Postmodern Philosophy as a Form of Human Reaction to Legal Positivism Concerning the Criminal Justice System in Indonesia

2021 ◽  
Vol 3 (3) ◽  
pp. 268-275
Author(s):  
Zairusi
Keyword(s):  
Criminal Justice ◽  
Criminal Justice System ◽  
Criminal Law ◽  
Justice System ◽  
Legal Positivism ◽  
Legal Philosophy ◽  
Philosophy Of Law ◽  
Law System ◽  
Human Reaction ◽  
Postmodern Philosophy

The study of Philosophy of Law is developing rapidly from time to time as we know that there are many schools of Philosophy of Law that are believed and used in a particular place, time, and adherents. Philosophy of Law, nowadays a school growing very fast is Postmodern Philosophy of Law. The postmodern flow of legal philosophy as a reaction to the flow of Positivism Legal Philosophy. Postmodernism's thinking about law is that legal truth is not particular, absolute, and objective, but relative, plural, consensual. This thinking often raises the pros and cons among experts. Therefore, this study tries to increase the flow of postmodern philosophy as a form of human reaction to legal positivism concerning the criminal justice system in Indonesia. This study uses a qualitative approach with a literature review method. The results of the study indicate that the criminal law system in Indonesia is unable to accommodate the purpose of the law, namely justice, because the criminal law system in Indonesia always considers justice based on the fulfilment of written law in which everyone applies a rule of law that is ultimately the same. Therefore, the author expresses Postmodern Philosophy as a creative legal justice breakthrough that is heterogeneous or combines various elements in everyday human life such as social, legal, cultural, psychological, political, educational, etc.

scholarly journals RECHTERLIJK PARDON DALAM KEBIJAKAN DAN PENERAPAN PIDANA INDONESIA

PRANATA HUKUM ◽  
2020 ◽  
Vol 15 (2) ◽  
pp. 132-142
Author(s):  
Annisa Dian Permata Herista ◽  
Aristo Evandy A. Barlian
Keyword(s):  
Social Justice ◽  
Criminal Justice ◽  
Criminal Justice System ◽  
Criminal Law ◽  
Justice System ◽  
Civil Law ◽  
Penal Code ◽  
Law System ◽  
Current Formulation ◽  
To Come

Penal code in the formulation of criminal law is currently only fixated on the provisions of criminal acts and crimes without including the goals and principles of punishment. Therefore, criminal law is currently considered rigid and inhumane in its application in small cases that are deemed to require social justice. Formulations which do not have objectives and principles in criminal guidelines will not produce effective law, now there is an idea that is Rechterlijk Pardon as one of the concepts in criminal reform that has been used by various countries implementing civil law systems. The results of the analysis in this study found 6 (six) articles relating to the value of forgiveness in the current formulation of the Kuhp but not the pure forgiveness value and the discovery of 5 (five) criminal justice applications that already have forgiveness values but still cannot be applied properly because they are not properly applied the existence of forgiveness formulations in the current criminal. The formulation of the judge's forgiveness idea "Rechterlijk Pardon" will make the criminal law system in Indonesia to come to be more integral, flexible, humanist, progress and nationalist. The criminal justice system desperately needs significant reforms such as the inclusion of criminal law goals and principles so that an effective criminal justice system in Indonesia is realized.

Konsep Perlindungan Korban dalam Sistem Peradilan Pidana Nasional dan Sistem Hukum Pidana Islam

2019 ◽  
Vol 13 (1) ◽  
pp. 33-48
Author(s):  
Vivi Ariyanti
Keyword(s):  
Criminal Justice ◽  
Criminal Justice System ◽  
Criminal Law ◽  
Public Interest ◽  
Justice System ◽  
The State ◽  
Significant Progress ◽  
Current Position ◽  
Law System ◽  
The Public

The current position of victims in the criminal justice system has not been placed fairly, because victims in the judiciary are only represented by public prosecutors who base their charges on statutory rules and facts obtained from witnesses. This paper reviews and compares the Indonesian national criminal justice system and Islamic criminal law system in terms of protecting the rights of victims of criminal acts during and after undergoing the trial process. The study of victims in the Western criminal law system adopted by Indonesia has been so extensive and profound, that it raises its own science called victimology, which is parallel to the science of criminology. Meanwhile Islamic criminal law (al-Fiqh al-Jinayah) still refers to fiqh books written by medieval jurists, so that the study of Islamic criminal law is stagnant and without significant progress. However, both national criminal law and Islamic criminal law, in principle, emphasize that the protection of victims must be balanced between the interests of the victims themselves, the perpetrators of crime, society, the state, and the public interest.

scholarly journals The scope of changes in the criminal law system in India

2021 ◽  
Vol 5 (S4) ◽  
Author(s):  
Shalinee Vishwakarma
Keyword(s):  
Human Rights ◽  
Criminal Justice ◽  
Criminal Justice System ◽  
Criminal Law ◽  
Justice System ◽  
Law Enforcement Agencies ◽  
Law System ◽  
Natural Justice ◽  
Protection Of Human Rights ◽  
Police System

The criminal justice system is an idea founded on judicial principles and constitutionalism. It includes the interaction of many institutions and remedies. An effective criminal justice system is essential for an orderly society and the protection of human rights. However, quite different from this ideology, Indian criminal justice faces many complications such as soaring crime rates, outdated laws, late proceedings, inefficient law enforcement agencies. to name a few. The criminal justice system urgently needs reform measures, based on natural justice and human rights, to rejuvenate the system. These minimal but essential measures include consistent reform of the criminal law, fostering and building trust in a skeptical justice system, curbing abuses of power by the police system, and obvious measures. of the welfare state and it is the moral duty of every citizen of India to obey and respect criminals. judicial system.  

scholarly journals Perlindungan Hukum terhadap Korban Tindak Pidana Perdagangan Orang Dalam Perspektif Sistem Peradilan Pidana Indonesia dan Malaysia

Wajah Hukum ◽  
2020 ◽  
Vol 4 (2) ◽  
pp. 261
Author(s):  
Eko Budi S ◽  
Wancik Wancik
Keyword(s):  
Criminal Justice ◽  
Criminal Justice System ◽  
Criminal Law ◽  
Justice System ◽  
Legal Protection ◽  
Value Systems ◽  
Trafficking In Persons ◽  
Conceptual Approach ◽  
Law System ◽  
Victim Protection

Legal protection for victims in the criminal law system and the judicial system in Indonesia and Malaysia has been implemented but has not yet accommodated the rights of victims as a whole and its implementation has not been in accordance with the principles of universal legal protection. The research method used is normative legal research, consisting of the type of research on legal comparisons and vertical and horizontal synchronization. The approach used is the legal, case, comparative and conceptual approach. The purpose of this study is to analyze legal protection for victims of trafficking in the criminal law system in Indonesia and Malaysia and to find the ideal concept of legal protection for victims of trafficking in persons from the perspective of the Indonesian criminal justice system. The results of this research are 1) The need for the executive and legislative to revise the law on witness and victim protection and the eradication of the crime of trafficking in persons, namely by including the rights of victims that have not been accommodated, 2) so that the components of the criminal justice system (National Police Indonesia, Prosecutors and Judges) have the same vision and prioritize professionalism and harmony between components in providing protection for victims based on the principles of victim protection and 3) The need for legal reform by harmonizing existing regulations with other regulations into the Concept of Integrative Legal Protection. Namely the concept of legal protection for victims of trafficking in persons by strengthening the interaction between the legal system, including norms, value systems and behavior systems into an integrated legal protection system for victims of trafficking in persons in the criminal justice system as a whole and comprehensive (integral comprehensive).

scholarly journals Short Comings of Criminal Justice System of Pakistan and its Effects on the Rights of Accused Prisoner Wrongfully Convicted or Imprisoned

2016 ◽  
Vol 18 (32) ◽  
pp. 13-27
Author(s):  
Sara Qayum ◽  
Sughra Farid ◽  
Suhail Shehzad ◽  
Weidong Zhu
Keyword(s):  
Criminal Justice ◽  
Criminal Justice System ◽  
Criminal Law ◽  
Justice System ◽  
Law System

Abstract The criminal justice system in Pakistan operates imperfectly, although the aim of the Pakistan’s Criminal Law system is that no person is being convicted without all the elements but our System is not speedy and fast in disposal of cases then automatically innocent suffers. A failure of the justice system leaves people free but uncompensated. When a case has been decided after a lengthy trial and an individual acquit on merit by the judgment of concerned Court than upon release he did not receive any thing as compensation by the Criminal Justice System of Pakistan because System offers no mechanism for compensation. This article will discuss about wrongfully convicted persons in Pakistan’s Criminal Justice System and the reasons for their wrongful imprisonment and mechanism for compensation. In the end, conclusions and recommendations will be given on the same.

scholarly journals Wife Assault, The Justice System and Professional Responsibility

1995 ◽  
Vol 33 (4) ◽  
pp. 908
Author(s):  
Diana Ginn
Keyword(s):  
Criminal Justice ◽  
Criminal Justice System ◽  
Battered Women ◽  
Criminal Law ◽  
Justice System ◽  
Professional Responsibility ◽  
Wife Assault ◽  
The Past ◽  
Key Players ◽  
The Way

The author reviews the response of the criminal justice system to the problem of wife assault by focusing on the key players within the system. The way the criminal law applies to wife assault affects battered women's access to that area of law known as family law, with negative repercussions for them and their children. Several myths about the nature of wife assault help ensure an inappropriate response. These include the myths that the woman is to blame, that by just leaving the abusive situation she can resolve it, and that if she does not leave it is because she enjoys the abuse. The author reviews current methods used by police, prosecutors and judges for dealing with wife assault and discusses the inadequacies of those methods. She concludes that despite many recommendations for change, there have been no significant improvements in the way the criminal justice system deals with wife assault. It is incumbent upon the legal profession to demonstrate professional responsibility by ensuring that wife assault is taken more seriously than it is now and than it has been in the past. This is a necessary reform before battered women can rely on the criminal justice system.

scholarly journals Legality Letter of Statement of Khilaf in Indonesia Criminal Justice System

FIAT JUSTISIA ◽  
2018 ◽  
Vol 12 (2) ◽  
pp. 128
Author(s):  
Rugun Romaida Hutabarat
Keyword(s):  
Criminal Justice ◽  
Criminal Justice System ◽  
Criminal Law ◽  
Justice System ◽  
Primary Source ◽  
Secondary Data ◽  
Criminal Offense ◽  
Criminal Procedure Law ◽  
The Law ◽  
Criminal Matters

In criminal law, a person charged with a criminal offense may be punished if it meets two matters, namely his act is unlawful, and the perpetrator of a crime may be liable for the indicated action (the offender's error) or the act may be dismissed to the perpetrator, and there is no excuse. The reasons may result in the death or the removal of the implied penalty. But it becomes a matter of how if the Letter of Statement Khilaf is the answer to solve the legal problems. The person who refuses or does not do what has been stated in the letters is often called "wanprestasi" because the statement is categorized as an agreement. The statement includes an agreement which is the domain of civil law or criminal law, so its application in the judicial system can be determined. This should be reviewed in the application of the law, are there any rules governing wrong statements in the criminal justice system. By using a declaration of khilaf as a way out of criminal matters, then the statement should be known in juridical rules. This study uses normative juridical methods, by conceptualizing the law as a norm rule which is a benchmark of human behavior, with emphasis on secondary data sources collected from the primary source of the legislation. The result of this research is that the statement of khilaf has legality, it is based on Jurisprudence No. 3901 K / Pdt / 1985 jo Article 189 Paragraph (1) of Indonesian criminal procedure law. However, this oversight letter needs to be verified in front of the court to be valid evidence, but this letter of error is not a deletion of a criminal offense, because the culpability of the defendant has justified the crime he committed. Such recognition, cannot make it free from the crime that has been committed.Keywords: Legality, Letter of Statement, Criminal Justice System

scholarly journals Judicial Discretion in Sentencing: A Justice System that is No Longer Just?

2021 ◽  
Author(s):  
◽  
Sean J. Mallett
Keyword(s):  
New Zealand ◽  
Criminal Justice ◽  
Criminal Justice System ◽  
Criminal Law ◽  
Justice System ◽  
Individual Case ◽  
Regional Disparity ◽  
Judicial Discretion ◽  
The Individual ◽  
Synthesis Approach

<p>One of the fundamental principles of the criminal law is consistency: like offenders must be treated alike. However, research has shown that when it comes to sentencing in New Zealand there is in fact substantial regional disparity in the penalty imposed on similarly situated offenders. The situation is unacceptable, and undermines the integrity of the criminal justice system. This paper will explore three different mechanisms for guiding judicial discretion in the pursuit of sentencing consistency. It will undertake an analysis of mandatory sentences and the ‘instinctive synthesis’ approach, both of which will be shown to be unsatisfactory. Instead, the paper will argue that the establishment of a Sentencing Council with a mandate to draft presumptively binding guidelines is the most appropriate way forward for New Zealand. This option finds the correct equilibrium between giving a judge sufficient discretion to tailor a sentence that is appropriate in the circumstances of the individual case, yet limiting discretion enough to achieve consistency between cases.</p>

scholarly journals Discreet Discretion and Moderate Moderation in Judicial Sentencing: A commentary on Kenya’s Sentencing Policy Guidelines, 2016

2017 ◽  
Vol 3 (1) ◽  
pp. 89-112
Author(s):  
Harrison O Mbori
Keyword(s):  
Criminal Justice ◽  
Criminal Justice System ◽  
Criminal Law ◽  
Justice System ◽  
Cultural Development ◽  
Judicial System ◽  
Sentencing Guidelines ◽  
Criminal Sentencing ◽  
Administration Of Justice ◽  
Sentencing Policy

Criminal sentencing is an integral part in any judicial system for the fair administration of justice. The process of sentencing and the standards applied by judicial officers has, however, been a notoriously difficult component in many criminal law systems. In Kenya, sentencing has been blamed as one of the sources of ‘popular dissatisfaction with the administration of justice’ to borrow from Roscoe Pound. This was the impetus for the Kenyan Judiciary to introduce the Sentencing Policy Guidelines, 2016 (SPGs). This paper is a general commentary, critique, and analysis of the SPGs. The author argues that SPGs come at an instructive epoch in Kenya’s economic, socio-political, and cultural development. This contribution is not a polemic on the Kenyan SPGs. The commentary makes sideglances to various jurisdictions that have had a longer experience with sentencing guidelines. The article forecasts that Kenyan SPGs will, despite its few shortcomings, nevertheless, prove to be important for all judicial officers involved in Kenya’s criminal justice system.

The Criminal Justice System: Materials on the Administration and Reform of the Criminal Law

1980 ◽  
Vol 94 (2) ◽  
pp. 477
Author(s):  
James Lindgren ◽  
Franklin E. Zimring ◽  
Richard S. Frase
Keyword(s):  
Criminal Justice ◽  
Criminal Justice System ◽  
Criminal Law ◽  
Justice System
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