“The Law of the State is the Law:” The Nature of Law in Jewish Jurisprudence

2016 ◽  
Vol 19 (2) ◽  
pp. 256-274
Author(s):  
Baruch Finkelstein
Keyword(s):  
The State ◽  
Jewish Law ◽  
Positive Law ◽  
Religious Law ◽  
The Law

This essay presents medieval Rabbinic attitudes concerning the nature of law as it is expressed in the dictum “dina demalkhuta dina”—the law of the state is regarded as the Jewish law. The essay confirms that Rabbinic attitudes concerning the nature of law are harmonious with diverse philosophical approaches in classical jurisprudence, reflected in both “natural” and “positive” law theory. Here we focus on the rational and legal justifications for accepting non-Jewish rule, asking why a religious law, claiming its origins to a divine mandate, would submit to a seemingly inferior, non-Jewish law. The answer to this question sheds light on the Rabbinic attitudes to the nature of law in general.

The Sources and Nature of Jewish Law and its Application in the State of Israel, Part IV

1969 ◽  
Vol 4 (1) ◽  
pp. 80-140 ◽  
Author(s):  
Menachem Elon
Keyword(s):  
The State ◽  
Legislative Process ◽  
Jewish Law ◽  
Limited Extent ◽  
Positive Law ◽  
Legislative Activity ◽  
The Law ◽  
The Government ◽  
And Control ◽  
State Of Israel

To answer the question whether the Israel legal system is based on Jewish Law foundations we must examine the two main operative factors which affect and control the nature of that system, that is, the legislative activity of the Knesset and the judicial activity of the courts. The fact that Israel law recognizes, though to a limited extent, the principle of binding precedent renders the courts active participants in the law-making process. This freedom of activity is restricted and operates only within the framework of the provisions of existing positive law, but this framework is quite flexible, as we shall later have occasion to note. Such restriction does not exist at all with regard to the Knesset's legislative activity. The Knesset is the sovereign legislature, unfettered even by a Constitution, and is free to make such law as it deems fit. The question, therefore, is on what assumptions do the various elements—the Ministry of Justice, the Government and the Knesset—engaged in the legislative process, function generally with regard to the subserving sources and more particularly with regard to the manner in which the law of the State is to rest upon Jewish Law.It is difficult from an examination even of a representative sample of enactments passed by the Knesset to affirm that a clear and consistent policy indeed exists in this important regard, but from time to time expression has been given by those concerned to some of these underlying assumptions and it is proper that we should glance at these.

scholarly journals The Position And Function Of Notary In The Using Of State Symbol

Jurnal Akta ◽  
2020 ◽  
Vol 7 (1) ◽  
pp. 9
Author(s):  
Arief Rahman Siregar ◽  
Gunarto Gunarto
Keyword(s):  
Criminal Responsibility ◽  
Secondary Data ◽  
Letter Position ◽  
Problem Formulation ◽  
Criminal Code ◽  
The State ◽  
Positive Law ◽  
The Law ◽  
Notary Public ◽  
And Function

This study tried to answer the problem formulation is What position and Function of Notary in using the State symbol? What if Notaries do malpractices in the using of State Symbol and how sanctions against malpractice Notary Public who use the State Symbol? The purpose of this study to determine the position and Function of Notary in using the State Symbol, and determine sanctions against notaries who do mal practice in the using of State Symbol.This research was conducted using the normative method, means testing and reviewing secondary data, using literature data in the form of positive law relating to Legislation relating to the issues discussed.The results of this study concluded that a Notary Public in the office using the Symbol State under Article 16 paragraph (1) letter k of Notary law) and use of the State symbol of Notary's Stamp or Head Letter Position as stipulated in Article 54 paragraph (1) letter j Act No. 24 of 2009 and as Stamp of Department Office as stipulated in Article 54 paragraph (2) letter j Act No. 24 of 2009, while the Notary malpractice in the using of State symbol is not necessarily directly given to criminal sanctions as a form of application of the law ultimum remidium. because there are several steps that must be passed given the Notary has its own rules in the Law on Notary. Notary of the behavior is also governed by a special organization that Indonesian Notary Association (INI), but still asked the criminal responsibility under Act No. 24 of 2009 and Article 154 of the Criminal Code letter if indeed Notary proven legally and convincingly to have malpractice against the using of State Symbol.Keywords: Notary Authority; Notary Position; Sanctions Against Notary.

Sovereignty and Positivity

Sovereignty ◽  
2019 ◽  
pp. 87-95
Author(s):  
Hermann Heller
Keyword(s):  
The State ◽  
Modern State ◽  
Legal Rules ◽  
Positive Law ◽  
Starting Point ◽  
The Law ◽  
Legal Judgments

This chapter argues that one can glimpse the nature of sovereignty in the ability to positivize the highest legal rules binding on the community. There is no legal positivity for the authority order of the modern state without sovereignty. The legal derivation and attribution that grounds legal judgments, administrative acts, and legal transactions in the law, and the law in the constitution, inevitably falls into a yawning void if it dissolves the connection between the positivity of law and the sovereignty of the state. The jurist must take as a starting point the fact of sovereignty; otherwise he loses the object of his science—positive law—and will be left hanging in the air with all his science and practice.

scholarly journals ISBAT Nikah Melegalkan Pernikahan Sirri Menurut Hukum Positif Dan Hukum Agama (Studi Di Pengadilan Agama Palangka Raya)

2015 ◽  
Vol 15 (1) ◽  
pp. 94-103
Author(s):  
Sanawiah Sanawiah
Keyword(s):  
Islamic Law ◽  
Marriage Law ◽  
Positive Law ◽  
Religious Law ◽  
The Law ◽  
Marriage Laws ◽  
Islamic Marriage ◽  
Legal Marriage ◽  
Laws And Regulations

The purpose of this study was to find out what sirri marriage laws according to Islamic Law and Positive Law, to find harmony and marriage requirements and to find out how the role of Religious Court of Palangka Raya in socialization confirmation marriage. The method used in this research is the method of legal normative. As for the type of research used in this study is inventory regulations that related to confirmation of marriage legalized marriage sirri according to Positive Law and Religious Law. Law wedding sirri results according to Islamic Law and Positive Law, sirri marriage according to Islamic Law illegitimate because it does not have a guardian of marriage, while marriage sirri in the view of the majority of Indonesian society is marriage not recorded but the terms and illegitimate pillars have been met in accordance with Islamic Law. Meanwhile, according to the law of the wedding positive sirri is as where according to Marriage Law in Indonesia if a legal marriage in syar'i then legitimate also according to law "marriage is not recorded" is legal according to the laws and regulations because according to Islamic Marriage Law applicable in Indonesia is based on Article 2 (1) of Law No. 1 of 1974 in conjunction with Article 4 Compilation of Islamic Law (as ius constitutun) in conjunction with Article 3 bill-HM-PA-Bperkw 2007 (as ius constituendum).

scholarly journals PENCATATAN PERKAWINAN TINJAUAN BERDASARKAN UNDANG-UNDANG NOMOR 1 TAHUN 1974 TENTANG PERKAWINAN DAN HUKUM ISLAM

2019 ◽  
Vol 2 (1) ◽  
Author(s):  
Basri Basri
Keyword(s):  
Legal Protection ◽  
Secondary Data ◽  
The State ◽  
Data Sources ◽  
Legal Research ◽  
Legal Principles ◽  
Religious Law ◽  
Secondary Data Sources ◽  
The Law ◽  
Legal Consequences

AbstractThe main problem in this research is, the marriage registration linked to the validity of a marriage according to Law No. 1 of 1974 and the Law of Islam as well as the legal consequences of marriage were not recorded according to Law No. 1 of 1974 and the Law of Islam.This research is penelitianYuridis Normative namely legal research using secondary data sources in the form of literature votes. research that emphasizes the science of law, tried to examine the legal principles that apply in the community and as supporting research carried Normative method.Marriage has been done according to the law of each religion and his belief that (a valid marriage according to religious law) must be registered in order to obtain legal protection. However, registration of marriage it does not specify when the validity of the marriage because of the validity of marriage is at the time held Munurut law of each religion and belief. Registration of marriages serves to record the occurrence of law concerning marriage, as well as the listing on the birth.The legal consequences of marriage were not recorded, although the religion or belief was valid, but the marriage conducted without the knowledge and supervision of employees marriage registrar does not have the force of law is certain. By law, it would be difficult demanding livelihood and legacy of the husband if the husband dies. Additionally wife is not entitled to the property (Gono-gini) in case of separation. The next legal consequences are children from the marriage that can not be listed deemed illegitimate children unless there is recognition of a father or a court decision.Although the validity of marriage is returned to the law of each religion and belief but the registration of marriages should be made legal by the state so that protection can be implemented to the maximum. And registration of marriages should be made at the same time with the implementation of the marriage. Keywords: Registration, Marriage, Validity

scholarly journals RESPONSABILIDADE CIVIL DECORRENTE DE IMPACTOS AMBIENTAIS À UCS

2021 ◽  
Vol 9 (208) ◽  
pp. 1-14
Author(s):  
Vitoria Franco dos Santos ◽  
Bianca Alves Ferreira ◽  
Ana Cláudia Barroso
Keyword(s):  
Natural Law ◽  
First Principles ◽  
The State ◽  
Positive Law ◽  
The Law

The environment is an integral part of day-to-day life in society, and the Law understands that even though things may be worthless or nobody "res nullius" there are things that are indispensable for humanity, here comes the Natural Law that has, as a project, to evaluate human choices for the purpose of acting reasonably and well. This is achieved through the foundation of certain principles of natural law that are considered human goods evident in itself, natural law is the set of the first principles of what is just and unjust, inspired by nature. These principles are materialized through positive law, which is formed by the laws created by the state for the conservation of the just.

scholarly journals IMPLIKASI YURIDIS NIKAH SIRI DALAM PERSPEKTIF UNDANG-UNDANG NOMOR 1 TAHUN 1974 TENTANG PERKAWINAN

2019 ◽  
Vol 16 (2) ◽  
Author(s):  
Nunung Nugroho
Keyword(s):  
Social Reality ◽  
The State ◽  
Philosophical View ◽  
Philosophical Beliefs ◽  
Community System ◽  
Religious Law ◽  
Philosophical Aspect ◽  
The Law ◽  
The Government ◽  
Definition Of

Undang-Undang No. l Tahun 1974 In people's lives there is still a frequent way of marriage which is a violation of Law , especially article 2 paragraph 2, namely: "Each marriage is recorded according to the applicable laws and regulations". The definition of violation in the law, known as siri marriage. In this case the law must be understood as a set of rules governing, controlling society. Law in this sense is not part of the community system, but control of the community system. Law in this sense is not part of the community system, but control of the community system. According to Gustav Radbruch law must contain three basic values, namely: 1. Value of justice (philosophical aspect). The validity of the law is justified on the basis of human philosophical beliefs. 2. Value of certainty (juridical aspect). The law is enforced because it is determined by the state (gemeenschap), namely by the government and the people's representative council. 3. Value of benefits (sociological aspects). The validity of the law is due to social reality (society as a whole). In a sociological and philosophical view, siri marriage is relatively acceptable to the community, but judicially cannot be justified because it will have an impact on the low legal awareness of the community. Marriage recording does not determine the validity of a marriage, but only states that the marriage event actually happened, so it is merely administrative. Thus, the marriage is legitimate because it is carried out in accordance with religious law but has a weakness, namely the absence of a recording as referred to in article 2 paragraph 2 of  Undang-Undang No. l Tahun 1974 . In  reality the registration of marriages brought more good than bad in living in a society, so carrying out the registration of the marriage would be in line and not in conflict with religious norms

Legal positivism

2018 ◽  
Author(s):  
Mario Jori
Keyword(s):  
The State ◽  
Legal Positivism ◽  
Legal Systems ◽  
Value Judgments ◽  
Legal Decisions ◽  
Positive Law ◽  
A Value ◽  
The Law ◽  
Definition Of ◽  
Conceptual Confusion

Legal positivism is the approach in the philosophy of law which treats ‘positive law’ – law laid down in human societies through human decisions – as a distinct phenomenon, susceptible of analysis and description independently of morality, divine law or mere natural reality. It shares with philosophical positivism the aim of dealing in facts, but these are facts about legality and legal systems. Insistence on the distinctness of positive law has been integral to the ‘rule of law ideal’ because of the aim of clear law applied by neutral legal officials. However, debates about positivism have been marred by a degree of conceptual confusion: positivism often appears to mean something different to its supporters and to its enemies, and many attacks are launched against straw men. Consequently, much depends on the definition of legal positivism that is used. Attempts have been made to put some order into the discussion. Consider, for instance, H.L.A. Hart’s list of meanings of legal positivism (which cumulatively count as features of positivism): (1) law as human commands; (2) absence of any necessary connection between law and morals; (3) the study of law as meaning, as distinct from sociology, history and evaluation; (4) the contention that a legal system is a closed system, sufficient in itself to justify legal decisions; (5) non-cognitivism in ethics (Hart 1958). Norberto Bobbio’s list is shorter and more orderly, but at first sight not too different (Bobbio 1960): legal positivism has been conceived as: (1) a neutral, scientific approach to law; (2) a set of theories depicting the law as the product of the modern state, claiming that the law is a set of positive rules of human origin, and ultimately amounting to a set of statutes, collected in legal systems or orders; (3) an ideology of law that gives a value to positive law as such, implying that it should always be obeyed. However, in this list, unlike Hart’s, the ‘meanings’ cannot be added together, the first and last being incompatible. The connection between the three points is as follows: for positivists the theories of Bobbio’s second point (law is made up of rules produced by the state) yield a scientific and value-free approach to law; for the adversaries of legal positivism they yield only ideology, that is hidden value judgments in favour of the power of the State. The shortest way to understand what is at issue in these abstract discussions is to proceed by contrasting legal positivism with its main critics’ approach to law. It is noteworthy that on this point legal realists and natural law theorists, although starting from different and even opposite points of view, agree in concluding that legal positivism is an ideological, covertly evaluative, thesis.

Marriage and Cohabitation in Israeli law

1981 ◽  
Vol 16 (4) ◽  
pp. 439-460 ◽  
Author(s):  
Pinhas Shifman
Keyword(s):  
Religious Affiliation ◽  
The State ◽  
Common Denominator ◽  
Religious Law ◽  
Personal Status ◽  
The Law

In Israel, in the field of the law of personal status, at the center of which stand the laws of marriage, the law is not territorial but personal, and the law applying to an individual changes in accordance with his religious affiliation. Consequently, any discussion of thecomprehensiveposition of Israeli law on the institution of marriage would seem to be impossible, for Israeli law lacks its own, independent regulations on matters of marriage. The law of the State on these matters has been likened to a mirror, having no image of its own and serving only to reflect the religious law. In this mirror, various laws are reflected, and it is difficult to find in them a common denominator of the differing and contradictory conceptions they express towards the institution of marriage.

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