The crime by refrain and leaving, its essence pillars and applications into a legal comparative study to Islamic juispudence

2020 ◽  
Vol 7 (2) ◽  
pp. 183-213
Author(s):  
Kamal Muhammad Abubakir ◽  
Karim Taha Tahir ◽  
Shakhawan Khidr Rasool
Keyword(s):  
Penal Code ◽  
Responsibility To Protect ◽  
Legal Obligation ◽  
Legal Concept ◽  
Positive Behaviors ◽  
Islamic Jurisprudence ◽  
Material Element ◽  
The Law ◽  
The Individual ◽  
Harmful Result

crime usually happens in a negative way, that is to prevent an act that is bidding legally, punishable by his/her legacy, or legally binding on it, another one doing positively is the crime takes place in a positive way, that is, by committing an act prohibited by the law and criminalized by the law, especially if it results in an act or omission as a harmful result, and whether the harmful result financial or misconduct was a pure legal violation. The crime of refraining may be preceded by positive behaviors which time its completeness and magnitudes are confirmed.The elements that make the crime are available in the crime of abstinence, like other crimes. The material element is indicated from the proposition that each crime has a result and the causal relationship between the result and the conduct. Or through the law’s consideration of that behavior alone without taking care at the result, depending on the legal concept of the result, through which the result is aggression against an interest saved by the law.The moral element of the abstaining crime is got when there is a condition of discrimination and freedom of choice for the wrongdoer, so the criminal act is issued by someone with a criminal ability.The element of compulsion in the crime is achieved by abstaining when there is a legal obligation on the individual’s responsibility. His\her failure to implement what he\she orders leads to the arrangement of responsibility over the wrongdoer, on the basis of one or more of the base of compulsion, starting with the Penal Code and then the laws that supplement it and after that contract and the conduct of the perpetrator and other laws and rules Public and custom, responsibility and the idea of the advocator, and the exclusive responsibility to protect interests.In Islamic statue include more ways to rule on the crime of abstaining, by considering the abstainer as a cause of the crime, or as a participant therein, or as being incompetent to do what he must himself\herself or assign to him\her from the accomplishment appoint on him\her, and the abstainer can also be judged based on the evidence from the texts of the BOOK and The SUNNAH is straightforward, and the decision of the wrongdoer can be withdraw by measuring it with similar origins and patterns.The criminal victuals have expanded in Islamic jurisprudence and the penal code for the crime of continence, and have determined the appropriate penalties for it according to the resulting damages and aggressions affecting the individual and society.

scholarly journals Document Falsification/Forgery from the View of Islamic Jurisprudence and Malaysian Law

2019 ◽  
Vol 57 (2) ◽  
pp. 459-498
Author(s):  
Wan Abdul Fattah Wan Ismail ◽  
Ahmad Syukran Baharuddin ◽  
Lukman Abdul Mutalib ◽  
Muneer Ali Abdul Rab al-Qubaty
Keyword(s):  
Content Analysis ◽  
Expert Opinion ◽  
Penal Code ◽  
Legal Institutions ◽  
Analysis Methods ◽  
Frequent Use ◽  
Islamic Jurisprudence ◽  
Important Means ◽  
Evidence Law ◽  
The Law

Although the scholars of Islamic jurisprudence discussed the importance of document and its strength as a mean of proof, they did not discuss the issue of forgery unless slightly compared with the scholars of law. This is due to its limited extension and uses in the period of times. And with the frequent use of them in our time, the debates have extended towards several circumstances either to attempt for or to deny a forgery. Therefore, this research is conducted to study the document falsification from the perspectives of Islamic Jurisprudence and Malaysian Law. It is also to explain the definition, procedure and methods to identify the crime and its punishment. The study used inductive and content analysis methods on previous scholars’ opinions, discussions and explanation from two different legal institutions. This study found the following important results: The are many forms of forgery occur in this era and can be classified either as material or incorporeal fraud. Several implications have been issued against the forgery crime in the Malaysian Penal Code, such as imprisonment, lashes and fines. The Islamic jurisprudence and the Malaysian Evidence Act 1950 has established several methods to verify the validity of documents such as confession, testimony, expert opinion, and oath, but the opinion of the expert is the most important means in verifying the authenticity and originality of documents. This study also found that the Malaysian Evidence Law did not discuss the oath as a mean to verify documents. As analysed, the method to verify documents discussed in the books of jurisprudence is very different from that of the Malaysian Evidence Act 1950, which specifies the conditions of documents and the number of witnesses, but the law does not specify the number of witnesses and impose conditions only.[Meskipun para ahli tata hukum Islam membahas pentingnya sebuah dokumen sebagai alat bukti, namun mereka kurang membahas persoalan pemalsuan dokumen sedalam para ahli hukum konvensional. Hal ini terkait dengan terbatasnya waktu dan kuantitas penggunaan, sehingga frekuensi penggunaannya memunculkan debat yang panjang, baik yang menerima atau yang menolak soal pemalsuan. Oleh karena itu, artikel ini membahas pemalsuan dokumen dari perspektif tata hukum Islam dan hukum nasional di Malaysia. Artikel ini juga menjelaskan definisi, prosedur, dan metode identifikasi kejahatan ini serta hukumannya. Penulis menggunakan metode induktif dan analisis isi pada opini, perdebatan, dan penjelasan dari dua institusi hukum yang berbeda. Kajian ini menyimpulkan adanya beragam bentuk pemalsuan dewasa ini, baik material atau non material. Beberapa aturan hukum telah dikeluarkan di Malaysia dan sangsi nya seperti penjara, cambuk dan denda. Peradilan Islam dan Undang Undang Saksi Tahun 1950 telah menetapkan beberapa metode untuk validasi dokumen seperti: pengakuan, testimoni, pendapat ahli, dan sumpah, namun pendapat dari ahli masih merupakan cara utama untuk verifikasi keautentikan dan keaslian dokumen. Artikel ini juga menemukan bahwa peraturan hukum di Malaysia belum membahas sumpah sebagai alat verifikasi dokumen. Juga metodenya berbeda antara yang ada di dalam buku teks dengan Undang Undang 1950 yang lebih fokus pada kondisi dokumen dan jumlah saksi, padahal di dalam hukumnya tidak memperhitungkan jumlah saksi, hanya kondisinya saja.]

scholarly journals Unruly Affects: Attempts at Control and All That Escapes from an American Mental Health Court

2018 ◽  
Vol 33 (1) ◽  
pp. 85-108 ◽  
Author(s):  
Jessica Cooper
Keyword(s):  
Mental Health ◽  
San Francisco ◽  
Linear Time ◽  
State Control ◽  
Criminal Courts ◽  
Time And Space ◽  
Legal Concept ◽  
Bay Area ◽  
The Law ◽  
The Individual

Based on two years of ethnographic fieldwork in mental health courts in the San Francisco Bay Area, this article juxtaposes the fixity that defines the legal concept of jurisdiction with the itineracy of homeless individuals judged by criminal courts. I assert that jurisdiction is an attempt at control: by invoking jurisdiction, courts attempt to fix people and objects within time and space so as to yield a narrative of liberal accountability for which defendants can be held responsible. Rather than assume the vantage point of the law, I stick with Harriet, a person who was homeless and subject to a mental health court’s attempt at control. Moving away from the law exposes when state attempts at control fail. Claims to jurisdiction reflect the state’s reliance on control through a particular chronotope of linear time and divisible space. In differently configuring time and space as cyclical and unbounded, Harriet confounds the law’s attempt at control. Further, the state’s invocation of jurisdiction as a concept that fixes time and space produces unruly affects, or coordinates of relation that escape a rule of law presenting itself as rational. Harriet’s relationships with others reflect and enable her escape from state control: they inhabit an affective atmosphere that is produced by the law’s own chronotopic terms, but that reject the individual accountability that the law understands as a product of claims to jurisdiction. In paying attention to missed encounters between Harriet and the court, this article reveals and theorizes moments in which power escapes its own terms and enters a social, deindividuated, affective sphere.

scholarly journals Categories of Rights and Lawful Interests of Individuals and Their Use in the Sphere of Criminal Justice

2020 ◽  
Vol 14 (1) ◽  
pp. 139-147
Author(s):  
Alexander Grinenko ◽  
Georgii Gudzhabidze ◽  
Vasily Potapov ◽  
Nikolay Zheleznyak
Keyword(s):  
Preliminary Investigation ◽  
Criminal Procedure ◽  
Criminal Proceedings ◽  
Legal Concept ◽  
Legitimate Interest ◽  
Criminal Procedure Law ◽  
Legitimate Interests ◽  
The Law ◽  
The Individual ◽  
Correct Understanding

Categories of rights and legitimate interests of a person are among the most essential in modern legal science, legislation and law enforcement practice. These categories are of particular importance in the field of criminal proceedings. The outcome of the preliminary investigation and trial in criminal cases largely depends on the correct understanding and subsequent application of these categories. The state should not only recognize, but also guarantee the possibility to exercise the rights and legitimate interests of an individual, enshrined at various levels, up to the international law. The study of the use of the legal concept of «personality» in various areas of law, including criminal procedure, indicates its application in the widest sense as a synonym for the concept of «a human». The law refers to a human as a person, regardless of the capacity in which he acts in specific legal relations. Categories «human», «individual», «personality», «person», «citizen» in the field of criminal proceedings can be considered synonymous. Some special characteristics arise not from differences in the general social status, but solely from the specific procedural status granted to a person in connection with criminal proceedings. In the research publications, the words «rights» and «freedoms» of the individual are considered identical, i.e. synonyms, and are described through the category of «opportunities». But for the recognition of such opportunities, it is not always required for them to be enshrined in the criminal procedure law. The category of «legitimate interest» has a specific meaning and differs from the categories of «rights and freedoms» of an individual. Legitimate interests are not indicated in the law itself because their scope of application is wider than the scope of law implementation. But such interests should not contradict the law, i.e. the provisions of the current legislation. A fundamental change in states perception of the individual has led to a significant change of the doctrine and content of criminal proceedings aimed primarily at protecting the rights and legitimate interests of the individual.

Conscientious Objection (European and American approaches)

Law and World ◽  
2020 ◽  
Vol 6 (2) ◽  
pp. 115-144
Keyword(s):  
Deep Understanding ◽  
Legal Protection ◽  
Legal Aspects ◽  
Conscientious Objection ◽  
State Regulation ◽  
Legal Responsibility ◽  
State Regulations ◽  
Conscientious Objectors ◽  
The Law ◽  
The Individual

The Article concerns the legal issues, connected with the situation, when a person (or group of people) disobey requirements of the Law or other State regulations on the basis of religious or nonreligious belief. The Author analyses almost all related issues – whether imposing certain obligation on individuals, to which the individual has a conscientious objection based on his/her religious beliefs, always represents interference with his/her religion rights, and if it does, then what is subject of the interference – forum integrum or forum externum; whether neutral regulation, which does not refer to religion issues at all, could ever be regarded as interference into someone’s religious rights; whether opinion or belief, on which the individual’s objection and the corresponding conduct is based, must necesserily represent the clear “manifest” of the same religion or belief in order to gain legal protection; what is regarded as “manifest” of the religion or other belief in general and whether a close and direct link must exist between personal conduct and requirements of the religious or nonreligious belief; what are the criteria of the “legitimacy” of the belief; to what extent the following factors should be taken into consideration : whether the personal conduct of the individual represents the official requirements of corresponding religion or belief, what is the burden which was imposed on the believer’s religious or moral feelings by the State regulation, also, proportionality and degree of sincerity of the individual who thinks that his disobidience to the Law is required by his/her religious of philosofical belief. The effects (direct or non direct) of the nonfulfilment of the law requirement (legal responsibility, lost of the job, certain discomfort, etc..) are relevant factors as well. By the Author, all these circumstances and factors are essencial while estimating, whether it arises, actually, a real necessity and relevant obligation before a state for making some exemptions from the law to the benefi t of the conscientious objectors, in cases, if to predict such an objection was possible at all. So, the issues are discussed in the prism of the negative and positive obligations of a State. Corresponding precedents of the US Supreme Court and European Human Rights Court have been presented and analysed comparatively by the Author in the Article. The Article contains an important resume, in which the main points, principal issues and conclusion remarks are delivered. The Author shows, that due analysis of the legal aspects typical to “Conscientious objection” is very important for deep understanding religious rights, not absolute ones, and facilitates finding a correct answer on the question – how far do their boundaries go?

Mengatasi Kelangkaan Tafsir Ahkam di Tengah Komunitas Penggiat Fikih Nusantara

SUHUF ◽  
2015 ◽  
Vol 3 (2) ◽  
pp. 219-234
Author(s):  
Muhammad Ishom El-Saha
Keyword(s):  
Social Life ◽  
Islamic Jurisprudence ◽  
The Law ◽  
Muslim Scholars

Study on Islamic  jurisprudence in  Indonesian is very vigorous and developed in accord with the dynamics of society’s life in Indonesia. Starting from the study of Islamic jurisprudence on worship, marriage and even on social life in line with the revival of  shariah economy. However, although the study theme of Islamic jurisprudence is getting wider, it has not aroused the mark for the interest revival of Indonesian muslim scholars to  study in depth and width about the Quranic exegesis of the law yet. This writing is made to encourage those who may concern on this issue that it is advisable to those vigorously study the Islamic jurisprudence in Indonesia redesign the pattern of the study of Islamic jurisprudence to be more systematic by emphasizing its study on the Quranic exegesis of the law. This writing explains that the study of Islamic jurisprudence using the approach of the Quranic exegesis of the law will lead to the comprehensive undertanding on the problems of Islamic jurisprudence.

Hobbes among the Classic Jurists

2018 ◽  
Author(s):  
David Boucher
Keyword(s):  
International Relations ◽  
International Law ◽  
The State ◽  
Law Of Nature ◽  
Law Of Nations ◽  
Complete Identification ◽  
The Law ◽  
The Individual ◽  
Hedley Bull ◽  
Hans Morgenthau

The classic foundational status that Hobbes has been afforded by contemporary international relations theorists is largely the work of Hans Morgenthau, Martin Wight, and Hedley Bull. They were not unaware that they were to some extent creating a convenient fiction, an emblematic realist, a shorthand for all of the features encapsulated in the term. The detachment of international law from the law of nature by nineteenth-century positivists opened Hobbes up, even among international jurists, to be portrayed as almost exclusively a mechanistic theorist of absolute state sovereignty. If we are to endow him with a foundational place at all it is not because he was an uncompromising realist equating might with right, on the analogy of the state of nature, but instead to his complete identification of natural law with the law of nations. It was simply a matter of subject that distinguished them, the individual and the state.

The Individual Conscience and the Law

1917 ◽  
Vol 27 (3) ◽  
pp. 317-333 ◽  
Author(s):  
Emile Boutroux
Keyword(s):  
The Law ◽  
The Individual

Drugs and their impact on the individual and society

2021 ◽  
Vol 27 ◽  
pp. 63-96
Author(s):  
INTISAR SHAHBAZ ◽  
Keyword(s):  
Drug Addiction ◽  
Drug Addicts ◽  
Negative Effects ◽  
Negative Behaviors ◽  
Deviant Behaviors ◽  
Positive Behaviors ◽  
The Family ◽  
Family Breakdown ◽  
The Individual ◽  
Shed Light

Abstract The problem of drug addiction for individuals, especially young people, is one of the most dangerous pests that cause many problems in various health, social and psychological aspects facing every society, but rather the whole world. The phenomenon of drug addiction often leaves individuals with dangerous negative effects on their behavior, whether towards themselves or towards others, and this requires the relevant institutions to strive for important and constructive solutions to reform such individuals, and then rid them of their negative behaviors, rehabilitate them and integrate them into society, to become active and effective individuals through their adoption of positive behaviors that are acceptable in line with the values, customs and traditions of their societies to which they belong. Therefore, our current study came to shed light on the most important effects resulting from the phenomenon of drug addiction among individuals through achieving the two research objectives which seek to know: 1- Causes of addiction to drug use among individuals 2- The effect of drug abuse on society. Upon verifying the two research objectives by relying on the analytical method of literature and previous studies, the two researchers reached the following results: First - The most important causes of youth addiction to drugs are poverty, begging, loss of one or both parents, the presence of a criminal in his family, invalid education and other various phenomena and deviations. Second - The symptoms of drug addiction push the addicted person to adopt deviant behaviors, as well as afflicting the addicted individual to psychological and mental pressures, and then afflicting his family with chronic diseases, in addition to the family breakdown occurring in the homes of drug addicts. Key words: drugs; Drug effect; The individual and society.

scholarly journals Misconception on the Authority Abuse of Power in the Law Enforcement against Corruption

2017 ◽  
Vol 13 (9) ◽  
pp. 51
Author(s):  
Sadjijono Sadjijono ◽  
Bagus Teguh Santoso
Keyword(s):  
Law Enforcement ◽  
Good Governance ◽  
Government Officials ◽  
Legal Concept ◽  
Abuse Of Power ◽  
Government Administration ◽  
The Absolute ◽  
The Law ◽  
The Government ◽  
Administrative Jurisdiction

Law No. 30/ 2014 on Government Administration brings the strength and the averment on the performance of the governmental functions which include executive, legislative, and juridical in order to provide the public services (bestuurzorg). Such regulation also aims to prevent and to eliminate any kinds of the maladministration done by the government officials/organs in implementing their functions so that good governance can be realized. In implementing their function, the government should rely on the useful performance (doelmatigheid) and the effectiveness (doeltreffenhgeid) according to the norms of each authority. It is a sophism when the ‘authority’ and/or the ‘competence’ mentioned under the Law No. 30/ 2014 on Government Administration are defined differently in the letterlijk gramatikal wet without associating those terms with an understanding of bevoegheid in an administrative legal concept. An idea that distinctively defines the term ‘competence’ as a right and ‘authority’ as a power is considered as an inconsistent idea, which may cause dualism and distortion in the common law enforcement reffering to the administrative law, particularly related to the concept of the authority abuse of power mentioned under the Law No. 31/ 1999 amended by the Law No. 20/ 2001 on deeds against corruption. As the result, when the notion of ‘authority abuse of power’ is defined as a right (as mentioned in article 1, subsection 5 jo. article 17, Law No. 30/ 2014 on Government Administration), it will be characterized into the absolute competence of the administrative jurisdiction, and when the notion of ‘authority abuse of power’ is defined as a power (as mentioned in article 3, Law No. 31/ 1999 on deeds against corruption), it will be characterized into the absolute competence of the corruption-act jurisdiction. Meanwhile, implementing the government’s ‘competence’ and/or ‘authority’ is characterized into one concept based on the norms of the authority power.

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