scholarly journals POLITIK PLURALISME HUKUM DALAM HUKUM UNDANG-UNDANG KEKUASAAN KEHAKIMAN : KAJIAN TERHADAP PENGAKUAN HUKUM TIDAK TERTULIS DALAM UNDANG-UNDANG NOMOR 48 TAHUN 2009 TENTANG KEKUASAAN KEHAKIMAN

2012 ◽  
Vol 1 (2) ◽  
Author(s):  
Mohammad Jamin
Keyword(s):  
Key Words ◽  
Legal Pluralism ◽  
The State ◽  
Judicial Power ◽  
The Political ◽  
State Law ◽  
Political Unity ◽  
Written Law ◽  
Power Code ◽  
Unwritten Law

<p align="center"><strong>Abstract</strong></p><p><em>It is empirical fact in Indonesia not only has written  law which imposed by state power ( state law). Beside written law there is also unwritten law  which often called the non state law. Political of law to  uniting as one political unity and enforce the legal sentralism has disregarded the  fact of legal pluralism ( the political of ignorance). Political of law  of the Judicial Power Code  which imposed during the time does not clearly arrange the state recognation to unwritten law, even unwritten law is recognnized, but still very sumir and floating. Although  Code No. 48/2009 about Judicial Power adopt the politics of legal pluralism and recognizes the existence unwritten law, but it is still sham (weak legal pluralism), causing that in fact predominate the state law still happened and unwritten law only becoming complement to state law. Political forwards legal pluralism in   Judicial Power Code ideally is not made conditional. The   political legal  pluralism of Judicial Power Code must to adopt strong legal pluralism,  so can accommodate pluralism in society.</em></p><p><em>Key Words</em><em> : </em><em>Legal Pluralism</em><em>, </em><em>Judicial Power</em><em>, </em><em>Unwritten Law</em><em>.</em></p>

scholarly journals RECONSTRUCTION OF PRINCIPLES OF LEGALITY IN CRIMINAL LAW BASED ON JUSTICE VALUE OF PANCASILA

2017 ◽  
Vol 4 (3) ◽  
pp. 307
Author(s):  
Muhammad Yahya Selma
Keyword(s):  
Criminal Law ◽  
Fourth Amendment ◽  
The State ◽  
State Law ◽  
Fundamental Change ◽  
Written Law ◽  
The Republic ◽  
Principle Of Legality ◽  
Unwritten Law

Amendment of the Constitution 1945 after the fourth amendment, reinforce the concept of the state law and put it in Article 1 paragraph 3 of the Constitution of the Republic of Indonesia in 1945 which reads : "The State of Indonesia is a state of law". The enactment of the provisions of Article 1 Paragraph (3) the Constitution of the Republic of Indonesia in 1945 brought a fundamental change to the principle of legality, which was previously law in Indonesia based on written law only, being based on written law and unwritten law or law that lives and grows in society. Law in Indonesia is based on the value of justice living in society based on the values of Pancasila.

The Concept of the Political: A Key to Understanding Carl Schmitt's Constitutional Theory

1997 ◽  
Vol 10 (1) ◽  
pp. 5-19 ◽  
Author(s):  
Ernst-Wolfgang Böckenförde
Keyword(s):  
The State ◽  
Carl Schmitt ◽  
The Political ◽  
Constitutional Theory ◽  
Personal Memory ◽  
Political Aspect ◽  
Legal Fiction ◽  
Political Unity ◽  
Legal Perspective ◽  
Law Student

The focus of this paper is not on the person, but on the work of Carl Schmitt, in particular the significance of Schmitt's concept of the political for an understanding of his legal and constitutional theory. Let me start with a short personal memory. When I was a third year law student, I read Carl Schmitt's Constitutional Theory. I came across the formulations that the state is the political unity of a people and that the rule of law component in a constitution is an unpolitical component. I was puzzled by these two remarks. I had learned from Georg Jellinek that the state, from a sociological perspective, is a purposeful corporative unit and, from a legal perspective, represents a territorially based corporation. I had also gathered some knowledge about “organic” state theories, especially that of Otto von Gierke who considers the state an organism and a real corporative personality rather than a mere legal fiction. On the basis of these theories, I felt unable to understand Schmitt's point that the state is the political unity of a people, because in those theories the political aspect is largely missing. It was only later that, by reading and studying Carl Schmitt's essay The Concept of the Political, I gradually learned to make sense of the above remarks. Thus I have discovered that that essay, and the understanding of the political elaborated in it, contains the key to understanding Carl Schmitt's constitutional theory in general. I would now like to explain this.

scholarly journals The Nation-State and the Origins of Secondary Education in Argentina: The Case of the Colegio Nacional (National School)

2020 ◽  
Vol 22 ◽  
Author(s):  
Felicitas Acosta
Keyword(s):  
Secondary Education ◽  
Secondary Schools ◽  
Key Words ◽  
The State ◽  
The Political ◽  
Political Elites ◽  
Nation State ◽  
National School ◽  
The Creation ◽  
Political Unification

This article focuses on the origins of secondary education in Argentina. Inparticular, it explores the possible relations between the modelling of educationalinstitutions intended for the formation of political elites and the fabrication of thenation-state. In Argentina, the creation of free, compulsory elementary educationwas preceded by the development of secondary education through the setting up ofthe colegio nacional. These schools were formed during the political unification ofthe national territory after domestic post-independence wars. Note the name givento these institutions: national schools. How did the nation and the state appear inthe organization of national schools? The article explores this question analyzingschool curricula and rectors’ reports during the configuration of the colegio nacionalbetween 1863 and 1890.Key words: curricula; configuration; national; territory; secondary schools.

Foreword to the Original German Edition

Sovereignty ◽  
2019 ◽  
pp. 60-60
Author(s):  
Hermann Heller
Keyword(s):  
Natural Science ◽  
The State ◽  
State Law ◽  
Contemporary Theory ◽  
Human Personality ◽  
The Public ◽  
Political Unity ◽  
Concrete Form ◽  
Starting Point ◽  
German Edition

I commit this work to the public in full awareness of the great gamble it involves. It does not and cannot pretend to be exhaustive; it should be taken as an initial breaking of ground to prepare to rebuild the theory of the state on foundations that have been shaken. On the question of methodology, aside from a few remarks strewn throughout the text, I will say only one thing here. If we permit the theory of the state to place not the state, but some law, be it causal or normative, at its center, instead of taking as its starting point the meaning or nature of that concrete political unity in multiplicity that we call the state, we must ultimately end in more or less the same place as the contemporary theory of state law that lacks both state and law, and which banishes the lawmaker from its scope as something unjuristic, while recognizing the criminal as an organ of state. This last flowering of natural science conceptualization must be recognized as a symptom of a dominant method that functionalizes all individuality and is unable to allow either the concrete form of the state and the human personality, or that of the law, a logical-systematic meaning. This method must be destroyed at its roots, and state law theory restored to its original literal sense as an understanding of the essential juristic structure of the state and its institutions....

Tribal Justice and State Law in Iraq

2021 ◽  
Vol 53 (3) ◽  
pp. 507-511
Author(s):  
Mélisande Genat
Keyword(s):  
Legal Pluralism ◽  
The State ◽  
Careful Examination ◽  
State Law ◽  
State Institutions ◽  
Social Fields ◽  
Tribal Areas

Literature on tribes in Iraq is scant and often falls prey to simplistic binary approaches to state-society relations. Scholars of legal pluralism provide tools to conceptualize interrelations between adjacent normative fields. Several legal specialists have talked about “a thin form of cooperation” between tribal “private orders” and the Iraqi state. By the same token, many scholars presuppose that the capacity of the tribes and the state to mediate and settle feuds covary in opposite directions and are correlated with the strength of state institutions (tribes step in to fill a vacuum during times of state weakness). However, careful examination of Iraqi penal legislation and its implementation in tribal areas invalidates this stereotypical paradigm. Already in her seminal 1973 article, Sally Moore drew the attention of scholars of legal pluralism to the idea that legal orders should be approached as partially discrete, overlapping social fields. The various arenas intersect and create meaning for each other.

Il 1948 nella storia di Israele. Appunti su un dibattito tra storiografia e politica

2009 ◽  
pp. 42-58
Author(s):  
Marco Allegra
Keyword(s):  
Middle East ◽  
Key Words ◽  
Significant Contribution ◽  
The State ◽  
The Political ◽  
Political Debate ◽  
The Public ◽  
History Of ◽  
State Of Israel ◽  
Academic Debate

- The article addresses the issue of the relation between historiography and the political debate. It examines the historiographic works concerning the events which lead to the emergence of the State of Israel between 1947 and 1949 as one of the key-periods in the history of the contemporary Middle East. In particular, the analysis focuses on the debate originating in the mid 1980s on the revision of traditional Israeli historiography undertaken by the so-called ‘New Historians', of whom Benny Morris is a leading representative. By drawing on the notion of the ‘public use of history, the author reverses the perspective, showing how the academic debate itself is characterised by strongly polemical aspects. The historiographic research on 1948, to which the works of the New Historians provide the latest significant contribution in terms of analysis of new sources, constitutes a firmer knowledge than the tones of the debate would suggest. Key words: public use of history, Israel, New Israeli Historians, first Arab-Israeli war, Palestine, Israeli-Palestinian conflict.

A Practice Theory of Legal Pluralism: Hart’s (inadvertent) defence of the indistinctiveness of law

2014 ◽  
Vol 27 (1) ◽  
pp. 27-47 ◽  
Author(s):  
Mariano Croce
Keyword(s):  
Distinctive Feature ◽  
Theoretical Approach ◽  
Practice Theory ◽  
Legal Pluralism ◽  
The State ◽  
State Law ◽  
General Phenomenon ◽  
Contentious Issue ◽  
Hans Kelsen ◽  
Legal Normativity

This article claims that H.L.A. Hart’s theory may be regarded as a sound vindication of what today is known as legal pluralism. In short, Hart’s practice theory of norms attests to the fact that state law is only one system of rules among many others, and that it does not exhibit any distinctive feature that may distinguish it from those others. I will depict this as an inadvertent but extremely valuable outcome of the practice theory. Indeed, Hart’s battle against the claimed connection between law and coercion and his firm conviction that legal normativity should be understood in light of the broader phenomenon of social normativity make his practice theory of rules a sound and fertile vindication of legal pluralism as atheoretical approachto legal phenomena. As a result, even though Hart was a legal centralist and a legal monist, his theorizing ends up dismantling the identity between thegeneral phenomenon of lawand thelaw of the state. I will proceed as follows: I will first look at the contentious issue of the relation between law and coercion by examining how two prominent legal scholars, Hans Kelsen and E. Adamson Hoebel, came to the conclusion that the distinguishing mark of law is coercion (sec. 1). This analysis will be instrumental in demonstrating that Hart failed to grasp the relevance and salience of the relation between law and coercion, and in particular, the peculiar role Kelsen and Hoebel attributed to the latter (sec. 2). I will argue that Hart’s discomfort with the emphasis on the notion of coercion was due not to the nature of this notion as such, but to the distortive effect its overemphasis had exerted on positivist legal theorizing. I will claim that Hart’s most insidious adversaries were two (at the time prominent) philosophical and jurisprudential streams, namely, behaviourism and emotivism (sec. 3). I will go on to say that Hart’s arguments against these adversaries are well addressed but inadequate, and will try to reinforce them by drawing on a Wittgensteinian view of practices (sec. 4). I will conclude by showing that the consistent outcome of a “reinforced” practice theory is a highly pluralist view of law (sec. 5).

scholarly journals KEWENANGAN MAHKAMAH KONSTITUSI DALAM PROSES IMPEACHMENT PRESIDEN MENURUT SISTEM KETATANEGARAAN REPUBLIK INDONESIA

2011 ◽  
Vol 11 (1) ◽  
Author(s):  
Muhammad Fauzan
Keyword(s):  
Key Words ◽  
House Of Representatives ◽  
Vice President ◽  
The State ◽  
The Political ◽  
Constitutional Court ◽  
Political Elites ◽  
Political Interests ◽  
The Law

The authority of the Constitutional Court to adjudicate and decide upon the opinion of the House of Representatives that the President and/or vice  president has violated the law of treason to the state, corruption, bribery, other felonies, or moral turpitude, and/or that the President and /or Vice President no longer meets the conditions as President and/or Vice President are normative efforts to avoid a repeat of dismisal that are soley based on slander and suspicion which are only to satisfy the political interests of political elites. Key words : The authority of the Constitutional Court, Impeachment

scholarly journals The Idea of Woman in Fundamentalist Islam

2005 ◽  
Vol 22 (1) ◽  
pp. 109-112
Author(s):  
Shahnaz Khan
Keyword(s):  
Minority Rights ◽  
The State ◽  
The Political ◽  
State Law ◽  
Sociopolitical Organization ◽  
Modern Times ◽  
Muslim Countries ◽  
Islamic Revivalism

Lamia Rustum Shehadeh’s timely book, The Idea of Woman inFundamentalist Islam, begins with a brief biography of influential “fundamentalists.” She examines the context in which they formulated their theoriesand the extent to which they influenced each other, a process thatallows us to see their ideas as a response to the historical, political, andsocial environments in which they lived. For example, the MuslimBrotherhood, founded by Hasan al-Banna in 1928, not only helped formulateand consolidate Islamic revivalism in Egypt, but also helped provide ablueprint for a sociopolitical organization that promoted the political Islamor Islamism influencing chapters in Syria, Lebanon, Iraq, and Palestine.The ideas promoted by the Brotherhood also spread to Sudan, where theycontinue to guide the current regime’s policies. In some cases, as in Iran andSudan, pronouncements of these ideologues influence state law and publicpolicy. At other times they challenge the state, as in Tunisia.Al-Banna promotes the view that Muslim countries became impoverishedand fell under European control because they have deviated fromIslam. He suggests that Muslims see Islam as the solution to their problems.However, al-Banna and other Islamists believe that Islam’s historicaltraditions are irrelevant for modern times. Instead, they propose areturn to what they believe to be the traditions of the Prophet’s time andthat of the first four caliphs. Moreover, they advocate the use of ijtihad(independent judgment), a practice that allows them to interpret seventhcenturytraditions in light of modern needs. Islamist ideologues reservethis practice for themselves, and thus largely marginalize its alternativeuses by feminists and other progressive groups to advance women’s rightsor minority rights ...

scholarly journals State Recognition of Customary Law in the South Pacific

2021 ◽  
Author(s):  
◽  
Campbell McLachlan
Keyword(s):  
Human Rights ◽  
Group Identity ◽  
South Pacific ◽  
Legal Pluralism ◽  
The State ◽  
Colonial Period ◽  
Customary Law ◽  
State Law ◽  
The Pacific ◽  
Fresh Impetus

This thesis examines the recognition by the state of the customary law of indigenous peoples by reference to a comparative study of Commonwealth South Pacific Jurisdictions. It aims both to Illuminate the process of recognition as a contribution to the comparative theory of legal pluralism and to describe distinctive elements of the experience with recognition In the Pacific.<br><br>The Pacific case shares many of the features of the Introduction of Western law into non-Western societies generally, but the absence of complex plural legal systems during the colonial period and the contemporary vitality of traditionalism have required a reworking of the policy basis and techniques for recognition.<br><br>This task is approached from four propositions. 'The persistent fact of pluralism' envisages recognition as informed by an acknowledgement that legal pluralism exists and persists as a factual phenomenon, regardless of the extent of accommodation afforded to custom in the state legal system. The nature of this phenomenon and the options open to the state are explored in Chapter 'Legal pluralism and legal theory'. 'A legacy of colonial misconceptions' argues that the dominant paradigm for recognition is colonial and therefore requires critical re-examination. Chapter 11 'The colonial experience and the idea of customary law' discusses the status de jure of customary law in the Pacific during the colonial period and evaluates the impact of colonialism on custom and approaches to its recognition.<br><br>Independence and the reassertion of the indigenous identity of Pacific peoples has created a fresh impetus for recognition. 'The implications of a reassertion of autochthonous values' are explored in three chapters on contemporary reforms: Chapter III, 'custom as a source of underlying law' on the general incorporation of custom; Chapter V, 'Disputes: custom as process' on local-level 'customary courts'; and Chapter VI on 'Land: custom as title'. <br><br>Finally, the fourth proposition, 'justice and group identity', sees recognition as justified by the requirements of justice in relation to Indigenous groups within the nation state. Chapter IV, 'Human rights and cultural relativism', evaluates the scope for group Identity within a framework of non-discrimination and the protection of individuals' human rights.<br><br>The thesis concludes by contrasting the changing ideological role of custom with the realities of recognition and by contrasting recognition by the incorporation of custom into state law with recognition by the adjustment of state law to acknowledge the separate sphere of custom.

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