IMPLEMENTASI HUKUM POSITIF TERHADAP PENETAPAN WASIAT WAJIBAH BERDASARKAN KEWENANGAN HAKIM PENGADILAN AGAMA

This study aims to provide guidance to religious court judges with their authority in deciding the heirs who are entitled to a mandatory will. So far, mandatory wills are only given to children and adoptive parents, but in its development, mandatory wills can be given to other parties other than adopted children and adoptive parents, including non-Muslim heirs. The method in this study is a normative juridical method. The results of the study explain that the mandatory will is regulated in the Compilation of Islamic Law where the rules are not clearly regulated by the KHI. To resolve the issue of mandatory wills, judges are authorized by law to resolve cases that enter the judiciary by making legal discoveries of cases that do not yet have permanent legal force, such as by carrying out historical understanding seen in a concrete case in which case the case already has regulations. legally binding, but the regulation must be interpreted in its implementation. Interpretation is tried by studying the origin of the formation of a legal decision, including the origin of its provisions or the origin of the formation of laws. Then it is done by means of a sociological understanding that prioritizes the interests of the purpose of a regulation through a concrete event in the related official regulations. In practice, judges can interpret unclear provisions based on community demands, as well as laws and regulations that are synchronized with social ties and situations that occur. In addition to the two methods used by judges to make legal findings to create laws that are not found in existing regulations, judges can do reasoning or argumentation. The argumentation procedure consists of argumentum per analogium, argumentum a contrario, and legal narrowing.

Recognition As a Legal Fact in Civil Law

Introduction: the concept of recognition in civil studies is most often identified with one of the methods of protecting civil rights, which is specified among others in Article 12 of the Civil Code of the Russian Federation. At the same time, the protection of civil rights under the norms of Chapter 2 of Part 1of the Civil Code of the Russian Federation does not imply such purely factual actions that would not create legal consequences, which would contradict the very existence of their legislative consolidation. The purpose of the study is to reveal the concept and legal consequences of recognition as a legal fact in civil law. Tasks: to correlate recognition as a method of protection and as a legal fact; to determine the types, conditions, and subjects of recognition; to reveal the mechanism of connection between recognition and its legal consequences. Methods: system, logic, analysis, synthesis, comparison. Results: recognition as a legal fact in civil law can be defined as follows: it is a public-legal decision of a body with authority on the existence of a legally significant circumstance, either that took place in the past, or that arises as a result of this decision. Recognition is not a legal requirement, since it does not in itself oblige the subjects of legal relations to perform or not perform any actions. Conclusions: the mechanism of connection of recognition with its legal consequences is characterized by the fact that it most often acts as an element of a complex set of facts. Recognition is nothing more than the addition of an imperious authority to the already existing conditions for the emergence, modification or termination of legal relations in order to eliminate the uncertainty associated with them.

Generalizations and Reference Classes

This chapter examines the implications of the reference-class problem for attempts to model the probative value of evidence in mathematical terms. This examination makes three distinct contributions to evidence scholarship. First, and most importantly, it articulates and explains the problematic relationship between algorithmic tools and legal decision-making. Second, it points out serious pitfalls to be avoided for analytical or empirical studies of juridical proof. Third, it indicates when algorithmic tools may be more or less useful in the evidentiary process. As such, the chapter offers yet another demonstration of the very complex set of relationships involving human knowledge and rationality, on the one hand, and attempts to reduce either to a set of formal concepts, on the other.

Social Cognitive Studies, Sociological Theory, and International Law

The image of international legal decision-makers emerging from socio-cognitive studies is significantly different from the prevalent view among diverse actors operating in this field. The socio-cognitive perspective of international law underlines that sensory objects are not ‘objectives’ or self-evident, and that their internalization in legal decision-makers’ minds always involves intermediating mental processes. The increasing awareness of the constraining influence of default socio-cognitive systems on individuals tends to diminish the significance of human agency in real-life social situations. On the theoretical level, the latter tendency in socio-cognitive literature supports a shift towards the structural pole of the agency–structure continuum. Equipped with insights drawn from socio-cognitive and sociological theoretical literatures, the last section of this chapter focuses on international criminal law, emphasizing its intensified multi-cognitive character and the significant effects of socio-mental patterns on defendants and additional actors (such as adjudicators and prosecutorial staff).

Contextualization of The Istiṣḥāb Wa Sadd Al-Żarī’ah Towards Islamic Economic Practices in Indonesia

Istiṣḥāb wa sadd al-żarī’ah are two methods of legal decision making in Islam among other methods, whose application always rests on the concept of maṣlahāt. This study describes how the application of istiṣḥāb wa sadd al-’arī’ah to contemporary economic problems in Indonesia. This research is a research library. Data sources are literature or come from various literatures, including books, journals, newspapers, documents, etc. which are relevant to the contextualization of istiṣḥāb wa sadd al-żarī’ah in Islamic economic practices in Indonesia. Data collection techniques in this study used editing, organizing, and finding. Data analysis in this study used deductive and interpretive methods. The results showed that the method of istiṣḥāb wa sadd al-żarī’ah is still very relevant for contextualizing Islamic law in Indonesia in the midst of efforts to oppose social change in facing the challenges of the times, especially in fields related to social and economic practices in Indonesia. Its application still refers to the objectives of Islamic law (maqāṣid al-syarī’ah) and always takes into account the values of mafsadāt and maṣlahāt in istinbaṭ al-hukm.