scholarly journals Pertimbangan Hakim dalam Penilaian Alat Bukti Surat pada Perkara Penetapan Ahli Waris

2021 ◽  
Vol 2 (1) ◽  
pp. 99-103
Author(s):  
Ni Made Sinthya Kusuma Arisanthi ◽  
I Nyoman Putu Budiartha ◽  
I Nyoman Gede Sugiartha
Keyword(s):  
Moving Objects ◽  
Legal Reasoning ◽  
Civil Liability ◽  
The Law

In Heritance is everything in the form of treasure relics left by the heir to the beneficiary, which is that this inheritance can be moving objects and the objects do not move or be rights and obligations. Lately very many disputes arising in consequence in the dividing of the inheritance, which, between the rights and obligations of the unbalanced or in the dividing of the inheritance that is not in accordance with the wishes of the heirs. The dividing of inheritance should be using wills avoiding disputes among the heirs, the absence of a will the heir must prove with evidence of tools that have been specified in the law. One tool evidence supports a very authentic and has the power of proof most perfect IE tool written evidence or mail. From the background of the above, the authors take the title Considerations in the Assessment of the Evidence the Judge a Letter in the Case of Determination of Heirs. In this study, used normative research, so that it can be formulated as follows: the issue of whether the evidence of a letter submitted by the applicant was the beneficiary designation in accordance with the law of civil liability, as well as how the Tribunal judges considering the evidence a letter to grant the petition for dermination of the heirs, from the formulation of the problem can be explored regarding the evidence of tools able to convince at the same time as the consideration of judges in disconnected things of the expert determination the heir. The goals of this research are: to know the strength of the evidence of a letter in the system of succession in Indonesia, as well as to know the legal reasoning used by the judge as the consideration.

Pembagian Harta Waris dalam Tradisi Masyarakat Muslim di Gorontalo

2019 ◽  
Vol 13 (2) ◽  
pp. 187-202
Author(s):  
Hamid Pongoliu
Keyword(s):  
Islamic Law ◽  
Sharia Law ◽  
The Will ◽  
The Law

Gorontalo has a customary principle derived from sharia law, and the sharia law is sourced from the Qur'an, hadith, ijmak and qiyas (adati-hula'a to syara'a, syara'a hula'a to Kitabi), which should reflect the existence of the implementation of the distribution of inheritance in Islam in the Gorontalo community. This customary principle can be a source of law if it is a rational act, not immorality, done always repeatedly, does not bring harm and does not conflict with the law of sharak. But in reality there is the implementation of inheritance that violates Islamic law, namely the distribution by way of deliberation, the determination of the amount of heirs equally, the delay in the distribution of inheritance, wills with houses given to girls, wills not to distribute inheritance, distribution of assets it depends on the will of the heir and the delay in the distribution of inheritance on the grounds that one of the parents is still alive. The distribution by deliberation and determination of the amount of the portion for each heir are equally acceptable as long as they follow the guidelines of the Compilation of Islamic Law article 183 and the concept of takharruj which was previously preceded by the Shari'a division. After the heirs know the size of the portion, then they may agree to share it in their own way or leave the inheritance according to Shari'a and agree to give to each other with other heirs.

The Dudley Lee Case: A new approach to factual causation and its implications for transformative jurisprudence

2017 ◽  
Vol 30 (1) ◽  
pp. 273-289
Author(s):  
Anmari Meerkotter
Keyword(s):  
Case Note ◽  
Constitutional Court ◽  
Recent Contribution ◽  
New Approach ◽  
State Accountability ◽  
The Law ◽  
Transformative Impact ◽  
Constitutional Jurisprudence ◽  
Law Of Delict

The Constitutional Court (CC) judgment of Lee v Minister of Correction Services 2013 2SA 144 (CC) is a recent contribution to transformative constitutional jurisprudence in the field of the law of delict. This matter turned on the issue of factual causation in the context of wrongful and negligent systemic omissions by the state. In this case note, I explore the law relating to this element of delictual liability with specific regard to the traditional test for factual causation – the conditio sine qua non (‘but-for’) test. In particular, I note the problems occasioned by formalistic adherence to this test in the context of systemic state omissions as evidenced by the SCA judgment in the same matter. I also consider the manner in which English courts have addressed this problem. Thereafter, I analyse the CC’s broader approach to the determination of factual causation as one based on common sense and justice. I argue that this approach endorses a break from a formalistic application of the test and constitutes a step towards an approach which resonates with the foundational constitutional values of freedom, dignity and equality. Furthermore, it presents an appropriate solution to the problems associated with factual causation where systemic omissions are concerned. I then consider the transformative impact of the Lee judgment. In particular, I argue that the broader enquiry favoured by the CC facilitates the realisation of constitutionally guaranteed state accountability, and amounts to an extension of the existing norm of accountability jurisprudence. Hence, I contend that the judgment presents a further effort by the Constitutional Court to effect wholesale the constitutionalisation of the law of delict, as well as a vindicatory tool to be used by litigants who have been adversely affected by systemic state omissions.

The Law of Tort

2018 ◽  
Author(s):  
Eva Steiner
Keyword(s):  
Civil Liability ◽  
French Law ◽  
The Law ◽  
Broad Approach ◽  
The Way

This chapter examines the French law of tort. Although French law takes a broad approach to civil liability, when looking more closely at the way in which French judges have dealt with claims in tort, it becomes apparent that the need to avoid extending the scope of civil liability to an unlimited extent has also been present in French law. Indeed, in order to achieve desirable results, French judges have on many occasions used their discretion to interpret restrictively the elastic concepts of fault, damage, and causation. Hence, they end up dismissing claims which, for policy reasons, would have created unjust results or would have opened the gates to a flood of new claims. Thus, even though French judges do not admit to it openly in their judgments, they are influenced as regards the matter of deciding the limits of liability by general policy considerations, especially the ‘floodgates arguments’ which their English counterparts also readily understand.

Practical Application

2018 ◽  
Author(s):  
Kubo Mačák
Keyword(s):  
Armed Conflict ◽  
Armed Conflicts ◽  
Practical Application ◽  
Temporal Perspective ◽  
Applicable Law ◽  
The Law ◽  
Geographical Scope

This chapter analyses the practical application of the law of belligerent occupation in internationalized armed conflicts in its temporal, geographical, and personal dimensions. Firstly, from a temporal perspective, the law is shown to apply once one of the conflict parties consolidates its control over the enemy territory and substitutes its own authority for that of the displaced enemy. Secondly, the chapter assesses the geographical scope of the applicable law and draws specific guidelines for the determination of the territory subject to the law of occupation in various types of internationalized armed conflicts. Thirdly, the chapter endorses the allegiance-based approach to the designation of protected persons under the law of occupation and applies it to the reality of internationalized armed conflict. Overall, the chapter presents a workable toolkit for the application of the law of occupation to internationalized armed conflicts.

Reverberating the Glas: Towards a Deconstructive Account of Particularity in Hegel's Logic of the Concept

2020 ◽  
pp. 1-28
Author(s):  
Jakub Mácha
Keyword(s):  
Free Play ◽  
Subjective Perspective ◽  
The Law

Abstract Understanding Hegel's account of particularity has proven to be anything but straightforward. Two main accounts of particularity have been advanced: the particular as an example or instance and the particular as a subjective perspective on a universal concept. The problem with these accounts is that they reduce particularity either to singularity or to universality. As Derrida's analyses make apparent, the ‘structure of exemplarity’ in Hegel is quite intricate. Hegel uses ‘example’ in three senses: it means (1) ‘instance’, ‘illustration’, or (2) ‘model’, ‘exemplary individual’, ‘paradigm’, or (3) a by-play (a meaning derived from Hegel's neologism beiherspielen, in which Beispiel is understood quasi-etymologically as a ‘by-play’ of accidental moments). A Beispiel in the first sense can be replaced by another instance in a free play (by-play). This play of accidental moments, however, is not entirely free; it generates a series (of replacements) that ultimately leads to an example in the second sense, to an exemplary individual. I argue that particularity can be taken as exemplarity of this kind, oscillating between a singular example and a universal paradigm. Within this by-play, the universal concept, its law, is supposed to be mediated and determined. However, out of the differences between the examples the by-play induces another law, the law of non-mediation, which may, in Derrida's view, actually negate the dialectical movement towards universality. I argue, utilizing Malabou's concept of plasticity, that this disruption may be recovered. This implies that each individual example within a series is a particular determination of the universal. Hence, we can take literally Hegel's claim that the movement of the concept is play.

Law as Practical Reason

1989 ◽  
Vol 48 (3) ◽  
pp. 436-471 ◽  
Author(s):  
M. J. Detmold
Keyword(s):  
Practical Reason ◽  
Practical Reasoning ◽  
Legal Reasoning ◽  
The State ◽  
Strong Sense ◽  
A Priority ◽  
The Law ◽  
John Finnis ◽  
Vast Range

Law is practical. Legal reasoning is practical reasoning. We could make nothing of a judge who having listened to counsel's arguments and reflected about the law governing his case thought that the state of knowledge that he had achieved was the natural termination of his enterprise and submitted his conclusions to the editors of Halsbury's Laws of England rather than performed the action of giving judgment. The parties would be outraged, and rightly. And if the judge continued to do such a thing he would be dismissed. Legal reasoning is practical in the sense that its natural conclusion is an action (in the judge's case the action of giving judgment) rather than a state of knowledge. This is taking “practical” in a strong sense. By this definition thought is practical whose natural conclusion is an action (or decision against action): its strongest contrast is with theoretical thought whose natural conclusion is knowledge. But it also contrasts with hypothetical thought about action (say, my thinking it would be good to play cricket again). I do not call this practical because it does not conclude in an action or decision against action (others do; for example John Finnis in Fundamentals of Ethics; my reasons for differing in this matter will emerge). A judge's practical reasoning towards the action of giving judgment has priority for our understanding of law over that vast range of practically idle things that lawyers do, from the construction of digests like Halsbury to casual reflection about the rule in Shelley's case (of course there is one sort of doing involved in both these, but not legal doing). It is important here to be clear about this priority. It is a priority of practicality, not a priority of judges or lawyers.

Determining a Suicide under Australian Law

2018 ◽  
Vol 41 (2) ◽  
Author(s):  
Stephanie Jowett ◽  
Belinda Carpenter ◽  
Gordon Tait
Keyword(s):  
Case Law ◽  
Law Reform ◽  
Practical Matter ◽  
The Law ◽  
Recent Government

This article examines the role of coroners in making legal determinations of suicide in Australia. Research indicates that the requirement to make findings of intent and capacity in unexpected, violent deaths can be difficult for coroners and recent government inquiries have suggested that the law contributes to the problem. A review of laws and commentary that guide coroners in Australian states and territories reveals not only that coroners are the only persons tasked with making routine legal determinations of suicide, but that such legal guidance lacks clarity. This article concludes that law reform would aid coroners by clarifying definitional issues, removing inconsistency between state jurisdictions and increasing the transparency of case law. Along with requirements for a determination of intent, which is a practical matter previously raised by the Victorian Coronial Council, such changes would go some way to ensuring that Australian suicide statistics are more reliably created.

Determination of the Minimum Distance Between Moving Objects Including Velocity Information

1993 ◽  
Author(s):  
Meyer Nahon
Keyword(s):  
Minimum Distance ◽  
Moving Objects ◽  
Rapid Determination ◽  
Computation Time ◽  
Optimization Techniques ◽  
Real Time Control ◽  
Time Step ◽  
Time Control ◽  
Velocity Information

Abstract The rapid determination of the minimum distance between objects is of importance in collision avoidance for a robot maneuvering among obstacles. Currently, the fastest algorithms for the solution of this problem are based on the use of optimization techniques to minimize a distance function. Furthermore, to date this problem has been approached purely through the position kinematics of the two objects. However, although the minimum distance between two objects can be found quickly on state-of-the-art hardware, the modelling of realistic scenes entails the determination of the minimum distances between large numbers of pairs of objects, and the computation time to calculate the overall minimum distance between any two objects is significant, and introduces a delay which has serious repercussions on the real-time control of the robot. This paper presents a technique to modify the original optimization problem in order to include velocity information. In effect, the minimum distance calculation is performed at a future time step by projecting the effect of present velocity. This method has proven to give good results on a 6-dof robot maneuvering among obstacles, and has allowed a complete compensation of the lags incurred due to computational delays.

Normative propositions of the International Tribunal for the Law of the Sea

2021 ◽  
Vol 11 (3) ◽  
pp. 3-18
Author(s):  
Roman Kolodkin
Keyword(s):  
International Law ◽  
Legal Reasoning ◽  
Law Of The Sea ◽  
International Tribunal ◽  
Legal Norms ◽  
Judicial Decisions ◽  
The Law ◽  
Obiter Dictum ◽  
International Law Commission ◽  
Advisory Opinions

Normative propositions of the international courts, including these of the International Tribunal for the Law of the Sea, are considered in the paper as provisions in the judicial decisions and advisory opinions, spelling out, formulating or describing international law norms, prescriptions, prohibitions or authorizations, which are applicable, in the court’s view, in the case at hand and the similar cases. Such a proposition is considered to be a description of a legal norm, its spelling out by a court, but not a norm or its source. In contrast with legal norms, judicial normative propositions are descriptive, not prescriptive; they may be true or wrong. Normative propositions are not transformed into norms solely by their repetition in judicial decisions. The author considers not only ITLOS decisions but also the Tribunal’s and its Seabed disputes chamber advisory opinions containing normative propositions to be subsidiary means for the determination of the rules of law under article 38(1(d)) of the International Court of Justice Statute. The legal reasoning of the Tribunal’s decision, not its operative provisions, usually features normative propositions. While strictly speaking, the decision addresses the parties of the dispute, normative propositions in the reasoning are in fact enacted by the Tribunal urbi et orbi aiming at all relevant actors, ITLOS including. They bear upon substantive and procedural issues, rights and obligations of relevant actors; they may also define legal notions. The Tribunal provides them as part of its reasoning or as obiter dictum. It is those provisions of the Tribunal’s decisions that are of particular importance for international law through detailing treaty- and verbalizing customary rules. However, the States that have the final and decisive say confirming or non-confirming the content and binding nature of the rules spelt out or described by the Tribunal in its normative propositions. Meanwhile, States are not in a hurry to publicly react to the judicial normative propositions, particularly to those of ITLOS, though they refer to them in pleadings or when commenting on the International Law Commission drafts. At times, States concerned argue that international judicial decisions are not binding for third parties. While the States are predominantly silent, ITLOS reiterates, develops and consolidates normative propositions, and they begin to be perceived as law. The paper also points to the possibility of the Tribunal’s normative propositions being not correct and to the role of the judges’ dissenting and separate opinions in identifying such propositions.

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