialectical space where Islamic law continues to develop so that it can make a practical contribution to contemporary Indonesian society.

Examining Witness Interest: The Obstacles of Testimony in Islamic Jurisprudence and Positive Law

This study compares Islamic jurisprudence and positive law to explore the obstacles of testimony, focusing on the complexity and controversy surrounding witnesses' interests. Employing a legal comparative method, the research examines self-interest in testimony, emphasizing authoritative sources like fiqh books and Jordanian law, shedding light on the concept of self-interest as its primary focus. It highlights the differences between Islamic jurisprudence and contemporary legal frameworks, providing a nuanced understanding of witness actions in legal processes. This research's findings reveal that testimony's self-interest predominantly relates to lineage, siblinghood, marital relationships, hostility, and partisanship. The results show both Islamic jurisprudence and positive law recognize the prohibition of testimony due to self-interests is not absolute; there are many interpretations and exceptions to this restriction, with differences stemming from the reliance on religious texts in Islamic jurisprudence and legal reasoning in positive law. This gap arises from the ability of contemporary law to examine the interests of witnesses from various perspectives and through the use of different evidentiary tools. This research contributes practically that the application of law that is different from what has been formulated by fiqh scholars in Islamic jurisprudence does not necessarily indicate that the legal decision is at odds with Islamic law.

STUDI KOMPARATIF ANTARA ASURANSI SYARIAH DENGAN ASURANSI KONVENSIONAL: SEJARAH, SUMBER HUKUM, MAYSIR, GHARAR, RIBA, DEWAN PENGAWAS SYARIAH, PENGELOLAAN RESIKO DAN PREMI

The purpose of this study is to compare Conventional Insurance with Sharia Insurance in terms of principles, history, legal basis, clean from Maghrib (maisir, gharar, and riba), Sharia Supervisory Board, risk management, and premi. The research method employed is a literature review with a descriptive approach, which is part of qualitative research. The descriptive approach is chosen to depict the distinctions between Sharia and Conventional insurance. The findings reveal significant differences across all aspects examined between Conventional and Sharia Insurance. Conventional Insurance traces its history back to Babylonian practices around 4000-3000 BC, notably the Code of Hammurabi, while Sharia Insurance originates from pre-Islamic Arab customs (aqilah system), later sanctioned by Prophet Muhammad, drawing legal sources from positive law and fatwas from DSN-MUI. Conventional Insurance incorporates elements of maysir, gharar, and riba in its operations, which are absent in Sharia Insurance. Unlike Conventional Insurance, Sharia Insurance has an internal Sharia Supervisory Board to ensure compliance with Sharia principles. Risk management in conventional insurance involves transfer of risk, whereas Sharia Insurance focuses on sharing of risk. Premi in Conventional Insurance consist of mortality tables, interest, and insurance costs, whereas Sharia Insurance premi consist of tabarru’ (donation) and savings (for life insurance), or tabarru’ alone (for non-life insurance). The tabarru’ element is derived from mortality tables without interest calculations.

Антиномічна природа штучного права

Circumstances of earthly life, various vital factors that took place in society, the national state, and interstate relations require specific regulation. The creative atmosphere of a person generates a powerful set of laws. Their number is constantly growing, which requires constant attention to quality, as insoluble, insurmountable contradictions appear. Knowing these contradictions is inextricably linked with doubts. A person does not directly confront the reality of life. Her mind cannot go beyond synergistic, invisible narratives. Therefore, she is forced to create norms and laws for every case of life (this is such an effort). Of course, all regulations begin with customs and moral traditions. These man-made norms also form the basis of man-made laws, which should ensure good relations between people, with the state, between states, etc. But we know that good can be normative and non-normative. It depends on the current morality and laws. The quality of morality and the quality of laws contribute to normative or non-normative good. What causes this phenomenon? Undoubtedly, the reason lies in the legitimate antinomian nature of artificial law. Artificial law arises from artificial morality, from artificial ideology, politics, etc. It should be noted that the cited architectural factors of artificial law are sources of contradictory thinking in rulemaking: ontological thinking cannot accept the leap-like, inconsistent, mostly contradictory logic of deontological legal thinking. That is why it is impossible for a person to combine all deontological laws into a single artificial law due to the essence of the agreement between them. A problem arises: how to combine existing antinomies with the creation of a state. Society has its antinomies of morality, and the state also has some artificial ones – newly introduced moral norms, customs, traditions. And it is impossible to reduce these norms into one artificial law – the natural laws of conservation of energy and momentum will not work, legal reflection will not work, etc. That is, mandatory synergistic law has No. place for artificial, positive law due to the presence of various kinds of antinomies. There are few ways out of this state, but one of them is the observance of ontological morality by the state; implementation of ontological, legal ideology and ontological legal policy. Ontological morality is consistent with natural and supernatural law. This is their visible part. If there are No. antinomies in natural and supernatural law, then they are also absent in ontological morality, since it is called virtue. It is necessary to find out what place virtue occupies in positive law, which is the most antinomian in nature.

Analisis Pertimbangan KPPU Terhadat Keterlambatan Notifikasi Akuisisi Saham Perspektif Hukum Ekonomi Syariah

This study aims to examine the consideration of decisions made by the Business Competition Supervisory Commission (KPPU) related to the Share Acquisition made by PT Matahari Pontianak Indah Mall, from the view of sharia economic law and also the view of positive law. The research method in this study uses normative juridical method, then explained with descriptive method. So that the results of this study provide an understanding that the case in this decision is not considered a violation in the perspective of sharia economic law but juridically the case is still considered to violate the provisions of article 29 of Law number 5 of 1999 which regulates the prohibition of monopolistic practices and unfair business competition.

Природно-правове регулювання суспільних відносин в період соціальної аномії

It was found that the transitional state of the development of society is always characterized by instability in all spheres of people’s life. Social changes can be both negative and positive, because society is a living organism that must update, develop, and change. It is important that anomic, crisistransitional states turn into stable, updated socio-legal relations between members of society within the state field, and not go into crisis decline. It is emphasized that under the conditions of an anomic state of development of society, the norms of natural law acquire special importance, which do not allow society to move to the level of illegal development, until legal norms that can fully regulate social relations are formed and updated. Every society at a certain stage of its development experiences crisis periods characterized not only by social instability, but also by the decline and destruction of moral and legal guidelines and value standards. It is noted that social anomie is a rather dangerous state that can develop into mass riots, strikes, rallies and revolutions, when the norms and prescriptions of the state are ignored, and in the worst case, they are violated due to what citizens consider ineffective. This can lead to the spread of conformist behavior. In the context of the regulation of human behavior in society, it is impossible, and it is not necessary, to strictly distinguish the norms of morality, ethics, spiritual, canonical and natural law norms, because these norms are interconnected and recognize the inadmissibility of violating the norms of positive law. Attention is focused on the fact that anomic states are characteristic of any society at a certain stage of its development, mostly as crisis-transitional states. Natural law norms support the lawful functioning of society through the recognition by a person of the value of moral, spiritual and ethical norms, which allows avoiding a deformed worldview and improper behavior. Natural law regulation of social relations in the period of social anomie can act as a stimulator of lawful human behavior, activating the value orientations of a person.