Islamic Law on Mediation in Indonesia; Position and Strategy

This paper is about Islamic Law on Mediation in Indonesia; Position and Strategy. Islamic law in the context of its position and strategy towards national law becoming positive law has sparked ongoing controversy since independence until now. The various strategies and explanations about them give a special style to the peculiarities of Islamic legal thought in Indonesia. This paper focuses on how the position and strategy of Islamic law in the positivization of law in Indonesia. The plurality of Indonesian law, which is a necessity, becomes a positive partner for Islamic law towards the positivization of legal law nationally. The strategy taken is to unite perceptions which are the substance of Islamic teachings in the meaning of sharia and fiqh in the form of universality values that exist in Islam such as the substance of justice, honesty, equality, balance and the like. The concept of mediation in Islamic law must be in accordance with PERMA No. 1 of 2016, its position and strategy. Mediation is nothing more than facilitating the negotiation process, where a mediator tries to help the parties negotiate effectively and efficiently so that they can reach the decisions they want. There are two simple rules for mediators proposed by Stitt, namely the first is do no harm.

Public security in classical ancient greek political and legal thought (teachings of socrates, plato, aristotle)

The aim of the article is to carry out the theoretical and legal analysis of key features of general philosophical and special legal understanding and interpretation of human, social and state security problems in the history of political and legal scholars of ancient times, in particular on the basis of scientific research of ancient Greek authors, opinions of that period, against the background of widespread collective ideas about security as a state of social relations, the condition of human (social) life and/or a kind of social value, objects (spheres) of this security, as well as subjects and regulatory mechanisms to ensure the appropriate state of society and the state. It is shown, that the ancient Greek political and legal thought demonstrates a wide panorama of original views on the formation, development, functioning and guarantee of public and personal, internal and external, military and international, political and economic security in the context of political and legal concepts that reflect complex dialectics. and the interaction of the individual, society, law and the state. It has been found, that the ancient Greek political and legal thought raises questions about the essence of public security. The matter of public security is an essential function of the state, which is realized by it both in the external sphere (military and foreign political security) and within the country (internal or domestic political security). Developed at the theoretical and philosophical level, the idea of good governance (Democritus, Plato, Aristotle, Polybius) is the idea of guaranteeing its security: bad governance - the key to the decline and collapse of the state, the death of its citizens. The philosophical concepts of Socrates, Plato and Aristotle are the most fundamental for the further development of political and legal models of public security

Duty as a defence between civil disobedience and criminal law

The history of civil disobedience begins in the United States in the 17th century and has evolved during the centuries. The most modern type of civil disobedience, whistleblowing, is emblematic of how the concept has changed over the last decades.The question of which circumstances justify disobedience to the law is one of the most debated in the history of legal thought. The article analyses the relationship between morality and criminal law or, in other words, between the right (and duty) to disobey certain laws and its consequences.

Principles of Positivist Jurisprudence in the Teachings of Warsaw Lawyers of the First Third of the XIX Century

The article is devoted to the extremely rich and insufficiently studied heritage of Polish legal thought. The political and geographical determinants of the chosen research topic are the restoration of statehood in central Polish lands in 1807 (Duchy of Warsaw and the Kingdom of Poland) and the defeat of the November Uprising (1830-1831) followed by measures taken by the Russian authorities to limit the autonomy of the Kingdom of Poland. The intellectual milestones are the founding of the School of Law in 1807 (later the Faculty of Law of the University of Warsaw), and the closure of the University of Warsaw in 1831, as well as the significant emigration of scientists in the same year and the liquidation of the Society of Friends of Science in 1832. The intellectual milestones are also European (and first of all Central European) processes of legal thought evolution in the second half of the XVIII – first third of the XIX century, which led to the formation of the first and still insufficiently understood and studied positivism in jurisprudence, being a profound phenomenon that reveals the essence of positivism in legal thought in general. The study found that the basic principle of jurisprudence in the vision of most Warsaw scholars during the study period was its independence from a priori and metaphysical philosophizing, and vice versa, the formation of its own philosophical and legal discourse (philosophy of positive law) based on generalization and understanding of research results. It was recognized that legal science should be a fundamentally new system of legal knowledge – positivist and social. Recognizing the historical and modern pluralism of such an organization of knowledge, Warsaw scholars have unequivocally identified themselves with the Central European jurisprudence, the core of which is the German. Warsaw scholars believed that jurisprudence was based on historical, dogmatic and philosophical approaches. Accordingly, they considered three relatively separate areas of scientific knowledge, which together can be considered as a single legal science or a system of interrelated legal sciences. Depending on the emphasis in the views of scholars on the fundamental or applied side of legal science, this system was seen differently, as well as the subject of jurisprudence – universal or more national. It can be argued that this to some extent correlated with the predominance in the views of certain scholars of the principles of historical-philosophical or historical schools.

معاصر مسلم ریاستی قوانین کی تشکیل میں مقاصد شریعت اور تلفیق کا کردار: ایک تجزیاتی مطالعہ

In Islamic polity, the Qur’ān and Sunnah work as primary sources of guidance for the state and government. It is perhaps due to this reason that in the early period of the Islamic state no need was felt for any kind of legislation or codification to run the affairs of the state. Later on, the prevalent schools of legal thought gradually became the source of law in different areas of the empire. In the eastern parts, Ḥanafī School was recognized as a source of law, while in the western parts Mālikī School held this position. In the sixteenth century, King Saleem I officially declared Ḥanafī fiqh as the state law of the Ottoman Empire. However, in the nineteenth century, when most of the parts of the Muslim world came under the control of colonial powers, Muslim legal thought many problems. These problems, it was believed, could not be addressed properly while remaining within the boundaries of a particular school of thought. When the process of decolonization started and several Muslim states gained independence, they relied heavily on Maqāṣid al-sharī‘ah and talfīq while introducing legislation in their domains. This paper attempts to analyze the impact of these two factors in the processes of legislation in contemporary Muslim states.

The problem of theoretical-methodological “refinement” of jurisprudence

The subject of this research is the essential characteristic of the history of legal thought of the last two centuries, which directly pertains to the theoretical-methodological fundamentals of legal theory. In the conditions of the object-disciplinary establishment of legal science as the theory of law since the end of the XVIII century, crucial significance has acquired the orientation towards demarcation of logical-gnoseological and real-psychological aspects of legal understanding. The article analyzes the peculiarities of the corresponding theoretical-methodological opposition, which manifested in the appeals to the construction of “refined” legal concepts that exclude any real arguments of social, historical, political, or psychological nature. By the end of the XIX century, namely in the field of the philosophy of law, has escalated the competition between psychologism and anti-psychologism in law. The novelty of this research lies in determination of the new patterns of theoretical and methodological opposition of psychological and anti-psychological attitudes of legal understanding in the evolution of legal thought in contemporary history. It is demonstrated that the phenomenological approach, which claimed to provide jurisprudence with an authentic scientific methodological apparatus, reduced the problem of legal understanding, however, did not contribute to the adequate understanding of law as a complex gnoseological object. Anti-psychological classification of phenomenology cannot be acknowledged without a profound analysis of the conceptual framework that contributed to the evolution of this approach in the sphere of cognition and interpretation of law.

THE INFLUENCE OF THE DIRECTION OF NATURAL LAW ON THE FORMATION OF JUDICIAL DECISIONS IN THE CONDITIONS OF MODERN SOCIETY

The views of thinkers and figures representing the direction of natural law, whose ideas had the greatest influence on the world philosophical and legal thought and the formation of the philosophical and legal views of judges, are considered. The interaction between the direction of natural law and the formation of judicial philosophy is shown. The role and importance of natural law for the development of philosophy of justice, which should be in constant contact with current events and problems, which would ensure its leading role in the development of legal theory and practice, through the impact on modern legal thought in Ukraine conditions of modern society.

Technological orders and legal thought: A dualistic paradigm of development

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RELEVANSI HUKUM PROGRESIF TERHADAP HUKUM ISLAM

One of the most interesting legal ideas in the current legal literature of Indonesia is progressive law. This is because progressive law has challenged the existence of modern law which has so far been considered established in punishment. The law reveals the veil and overthrows the failures of modern law based on positiveistic, legalistic and linear philosophy to address issues developed in accordance with the law as a matter of human and humanity. Progressive law contains the liberating spirit of liberation from the legalistic and linear conventional legal conviction. Running a law is not merely textual legislation but in running the law must be by determination, empathy, dedication, commitment to the suffering of the nation to dare to find another way to prosper human. Progressive law starts from a basic assumption, law is an institution that aims to bring people to a life of justice, prosperity and make people happy. The flexibility of the development of Islamic legal thought is highly relevant to introducing the ethos of progresivism in the dynamics and crystallization of Islamic law. The implication of this progressive mode of thinking is the liberation of mankind from mythological, passive and aggressive-conservative things. On the basis of this progressive ethos, it is recognized the capacity of the free will, free act.