scholarly journals Native Law as One of The Sources of Law in Sabah Legal System

2021 ◽  
Vol 6 (11) ◽  
pp. 399-412
Author(s):  
Rafidah@Malissa Binti Salleh
Keyword(s):  
Legal System ◽  
The State ◽  
Customary Law ◽  
British Government ◽  
Federal Constitution ◽  
East Malaysia ◽  
The Law ◽  
Formal Recognition

Native law is one of the sources of law recognised by the Federal Constitution in Malaysia. In Sabah1, one of the states in East Malaysia, native law received its formal recognition from the British government in 1888. It continues to exist until today, governing matters involving the natives of Sabah. The law is administered by the native court, presided by the native chiefs. This paper discusses the evolution of native law in the State of Sabah since colonial times and analyses the development of customary law as one of the sources of law in the Malaysian legal system. The analysis includes a discussion on the validity of customs and the position of native law in the Sabah legal system.

Slavery and Ransom

2018 ◽  
Author(s):  
Will Smiley
Keyword(s):  
Eighteenth Century ◽  
Ottoman Empire ◽  
Young Men ◽  
Individual Characteristics ◽  
The State ◽  
Customary Law ◽  
Late Eighteenth Century ◽  
Late Eighteenth ◽  
The Law

This chapter explores captives’ fates after their capture, all along the Ottoman land and maritime frontiers, arguing that this was largely determined by individuals’ value for ransom or sale. First this was a matter of localized customary law; then it became a matter of inter-imperial rules, the “Law of Ransom.” The chapter discusses the nature of slavery in the Ottoman Empire, emphasizing the role of elite households, and the varying prices for captives based on their individual characteristics. It shows that the Ottoman state participated in ransoming, buying, exploiting, and sometimes selling both female and male captives. The state particularly needed young men to row on its galleys, but this changed in the late eighteenth century as the fleet moved from oars to sails. The chapter then turns to ransom, showing that a captive’s ability to be ransomed, and value, depended on a variety of individualized factors.

The Legal Framework for Foundations in the Habsburg Monarchy from 1750 to 1918

2017 ◽  
Vol 1 (2) ◽  
pp. 154-172
Author(s):  
Gabriele Schneider
Keyword(s):  
Public Good ◽  
Legal System ◽  
Legal Framework ◽  
The State ◽  
Habsburg Monarchy ◽  
The Public ◽  
Regulation And Supervision ◽  
Role Of The State ◽  
The Law

Foundations, as permanent funds established by a certain legal act, can serve manifold purposes, but often pursue charitable goals. As such, they play an important role for the public good. Therefore, states always had an interest in fostering foundations by providing a pertinent legal framework. In Austria, this topic has not yet been the focus of scholarship. Through this study some light is shed on the implementation of the law on foundations in the Habsburg Monarchy. It focuses on the role of the state and its legal system regarding the regulation and supervision of foundations from 1750 to 1918. This period is characterized by the sovereigns’ endeavor to regulate the position of foundations via extensive legislation. In particular, a system of oversight for foundations was created in order to guarantee the attainment of their charitable goals. In fact, this system prevailed until the end of the 20thcentury.

scholarly journals Historical evolution of the judicial system of Ancient Russia in the aspect of customary law

2021 ◽  
pp. 126-131
Author(s):  
Nan Gong ◽  
I. I. Fedorov
Keyword(s):  
Coercive Force ◽  
Legal System ◽  
The State ◽  
Judicial System ◽  
Customary Law ◽  
Positive Law ◽  
Feudal Society ◽  
Self Defense ◽  
Primitive Society ◽  
The Social

The formation of the Russian procedural legal system is closely connected with its unique historical evolution. Russian Russian culture According to the Norman theory of the origin of the Russian nation, the Scandinavian culture is the most important source of early Russian culture. During the chaotic period of the tribe at the stage of primitive society, the Norman Varian was invited to Russia to reconcile the tribes of Russia and manage them, and this brought the Germanic custom to regulate the socio-economic and legal relations of various tribes. Since the formation of the ancient state of Russia, the ruling class has constantly strengthened the drafting of new laws and regulations, but customary law still dominates the legal system of the state. At the same time, ordinary norms in the system of customary law as a quasi-legal norm between morality and law have become an integral organic component of social customs and norms at all stages of Russian social development.During the period of Ancient Russia, the common custom of the Slavic people and the Norman Customary Law had a profound impact on the social life of ancient Russia. From the beginning of the 9th to the 17th century, customary law existed as the main legal source for regulating social relations in the late period of the development of Russian primitive society and in the earlier time of feudal society. His coercive force was based on the conviction that was widespread in the social community during this period, that is, "existing customs denote a reasonable basis". With the formation of the East Slavic state, the rulers began to work on drafting new legal norms, but inheritance is still mainly based on customs based on the clan system. As a result, as a rule of conduct recognized and guaranteed by the state, traditional customs gradually acquired a legal nature, and after that, positive law was formed. "Russkaya Pravda" is the most representative legal collection in the early years of the Russian feudal society, "The Truth of Ross", which was compiled according to the customs of the Eastern Slavs, and is the very fi rst positive law of ancient Russia.Before the appearance of formal law, customary law always played a role and coercive force as legislation, but the self-defense and insane methods of revenge obtained from it also caused social unrest. In order to stop personal self-defense and self-arbitrariness, as well as to strengthen ties between different regions, it is necessary to use the power of common law to unite the Principality into a whole. Although the new law does not exclude the original good customary norms, if there are no necessary penalties for violations, it will be destructive for the law. Therefore, it is necessary to give customary law a legal meaning and a compelling force, without changing the existing content of customary law.I must say that the German customs and the traditional customs of the Slavic people are intertwined in the historical codifi cation of Russian procedural law, forming a unique historical path of development of the procedural legal system of ancient Russia. Although national customs were recognized by the state in the form of positive law with the help of " Russian Truth”, and became the norm of justice and social norm on the basis of the guarantee of national coercive force, but this did not change the essence of customary law, but the form of positive law was given to it. As the modernization of the Russian judicial system moves into modern times, generations of legislators and lawyers are focusing on the study of national legal traditions and history, trying to discover the natural laws governing the development of the Russian legal system, and are constantly trying to make progress in the modern and modern process of judicial reform. The harmony of legislation, the borrowing of laws and national customs to a certain extent ensured a reasonable adjustment of national laws and norms of customary law.

scholarly journals RIGHTS OWNERSHIP TO CERTIFIED LAND CONFRONTED WITH THE CUSTOMARY LAW IN THE LEGAL SYSTEM IN INDONESIA

2018 ◽  
Author(s):  
Saim Aksnudin
Keyword(s):  
National Development ◽  
Land Rights ◽  
The State ◽  
Customary Law ◽  
Legal Certainty ◽  
The Status ◽  
Need For Support ◽  
The Law ◽  
The Right ◽  
Ownership Of Land

In the national development the role of land for the fulfillment of various purposes will increase, either as a place to live or for business activities. In relation to that will also increase the need for support in the form of guarantee of legal certainty in the field of land. The result of the research is the conception of the state of Indonesia is a state law, which contains the meaning in the administration of government and the state based on the law, the protection of the law is a universal concept of the rule of law. The legal certainty on land rights as intended by the UUPA encompasses three things, namely the certainty of the object of land rights, certainty on the subject of land rights and certainty about the status of landrights. Legal conception of land title certificate is a proof that issued by authorized legal institution, containing juridical data and physical data which isused as evidence of ownership of land rights in order to provide assurance of legal certainty and certainty of rights to a plot of land owned or possessed by a person or legal entity. With the certificate of rights, it is expected that the juridical can guarantee the legal certainty and the right by the state for the holder of the right to the land. This country's guarantee is granted to the owner or the holder of the certificate may be granted because the land is already registered in the state land administration system.

Examples of Alternative Legal Systems in India

2019 ◽  
pp. 47-73
Author(s):  
Mahendra Pal Singh ◽  
Niraj Kumar
Keyword(s):  
Legal System ◽  
The State ◽  
Customary Law ◽  
Formal Definition ◽  
Legal Systems ◽  
Uniform Law ◽  
Definition Of ◽  
Cultural Freedom ◽  
Personal Law

There are systems of law within the Indian jurisdiction that either do not rely on the state legal system at all or rely on it only partially. These include systems of religious personal law, tribal customary law, and other similar indigenous mechanisms of administering justice and settling disputes. The formal definition of law in India, along with constitutional provisions which guarantee religious and cultural freedom and allow for modes of self-governance, accommodates different legal systems with indigenous or traditional roots. Moreover, local and village bodies such as traditional or caste councils operate in independent India as well, further questioning the rhetoric of uniform law in India.

Why the “Haves” Come Out Ahead: Speculations on the Limits of Legal Change

2021 ◽  
pp. 297-302
Author(s):  
Marc Galanter
Keyword(s):  
Legal System ◽  
The State ◽  
Legal Change ◽  
System P ◽  
The Law ◽  
Over Time ◽  
Do So ◽  
The Way

This article proposes some conjectures about the way in which the basic architecture of the legal system creates and limits the possibilities of using the system as a means of redistributive change. Specifically, the question is under what conditions litigation can be redistributive, taking litigation in the broadest sense of the presentation of claims to be decided by courts. Because of differences in their size, differences in the state of the law, and differences in their resources, some of the actors in society have many occasions to utilize the courts; others do so only rarely. One can divide these actors into those claimants who have only occasional recourse to the courts (one-shotters) and repeat players who are engaged in many similar litigations over time. The article then looks at alternatives to the official litigation system.

State and Customary Law in Upper Egypt

2006 ◽  
Vol 13 (1) ◽  
pp. 123-151
Author(s):  
Hans Christian Korsholm Nielsen
Keyword(s):  
Legal System ◽  
The State ◽  
Customary Law ◽  
Upper Egypt ◽  
Settlement Of Disputes

AbstractThe elders of the villages and towns of Upper Egypt frequently convene councils for the settlement of disputes. These councils, which are independent of the state, deal with such matters as rights in water and land and also with succession disputes. Larger councils settle conflicts arising from homicide or feuds. I argue here that these councils should be analyzed as an integral part of society and that their relationship to the state is many-facetted. The continued importance of these institutions cannot be understood if one views customary law and reconciliation councils as no more than a reaction to a corrupt and unjust official legal system

Enemy Combatants Versus Enemy Criminal Law: An Introduction to the European Debate Regarding Enemy Criminal Law and Its Relevance to the Anglo-American Discussion on the Legal Status of Unlawful Enemy Combatants

2008 ◽  
Vol 11 (4) ◽  
pp. 529-562 ◽  
Author(s):  
Carlos Góómez-Jara Dííez
Keyword(s):  
Criminal Law ◽  
Legal System ◽  
Common Ground ◽  
Civil Liberties ◽  
The United States ◽  
The State ◽  
External Threats ◽  
General Terms ◽  
The Law ◽  
Enemy Combatants

At the beginning of the twenty-first century two legal concepts linking citizen/enemy status with criminal law have provoked heated discussion both in Europe and in the United States. The American concept, i.e., Enemy Combatants, has been basically developed by the U.S. Supreme Court and more recently by the Bush administration. The European term, Feindstrafrecht/Enemy Criminal Law, has been fundamentally coined and explained by leading German academic Professor Güünther Jakobs. Though born and raised by different parents, the two concepts have numerous aspects in common, or at least this will be argued throughout the paper. The most important common ground is that both concepts, with similar terminology, try to address the problem of what to do with individuals who are viewed as sources of extreme dangerousness. Put differently, they both tackle the question of whether citizenship-in a broad sense-concedes certain rights but imposes a fundamental duty: to have a minimum of law-abiding behavior. If the duty is not fulfilled, then the rights are not acknowledged and the individual is treated as an enemy, not as a citizen. The underlying reasoning oozes social contract theory. This is not by chance, as great philosophers (Rousseau, Fichte, Hobbes, Kant) have employed similar arguments that are briefly sketched in the essay. There are also references to the legal theory behind the scenes predicating that in order for legal constructions to exist (rights, the State), they need to be followed by most people. Hence such a duty to comply, in general terms, with the law is imposed upon all persons. If not, law would be just daydreaming. Strong and consistent as all these arguments sound, the basic problem with this type of reasoning is that it is hard for the legal system to follow without entering into self-contradiction. In this light, criticism will be brought by one of the most prominent social theories of the time, i.e., systems theory, arguing that law-abiding behavior is a precondition for legal institutions to exist, yes, but it cannot be secured by law itself. It is a precondition that has to be presupposed by the legal system. Moreover, using this kind of necessity rule, i.e., the State and the Law need to secure the preconditions of their own existence (self-preservation), entails a diabolic logic as it may lead to the destruction of the system itself. To this extent, self-preservation against external threats (terrorist attacks) and internal threats (curtailment of civil liberties) seems equally important. The essay finishes with some proposals for resolving this delicate matter, trying to reflect a keen sense of balance and forward-looking thinking.

scholarly journals Urgensi Dan Strategi Pemberdayaan Peradilan Adat dalam Sistem Hukum Nasional

2018 ◽  
Vol 2 (3) ◽  
pp. 122-146
Author(s):  
I Ketut Sudantra
Keyword(s):  
Legal System ◽  
Justice System ◽  
Indigenous Communities ◽  
Customary Law ◽  
Legal Structure ◽  
Legal Nature ◽  
The Law ◽  
The Republic ◽  
And Behavior ◽  
Attitudes And Behavior

Tulisan ini bertujuan untuk menjelaskan urgensi dan strategi pemberdayaan peradilan adat dalam sistem hukum di Indonesia. Secara konseptual, peradilan adat yang dimaksud dalam tulisan ini adalah sistem peradilan yang hidup dan dipraktikkan dalam kesatuan-kesatuan masyarakat hukum adat. Secara konstitusional, eksistensi peradilan adat diakui berdasarkan Pasal 18B ayat (2) Undang-undang Dasar Negara Republik Indonesia Tahun 1945, tetapi dalam level peraturan perundang-undnagan di bawah Undang-undang Dasar, eksistensi peradilan adat tidak mendapat pengakuan yang memadai. Kondisi ini menimbulkan dampak melemahnya posisi peradilan adat pada sebagian masyarakat adat ditandai oleh sikap dan perilaku masyarakat yang mulai enggan menyelesaikan perkaranya melalui peradilan adat. Di beberapa tempat, dewasa ini sudah tidak bisa ditemukan lagi adanya peradilan adat. Apabila kondisi ini dibiarkan berlangsung terus maka akan mengancam eksitensi kesatuan masyarakat hukum adat, sebab tanpa adanya pranata peradilan adat yang berfungsi menegakkan norma-norma hukum adat, suatu kesatuan masyarakat hukum adat akan kehilangan eksistensinya sebagai suatu kesatuan masyarakat hukum adat yang hidup. Oleh karena itu, peradilan adat sangat penting dan mendesak direvitalisasi, dalam arti diberdayakan agar dapat berfungsi kembali sebagai alternatif penyelesaian perkara, khususnya di lingkungan kesatuankesatuan masyarakat hukum adat.. Revitalisasi peradilan adat dapat dilakukan melalui strategi pembenahan seluruh komponen sistem hukumnya, baik substansi hukum, struktur hukum, dan buidaya hukumnya. This paper aims to explain the urgency and strategy of empowering customary justice in the legal system in Indonesia. Conceptually, the customary judiciary referred to in this paper is a living justice system that is practiced in customary law communities. Constitutionally, the existence of customary courts is recognized based on Article 18B paragraph (2) of the 1945 Constitution of the Republic of Indonesia, but at the level of statutory regulations under the Constitution, the existence of adat justice does not receive adequate recognition. This condition has the effect of weakening the position of customary justice in some indigenous communities marked by the attitudes and behavior of people who are reluctant to settle their cases through adat justice. In some places, there is no longer any traditional justice. If this condition is allowed to continue, it will threaten the existence of the customary community, because without customary judicial institutions that function to uphold customary law norms, a customary community community will lose its existence as a living customary community. Therefore, customary justice is very important and urgent to be revitalized, in the sense that it is empowered so that it can function again as an alternative case settlement, especially in the environment of customary law community units. Revitalization of customary justice can be done through a strategy of revamping all components of the legal system, both in substance the law, the legal structure and the legal nature. 

scholarly journals Punca Kuasa dan Bidang Kuasa Pegawai Penguatkuasa Agama Islam Berkaitan Enakmen Kawalan Pengembangan Agama Bukan Islam Kepada Orang Islam di Malaysia

2019 ◽  
Vol 6 (1) ◽  
pp. 79-101
Author(s):  
Zakaria Yahya ◽  
Mohd Al Adib Samuri
Keyword(s):  
The State ◽  
Kuala Lumpur ◽  
Related Information ◽  
Religious Doctrine ◽  
Enforcement Officer ◽  
Federal Constitution ◽  
Islamic Religion ◽  
The Law

According to the provision under Article 11(1) of Federal Constitution, those who professing non-Islamic Religion can practice their belief freely, subject to the restriction that they cannot propagate their belief to Muslims. Meanwhile, Article 11(4) of Federal Constitution gave the authorization to the state in Malaysia to control or restrict the propagation of any religious doctrine or belief among Muslims. In relation to both provisions stated above, triggered an enactment on Controlling and Restricting the Propagation of Non-Islamic Religion to Muslims, which has been legislated since 1980 by the state of Terengganu, and then followed by other states in Malaysia. To date, after 37 years of legislation and introduction of the enactment, all states in Malaysia have gazetted this except Federal Territories of Kuala Lumpur, Pulau Pinang, Sarawak, and Sabah. However, there were only seven out of ten states has gazetted the authority to their Islamic Enforcement Officers to execute the law. The purpose of this article is to give justification about the source of power and jurisdiction of the Islamic Enforcement Officer related to the said Enactment. From 2014 to 2017, twelve (12) Islamic Enforcement Officers has been interviewed structurally and non-structurally in order to obtain related information pertaining to this issue. This study revealed that the respondents (Islamic Enforcement Officers) were not aware about the existence of the said Enactment in their states as well as about the power and jurisdiction that are already in their possession, including when facing any cases in court against the non-Muslim accused. Therefore, the importance of this research is to empower the institution of justice in Malaysia in handling the issues of propagation of the non-Islamic Religion towards Muslims, in corresponding to limit the rights of propagating religion, as provided under the Federal Constitution.

Sign in / Sign up

Export Citation Format

Share Document