scholarly journals MEMBANGUN MORALITAS DAN HUKUM SEBAGAI INTEGRATIVE MECHANISM DI MASYARAKAT DALAM PERSPEKTIF HUKUM PROGRESIF

2021 ◽  
Vol 14 (2) ◽  
Author(s):  
Adam Ilyas ◽  
Dicky Eko Prasetio ◽  
Felix Ferdin Bakker
Keyword(s):  
Rule Of Law ◽  
Legal Practice ◽  
The Rule Of Law ◽  
Legal Norms ◽  
Law And Morality ◽  
The Law

Abstract This study aims to analyze the application of morality to legal practice in Indonesia. This is because the reality of the rule of law today is dominated by a positivist-legalistic phenomenon that prioritizes text but darkens morality's meaning in law. Morality in law seems to be immersed in legal practice that deifies the textual law but neglects the law's moral essence. This research is juridical-normative research oriented towards coherence between the principles of law based on morality and legal norms and legal practice in society. This research's novelty is the development of morality in the rule of law practice by prioritizing two aspects, namely the integrative mechanism aspect of Harry C. Bredemeier with the progressive law of Satjipto Rahardjo. This study emphasizes that efforts to develop law must not forget the elements of morality development. This study's conclusions highlight that the development of law and morality will run optimally by upholding the law as an integrative mechanism and applying progressive law as a solution in facing the lethargy of the Indonesian nation.Keywords: integrative mechanism; morality; progressive lawAbstrak Penelitian ini bertujuan untuk menganalisis penerapan moralitas pada praktik berhukum di Indonesia. Hal ini dikarenakan bahwa realitas praktik berhukum saat ini didominasi oleh fenomena positivistik-legalistik yang mengutamakan teks tetapi menggelapkan makna moralitas dalam berhukum. Aspek moralitas dalam hukum seakan tenggelam dalam praktik hukum yang mendewakan tekstual undang-undang tetapi melalaikan esensi moral dalam undang-undang. Penelitian ini merupakan penelitian yuridis-normatif yang berorientasi pada koherensi antara asas-asas hukum yang bersumber pada moralitas dengan norma hukum serta praktik hukum di masyarakat. Kebaruan dari penelitian ini yaitu pembangunan moralitas dalam praktik negara hukum dengan mengedepankan dua aspek, yaitu aspek integrative mechanism dari Harry C. Bredemeier dengan hukum progresif dari Satjipto Rahardjo. Hasil dari penelitian ini menegaskan bahwa upaya membangun hukum tidak boleh melupakan aspek pembangunan moralitas. Simpulan dalam penelitian ini menegaskan bahwa, pembangunan hukum dan moralitas akan berjalan secara optimal dengan meneguhkan hukum sebagai integrative mechanism serta menerapkan hukum progresif sebagai solusi dalam menghadapi jagat kelesuan berhukum bangsa Indonesia.

Philosophical Foundations of the Law of Equity

2020 ◽  
Keyword(s):  
Rule Of Law ◽  
Common Law ◽  
Social Goals ◽  
Private Law ◽  
The Rule Of Law ◽  
Philosophical Foundations ◽  
Order Constraint ◽  
The Common ◽  
Law And Morality ◽  
The Law

A late-comer to the field of private law theory, the inquiry into the foundations of the law of Equity raises some fundamental questions about the relationships between law and morality, the nature of rights, the extent to which we are willing to compromise on the Rule of Law ideal in order to achieve various social goals. In this volume, leading scholars in the field address these and the questions about underlying principles of Equity and its relationship to the common law: What relationships, if any, are there between the legal, philosophical, and moral senses of ‘equity’? Does Equity form a second-order constraint on law? If so, is its operation at odds with the rule of law? Do the various theories of Equity require some kind of separation of law and equity—and, if they do, what kind of separation? The volume further sheds light on some of the most topical questions of jurisprudence that are embedded in the debate around ‘fusion’.

The Rule of Law when Renting State and Municipal Property

2014 ◽  
Vol 1020 ◽  
pp. 749-750
Author(s):  
Vyacheslav Mikhailovich Chibinev
Keyword(s):  
Real Estate ◽  
Rule Of Law ◽  
Legal Practice ◽  
The Rule Of Law ◽  
Scientific Analysis ◽  
Practical Research ◽  
The Law ◽  
State Registration

The work includes the theoretical and practical research in the field of civil and land legislation. There are some conclusions based on the scientific analysis of the law and legal practice that were made containing the analysis of the problems related to the conclusion and state registration of real estate lease agreements and their execution. Some proposals on improvement of the existing Russian legislation were made by the author.

scholarly journals The Rule of the Present, Not the Past

Jus Cogens ◽  
2021 ◽  
Author(s):  
Franco Peirone
Keyword(s):  
Law Enforcement ◽  
Rule Of Law ◽  
Practical Reasons ◽  
Legal Practice ◽  
The Rule Of Law ◽  
The Past ◽  
The Law ◽  
The One ◽  
Law Making ◽  
The Ideal

Abstract There is a perennial ambiguity in the rule-of-law preposition: it predicates that the law shall rule, but which law? This legal loophole has led to a diverse array of interpretations of the concept. Of these, two appear particularly adverse to what the rule of law should primarily be—the rulership of the law—yet still remain dominant. On the one hand, the rule of law is intended to be the vehicle to deliver above-the-law goods such as human rights or other individual entitlements like property, and to forever shield them against any other force, including the law. On the other hand, the rule of law is believed to be a tool at the rulers’ disposal, who make use of the law but are not bound by it, for either legal or practical reasons. In both cases, a pre-legal setting for society allocates rulership to something but not the law, against the very essence of the ideal: an authoritative legal practice for the sake of regulating the present society. As such, the rule of law has to meet certain requirements of craftsmanship, like conditions in law-making and law-enforcement, and sources, which are to be democratically underpinned.

scholarly journals Absolute Competence in the Fields of Alms in the Religious Courts

2021 ◽  
Vol 11 (2) ◽  
pp. 90-102
Author(s):  
Siah Khosyi'ah ◽  
Royhan Aziz Ghifari ◽  
Mohamad Sar’an ◽  
Ah Fathonih
Keyword(s):  
Rule Of Law ◽  
Legal Aspects ◽  
The Rule Of Law ◽  
Legal Norms ◽  
The Absolute ◽  
The Law ◽  
Legal Concepts ◽  
Religious Courts ◽  
Prescriptive Analysis

This research aims to investigate the absolute competence in the fields of alms in the Religious Court in Indonesia. The method used in this research is normative juridical research with the type of prescriptive analysis of research, namely studying the purpose of the law, the values of justice, the validity of the rule of law, legal concepts, and legal norms. This research found that the case of alms has never appeared. It can happen because alms cases are resolved through non-litigation. The settlement of alms disputes has likely been completed up to the zakat management institution's level, and alms has become part of Islam's teachings. It is necessary o cooperate with other institutions in resolving it legally. Besides that, there is a need for legislation that provides opportunities to solve alms' problem does not clash with its legal aspects.

scholarly journals Authentic interpretation of legal norms: theoretical aspec

2021 ◽  
pp. 215-220
Author(s):  
M. V. Osiadla
Keyword(s):  
Law Enforcement ◽  
Public Relations ◽  
Rule Of Law ◽  
Legal Norm ◽  
The Rule Of Law ◽  
Legal Norms ◽  
Internal Conflicts ◽  
Legitimate Expectations ◽  
The Law

The article examines the problem of interpretive activity in the law enforcement process, which is due to the need to clarify the content of the legal norm. The issue of interpretation in the process of application of legal norms is considered, as the modern Ukrainian legislation is not regulated and contains internal conflicts. The article describes the types of official normative interpretation, in particular, as authentic, legal, departmental. The use of interpretation in the law enforcement process as an opportunity to understand the essence of legislative terms,ensuring equal application by all subjects of public relations, which involves compliance with the principle of legitimate expectations and the rule of law. Keywords: interpretation, application, authentic interpretation, casual interpretation.

scholarly journals The role of interpretation of the law in the mechanism of bridging gaps in the law

2020 ◽  
pp. 107-112
Author(s):  
Yu. I. Matat
Keyword(s):  
Supreme Court ◽  
Rule Of Law ◽  
Legal Regulation ◽  
Regulation Mechanism ◽  
Legal Cases ◽  
The Rule Of Law ◽  
Legal Norms ◽  
The Supreme Court ◽  
The Law

The article is devoted to the study of the legal nature of the interpretation of law, its features, as well as the role in overcoming gaps in the law. Attention is focused and substantiated that the interpretation of legal norms, being a necessary element of the legal regulation mechanism, plays the important role in the process of overcoming gaps in law. So, by means of various methods of interpretation, in particular, formal gaps are overcome, which, in turn, may arise as a result of an unsuccessful presentation of legal norms by the legislator. It is determined that when applying the rule of law by analogy, such a rule in the particular situation should be interpreted not as part of the institution from which it is borrowed, but as part of the institution, the gap in which it is designed to overcome. This is due to the fact that the rule applied by analogy is subject to double influence: on the one hand, it generally retains its original meaning, on the other - partially adapts to the characteristics of the institution in which the gap is overcome through it. The role of official interpretation in the process of application of the law in the conditions of gaps in the legislation is clarified, the role of recommendatory explanations provided by higher courts on the issues of application of the legislation is investigated. In Ukraine, these powers, in accordance with the Law of Ukraine "On the Judicial System and the Status of Judges" dated June 02, 2016, are assigned to the Plenum of the Supreme Court, in order to ensure the same application of the rules of law in solving certain categories of cases, generalizes the practice of applying substantive and procedural laws, systematizes and ensures the promulgation legal positions of the Supreme Court, as well as based on the results of the analysis of judicial statistics and generalization of judicial practice, it provides explanations of the recommendatory nature on the application of legislation in solving court cases. It is concluded that the importance of the interpretation of law is primarily to ensure full and accurate disclosure of the functions of legal acts as a source and form of existence of legal norms, other substantive elements of the legal system. The interpretation concretizes the law, which allows law enforcement agencies to ensure the resolution of legal cases in strict accordance with the constitutional principles of legal certainty, legality and the rule of law.

scholarly journals PERAN PROFESI NOTARIS DALAM MENJAGA KEWIBAWAAN NEGARA HUKUM INDONESIA

2021 ◽  
Vol 5 (2) ◽  
pp. 252
Author(s):  
Mirin Primudyastutie ◽  
Anang Sulistyono
Keyword(s):  
Rule Of Law ◽  
The Rule Of Law ◽  
Legal Subject ◽  
Legal Norms ◽  
Community Rights ◽  
The Law ◽  
Real Test

 Eksistensi norma yuridis merupakan norma yang mengatur tentang peran yang bisa dilakukan oleh subyek hukum atau pihak yang ditunjukknya, diantaranya notaris. Norma yuridis yang menjadi pijakan utama bagi notaris diantaranya untuk menjalankan kewajiban-kewajiban atau kewenangan-kewenangannya. Peran mengimplementasikan norma yuridis ini adalah berkaitan  dengan tugas, kewajiban, kewenangan, larangan, dan lain sebagainya yang menentukan terhadap bekerjanya hukum, sehingga yang dilakukannya ini mengandung konsekuensi yuridis, yakni kewibawaan negara hukum. Ada hak-hak masyarakat dan martabat negara yang ikut dirugikan ketika norma hukum tidak dijalankan sebagaimana yang sudah digariskannya.  Kewibawaan negara hukum merupakan ujian riil propfesionalitas sebagai notaris, sehingga Ketika peran yang ditunjukkan tidak profesionalitas, dampak seriusnya terhadap kewibawaan negara hukum.Kata Kunci: kewibawaan, notaris, peran, negara The existence of juridical norms is a norm that regulates the roles that can be performed by a legal subject or party appointed by it, including a notary. Juridical norms that become the main foothold for notaries include to carry out their obligations or authorities. The role of implementing this juridical norm is related to the duties, obligations, authorities, prohibitions, etc. that determine the operation of the law, so that what it does has juridical consequences, namely the authority of the rule of law. There are community rights and state dignity that are also harmed when legal norms are not implemented as outlined by them. The authority of a rule of law is a real test of professionalism as a notary, so that when the role shown is not professional, it has a serious impact on the authority of the rule of law.Keywords: authority, notary, role, state

LEGAL ESSENCE OF ANCIENT PROVERBS AND SAYS AND THEIR SOCIAL SIGNIFICANCE

2020 ◽  
Author(s):  
Angela Dranishnikova ◽  
Ivan Semenov
Keyword(s):  
Public Sphere ◽  
Rule Of Law ◽  
Social Significance ◽  
The Rule Of Law ◽  
The Public ◽  
Moral Standards ◽  
The Social ◽  
The Law ◽  
The Public Sphere ◽  
Status Position

The national legal system is determined by traditional elements characterizing the culture and customs that exist in the social environment in the form of moral standards and the law. However, the attitude of the population to the letter of the law, as a rule, initially contains negative properties in order to preserve personal freedom, status, position. Therefore, to solve pressing problems of rooting in the minds of society of the elementary foundations of the initial order, and then the rule of law in the public sphere, proverbs and sayings were developed that in essence contained legal educational criteria.

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