scholarly journals MEREPOSISI CARA PANDANG HUKUM NEGARA TERHADAP HUKUM ADAT DI INDONESIA

2017 ◽  
Vol 2 (1) ◽  
Author(s):  
Sulaiman
Keyword(s):  
Indigenous Peoples ◽  
The Body ◽  
State Law ◽  
Dynamic Nature ◽  
Legal Studies ◽  
The Law ◽  
Difficult Position ◽  
The Concept Of Law ◽  
The Right ◽  
Adat Law

Adat law is still in a difficult position until now.  Even adat law is marginalized, although adat law has a dynamic nature. State law has not fully considered adat law as part of its body. This article wants to understand how state law views adat law so far. Based on that perspective, repositioning is offered in view of adat law. The concept of writing is based on the law of reality perspective. The perspective of such legal studies, does not set out the concept of law in the legislation. From this writing found that from the beginning how to view custom as a law has been debated. When the colonial lawyers formulate the name of the right law related to the law of the natives. There is a process through which custom reaches the degree of law category (adat law). This debate lasted until after independence. This writing wishes to emphasize the importance of state law to change its perspective regarding the existence of adat law and indigenous peoples. Adat law should be seen as part of the body of the nation itself. Abstrak: Penelitian ini ingin memahami bagaimana hukum negara memandang hukum adat selama ini. Berdasarkan cara pandang tersebut, ditawarkan reposisi dalam memandang hukum adat. Konsep penulisan ini berbasis pada hukum perspektif realitas. Perspektif kajian hukum demikian, tidak berangkat konsep hukum dalam peraturan perundang-undangan. Dari penulisan ini ditemukan bahwa dari awal cara memandang adat sebagai hukum sudah diperdebatkan. Ketika pada ahli hukum kolonial merumuskan nama hukum yang pas terkait dengan hukum pribumi. Ada proses yang dilalui sehingga adat mencapai derajat kategori hukum (adat). Perdebatan ini berlangsung hingga usai merdeka. Penulisan ini ingin menegaskan pentingnya hukum negara mengubah cara pandangnya terkait keberadaan hukum adat dan masyarakat hukum adat. Hukum adat harus dilihat sebagai bagian dari tubuh bangsa sendiri. Kata Kunci: hukum negara; hukum adat; hukum khas Indonesia.

scholarly journals Kedudukan Perempuan dalam Hukum Waris Adat Batak Toba

2018 ◽  
Author(s):  
Elpina
Keyword(s):  
Law Enforcement ◽  
Indigenous Peoples ◽  
Customary Law ◽  
Social Culture ◽  
Kinship System ◽  
Law Enforcement Officials ◽  
The Common ◽  
The Law ◽  
The Right ◽  
Political Economic

Customary law is the law of life (living low) that grow and develop in the midst of the community in accordancewith the development of society. Customary law who live in midst of ethnic Indonesia is very strategic to be knownand understood by law enforcement officials, legal observers and guidance in applying the appropriate legal andfair for Indonesian society. The common law does not give the right role and the same degree between men andwomen in life, social, culture, political, economic and domestic life and marriage property and inheritance.Landing directly above the law would cause problems among indigenous peoples, especially the indigenous peopleembrace patrilinieal or matrilineal kinship system, such as that experienced by the Batak people who mbracepatrilineal kindship systems knows in Toba Batak society is patrilineal system, which through the male lineage andis the next generation of his parents while girls not the generation of their parents, as a result of this system is veryinfluential on the position of girls in matters of inheritance.

scholarly journals Prevention of Criminal Action of Corruption through the Initiation of the Dayak Ngaju Traditional Laws

2021 ◽  
Vol 3 (1) ◽  
pp. 115-123
Author(s):  
Kiki Kristanto ◽  
Thea Farina ◽  
Putri Fransiska Purnama Pratiwi ◽  
Libra Adelianty Asuransia
Keyword(s):  
Indigenous Peoples ◽  
Natural Law ◽  
Customary Law ◽  
State Law ◽  
Government Officials ◽  
Central Kalimantan ◽  
The Law ◽  
The Government

Given the complexity of the problem of corruption, it must be treated seriously through a balance of rigorous and precise steps. This step is not only taken by the government and law enforcers, but also by involving the participation of indigenous peoples. In the indigenous Dayak Ngaju community, they are familiar with the principle of not having a bahadat. This principle means that the behavior of life that upholds honesty, equality, togetherness and tolerance and obeying the law (state law, customary law and natural law). According to the author, the existence of the principle of Belom Bahadat can be used as a preventive instrument for the prevention of corruption by government officials in Central Kalimantan Province. This means that there is a contribution of customary law norms to the government's efforts to prevent the occurrence of criminal acts of corruption through the initiation of the belom bahadat principle of Dayak Ngaju customary law.

REQUIREMENTS FOR INCOMPATIBILITY OF A JUDGE POSITION WITH OTHER TYPES OF ACTIVITY: COMPARATIVE CONSTITUTIONAL AND LEGAL ASPECT

2021 ◽  
Author(s):  
Mariana Khmyz ◽  
Keyword(s):  
Human Rights ◽  
Local Governments ◽  
Legal Aspect ◽  
Supervisory Board ◽  
Criminal Court ◽  
The Body ◽  
Public Authorities ◽  
Professional Activities ◽  
The Law ◽  
The Right

The article reveals the requirements for the incompatibility of the position of a judge with other activities in the comparative constitutional and legal aspect. It is determined that the requirements for incompatibility of a judge's position with other activities in Ukraine are regulated by the Constitution of Ukraine, the Law of Ukraine «On the Judiciary and the Status of Judges», the Law of Ukraine «On Purification of Power», the Convention for the Protection of Human Rights and Fundamental Freedoms, Rules of Court adopted by the Council of Europe and the European Court of Human Rights, the Rome Statute of the International Criminal Court, the General (Universal) Charter of Judges. It is established that the legislative and constitutional requirements for judges stipulate that judges must meet high moral, ethical and professional standards. It has been established that persons may not engage in administrative, political or professional activities during their tenure as judges, which is incompatible with their impartiality, independence or the requirements for permanent performance of their duties. It is determined that while in the position of a judge, it is not allowed to engage in other activities, in particular, to carry out activities in other public authorities, local governments or activities related to the representative mandate. It has been proved that a judge cannot combine the activities defined by the position of a judge with advocacy and business activities. It was found that judges are prohibited by law from holding paid positions and performing paid work, except for teaching, research or creative work. It is established that a judge has no right to be a member of the governing of the body or supervisory board of an enterprise or organization whose main purpose is to make a profit. It is determined that a judge has no right to belong to a political party or trade union, as well as to show support for such a party or union. It has been proven that judges are prohibited from participating in election campaigns, political rallies, rallies or strikes. It was found that the judge is obliged to comply with the requirements for incompatibility established by the legislation of Ukraine in the direction of preventing and combating corruption. It is determined that a judge has the right to activities related to the administration of justice, to participate in judicial self-government, to membership in national or international associations, as well as in other organizations that operate to protect the interests of judges, increase the authority of the judiciary, in society or for the development of legal science and profession, for the formation of public associations, as well as for participation in the activities of such associations in order to protect their rights and interests, as well as to improve the level of professionalism and skills. It is proposed, in the future of the following studies, to reveal the grounds for dismissing a judge from office in a comparative constitutional and legal aspect.

Redemption of Security Interests under Israel Law

1975 ◽  
Vol 10 (1) ◽  
pp. 81-101 ◽  
Author(s):  
Joshua Weisman
Keyword(s):  
Supreme Court ◽  
The Body ◽  
Supreme Court Justice ◽  
Secured Transactions ◽  
English Law ◽  
The Law ◽  
The Right ◽  
The Way

The English “Equity of Redemption” was applied by the courts in Israel long before the enactment of the Security Interests Law, 1967. The courts did not hesitate to transplant this doctrine of English law into the body of Ottoman law which was then applicable in Israel in the field of secured transactions. Yet, the extent to which this symbiosis succeeded had still to be examined, and many questions relating to the right of redemption were still unanswered when the decision was taken to prepare the new Security Interests Law. In the new Law the right of redemption was expressly recognized. The influence of English law on this subject was so marked that on one occasion a Supreme Court Justice characterized the right of redemption provided by sec. 13(a) of the Law, as “actually only legislating the equity of redemption of English law”. It is the purpose of this article to examine the way in which Israel law formulated its “equity of redemption”, to analyze it, to point out its main features and expose its shortcomings.

scholarly journals Implementation of the normative content of the principle of ensuring the right to liberty and security of person in the course of criminal procedural evidence

2021 ◽  
Vol 66 ◽  
pp. 235-239
Author(s):  
T.M. Miroshnichenko
Keyword(s):  
Judicial Review ◽  
Criminal Liability ◽  
The Body ◽  
Criminal Proceedings ◽  
Criminal Offense ◽  
House Arrest ◽  
The Law ◽  
Precautionary Measures ◽  
The Right ◽  
Normative Content

Consolidation at the level of the Constitution of Ukraine of the principle of ensuring the right to liberty and security of person necessitated the study of its essence and normative content in order to assess the correctness of the legislative approach to formulating the principle at the level of sectoral regulations. The normative content of the principle is enshrined in Art. 12 of the CCP. Analysis of the wording of this article allows us to identify three components of the principle, which reflect its requirements: prohibition, protection, security. The first element of the principle is the provisions of Part 1 of Art. 12 of the CCP. The key concepts that substantively fill this element are the following: restriction of freedom in criminal proceedings is possible only by a reasoned court decision; the reason for such a restriction is the suspicion of committing a criminal offense; restriction of liberty occurs in the manner prescribed by the Criminal Procedure Code. Procedures for restricting the right to liberty are corrected due to the importance of the restricted right. Judicial review proceedings on the prosecution's request to choose precautionary measures restricting liberty are characterized by its active position in proving the circumstances, which is the basis for restricting a person's liberty. The investigating judge, in the presence of a duly motivated and substantiated request, takes an active position solely to verify the information that is the basis of the request. The content of the element of protection consists of the provisions of the law on: the need to bring the detainee to the investigating judge as soon as possible and to check the legality and validity of the restriction of liberty; notification of the detention of the person of her relatives. The third element of the normative content of the principle is formulated in Part 5 of Art. 12 of the CCP. The law provides for criminal liability for knowingly illegal detention, pretext, house arrest or detention (Article 371 of the CPC), as well as the possibility of compensation for damage caused by illegal decisions, actions or omissions of the body carrying out investigative activities, pre-trial investigation, prosecution or court (Article 130 of the CPC).

scholarly journals Hak Mewaris Anak Luar Kawin Berdasarkan Pengangkatan oleh Kakeknya Menurut Hukum Waris Adat Bali

2020 ◽  
Vol 5 (1) ◽  
pp. 75
Author(s):  
I Gusti Ngurah Bayu Pratama Putra ◽  
Abdul Rachmad Budiono ◽  
Hariyanto Susilo
Keyword(s):  
Customary Law ◽  
State Law ◽  
Legal Study ◽  
Biological Child ◽  
Village Community ◽  
Biological Children ◽  
The Law ◽  
The Right ◽  
Natural Child

This study discussed the Balinese customary law regarding the position and inheritance rights of natural children who were adopted by their grander. This study used an empirical legal study, which was a method of legal study that sought to see and examine the law can work in people’s lives. The results of the study showed that the adoption of a natural child by his grandfather was legal according to Balinese customary law, the position of a natural child adopted by his grandfather was the same as his biological child. State law only had a role to strengthen the prevailing customary law. The right to inherit natural children who were adopted by their grandfathers were the same as biological children, including the inheritance of their rights and obligations both as a child and as a member of an indigenous village community.

scholarly journals Claims for Recognition of a Registered Contract as Terminated and the Right of Obligation as Absent

2021 ◽  
pp. 57-83
Author(s):  
V. A. Boldyrev ◽  
Keyword(s):  
Scientific Methods ◽  
Legal Rules ◽  
Legal Studies ◽  
Judicial Practice ◽  
Legal Method ◽  
Legal Nature ◽  
General Scientific ◽  
The Law ◽  
Time Changes ◽  
The Right

Introduction: claims for recognition of a registered contract as terminated and the right of obligation as absent combine the following features: (1) they are declaratory; (2) belong to the category of negative ones; (3) are not explicitly stated in the law; (4) are recognized by judicial practice; (5) are aimed solely at eliminating legal uncertainty. The unity of features determines the need to analyze these types of claims within a single study. Purpose: to establish the reasons for the occurrence in practice of claims for recognition of a registered contract as terminated and the right of obligation as absent. Methods: general scientific (dialectical) method of cognition of scientific concepts of private law; special scientific methods of cognition: formal-legal method, historical-legal method, method of comparative legal studies, forecasting. Results: the transition of the claim for recognition of the right of obligation as absent to the category of remedies directly referred to in acts of official interpretation of law entails great risks. As soon as the emerging practice is recorded in an act of interpretation, the following will happen. Firstly, the number of cases of its use in practice will be likely to increase, which will entail an increased burden on courts. Secondly, there will appear the prerequisites for the full formal legalization of the phenomenon, as has already happened with the recognition of a contract as not concluded and the recognition of the right to a thing as absent. Should there be no registration actions in the Russian legal system, there would not be so many claims of a negative legal nature recognized by practice, including the claim for the recognition of a registered contract as terminated. Protective legal rules aimed at regulating claim-based relations that have the purpose of ensuring a more stable existence of regulatory relations are often formalized in the law, being widely applied in practice by the time changes are introduced into the law.

scholarly journals Undang-Undang di Malaysia dan Jaminan Hak Orang Kurang Upaya untuk Bekerja

2016 ◽  
Author(s):  
HIRWAN JASBIR JAAFAR ◽  
HARLIDA ABDUL WAHAB ◽  
NURLI YAACOB
Keyword(s):  
Research Methodology ◽  
People With Disabilities ◽  
Persons With Disabilities ◽  
Legal Studies ◽  
Right To Work ◽  
Normal People ◽  
Federal Constitution ◽  
The Law ◽  
The Government ◽  
The Right

Convention on the Rights of Persons with Disabilities (CRPD) has been signed by Malaysian Government on 8 April 2008. It shows the desire and commitment of the Government of Malaysia to give recognition to the rights of People with Disabilities. The aim of this article is to review the rights to work for Persons with Disabilities under the Federal Constitution and Person with Disabilities Act 2008 in Malaysia. This study will use Legal studies as research methodology and it involved two types of method which is doctrine study of the law and socio-legal studies. The studies showed that the rights to work for PWDs in Malaysia stated as generally in the Federal Constitution and the rights has been detailed in Person With Disabilities Act 2008. The existence of the right to work exclusively under the Person With Disabilities Act 2008 makes those rights not only for normal people but it is also owned by the PWDs. However, the existence of legislation alone is not enough if followed by enforcement. Thus, the improvement in the law and its implementation should be further strengthened through several proposals suggested by this article. It is to ensure the rights of the PWDs to get the job be given serious attention by the community in line with the original purpose of Persons with Disabilities Act 2008 being created.

Privatising Property

2020 ◽  
pp. 177-216
Author(s):  
Charlotte Epstein
Keyword(s):  
John Locke ◽  
Private Property ◽  
Modern Science ◽  
The Body ◽  
Natural Order ◽  
Property Relations ◽  
The Law ◽  
Theory Of Value ◽  
Secondary Feature ◽  
The Right

This chapter describes how the body served to privatise property and to establish the human subject, instead of the natural order, at the centre of the law. Whereas modern science expelled humanity from the world’s centre, a second revolution in the law achieved the opposite. It begat legal modernity and the right to private property that supports capitalism. The site for this revolution was early modern theories of natural rights. The chapter traces the genealogy of the concept of private property, from Hugo Grotius via Samuel von Pufendorf to John Locke, through this tradition and under the lens of the body, underscoring the extent to which they broke from premodern Thomist theories of natural law, whose default mode of property relations were communal. It then shows how Locke deployed the most effective legitimation of capitalism by locating the original mechanism by which property is privatised in ‘the hand that grabs’ – by corporealising it. The chapter then turns to the particular, labouring bodies that were explicitly excluded from Locke’s embodied labour theory of value: slaves. Slavery was not simply a practice Locke was deeply invested in personally, or an embarrassing but secondary feature of his political writings. It was, rather, part and parcel of the constitutive logic by which he articulated a racialised right to private property.

scholarly journals Politik Hukum Penyelesaian Konflik Pengelolaan Konservasi yang Humanis

2019 ◽  
Vol 1 (2) ◽  
pp. 219-243
Author(s):  
Danggur Konradus
Keyword(s):  
Conflict Management ◽  
Indigenous Peoples ◽  
Conservation Law ◽  
Company Law ◽  
Customary Law ◽  
State Law ◽  
Conservation Areas ◽  
Conservation Area ◽  
Indigenous Law ◽  
The Right

This article discusses the phenomenon of mutual claims between state law and customary law in resolving conflict management conservation. In the conservation areas are several laws which claim to have the right to control and manage the area, namely state law, customary law, company law and so on. The centralistic legal politic in the Conservation Law now separates humans from their nature and has not yet integrated the local wisdom of indigenous peoples, so that it is far from the conservation law that is pro-indigenous, pro-justice, pro-poverty, and pro-local wisdom. Therefore, the legislative approach is not enough to overcome the complexity of the problem of conservation areas, but rather requires a holistic and progressive approach as an alternative solution. This article builds argumentation that integration of local wisdom in the legal politics of conservation area management is very necessary to maintain and manage human biodiversity and ecosystem areas. Social capital in indigenous law communities such as deliberation, honesty, harmony, not discrimination, is an important capital in overcoming various problems in resolving conflict management conservation. Abstrak Artikel ini membahas fenomena saling klaim antara hukum negara dan hukum adat dalam penyelesaian konflik pengelolaan konservasi. Dalam kawasan konservasi sendiri terdapat beberapa hukum yang saling mengklaim memiliki hak menguasai dan mengelola kawasan tersebut, yaitu hukum negara, hukum adat, hukum perusahaan dan sebagainya. Politik hukum konservasi yang sentralistis dalam UU Konservasi saat ini telah memisahkan manusia dengan alamnya dan belum mengintegrasikan kearifan lokal masyarakat hukum adat, sehingga jauh dari hukum konservasi yang pro masyarakat hukum adat, pro keadilan, pro kemiskinan, dan pro kearifan lokal. Oleh karenanya, pendekatan perundang-undangan saja tidak cukup untuk mengatasi kompleksitas masalah kawasan konservasi, melainkan memerlukan pendekatan holistik dan progresif sebagai alternatif penyelesaian. Artikel ini membangun argumentasi, integrasi terhadap kearifan lokal dalam politik hukum pengelolaan kawasan konservasi sangat diperlukan untuk memelihara dan mengelola kawasan keanekaragaman hayati dan ekosistem yang humanis. Modal sosial pada masyarakat hukum adat seperti musyawarah, kejujuran, rukun, tidak diskriminasi, merupakan modal penting dalam mengatasi pelbagai problem dalam penyelesaian konflik pengelolaan konservasi.

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