Journal articles on the topic 'Between positive law and customary law'
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1
Stanimirović, Vojislav, and Una Divac. "Customary and positive law in Serbia." Arhiv za pravne i drustvene nauke 118, no. 4 (2023): 27–64. http://dx.doi.org/10.5937/adpn2304027s.
Abstract:
In order to fully and properly understand the essence of customary law, a joint explanatory endeavor of legal, ethnological, and sociological science is needed. During the last two centuries, the relationship between customary and positive law passed through two phases. The first phase was marked by the incredible strength and resistance of the customary law, which was deeply rooted in the patriarchal Serbian society. Its strength was such, that it managed to overpower the modern Austrian law during the creation of the Serbian Civil law code, despite the efforts and desires of the law code creator, Jovan Hadžić, to suppress it. Customary law became the sole regulator of marriage, family, and inheritance law, thus becoming a part of the positive law. The second phase took place after the Second World War. By promoting a new system of acceptable social and moral values, the new, revolutionary, socialistic law fiercely fought the customary law and rural traditions, labeling them as obsolete relicts of a class-divided society. However, customs showed their remarkable resilience, and found a way to survive this strife - quite ironically - by using the existing laws and legal loopholes, masking themselves sometimes like a chameleon. Maybe the best illustration of this conflict between positive and customary law can be found in the inheritance law, as it is a complex branch of law, which was shaped not only by laws, but also by the centuries-old traditions of our people. To be able to fully understand the customary inheritance law, one must first analyse the institutes of family, marriage, and kinship. Although many customs have already disappeared in the XXI century by overcoming the patriarchal notions in the modern society, some customs remained, but also some new have, due to various reasons, managed to emerge, making the topic of this paper quite contemporary
2
Zejnullahu, MSc Njomëza. "Judicial Institutions in Albanian Customary Law and in Comparison with Modern Law (The Canon of Lekë Dukagjini)." ILIRIA International Review 5, no. 2 (December 31, 2015): 151. http://dx.doi.org/10.21113/iir.v5i2.86.
Abstract:
This article compares judicial institutions of customary law and modern law. There are many discussions between authors regarding the relation between customary and modern law, specifically the impact of customary law in modern law. The role of the customary law is of crucial importance especially its impact in the positive law of the country. Although, the customary law was practiced years ago, similarities with current positive law are obvious. Many of the judicial institutions in Albanian customary law can be compared with similar ones in modern law, but is also crucial to identify differences between them. Main judicial institutions that served as enforcement mechanisms in Albanian customary law are identified in this article in comparison with respective institutions of modern law. In addition, it is important to view and analyse customary law in regard to its power as governing law in a given period. In this regard, an analysis of the Albanian customary law in view of Hart’s rule of recognition is provided.
3
Aminov, A. R. "LAW AND CUSTOMARY LAW OF APPANAGE PEASANTS IN THE RUSSIAN EMPIRE." Vestnik Povolzhskogo instituta upravleniya 22, no. 4 (2022): 105–16. http://dx.doi.org/10.22394/1682-2358-2022-4-105-116.
Abstract:
Evolution of relations between law and customary law, which was in force in the communities of appanage peasants (until 1797 – palace peasants), in the period of the 18th – first half of the 19th centuries is studied. The author concludes that as a result of a targeted state policy in the Russian Empire the relative autonomy of the customary law of the appanage peasantry was eliminated, positive law replaced the public (self-administrative) part of customary law, only ordinary civil law relations within the community remained outside the field of direct regulation by law.
4
Idrah, M. Chairul, Nuraini Nuraini, and Siti Nur Ambarini. "HUBUNGAN HUKUM PIDANA ADAT DAN FILSAFAT HUKUM." Legalitas: Jurnal Hukum 13, no. 2 (December 31, 2021): 218. http://dx.doi.org/10.33087/legalitas.v13i2.292.
Abstract:
The purpose of writing this scientific paper is to explain and analyze the relationship between customary criminal law and legal philosophy with normative juridical methods. The existence of additional criminal provisions in the Draft Criminal Code Draft in the form of customary criminal law, the study sees from the philosophy of law in the form of an in-depth and speculative study that customary criminal law which is juridically not recognized as positive law because it does not meet the four requirements for recognizing customary law from an indigenous community unit as a positive law so that it is found that customary law in its field is broad.
5
Pelu, Ibnu Elmi Acmad Slamat, Ahmad Dakhoir, Go Lisanawati, and Jefry Tarantang. "The Combination of Legal System: Reconciliation of Divorce Cases in Dayak Ngaju Customary Law and Positive Law Systems." Jurnal Akta 9, no. 1 (March 4, 2022): 1. http://dx.doi.org/10.30659/akta.v9i1.20427.
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This study aim to observe a legal rationale regarding a legal-system implementation of Dayak Ngaju customary dispute reconciliation in Kuala Kurun, Gunung Mas Regency, Central Kalimantan Province. In practice, the researchers found a combination performed autonomously in the legal system. Such combination was a society’s belief in using both customary legal system and positive legal system. The idea of this combination was underlined by a reflection of legal rationale finding two legal systems (customary and positive) functioned respectively where suitability occurred between legal culture of living law and formal law. The principle of a combination of legal system was an evidence of a new insight or a new paradigm through factual and norm elaborations from Dayak Ngaju customary divorce reconciliation case. This study used descriptive and analytical qualitative research method on the phenomenon of Dayak Ngaju customary dispute reconciliation in Central Kalimantan. The result obtained was implementation of a legal combination (both customary and national), instead of only an effort of a harmonization. However, the result show that implementation was not practically able to replace a naturalist paradigm, yet both were believed by the society to be able to achieve philosophical goal of a law, a peace.
6
Arahim, Arahim, Auliah Andika Rukman, and Mahendratul Ihwan. "The Impact of Positive Law on Customary Law in Bialo Village, Gantarang District, Bulukumba Regency." JED (Jurnal Etika Demokrasi) 6, no. 1 (January 29, 2021): 116–23. http://dx.doi.org/10.26618/jed.v6i1.4687.
Abstract:
Abstract. The main problem in this research is that the researcher wants to reveal the impact of positive law on customary law in Bialo Village, Gantarang District, Bulukumba Regency. This type of research is qualitative research which aims to determine the impact of positive law on customary law in Bialo Village, Gantarang District, Bulukumba Regency. The sampling technique was purposive sampling. The data collection techniques used were interviews and documentation. The results of this study indicate that the norms of customary law in the village of Bialo are still valid, including mappatabe, tudang sipulung, marriage, the relationship between humans and God, humans and nature, and humans and humans, boundaries of youth interactions, and customary sanctions. This situation is when we understand in detail. Basically, positive law is a law that binds in general or binds society as a whole. So that the implementation should not conflict with the norms that live in society. Norms that live in society in general can be concluded as a law that lives in the community or customary law so that researchers can conclude that positive law has good and bad impacts on customary law in Bialo Village, Gantarang District, Bulukumba Regency.Keywords: Impact, Positive Law and Customary LawAbstrak. Masalah utama dalam penelitian ini adalah peneliti ingin mengungkap dampak hukum Positif terhadap hukum adat di Desa Bialo Kecamatan Gantarang Kabupaten Bulukumba. Jenis penelitian ini adalah penelitian kualitatif yang bertujuan untuk mengetahui Dampak hukum positif terhadap hukum adat di Desa Bialo Kecamatan Gantarang Kabupaten Bulukumba. Teknik pengambilan sampel yaitu Purposive Sampling. Teknik pengumpulan data yang digunakan adalah wawancara dan dokumentasi. Hasil penelitian ini menunjukkan bahwa Norma-norma hukum adat di desa Bialo masih berlaku di antaranya yaitu mappatabe, tudang sipulung, pernikahan, hubungan antara manusia dengan tuhan, manusia dengan alam, dan manusia dengan manusia, batasan pergaulan muda-mudi, dan sanksi adat. Keadaan tersebut bila kita memahami secara rinci Pada dasarnya hukum positif adalah hukum yang mengikat secara umum atau mengikat masyarakat pada keseluruhannya. Sehingga dalam pelaksanaan tidak boleh bertentangan dengan norma – norma yang hidup dalam masyarakat. Norma – norma yang hidup dalam masyarakat secara umum dapat disimpulkan sebagai suatu hukum yang hidup dalam masyarakat atau hukum adat sehingga peneliti dapat mengambil kesimpulan bahwa hukum positif memberikan dampak yang baik dan buruk bagi hukum adat di Desa Bialo Kecamatan Gantarang Kabupaten Bulukumba.Kata Kunci: Dampak, Hukum Positif dan Hukum Adat
7
Iriansyah, Iriansyah, Irfansyah Irfansyah, and Rezmia Febrina. "CORRELATION BETWEEN TRADITIONAL LAW AND POSITIVISM IN INDONESIA AND MALAYSIA." Pena Justisia: Media Komunikasi dan Kajian Hukum 23, no. 1 (March 21, 2024): 970. http://dx.doi.org/10.31941/pj.v23i1.1908.
Abstract:
<p align="justify"><em>This article aims to analyze the correlation between customary law and positivism law in Indonesia and Malaysia. This research uses a normative juridical approach with a statute approach and a conceptual approach. Based on the research results, customary law is unwritten with positivism law which is written. And positive law in Indonesia or the law that is expected to be present in the future in Indonesia, must be seen from the aspect of culture or customary law that grows and develops in the environment of indigenous peoples. Given the purpose of the form of a regulation or law is to meet human needs in social life. So the people who enjoy the law are the people. Whereas in Malaysia customary law is still recognized as long as it grows and develops in the community and does not conflict with the religion of Islam and has been promulgated, it can be said that there is the same thing as the distribution of assets gono gini or joint assets with Spencerian assets in Malaysia. </em><em></em></p>
8
Rizka Fakhrurozi and Erwin Syahrudin. "HUKUM ADAT DALAM PERKEMBANGAN: PARADIGMA SENTRALISME HUKUM DAN PARADIGMA PLURALISME HUKUM." Juris 6, no. 2 (December 13, 2022): 472–84. http://dx.doi.org/10.56301/juris.v6i2.620.
Abstract:
The paradigm of understanding customary law and its development must be placed in a large space, by examining extensively: a) Studies that no longer look at the legal system of a country in the form of state law, but also customary law, religious law and customary law; b) Understanding of law (adat) not only understands customary law in traditional communities- rural communities, but also the laws that apply in certain environmental communities (hybrid law or unnamed law); c) Understanding the phenomenon of trans-national law as the law made by multilateral organizations, then there is an interdependence relationship between international law, national law and local law. With a holistic and integrative understanding, the development and position of customary law will be adequately understood. Positively means that customary law is seen as law that comes from the thoughts and ideals of the people. Negatively, customary law is seen from the outside, from its relationship with other laws, both strengthening and weakening and the interaction of state political developments. Positive legal developments mean that customary law will be recognized in society in doctrine, legislation, in jurisprudence and in everyday life. On the other hand, the negative development is how customary law is sidelined and displaced or completely invalidated by their existence positive law represented by the State both in legislation and in court decisions.
9
Bramantyo, Rizki Yudha, and Irham Rahman. "application of child adoption (balaku anak) and its legal effects on customary law system of the Dayak Ngaju tribe." International research journal of management, IT and social sciences 8, no. 1 (December 2, 2020): 1–8. http://dx.doi.org/10.21744/irjmis.v8n1.1041.
Abstract:
The purpose of this research is to find out how the application of children's behavior and its influence on the customary law system of the Dayak Ngaju Tribe. The research method used is qualitative. Primary data comes from observations and interviews. Meanwhile, secondary data from previous studies were collected to support the findings. The findings reveal that there are differences in the rule of law between Islamic law and positive law and customary law of the Dayak Ngaju tribe. Islamic law regulates inheritance and inheritance rights according to lineage, positive law regulates the return of cases of adoption to civil law, and customary Dayak Ngaju law recognizes adoption.
10
Tohari, Ilham, Siti Rohmah, and Ahmad Qiram As-Suvi. "Exploring Customary Law: Perspectives of Hazairin and Cornelis Van Vollenhoven and its Relevance to the Future of Islamic Law in Indonesia." Ulul Albab: Jurnal Studi dan Penelitian Hukum Islam 7, no. 1 (October 30, 2023): 50. http://dx.doi.org/10.30659/jua.v7i1.32600.
Abstract:
The difference between Islamic law and Western law in viewing customary law is the core problem that forms the background of this research. This article aims to explore in-depth Customary Law from the perspectives of Hazairin and Cornelis Van Vollenhoven and its relevance to the future existence of Islamic law in Indonesia. This research is a literature study applying a qualitative Juridical-Normative approach. The primary sources for this research are the original works of Hazairin (Tujuh Serangkai tentang Hukum dan Hazairin, Hukum Kewarisan Bilateral Menurut al-Qur�an dan Hadith) and Van Vollenhoven (Het Adatrecht Van Nederlandsch-Indie and its translated version, Van Vollenhoven on Indonesian Adat Law). The secondary sources are all references relevant to the topic of the article. Comparative analysis is used in analyzing the data. The research findings explain that, according to Hazairin, customary law can be applied anywhere as long as it does not contradict Islamic law. In contrast, Van Vollenhoven argues that customary law does not need to consider religion because all humans have equal rights before God, thus rejecting or eliminating customs or traditions is considered undignified. The formation of national law due to culture and tradition is an important part of society. This research provides a conceptual historical-theoretical narrative related to customary law in Indonesia. Despite having different perspectives on customary law, both Hazairin and Van Vollenhoven share the vision that customary law should be made into positive law. Therefore, the existence of customary law needs to be considered by lawmakers to become national positive law.
11
Trisnatyan Pamadi, Adji Samudera, and Linda Gusnia R. "Implementasi Hukum Adat Dalam Upaya Integrasi Pengendalian Pencemaran Lingkungan Terhadap Hukum Positif (Studi Kasus Desa Ngadirojo, Sokoo, Ponorogo)." Legal Standing : Jurnal Ilmu Hukum 1, no. 2 (December 13, 2017): 30. http://dx.doi.org/10.24269/ls.v1i2.769.
Abstract:
Today's environmental pollution control has been set in national law. Through the Environmental Management and Protection Act No. 32 of 2009 it was explained that environmental pollution is a criminal act. Criminal action in positive law then its prosecution through imprisonment. In contrast to people who still have customary law, which is customary law used as a solution to legal problems. A contribution of society to support the retributive pattern. Optimizing the role of society and customary law into a replacement solution of existing imprisonment. Bids fines become a reference for developing an integrated pattern of society. The involvement of the community to be proactive with all actions or efforts of environmental pollution from certain parties become the commodity of emphasis of environmental pollution in order to keep the naturally. Customary law becomes an identity that is in accordance with the culture of the state of Indonesia and also as an alternative law that exists. The integration between customary law and positive law remains an option in balancing life processes.
12
Mucharom, Rully Syahrul, Wardah Yuspin, and Absori Absori. "Comparison of Law Between Merariq Traditional Marriage Law and Marriage Law Number 16 of 2019." International Journal of Social Science Research and Review 5, no. 10 (October 6, 2022): 321–27. http://dx.doi.org/10.47814/ijssrr.v5i10.594.
Abstract:
Marriage Law in Indonesia is regulated in Act Number 1 of 1974 concerning Marriage and undergoing changes to Act Number 16 of 2019, which regulates how the norms and principles of marriage are considered and recognized by the Indonesian state. The purpose of marriage in Indonesia as regulated in Act Number 1 of 1974 article 1 states that: "Marriage is an inner and outer bond between a man and a woman as husband and wife with the aim of forming a happy and eternal family (household) based on the Almighty God. one". The problem that arises then is whether the existing and developing customary marriages before the enactment of the Marriage Law can be recognized by the Indonesian state. The types of customary marriages that are not in accordance with the objectives, norms, and principles of marriage according to the Marriage Law are one of them is the Merariq Traditional Marriage Tradition, which from this merariq marriage tradition results in many early marriages or child marriages according to the legal age threshold. Law Number 16 of 2019 which is the main discourse of this study looks at the dimensions of Marriage Law through the eyes of the Merariq Indigenous Marriage of the Sasak Tribe. This study uses a normative juridical approach where this approach is carried out by tracing the norms that live in Indonesian positive law. Whereas the cases raised by merariq traditional marriages have caused many legal problems, furthermore, the high level of child marriage is due to the absence of a social safety net for anyone who wants to carry out a merariq marriage so that there is no legal protection and certainty for the parties to the marriage, especially women who are in a vulnerable position, Therefore, the implementation and enforcement of national marriage law must be considered again in its enforcement and implementation so that there is no legal vacuum where national law is not present in the community.
13
Mahdi, Imam. "PENGADAAN TANAH MELALUI PRANATA ADAT DI PROVINSI BENGKULU (Kajian Dalam Hukum Dan Ekonomi)." AL IMARAH : JURNAL PEMERINTAHAN DAN POLITIK ISLAM 3, no. 2 (July 1, 2018): 133. http://dx.doi.org/10.29300/imr.v3i2.2147.
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Abstract: Soil is the main thing in business in the plantation sector, but the way to obtain it is difficult because of the conditions. Between positive law and customary law in the way ownership of land by investor for plantation business will be an obstacle, HGU (Business Use Rights) issued by the government contain elements of legal certainty in positive law, while in absolute law over land, but the hereditary rights can not just disappear or go away. Land acquisition by investors through customary law will find obstacles in legal certainty, because it is difficult to later be slashed, sold and so on. The world of plantations is an economic world that can be traded.Keywords: Land Acquisition, Customary Law
14
Lubis, Ramiah. "LIFE INSURANCE IN POSITIVE LAW AND ISLAMIC LAW IN INDONESIA." Nurani: Jurnal Kajian Syari'ah dan Masyarakat 20, no. 2 (December 31, 2020): 307–16. http://dx.doi.org/10.19109/nurani.v20i2.6757.
Abstract:
Life insurance is an agreement made by an insurance company to its customers that if the customer experiences a risk of death in his life whether in the form of an accident or due to illness, then the insurance company will provide compensation with a certain amount of money in accordance with the premiums paid for being a customer of the insurance company to heirs of the customer. Conventional Insurance and Syariah Insurance are both tasked to manage and cope with risk, it's just that in Syariah Insurance the management concept is carried out using a pattern of mutual risk between managers and participants (risk sharing) or called at takaful and at tadhamun. While in conventional insurance the work pattern is to transfer risk from the customer (participant) to the company (manager), which is called risk transfer. So that the risks regarding the participants will be fully borne by the manager.
15
Afriani, Ikhfa Nur, Rohman Syah, and Nur Avita. "Parental Grants to Children and Their Relation to Inheritance in the Perspective of Positive and Customary Laws of Indonesia." Al-Bayyinah 7, no. 1 (June 1, 2023): 31–44. http://dx.doi.org/10.30863/al-bayyinah.v7i1.3064.
Abstract:
The understanding of the correlation between parental grants (hibah) to children and inheritance can lead to disputes and conflicts among heirs within families in Indonesia. This article aims to elucidate the correlation between gifts and inheritance, particularly parental gifts to children, from the perspective of positive law and customary law in Indonesia. To achieve this, the author conducted a literature review to examine and analyze various relevant sources on gifts and their correlation with inheritance. This study yielded the following conclusions: Firstly, according to the Civil Code (KUHPerdata), Compilation of Islamic Law (KHI), and customary law, gifts given by parents to children can be counted as part of the inheritance. Secondly, the status of a child who is a recipient of parental gifts, according to the Civil Code, KHI, and customary law, does not hinder them from receiving their rightful inheritance.
16
Plockaya, Olga. "Customary Law Experience of Crime Prevention in the Customary Law of the Permian Peoples." Russian Journal of Criminology 13, no. 2 (April 26, 2019): 354–64. http://dx.doi.org/10.17150/2500-4255.2019.13(2).354-364.
Abstract:
The goal of this research was to study the customary law experience of the Permian peoples in the sphere of crime prevention. To achieve this goal, the author studied the specific features of the model of crime prevention in the ethnic community and the methods of legal education used by the Permian peoples and aimed at crime prevention. The object of research is the customary law norms and institutes, as well as traditional beliefs common for the Permian peoples and widely used in the customary law practices of the eastern Finno-Ugrians. The study uses different research approaches. Thus, the use of some elements of the civilization and formation approaches contributed to the analysis of the object of this work from the standpoint of the development of public, spiritual and moral, general cultural relations in the Permian ethno-local society. The anthropological approach was necessary for the analysis of the mentality and legal consciousness of some ethno-local groups of the Permian peoples and their influence on the early detection and prevention of crimes. The institutional approach, the elements of which were used in the current study, made it possible to show the mutual correlation between the customary law sources of law, the forms of positive law and state institutions. The historical approach gave the author an opportunity to describe certain elements of customary law of the Permian peoples as part of the legal system of the Russian state. The methodological basis of this study is the integral complex of the cognition methods used not only in the contemporary legal science, but also in other humanities. These are the historic-legal, systemic, structural-functional, formal legal, comparative legal methods, the method of logical analysis, etc. Special attention is paid to the text analysis of legal, mythological, historical sources, as well as the reconstruction of the elements of common law experience in the sphere of crime prevention in the customary law of the Permian peoples. The author attempts to identify the specific feature of legal education, and the causes of the effectiveness of customary law norms. She presents a comparative legal analysis of the sources of law, such as the retrospective normative legal acts, as well as the historical-legal, ethnographic, folklore data. The research of ethno-linguists, ethnologists, studies in pedagogics, the theory and history of law are used to reconstruct the genesis and replication of the specific features of the customary law experience in the sphere of crime prevention in the customary law of the Permian peoples.
17
Vina Widiadnya Putri, I. Gusti Ayu, I. Wayan Juniartha, and I. Gusti Ngurah Bagus Wahyu Nugraha Putra. "Correlation Meaning of Inheritance Arrangement in Kutuh Village." Celt: A Journal of Culture, English Language Teaching & Literature 23, no. 2 (December 30, 2023): 253–64. http://dx.doi.org/10.24167/celt.v23i2.10241.
Abstract:
This study aims to analyse the text of national law and the text of customary law on inheritance. This research is a forensic linguistic study to find the correlation of meaning between national legal texts and customary law texts and their implementation in society. The approach in this study is a qualitative research approach with text analysis. The method used is observation, recording, and interviews with community leaders in Kutuh village. The observation method with note-taking technique was carried out to find the correlation of meaning in national legal texts with customary law texts. The conversant method with face-to-face technique was carried out to find out the implementation of the legal text that governs indigenous peoples in the Kutuh village. The problems were analysed using the theory of forensic linguistics and supported by the theory of meaning. The result of this research is a positive correlation between national legal texts and customary law texts based on the meaning of the words in the text regulations on community inheritance rights. In addition, a positive correlation was also found in the implementation of customary law texts in the community.
18
Satibi, Ibi. "Politik Hukum Adat di Indonesia Era Kolonial: Akomodasi, Penetrasi dan Resistensi." AL-MIKRAJ Jurnal Studi Islam dan Humaniora (E-ISSN 2745-4584) 4, no. 1 (June 10, 2023): 51–66. http://dx.doi.org/10.37680/almikraj.v4i1.2998.
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One of the concern of scholars regarding the politics of customary law in Indonesia at the colonial period is the encounter of three legal traditions, customary law, Islamic law and colonial law. The three of them not only had unique and different characteristics from each other, but also showed an intense struggle with tension and sometimes conflict among Indonesia society at the time. This paper seeks to describe the political dimension of customary law, as one of the three legal traditions that struggles against the strengths of the other two legal traditions. By utilizing the theory of continuity and change, this paper finds that the politics of customary law during the colonial period provided continuity the the climate of colonial penetration in the field of law. This condition has an impact on the marginalization of Islamic law which has long been inherent in Muslim society. However, at the same time the colonial government strengthened customary law as part of positive law through a legal codivication policy. This article confirms that the politics of customary law in the colonial period showed a systematic pattern toward division and change of legal society, between supporters of customary law and those who consistently adhered to Islamic law.
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Akinina, Natalya Yu, Valery Filippovich Anisimov, and Valeriy T. Galkin. "On the problems of application of customary law in the criminal prosecution of persons of small indigenous peoples of the north." Yugra State University Bulletin 17, no. 2 (December 28, 2021): 101–5. http://dx.doi.org/10.17816/byusu202102101-105.
Abstract:
The subject of the study is the problems of application of the norms of criminal law stipulating responsibility for environmental crimes against representatives of persons of small indigenous minorities of the North, the essence of which is the conflict between the positive law and the customary law of these peoples. The purpose of the study is to analyze the causes of this conflict, as well as to substantiate the necessity of applying the norms of customary law of indigenous peoples of the North in their criminal prosecution for environmental crimes.
As a result of the study, the assumption is made that knowledge of the norms of customary law by law enforcement officials will allow to relieve social tension between the indigenous peoples of the North and the law enforcement agencies. That is why it is necessary to begin work on the formation of a code of customary law, as well as recommendations for its application, which could become a document to be used as a recommendation for law enforcement bodies in their decision-making.
20
Hang, Pham Thi, Nguyen Thị Hai, and Nguyen Huu Ngu. "Impact of the customary law on the implementation of land use rights of Bana ethnic minority in Vinh Thanh district, Binh Dinh province." Multidisciplinary Science Journal 6, no. 6 (December 22, 2023): 2024084. http://dx.doi.org/10.31893/multiscience.2024084.
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The study was conducted to test the impact of customary law on the exercise of land use rights of ethnic minorities. The research model of the paper is the linear structural equation model (SEM). The method of partial least squares (PLS) tests the SEM model with 124 survey samples of households and individuals of the Bana ethnic group in Vinh Thanh District, a mountainous district in West Northern Binh Dinh Province, Vietnam. The research results show many differences between customary law and law in implementing land use rights of the Bana ethnic minorities, leading to transactions on land use rights of the Bana ethnic group not being registered at the state agency. The research results confirm a robust relationship between customary law and the exercise of land use rights of ethnic minorities. This relationship is shown through the significance level of the research model achieved at 1%; the coefficient β for evaluating the relationship between customary law and the exercise of land use rights is 0.458. The estimated path coefficient close to +1 indicates a strong positive relationship. The research results provide some suggestions for further integrating customary law into the law in implementing and developing land law policies to improve the efficient implementation of land use rights for ethnic minorities.
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Wijana, I. Nengah, and Deli Bunga Saravistha. "Keberadaan Awig-Awig dalam Mengatasi Aksi Tindak Pidana Ringan di Desa Marga Kabupaten Tabanan, Bali." AL-DALIL: Jurnal Ilmu Sosial, Politik, dan Hukum 1, no. 2 (May 29, 2023): 23–29. http://dx.doi.org/10.58707/aldalil.v1i2.452.
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The existence of customary law itself is recognized in Indonesian positive law, namely in the 1945 Constitution of the Republic of Indonesia Article 18 B paragraph (2). Customary law has its own uniqueness according to the custom in which the law lives, so it is not uncommon for there to be differences between customary law in one area and another. Several regions in Indonesia that have strong cultural characteristics still practice customary laws that have been enforced for a long time, such as Aceh which still uses Islamic law and Bali which also uses customary law guidelines to resolve problems that arise in society known as Awig-Awig. Awig-awig comes from the word "wig" which means damaged while "awig" means not damaged or good. So Awig-Awig is interpreted as something that becomes good. Like positive law, the awig-awig desa pakraman which guides the life of village krama certainly prohibits criminal acts and sanctions (pamidanda) are regulated in it. The rise of violence between youths is very troubling among the community members, as reported by the media where high school aged children were caught planning brawls which they called the "Sarong War". This action was successfully arrested by the police. This disturbing action is not only dangerous and requires special attention because it is related to the mentalistic development of the nation's generation, so it is very interesting to study, especially regarding the role of village awig-awig who are closest and directly touch the community.
22
Ilyas, Ilyas, Faisal A.Rani, Syamsul Bahri, and Sufyan Sufyan. "The Accommodation of Customary Law to Islamic Law: Distribution of Inheritance in Aceh from a Pluralism Perspectives." Samarah: Jurnal Hukum Keluarga dan Hukum Islam 7, no. 2 (May 28, 2023): 897. http://dx.doi.org/10.22373/sjhk.v7i2.15650.
Abstract:
With the emergence of receptie theory, there was a conflict between customary laws and Islamic law in the past, resulting in a protracted systemic conflict. However, the opposite occurs in the context of legal practices in Aceh, namely the accommodation of the two legal systems. This study aims to elucidate the incorporation of customary laws in Islamic law as it pertains to inheritance issues in Aceh. This study analyzes empirical legal research through the lens of legal pluralism. The data was gathered through in-depth interviews and literature reviews. This study found that various inheritance-related cases involving substitute successors, joint assets, heirs of different religions, and obligatory wills for adopted children are examples of how Islamic law accommodates customary laws. The two factors responsible for the accommodation of adat in Islamic law are the nature of the law, which is dynamic, elastic, and flexible, and the sociological condition and personality of the Acehnese, which support this integration. Moreover, this accommodation has a positive impact on the lives of people so that the maintenance and observance of adat or customs become firmer, the law functions as social control and Islamic law is cultivated in society. Theoretically, in the context of legal pluralism, accommodation between adat in Islamic law creates a space for harmonization as the main goal of this theory, not the theory of receptie which gives birth to conflicts and conflicts between legal systems.
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Irwandi and Yusuf Setyadi. "Keberagaman Tradisi Perkawinan Masyarakat Suku Kajang dalam Perspektif Filsafat Hukum." Rampai Jurnal Hukum (RJH) 2, no. 1 (March 30, 2023): 47–59. http://dx.doi.org/10.35473/rjh.v2i1.2258.
Abstract:
This journal aims to explain the law on marriages for the Kajang people in South Sulawesi, to be precise in Bulukumba Regency, customary law for marriages for the Kajang people, and the prohibition on marriages between the Kajang people and other tribes. The conclusion of this journal is that there is legal pluralism in tribal marriages, namely customary law, religious (Islamic) law, and positive law. However, the interesting thing is that they prioritize customary law in their marriage procession. And those who violate it will be subject to customary sanctions, namely being expelled from the customary area of the Kajang tribal area. Abstrak Jurnal ini bertujuan untuk menjelaskan tentang hukum dalam perkawinan masyarakat suku kajang di Sulawesi Selatan tepatnya di Kabupaten Bulukumba, hukum adat pada perkawinan masyarakat suku kajang, dan larangan perkawinan masyarakat suku kajang dengan suku lainnya. Kesimpulan pada jurnal ini adalah, terdapat pluralism hukum pada perkawinan masyarakat suku kajng yakni hukum adat, hukum agama (islam), dan hukum positif. Namun menriknya mereka lebih mengutamakan hukum adat dalam prosesi perkawinannya. Dan yang melanggar akan dikenakan sangsi adat yakni dikeluarkan dari kawasan adat wilayah suku kajang.
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Tanjung, Albert. "KESADARAN HUKUM WARGA ADAT KASEPUHAN SINAR RESMI TERHADAP HUKUM ADAT SEBAGAI CERMINAN KEPATUHAN PADA HUKUM POSITIF." NATIONAL JOURNAL of LAW 4, no. 1 (March 31, 2021): 399. http://dx.doi.org/10.47313/njl.v4i1.1113.
Abstract:
<p>Abstrak Hukum asli bangsa Indonesia adalah Hukum Adat yang keberadaan dan keberlakuannya dipatuhi secara turun-temurun. Bercorak religio magis, tradisional, kebersamaan, kontan dan sederhana yang bersumber pada agama dan kepercayaan. Disamping agama, paham animisme dan dinamisme ikut mempengaruhi peraturanperaturan yang ada terhadap kesadaran dan kepatuhan terhadap Hukum Adat. Pasal II Aturan Peralihan Undang-undang Dasar Republik Indonesia 1945 (UUD 1945) pada prinsipnya mengamatkan bahwa Hukum Adat merupakan salah sumber hukum di Indonesia, sehingga harus dipatuhi dan ditaati. Patuh terhadap Hukum Adat secara otomatis patuh kepada Hukum Positif. Dinilai sebagai suatu hal yang sakral dan filosofis, menimbulkan kesadaran kepada masyarakat agar Hukum Adat ditaati dan pantang untuk dilanggar. Warga Adat Kasepuhan Sinar Resmi yang berada di Desa Sirna Resmi, Kecamatan Cisolok, Kabupaten Sukabumi, Provinsi Jawa Barat mempraktekkannya. Mereka meyakini bahwa kejujuran adalah yang utama dan kepatuhan terhadap ketentuan Adat merupakan suatu kewajiban. Setiap pelanggaran ada akibatnya dan akan berakibat buruk terhadap individu maupun keluarga yang bersangkutan. Sebagai turunan dari ketentuan UUD 1945, kepatuhan ini menjadi cerminan bahwa kesadaran hukum Warga Adat Kasepuhan Sinar Resmi tidak hanya terhadap Hukum Adat melainkan juga kepada Hukum yang berlaku nasional. Sebagaimana permasalahan yang diangkat pada penelitian ini, yaitu bagaimanakah sinergisitas antara kesadaran hukum terhadap Hukum Adat dengan kepatuhan pada hukum positif dan bagaimanakah kesadaran hukum Warga Adat Kasepuhan Sinar Resmi terhadap Hukum Adatnya sebagai cerminan kepatuhan pada hukum positif. Metode penelitian yang digunakan pada penelitian ini adalah metode yuridis normatif yang disajikan secara kualitatif. Dari penelitian ini dapat disimpulkan, kesadaran terhadap pelaksanaan ketentuan-ketentuan Hukum Adat sangat erat relevan dengan kepatuhan masyarakat pada kepatuhan hukum positif dan kesadaran hukum Warga Adat Kasepuhan Sinar Resmi Terhadap Hukum Adatnya merupakan cerminan dari kepatuhan masyarakat kepada hukum positif</p><p>Abstract The original law of the Indonesian people is the Customary Law whose existence and enforcement has been obeyed for generations. Pattern of Religio magical, traditional, togetherness, cash and simple that comes from religion and belief. Aside from religion, animism and dynamism also influence existing regulations on awareness and compliance with Customary Law. Article II Transitional Rules of the 1945 Constitution of the Republic of Indonesia (1945 Constitution) in principle safeguards that Customary Law is a source of law in Indonesia, so it must be obeyed and obeyed.Compliance with Customary Law automatically complies with Positive Law. Assessed as a sacred and philosophical matter, raising awareness to the community so that the Customary Law is obeyed and abstinence to be violated. Indigineous peoples Kasepuhan Sinar Resmi in the Sirna Resmi Village, Cisolok District, Sukabumi District, West Java Province practice it. They believe that honesty is the main priority and adherence to the provisions of the Customary Law is an obligation. Every violation has consequences and will have a negative effect on the individual or family concerned. As a derivative of the provisions of the 1945 Constitution, this obedience is a mirroring that the legal awareness of Indigenous peoples Kasepuhan Sinar Resmi is not only about Customary Law but also to national law. As the problem raised in this study, namely how is the synergy between legal awareness of Customary Law with compliance with positive law and how legal awareness of Indigenous Peoples Kasepuhan Sinar towards their Customary Law as a mirroring of compliance with positive law. The research method used in this study is a normative juridical method that is presented qualitatively. From this study it can be concluded, awareness of the implementation of the provisions of Customary Law is very closely relevant to public compliance with positive legal compliance and how legal awareness of the Indigenous Peoples Kasepuhan Sinar Resmi Against Customary Law is a reflection of community compliance with positive law.</p>
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Jannah, Shofiatul, Mufidah CH, and Suwandi Suwandi. "Panaik Money of Bugis’ Customary Marriage in the Perspective of Islamic Law and Positive Law in Indonesia." Journal of Transcendental Law 3, no. 2 (July 31, 2022): 98–111. http://dx.doi.org/10.23917/jtl.v3i2.17375.
Abstract:
This article discusses the giving of panaik money to the Bugis marriage customs outside of the dowry obligation. This culture has long been carried out at traditional Bugis weddings. The custom of giving panaik money has become a topic of discussion among academics because it is not included in the pillars and conditions of marriage in Islam or positive law. This is a custom that is sometimes considered burdensome to the prospective groom to cause the marriage to be annulled. This research is library research with a normative approach. It uses a qualitative method, namely, observing and reviewing the obligation to give money for traditional Bugis marriages outside of the dowry. The results of the panaik money research in the study of Islamic law do not conflict with the terms and pillars of marriage. As for the positive legal view, in this case, Law Number 1 of 1974 concerning Marriage concludes that panaik money does not conflict with formal or material requirements, namely in articles 6 to 10, which explain the existence of cultural fusion between customary law and Islamic law in Indonesia which has been recognized. As part of the source of material law in Indonesia. As for the cultural pattern of Bugis ethnic marriage, panaik money is a form of respect and appreciation from the male family to the female family.Panaik Money, Islamic Law, Positive Law, Cultural Customs
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Gong, Nan, and I. I. Fedorov. "Historical evolution of the judicial system of Ancient Russia in the aspect of customary law." Legal Science in China and Russia, no. 4 (September 16, 2021): 126–31. http://dx.doi.org/10.17803/2587-9723.2021.4.126-131.
Abstract:
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.
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Djawas, Mursyid, Abidin Nurdin, Muslim Zainuddin, Idham Idham, and Zahratul Idami. "Harmonization of State, Custom, and Islamic Law in Aceh: Perspective of Legal Pluralism." Hasanuddin Law Review 10, no. 1 (May 1, 2024): 64. http://dx.doi.org/10.20956/halrev.v10i1.4824.
Abstract:
Indonesia recognizes several legal systems i.e., state law, customary law, Islamic law, and international law. Islamic sharia in Aceh is part of legal pluralism in Indonesia. This study aims to discuss the application of Islamic sharia from the perspective of legal pluralism. This normative legal study employed a legal pluralism theory analysis. Legal pluralism is a theory that views law not only as positive or written law made by the state but also as a recognition of the legal reality that exists in a pluralistic society. The study collected data by means of a literature review. Findings revealed that Islamic sharia in Aceh as part of the recognition of the concept of legal pluralism has been implemented well in the context of state law, custom, and Islamic law. The state has provided juridical legitimacy through laws in the context of legal substance and judicial institutions or sharia courts. Likewise, revitalization has also occurred in traditional institutions in terms of customary law and customary justice. The argument emphasized in this study is that Islamic sharia in the context of legal pluralism has succeeded in manifesting legal harmonization between the state, custom, and Islamic law
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Paulus, Gery Mario, Jimmy Pello, and Aksi Sinurat. "The Completion Pattern of Adultery Case Based on the Customary Law of Sabunese." Journal of Indonesian Legal Studies 4, no. 1 (May 2, 2019): 89–102. http://dx.doi.org/10.15294/jils.v4i01.26962.
Abstract:
Adultery, according to Sabu Society is relations between a man who is bound a custom matrimony or religious marriage with a woman who is bound a matrimony or one of them has bound in a matrimony. Adultery, based on the positive law is ruled in chapter 284 book of Undang-Undang Hukum Pidana (KUHP). Chapter 284 KUHP has the point that a man or woman who has been married and doing adultery (overspel). The point in chapter 284 KUHP has similarity with the point in customary law of Sabunese, namely adultery is conducted with someone (man or woman) who has been joined in matrimony. Based on the research has been done, it found that the people of Sabu is prefer to completing adultery customarily because of some factors, that is: sanction and serious fine, it is normally using the completion customarily with the people of Sabu,the justice law based on the people of Sabu, the effect of completion and completion pattern. Two patterns of completion which appears in completion process of adultery based on the customary law of Sabu is the completion pattern in kinship way which are preventing and protecting.
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Hadi, Muhammad. "The Relevance of Islamic Law and Positive Law in State Safety Management: Literacy Study of Islam and National Law." Madania: Jurnal Kajian Keislaman 26, no. 1 (July 6, 2022): 85. http://dx.doi.org/10.29300/madania.v26i1.6917.
Abstract:
In Indonesia, there are several sources of law, including religious law, customary law, international law, state law, and Islamic sharia law. This study aims to obtain scientific evidence about the relevance of Islamic law and state law in managing security and comfort among citizens in Indonesia. We searched for data to answer this problem online in several literature sources, which we discussed comprehensively to answer this research problem by looking for the relationship between Islamic law, state law, and the stability and diversity of citizens. Data collection was carried out online in several literature sources comprehensively to answer research problems, namely looking for the relationship between Islamic law, state law, and the stability and diversity of citizens. This data is sourced from secondary materials, which can be obtained in qualitative measures. The results show that there are eight Islamic laws and state laws to regulate the life of the state and society in a just and prosperous life. Di Indonesia, terdapat beberapa sumber hukum, antara lain hukum agama, hukum adat, hukum internasional, hukum negara, dan hukum syariah Islam. Penelitian ini bertujuan untuk memperoleh bukti ilmiah tentang relevansi hukum Islam dan hukum negara dalam mengelola keamanan dan kenyamanan antar warga negara di Indonesia. Pengambilan data dilakukan secara online di beberapa sumber literatur secara komprehensif untuk menjawab masalah penelitian, yaitu mencari hubungan antara hukum Islam, hukum negara, stabilitas dan keragaman warga negara. Analisis data meliputi interpretasi data, evaluasi, pengkodean data, dan penarikan kesimpulan dengan berpegang pada prinsip validitas dan reliabilitas data. Data ini bersumber dari bahan sekunder, yang dapat diperoleh dalam ukuran kualitatif. Hasil penelitian menunjukkan bahwa ada delapan hukum Islam dan hukum negara untuk mengatur kehidupan bernegara dan bermasyarakat dalam kehidupan yang adil dan makmur.
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Andrianto, Fadly. "Kepastian Hukum dalam Politik Hukum di Indonesia." Administrative Law and Governance Journal 3, no. 1 (April 6, 2020): 114–23. http://dx.doi.org/10.14710/alj.v3i1.114-123.
Abstract:
This study aims to determine the development of legal certainty issues within the scope of law in Indonesia. This research uses normative juridical research methods. The results of the research are that in the discussion of the Second Amendment of the 1945 Constitution of the Republic of Indonesia NRI Article 28I (1) which contains legal certainty is basically proposed based on the political objectives of a particular group and does not answer the issue of legal certainty that actually occurs in Indonesia between positive law and customary law of the Indonesian people. The issue of legal certainty in Indonesia between positive law and customary law of the Indonesian people in its development was then resolved by Law Number 48 of 2009 concerning Judicial Power, namely in Article 5 paragraph (1) and Article 50 paragraph (1). Furthermore, with the enactment of Law Number 6 of 2014 concerning Villages. Current development regarding the issue of legal certainty in Indonesia is in the RUU KUHP.Keywords: Legal Certainty; Positive Law; Customary Law Abstrak Penelitian ini bertujuan untuk mengetahui perkembangan isu kepastian hukum dalam ruang lingkup hukum di Indonesia. Penelitian ini menggunakan metode penelitian yuridis normatif. Hasil penelitian yaitu bahwa dalam pembahasan Amandemen Kedua UUD NRI 1945 Pasal 28I ayat (1) yang memuat tentang kepastian hukum pada dasarnya diajukan berdasarkan tujuan politis suatu golongan tertentu dan tidak menjawab mengenai isu kepastian hukum yang sebenarnya terjadi di Indonesia antara hukum positif dan hukum adat masyarakat Indonesia. Isu kepastian hukum di Indonesia antara hukum positif dan hukum adat masyarakat Indonesia dalam perkembangannya kemudian diselesaikan dengan UU Nomor 48 Tahun 2009 tentang Kekuasaan Kehakiman yaitu dalam Pasal 5 ayat (1) dan Pasal 50 ayat (1). Selanjutnya dengan diundangkannya Undang-Undang Nomor 6 Tahun 2014 tentang Desa. Perkembangan saat ini mengenai isu kepastian hukum yang ada di Indonesia yaitu dalam RUU KUHP. Kata Kunci: Kepastian Hukum; Hukum Positif; Hukum Adat
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Idham, I., Liky Faizal, Abdul Qohar, and H. Hanif. "THE MARRIAGE PRACTICES OF INDIGENOUS PEOPLES OF LAMPUNG SEBATIN FROM THE PERSPECTIVE OF ISLAMIC FAMILY LAW IN INDONESIA." SMART: Journal of Sharia, Traditon, and Modernity 1, no. 1 (August 12, 2021): 65. http://dx.doi.org/10.24042/smart.v1i1.9816.
Abstract:
This study analyzes the problems related to the existence of Lampung Sebatin Indigenous Marriages. Where the Lampung indigenous people Sebatin started a new life order in marriage combining custom and Islamic law. Marriage is divided into two ways, namely Nyakak/ Jujokh and Semanda marriages. The traditional marriage procedures have values and norms or rules. The problem in this research is how the practice of marriage and how the description of the relationship between customary law and Islamic law as well as positive law in Indonesia in the marriage of the indigenous community of Lampung Sebatin. The purpose of this study was to obtain information about: first, the practice of marriage traditional Lampung Sebatin procedures; and Second, positive law and Islamic law in the traditional marriage customs of Lampung Sebatin. This study uses the qualitative research method with a sociological legal approach that focuses on the process of implementing marriage based on Islamic law and customary law with predetermined objectives. The research data were obtained using the interview method conducted on the object of research or respondents. The findings of this study indicate that first, the practice of marriage traditional Lampung Sebatin in its implementation uses Islamic law, but there are several processions such as pre-marriage and after-marriage. Marriage Lampung traditional customs are Sebatin divided into two, namely Nyakak/ Jujokh and Semanda with the traditional stages before, the implementation customary stages and the customary stages after marriage and the pattern of settling after marriage. Second, the law of marriage in the teachings of the Islamic religion with the law on marriage, in the procedure of marriage, in Nyakak/ Jujokh and Semanda is general it can be said that line, in practice it is in accordance with the basis and reference, namely the law on marriage is al-Quran, al-Sunnah, Qaidah Fighiyah and Consensus (Ijma) of Muslims in Indonesia.Keywords: Marriage, Tradition, Lampung, Sebatin, Islamic Law
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Thani, Shira, and Alvi Syahrin. "Uang tutup babah as a customary dispute resolution in gayonese community." E3S Web of Conferences 52 (2018): 00043. http://dx.doi.org/10.1051/e3sconf/20185200043.
Abstract:
There are several customary sanctions which are often imposed in customary dispute resolutions in Gayonese community. One of them is uang tutup babah (hush money). It is a payment to resolve customary dispute between parties. However, it is not yet regulated in laws and regulations related to customary law. This paper will discuss the legal strength of decision of uang tutup babah in a customary dispute resolution and its impact. Theory of sociological jurisprudence, theory of harmonization and theory of criminalization were used in this study. In general, uang tutup babah means hush money. It is a customary dispute resolution in some customary communities in Gayo. Although the sanction, uang tutup babah, it is not yet regulated by law on customary institutions, it is often used by parties involved in the dispute to resolve their problem because it has a positive impact on communities. It is also believed that it gives a deterrent effect to the perpetrator. Since this has been done repeatedly and community accept it as a sanction, it should be included in the law to ensure that it gives legal certainty and has legal strength.
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SARI, NI LUH ARININGSIH. "KEDUDUKAN HAK WARIS ANAK ANGKAT DALAM HUKUM POSITIF INDONESIA." GANEC SWARA 17, no. 3 (September 2, 2023): 887. http://dx.doi.org/10.35327/gara.v17i3.526.
Abstract:
In a marriage, husband and wife are not always blessed with a child. To realize the dream of this married couple, many adopt children or adopt children as adopted children. the process of implementing child adoption which is carried out according to custom (customary law) and based on a court decision is valid and legally attached to the child's rights and obligations as a child to his adoptive parents. What is the status of the adopted child's inheritance rights in Indonesian Positive Law? That the position of the inheritance rights of adopted children in Indonesian positive law, namely based on the Civil Code/BW, Islamic law and customary law have differences in the implementation of social life. According to the inheritance law in the Civil Code which refers to Burgerlijk Wetboek (BW) does not directly mention the term adopted child/adopted child, that's why Staatsblad Number 129 of 1917 was made as a complement to BW in regulating this problem. As a result of the law of adoption regulated in the Staatblaad. 1927 No. 129, namely Article 11 explains that the adopted child legally obtains the name of the adoptive father, and Article 12 paragraph (1) states that adopted children are made as children born from the marriage of adoptive parents. So it can be said that the adopted child becomes the heir of the adoptive parents because the adoption causes the termination of all civil relations between the child and his biological parents. In Islam, foster or adopted children are not entitled to inheritance. however, Islamic law does not completely rule out the opportunity for adopted children to get a share of the assets of their adoptive parents, that is, adopted children are entitled to an obligatory will which amounts to no more than 1/3 of a part, this is as stated in Article 209 KHI (Compilation of Islamic Law ). Meanwhile, according to customary law, the position of inheritance rights for adopted children refers to the customary law system of each region because customary law recognizes the kinship system, namely the patrilineal, matrilineal and parental kinship systems which will later affect the inheritance position of adopted children in the kinship system.
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Plotskaya O. A., and Kolmakov Petr Aleksandrovich,. "THE ORDINARY LAW OF THE INDIGENOUS NORTHERN PEOPLES OF RUSSIA IN THE XVII – XIX CENTURIES: CONVERGENCE AND RECEPTION." BULLETIN 6, no. 388 (December 15, 2020): 268–74. http://dx.doi.org/10.32014/2020.2518-1467.208.
Abstract:
This paper discusses the issues of the convergence process, which allows revealing the peculiarities of the interpenetration of customary law among some representatives of the Samoyed and Finno-Ugric peoples. The relevance of the study is due to the identification of the process of influence of customary legal views of the indigenous population of the Northern Russia on the formation of positive law. Objective: to study the process of approximation of customary legal norms, that existed among some Finno-Ugric and Samoyedic peoples both among themselves and with the customary legal elements of ethnic groups living in the neighborhood not excluding the interception between the norms of positive law and customary legal norms of Komi, Nenets, Khanty and Mansi. Results and scientific novelty: The work shows that the approximation of customary legal norms and institutions among these peoples occurred constantly both among themselves and with the customary legal elements of peoples living in territorial proximity with them. Usually legal institutions, which started to be realized in the 17th century, are distinguished. However, by the 19th century an integral system of legal customs is being developed, that was applied among the studied peoples. Attention is drawn to the fact that starting from the 17th century the Russian legislator “protected” the northern peoples from illegal influence and arbitrariness on the part of the officials. By the first half of the 19th century the legislator even sanctioned the most important principles of state policy in the “Charter on the Management of Foreigners”, where normatively not only the traditional forms of using patrimonial lands for indigenous peoples were fixed, but also the possibility of codification of customary law. The novelty of the study is seen in the fact that empirical material has been used to identify the process of interception of customary legal norms and institutions among the studied peoples.
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Yulia, Rena, Aliyth Prakarsa, and Mahrus Ali. "Restoring the Conflicts among Societies: How does Baduy Society Settle the Criminal Cases through Restorative Justice?" Academic Journal of Interdisciplinary Studies 12, no. 3 (May 5, 2023): 193. http://dx.doi.org/10.36941/ajis-2023-0071.
Abstract:
The Baduy are indigenous people who firmly adhere to the customary law of their ancestral heritage, both in carrying out their daily lives and when conflicts or crimes occur. Even though they are part of Indonesia, the Baduy have their own legal system, which is different from positive law. Likewise in customary criminal law, the Baduy have a customary criminal justice system that is authorized to resolve customary conflicts that occur between indigenous people or those that occur in their customary territories. The conflict resolution method in Baduy customary law is called Silih Hampura. Silih Hampura 's way of working is very similar to that of restorative justice which is currently being implemented in national law to resolve various types of criminal acts. This research will examine the Silih Hampura method in resolving conflicts that occur in the Baduy as an effort to explore the Pancasila values contained in the local wisdom of the Baduy customary criminal law. The research method uses normative and empirical legal research methods. Using primary and secondary data sources which are processed using qualitative data analysis. The results of the study show that the Baduy have a conflict resolution method, namely Silih Hampura . The concepts of Silih Hampura are very thick with the norms contained in Pancasila. Deliberation for consensus, creating peace, family behavior, patterns of attention to victims and no elements of revenge, prioritizing victims' apologies and apologies from perpetrators, as well as restoring the conditions of victims, society and the environment so that they can restore the disturbed nature due to crimes or conflicts that have occurred.
Received: 15 February 2023 / Accepted: 20 April 2023 / Published: 5 May 2023
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Gavrilov, S. N. "Russian Legal Mentality: Procedural Law vs. Customary People’s Justice." Lex Russica 74, no. 10 (November 12, 2021): 100–112. http://dx.doi.org/10.17803/1729-5920.2021.179.10.100-112.
Abstract:
Russian customary law is a unique source for the study of the Russian traditional legal mentality. It is a kind of a cast from the people’s “instinctive right-feeling” (I. A. Ilyin), a product, a repository and at the same time a generator of legal mental attitudes. The results of research in the field of cognitive linguistics confirm the connection between thought processes and language. The author proceeds from the fact that the national language is an appropriate basis; and the means of linguistics are an effective tool for studying the national legal culture, legal mentality, legal consciousness. The paper describes separate approaches to the interpretation of the concepts of “mentality” and “mindset”, proposes a definition of the concept of “Russian legal mentality” and identifies the category of those possessing it.The procedures for considering and resolving cases according to the norms of secret, written, pre-reform (before 1864) and post-reform (after the Judicial Reform of 1864) process, fixed by positive law (legislation), not only in form, but also in the approach itself, differed significantly from the traditions of popular justice as a “branch” of Russian customary law.The main attitudes of the Russian traditional legal mentality are described in procedural aspects that are significant for the perception of law and legislation. Russian traditional legal mentality is reconstructed in order to identify the key mental attitudes inherent in the tradition of Russian customary law, in contrast with the approaches natural for the Western legal tradition. This is done in the context of the following phenomena: the ideal of justice, procedural order, legal qualification, the value of evidence, the purpose and result of justice.
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Amanda, Monica, Fadjrin Wira Perdana, Irwan Irwan, Doharman Lumban Tungkup, and Miran Miran. "Identifikasi Benturan Kebiasaan Masyarakat Badui Dengan Hukum Positif Indonesia." Jurnal Indonesia Sosial Sains 3, no. 7 (July 25, 2022): 1129–36. http://dx.doi.org/10.36418/jiss.v3i7.677.
Abstract:
The Badui tribe is one of the indigenous tribes in Indonesia that still survives to this day. Geographically, the Badui tribe is close to the national capital. However, this does not necessarily make the Badui tribe eliminate the customs and laws that apply to the tribe, so it often clashes with positive law in Indonesia. This study aims to identify the clash of Badui habits with positive Indonesian law. The qualitative approach method was used to collect data and analysis. Data were collected by observation and literature study. The results show that the clash between the habits that develop in the Badui community and the provisions of positive law is a factual condition that occurs in society. For this reason, it is essential to carry out legal acculturation so that the Badui Customary Law can run in harmony with positive Indonesian law.
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Gruzdev, Vladislav V., and Tatiana G. Mineeva. "On medieval (The 14th to 15th centuries) Maghreb countries’ court." Vestnik of Kostroma State University 29, no. 4 (March 29, 2024): 176–81. http://dx.doi.org/10.34216/1998-0817-2023-29-4-176-181.
Abstract:
The Maghreb countries occupy a special place in theoretical and legal courses. Their legal procedures and institutions were influenced by various factors. Currently, North African legal systems are a combination of French positive law, local customs and Islamic law. However, the process of the formation of the legal institutions of the Maghreb took a long time; it was influenced by both subjective political factors and the customary law of the Berber tribes. The purpose of this study is to establish the legal status of judges in litigation in the medieval Maghreb. The main source for studying the judicial process of the medieval Maghreb are the texts of fatwas compiled by educated jurists of the 14th – 15th centuries. Therefore, when studying the problem, the authors of the article used the method of analysing the legal text in combination with the principle of historicism. The main result of the study was the conclusion that the powers, including judicial, of the qadi in regions remote from the centre of the state were replaced by the powers of other officials, often acting on the basis of Berber customary law. When there was a conflict between the norms of Islamic law and local customs, the court more often made a decision based on the norms of customary law.
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Les, I. "The legality of the use of nuclear weapons in international law." Uzhhorod National University Herald. Series: Law 2, no. 79 (October 25, 2023): 334–40. http://dx.doi.org/10.24144/2307-3322.2023.79.2.52.
Abstract:
After the Second World War, the views of some military leaders on the use of nuclear weapons changed dramatically. Previously, the use of nuclear weapons was considered an incredible fact. In the minds of many, this view has been replaced by the notion that limited nuclear war is possible and winnable. Such a mentality raises a fundamental question: does any use of nuclear weapons have priority under international law.
Although there is no international convention that expressly prohibits the use of nuclear weapons, the consequences of the use of any weapon are governed by numerous conventions and customary international law. A decision that nuclear weapons would violate one or more principles of humanity enshrined in positive or customary international law cannot be decisive. When a state uses a weapon that emits any gaseous substance or violates the territory of a neutral state, that state is itself violating international law. However, some violations of international law, including the prohibition of causing unnecessary suffering and indiscriminate harm between combatants and non-combatants, may be justified by military necessity if their use is proportionate to military necessity, retaliation or self-defense.
This article examines the various uses of nuclear weapons and assesses their legality under positive and customary international law. It concluded that any nuclear weapons would be subject to a ban on gas and other related weapons. Furthermore, we conclude that in all but the most limited circumstances, the use of nuclear weapons would cause unnecessary suffering, would not distinguish between combatants and non-combatants, and would violate the territorial integrity of neutral States. Even if this remedy is violated by national law, this article demonstrates that the practical necessity of using nuclear weapons, and any resulting military advantage, is inherently disproportionate to the damage caused by any use of nuclear weapons, and thus, accordingly under international law, the use of nuclear weapons is illegal.
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Febriansyah, Ferry Irawan, and Anwar Sanusi. "ANALISIS YURIDIS TERHADAP LARANGAN PERKAWINAN MASYARAKAT ADAT." DiH: Jurnal Ilmu Hukum 16, no. 2 (July 14, 2020): 247–58. http://dx.doi.org/10.30996/dih.v16i2.3605.
Abstract:
AbstractThe purpose of this study is to discuss customary law in the Mirah and Golan areas precisely in Ponorogo district which has its own uniqueness, namely the existence of a marriage ban between the two regions. This ban by some people has become polemic as the times have begun to fade to recognize the existence of customary law. However, this customary rule is still recognized by both the Mirah and Golan communities. Therefore, legal analysis is needed, which is to compare traditional law with existing national law so that there is no gap between customary law and national law. This study has many differences with previous studies related to the prohibition of marriage. The prohibition of customary marriages in this study involved both the Mirah and Golan areas which became customary law that is believed up to now by indigenous peoples. This study uses empirical legal research that is studying and examining social phenomena in society related to marriage and then analyzed juridically. In the discussion it was stated that the customary law regarding the prohibition of marriage of the Mirah and Golan communities is a traditional tradition that has been traditionally implemented by the two regions to date. The development of an increasingly modern era becomes a polemic in addressing these problems. The data that was examined empirically was believed by the community as customary law, namely the Mirah and Golan communities were prohibited from conducting marriages. If this is violated, it will lead to negative sanctions in the form of mystical events that cannot be accepted by reason. The prohibition of marriage between the people in the two regions of Mirah and Golan has indeed taken place since their ancestors in the form of the words of Ki Hanggolono, which has become customary law adopted until now. The relevance of positive law to customary law is very close and complementary to each other, so that the legal position has the same recognition in indigenous communities as long as there is no legal gap.Keywords: custom; law; marriage AbstrakTujuan penelitian ini adalah membahas tentang hukum adat di wilayah Mirah dan Golan tepatnya di kabupaten Ponorogo yang memiliki keunikan tersendiri yaitu adanya larangan perkawinan antara kedua wilayah tersebut. Larangan ini oleh sebagian masyarakat menjadi polemik seiring perkembangan jaman yang sudah mulai pudar untuk mengakui keberadaan hukum adat. Akan tetapi, aturan adat ini tetap diakui oleh kedua masyarakat Mirah dan Golan. Oleh sebab itu, dibutuhkan analisis hukum yaitu membandingkan antara hukum adat dengan hukum nasional yang telah ada sehingga hukum adat dan hukum nasional tidak ada kesenjangan. Penelitian ini banyak memiliki perbedaan dengan penelitian terdahulu terkait larangan perkawinan. Larangan perkawinan adat dalam penelitian ini melibatkan kedua wilayah Mirah dan Golan yang menjadi hukum adat yang diyakini sampai sekarang oleh masyarakat adat. Penelitian ini menggunakan penelitian hukum empiris yaitu mengkaji dan meneliti gejala sosial di dalam masyarakat terkait dengan perkawinan kemudian dianalisa secara yuridis. Pada pembahasan dikemukakan bahwa hukum adat tentang larangan perkawinan masyarakat Mirah dan Golan merupakan tradisi adat yang secara turun temurun dilaksanakan oleh kedua wilayah tersebut sampai saat ini. Perkembangan jaman yang semakin modern menjadi polemik dalam menyikapi permasalahan tersebut. Data yang dikaji secara empiris diyakini oleh masyarakat sebagai hukum adat yaitu masyarakat Mirah dan Golan dilarang melangsungkan perkawinan. Jika hal ini dilanggar, maka akan menimbulkan sanksi yang negatif berupa kejadian mistis yang tidak dapat diterima oleh akal. Larangan perkawinan antara masyarakat di kedua wilayah Mirah dan Golan memang sudah terjadi sejak nenek moyang mereka yang berupa Sabda Ki Hanggolono yang telah menjadi hukum adat yang diaptuhi hingga sekarang. Relevansi hukum positif dengan hukum adat sangat erat dan saling melengkapi satu sama lain, sehingga kedudukan hukum memiliki pengakuan yang sama di dalam masyarakat adat selama tidak terjadi kesenjangan hukum.Kata kunci: adat; hukum; perkawinan
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Posse, Hortensia D. T. Gutierrez. "The relationship between international humanitarian law and the international criminal tribunals." International Review of the Red Cross 88, no. 861 (March 2006): 65–86. http://dx.doi.org/10.1017/s1816383106000051.
Abstract:
International humanitarian law is the branch of customary and treaty-based international positive law whose purposes are to limit the methods and means of warfare and to protect the victims of armed conflicts. Grave breaches of its rules constitute war crimes for which individuals may be held directly accountable and which it is up to sovereign states to prosecute. However, should a state not wish to, or not be in a position to, prosecute, the crimes can be tried by international criminal tribunals instituted by treaty or by binding decision of the United Nations Security Council. This brief description of the current legal and political situation reflects the state of the law at the dawn of the twenty-first century. It does not, however, describe the work of a single day or the fruit of a single endeavour. Quite the contrary, it is the outcome of the international community's growing awareness, in the face of the horrors of war and the indescribable suffering inflicted on humanity throughout the ages, that there must be limits to violence and that those limits must be established by the law and those responsible punished so as to discourage future perpetrators from exceeding them.
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Tejomurti, Kukuh, Denie Amiruddin, Andi Sasongko, and Imam Sukadi. "Pergulatan Mazhab Hukum dalam Pengadaan Tanah Milik Masyarakat Adat untuk Kepentingan Umum." Warkat 2, no. 1 (June 30, 2022): 1–18. http://dx.doi.org/10.21776/warkat.v2n1.1.
Abstract:
In the discourse on land acquisition for development in the public interest, problems often arise regarding the amount of compensation to land rights holders. The problem becomes even more widespread when the land acquired intersects with and originates from customary land. This article aims to provide an elaboration of thoughts from a philosophical perspective on law and justice, especially on positive legal formalism in the implementation of land acquisition belonging to customary law communities in Indonesia. The research used in this article is normative legal research using a legislative approach, a conceptual approach and a case approach. The legal materials used are primary legal materials and secondary materials which are connected with schools of legal philosophy, such as the Natural Law School, Legal Positivism, and the Historical School. The research results show that the sharp gap between the legal positivism school and the historical legal school lies in the sources and forms of law. If legal positivism prioritizes formal forms and the authoritative institutions that create them, then the historical legal school states that laws are not made but are found in society. Sociological Jurisprudence describes a "middle way" to bridge the flow of historical law in traditional law communities whose existence is respected in the formation of law to provide just legal certainty. In the context of Indonesia, which has a civil law tradition, we can consider the formation of legislation as an important component for the social engineering process. Therefore, laws and regulations related to land acquisition should involve indigenous communities in the formation process because most of Indonesia's territory is still customary territory/land in the form of fields, forests, and so on.
43
Muzakkir, Muzakkir. "ANALISIS TENTANG HARTA GONO GINI DALAM HUKUM ADAT DAN HUKUM POSITIF DI INDONESIA (UU NO 1 TAHUN 1974 DAN KHI INDONESIA)." SINTESA: Jurnal Kajian Islam dan Sosial Keagamaan 3, no. 2 (June 30, 2022): 1. http://dx.doi.org/10.22373/sintesa.v3i2.427.
Abstract:
Marriage is a sunnah of the Prophet and is an act of worship for those who are physically and spiritually ready. It must be understood that behind the marriage bond there is a binding bond between the bride and groom. Besides that, there are some things that must be kept together. One of them is joint property. Shared assets seem to belong to the groom only if the bride dies. when in fact joint property is joint property. This research is entitled Analysis of Gono Gini assets in customary law and positive law in Indonesia (Uu No. 1 of 1974 and Indonesian Law) Problem formulation 1. Gono Gini assets are based on Customary Law, and 2 Gono Gini assets based on positive law in Indonesia. AbstrakPernikahan adalah suatu sunnah Rasul dan merupakan ibadah bagi yang siap secara jasmani dan rohani. Harus dipahami dibalik ikatan pernikahan ada ikatan yang mengikat antara kedua mempelai. Disamping itu, ada beberapa hal yang harus dijaga bersama. Salah satunya adalah harta bersama. Harta bersama seolah-olah hanya milik mempelai laki-laki jika mempelai wanita meninggal dunia. padahal hakikatnya harta bersama adalah milik bersama.penelitian ini yang berjudul Analisis tentang harta gono gini dalam hukum adat dan hukum positif di indonesia (uu no 1 tahun 1974 dan khi indonesia) Rumusan masalah 1. Harta gono gini berdasarkan Hukum Adat dan 2 harta gono gini berdasarkan hokum positif di Indonesia.
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Surati, Surati. "PERSEPSI MASYARAKAT HUKUM ADAT TERHADAP KEBERADAAN HUTAN DI KASEPUHAN KARANG DAN CISUNGSANG, KABUPATEN LEBAK, BANTEN." Jurnal Penelitian Sosial dan Ekonomi Kehutanan 18, no. 2 (August 31, 2021): 99–115. http://dx.doi.org/10.20886/jpsek.2021.18.2.99-115.
Abstract:
The existence of customary territories, which are generally located in forest areas, create a separate conflict. One solution is the granting of customary forest management rights to customary law communities (CLC), and there are common understanding and perception between community and forest area managers. The study aims to understand perceptions of CLC about their needs and interests in forests. The research was conducted in Kasepuhan Karang and Cisungsang. Research method is descriptive qualitative. Data processing was done in a tabulated form and analyzed descriptively. The results showed that the perceptions of CLC Kasepuhan Karang and Cisungsang on customary forest management in terms of social, economic, and ecological aspects were generally positive, and that the condition of the Kasepuhan Karang forest is better. It was found that the ranges from social aspects are 45%-95%, economic aspects are 39%-100%, and ecological aspects are75%-100%. They depend on the forest as a source of life, medicines, and handicraft materials. Forests are also a place for customary rituals, a source of food, a source of water that is preserved and passed down from generation to generation. Customary institutions need to be strengthened with the active participation of traditional elders or the younger generation, so that future generations understand and inherit customary culture values.
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Abdennour, Benslimane. "THE PREEMINENCE OF CUSTOMARY LAW IN ARAB SOCIETIES AN ANTHROPOLOGY STUDY IN RURAL AREAS." International Journal of Advanced Research 9, no. 10 (October 31, 2021): 742–49. http://dx.doi.org/10.21474/ijar01/13606.
Abstract:
The prevalence of customary law within Arab societies, and in particular in the area of ​​water sharing and the organization of agro-pastoral lands has created a kind of conflict between customary legality and the positive law of the modern state, this the latter having become incapable of establishing its laws on the rural areas in which the tribes settle, and which have codified standards and have become familiar with modern laws enacted by the state.In order to preserve the social and economic balance in the Arab countries, the authorities in power were forced to promulgate laws and decrees in accordance with the customs and traditions of their peoples, in particular those related to agro-pastoral activity. Therefore, it can be said that the aim of the modern state is to place custom in a legal form respected by social groups.
46
Bozulenko, Olena, and Yurii Chaplinskyi. "THE INTERRELATIONSHIP BETWEEN LOGISTICS AND CUSTOMER LOYALTY UNDER MARTIAL LAW." BULLETIN OF CHERNIVTSI INSTITUTE OF TRADE AND ECONOMICS ІII, no. 91 (October 30, 2023): 128–47. http://dx.doi.org/10.34025/2310-8185-2023-3.91.09.
Abstract:
Problem statement. In today's world, where competition between companies is growing every day, ensuring high customer loyalty is becoming an important component of business success. Consumer loyalty allows companies not only to attract new customers but also to retain existing ones, which guarantees a stable revenue stream and a positive reputation. In this context, logistics, which is responsible for managing the movement of goods and services from suppliers to consumers, plays an important role in building customer loyalty. Inefficient logistics can negatively affect the perception of a company by consumers and reduce their loyalty. The study of a strategic approach to optimizing logistics processes and ensuring the quality of customer service is an urgent problem that needs to be addressed. The purpose of the study is to analyze the impact of logistics on customer loyalty and determine a strategic approach to optimizing this relationship. In writing the article, the following methods were used: the method of comparison, which allowed to process theoretical studies of domestic and foreign scientists, to identify common trends and prospects for the development of the issue; the analysis and synthesis method - to study the impact of individual elements of the logistics process on consumer loyalty, to establish the relationship between them and the level of consumer loyalty; the generalization method - to determine strategic approaches to optimizing the relationship between logistics and consumer loyalty; the abstract and logical method – for generalizing and formulating conclusions about the interaction of logistics and consumer loyalty, identifying the deep connections between these two areas. The study has shown that a strategic approach to the relationship between logistics and customer loyalty is to understand the needs and expectations of customers and implement logistics solutions to meet them, namely, improving supply systems, increasing the availability of goods, improving customer service and applying innovative technologies to improve the efficiency of logistics processes. The article provides recommendations on a strategic approach to expanding the relationship between logistics and customer loyalty. The authors emphasize the importance of integrating logistics systems with marketing efforts to create an effective system that maximizes customer satisfaction and ensures a high level of loyalty.
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Puri, Widhiana Hestining. "The THE CONCEPT OF THE LAND REFORM IN CUSTOMARY LAW OF THE JAVANESE COMMUNITY." Asia Proceedings of Social Sciences 4, no. 1 (April 18, 2019): 125–27. http://dx.doi.org/10.31580/apss.v4i1.648.
Abstract:
THE CONCEPT OF THE LAND REFORM IN CUSTOMARY LAW OF THE JAVANESE COMMUNITY
Widhiana H. Puri
Phd Student at Law Fakulty of Gadjah Mada University and Lecture in National Land Academy, Indonesia. Email widhianapuri@yahoo.com
Research Highlights
Land reform is a state effort to overcome the imbalance of land tenure in the community (Wiradi, 2000 # 1). Customary law in the Javanese community recognizes the existence of a mechanism of welfare distribution through the ownership and joint use of land in community togetherness bonds based on territorial factors as well as the concept of land reform. The existence of customary land as pekulen land is land owned by the village whose use rights can be requested by the villagers with a rotating utilization mechanism among the villagers in need (Luthfi, 2010 # 2).
The study found that indigenous peoples in Java had a welfare distribution mechanism that was the essence of land reform or agrarian reform through a mechanism of land communalization and distribution of its use carried out on a shared land / communal land of the village in rotation.
Research Objectives
This research was conducted in order to understand the phenomena of the implementation of law that developed in the community. The existence of community law or so-called non state law, informal law, or customary law in Indonesia is very numerous. The reality of this law is that the majority is still far from the attention and order of a positive and formal state legal arrangement. The community regulation model is an effort to meet the needs of its legal ideals in the midst of limited state positive law arrangements that tend to be more static and less responsive (Puri, 2017 # 16). The community regulation mechanism is a manifestation of unity in the village community where the distribution of land use is carried out among community members who have a concept in line with the national agrarian policy of the country called land reform. The regulatory model initiated from the local level becomes the learning material for how the land regulation mechanism is not always top down, but can be bottom up based on customary law that is proven effective and in accordance with the characteristics of the local community.
Methodology
This research was carried out through an empirical legal research model with research locations in villages in Pituruh Subdistrict, Purworejo Regency, Central Java Province. This research is a kind of analytical descriptive research that is directed to get an idea of ​​how the implementation of Javanese traditions in land management has a concept similar to land reform or agrarian reform. In order to analyze existing traditions, a socio-legal approach is carried out, namely a study of the law using the approach of law and social sciences in order to analyze it (Irianto, 2012 # 17). The legal approach referred to is not only to see aspects of norms that are built on the provisions of customary law alone but by looking at their relevance to the regulation of the positive law of the country as the territory of the enactment of the community regulation. This is to see the common thread and the interrelationship between the two and avoid the release of the phenomenon of legal pluralism that is within the scope of national law. So that the legal norms of the community can be assessed as the model of regulation that can be applied in other regions.
Results
Javanese people in Indonesia have a land regulation mechanism that has a concept similar to that of land reform or agrarian reform by the state. The customary law of the Javanese community has a common bond based on territorial factors or similarity in the area of ​​residence (Taneko, 2002 # 11). Customary law communities with their customary rights can own and control land both in the concept of individual property rights and communal / communal property rights. The concept of shared property / communal rights illustrates the existence of ownership rights by all members of the community embodied in village control (Susanto, 1983 # 18). One form of joint ownership is the right of possession which can be controlled by community members with the permission of the village government to be used for the benefit of themselves and their families with a rotating mechanism. At present, land is experiencing strengthening and individualization, but the character of togetherness and social function of land is maintained through the distribution of utilization rights of speculative land which has the status of individual property rights, in village settings.
Findings
Land reform or agrarian reform is a land policy that aims to overcome the imbalance of land tenure through the distribution of land to people in need. Land reform or agrarian reform can be extended not only to the concept of distribution of land ownership but also to the control and use of land. The limitations of the number of land parcels and the need for land can be overcome through a model of tenure and shared use of land based on the concept of joint property / communal rights over land.
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Puri, Widhiana Hestining. "The THE CONCEPT OF THE LAND REFORM IN CUSTOMARY LAW OF THE JAVANESE COMMUNITY." Asia Proceedings of Social Sciences 4, no. 3 (June 4, 2019): 99–101. http://dx.doi.org/10.31580/apss.v4i3.646.
Abstract:
THE CONCEPT OF THE LAND REFORM IN CUSTOMARY LAW OF THE JAVANESE COMMUNITY
Widhiana H. Puri
Phd Student at Law Fakulty of Gadjah Mada University and Lecture in National Land Academy, Indonesia. Email widhianapuri@yahoo.com
Research Highlights
Land reform is a state effort to overcome the imbalance of land tenure in the community (Wiradi, 2000 # 1). Customary law in the Javanese community recognizes the existence of a mechanism of welfare distribution through the ownership and joint use of land in community togetherness bonds based on territorial factors as well as the concept of land reform. The existence of customary land as pekulen land is land owned by the village whose use rights can be requested by the villagers with a rotating utilization mechanism among the villagers in need (Luthfi, 2010 # 2).
The study found that indigenous peoples in Java had a welfare distribution mechanism that was the essence of land reform or agrarian reform through a mechanism of land communalization and distribution of its use carried out on a shared land / communal land of the village in rotation.
Research Objectives
This research was conducted in order to understand the phenomena of the implementation of law that developed in the community. The existence of community law or so-called non state law, informal law, or customary law in Indonesia is very numerous. The reality of this law is that the majority is still far from the attention and order of a positive and formal state legal arrangement. The community regulation model is an effort to meet the needs of its legal ideals in the midst of limited state positive law arrangements that tend to be more static and less responsive (Puri, 2017 # 16). The community regulation mechanism is a manifestation of unity in the village community where the distribution of land use is carried out among community members who have a concept in line with the national agrarian policy of the country called land reform. The regulatory model initiated from the local level becomes the learning material for how the land regulation mechanism is not always top down, but can be bottom up based on customary law that is proven effective and in accordance with the characteristics of the local community.
Methodology
This research was carried out through an empirical legal research model with research locations in villages in Pituruh Subdistrict, Purworejo Regency, Central Java Province. This research is a kind of analytical descriptive research that is directed to get an idea of ​​how the implementation of Javanese traditions in land management has a concept similar to land reform or agrarian reform. In order to analyze existing traditions, a socio-legal approach is carried out, namely a study of the law using the approach of law and social sciences in order to analyze it (Irianto, 2012 # 17). The legal approach referred to is not only to see aspects of norms that are built on the provisions of customary law alone but by looking at their relevance to the regulation of the positive law of the country as the territory of the enactment of the community regulation. This is to see the common thread and the interrelationship between the two and avoid the release of the phenomenon of legal pluralism that is within the scope of national law. So that the legal norms of the community can be assessed as the model of regulation that can be applied in other regions.
Results
Javanese people in Indonesia have a land regulation mechanism that has a concept similar to that of land reform or agrarian reform by the state. The customary law of the Javanese community has a common bond based on territorial factors or similarity in the area of ​​residence (Taneko, 2002 # 11). Customary law communities with their customary rights can own and control land both in the concept of individual property rights and communal / communal property rights. The concept of shared property / communal rights illustrates the existence of ownership rights by all members of the community embodied in village control (Susanto, 1983 # 18). One form of joint ownership is the right of possession which can be controlled by community members with the permission of the village government to be used for the benefit of themselves and their families with a rotating mechanism. At present, land is experiencing strengthening and individualization, but the character of togetherness and social function of land is maintained through the distribution of utilization rights of speculative land which has the status of individual property rights, in village settings.
Findings
Land reform or agrarian reform is a land policy that aims to overcome the imbalance of land tenure through the distribution of land to people in need. Land reform or agrarian reform can be extended not only to the concept of distribution of land ownership but also to the control and use of land. The limitations of the number of land parcels and the need for land can be overcome through a model of tenure and shared use of land based on the concept of joint property / communal rights over land.
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Alam, Syariful, Yaris Adhial Fajrin, Sholahuddin Al-Fatih, and Merve Ozkan Borsa. "Islamic Criminal Law Study on The Seizure of Corruptor Assets as an Indonesian's Criminal Sanction in The Future." JURIS (Jurnal Ilmiah Syariah) 21, no. 2 (December 30, 2022): 143. http://dx.doi.org/10.31958/juris.v21i2.6722.
Abstract:
The current job transformation is one of the challenges for the state of Indonesia. Crimes over time have been carried out systematically, including corruption. The interesting thing about the development of efforts to combat corruption is the development of the concept of returning state finances. Legal entities in Indonesia have long experienced legal pluralism, as can be seen from the configuration of the community that carries out Islamic criminal law and customary law as local wisdom. This study uses a normative approach with secondary data support with the specification that the confiscation of corruptor's property in Islamic criminal law is divided into: Reproaches and reprimands/warnings, dismissing from his position (al-azl min al-wadzifah), by beating (whipping), punishment in the form of property (fines) and physical punishment, exile, crucifixion, death penalty. The relevance between these concepts is a form of legitimacy for the legal significance that comes from the beliefs and needs of the community. This article raises the concept of positive law with concepts in Islamic criminal law to find the relevance of the two which will later become part of the effort to function Islamic criminal law into Indonesian positive law in order to achieve the goal of a fair law and reduce corruption.
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Yenny, Oktavani, I. Wayan Atmanu Wira Pratana, and I. Made Halmadiningrat. "ARRANGEMENT OF TRADITIONAL INSTITUTIONS IN INDONESIAN LEGAL SYSTEM." TANJUNGPURA LAW JOURNAL 7, no. 2 (July 31, 2023): 98. http://dx.doi.org/10.26418/tlj.v7i2.57492.
Abstract:
AbstractThe establishment of the Majelis Desa Adat/Traditional Village Council (MDA) in Bali Province and the Majelis Dewan Adat Dayak Nasional/National Dayak Customary Council in Kalimantan (MADN) in Kalimantan Province are clear examples that the customary law community unit seriously shows its existence to accommodate the interests of members and create policies that can directly affect the customary law community unit. However, the existence of these two customary institutions does not yet have legal certainty in Indonesian legal arrangements that specifically discuss their position. As a result, the position of these customary institutions in the national realm is ambiguous due to the unclear status and position of legal products and the strength of the policies issued. The purpose of this research is to discuss the position of the customary village council in Bali Province and the national Dayak Customary Council in Kalimantan in the laws and regulations and the status of policies issued by customary institutions in Indonesian laws and regulations. The method used is normative legal research. Data sources consist of primary legal materials, secondary legal materials, and tertiary legal materials. In this research, the data is analyzed qualitatively and then presented descriptively to get a comprehensive conclusion. The results show that the MDA and the MADN have experienced significant developments ranging from institutional arrangements to legal products issued. Therefore, to provide legal certainty to the position of customary institutions and the status of legal products issued by Customary Institutions, it is necessary to explicitly regulate in Law Number 12 of 2011 as amended by Law Number 13 of 2022 concerning the Second Amendment to Law Number 12 of 2011 concerning the Formation of Legislation concerning the position of Customary Institutions and the resulting Legal Products so that there is no overlap of policies between positive law and customary law that is currently running.AbstrakPembentukan Majelis Desa Adat (MDA) di Provinsi Bali dan Majelis Dewan Adat Dayak Nasional (MADN) di Provinsi Kalimantan menjadi contoh nyata bahwa kesatuan masyarakat hukum adat secara serius menunjukan keberadaannya untuk mengakomodir kepentingan anggota dan menciptakan kebijakan-kebijakan yang dapat berpengaruh secara langsung kepada kesatuan masyarakat hukum adat. Namun, keberadaan kedua lembaga adat ini belum memiliki kepastian hukum di dalam pengaturan hukum Indonesia yang secara spesifik membahas mengenai kedudukannya. Akibatnya kedudukan lembaga adat ini di ranah nasional menjadi ambigu karena ketidakjelasan status dan posisi produk hukum maupun kekuatan dari kebijakan yang dikeluarkan. Tujuan penelitian ini untuk membahas mengenai kedudukan majelis desa adat di Provinsi Bali dan majelis adat dayak nasional di Kalimantan dalam peraturan perundang-undangan dan status kedudukan kebijakan yang dikeluarkan oleh lembaga adat pada peraturan perundang-undangan di indonesia. Metode yang dipergunakan adalah penelitian hukum normatif. Sumber data terdiri atas bahan hukum primer, bahan hukum sekunder, dan bahan hukum tersier. Dalam penelitian ini data dianalisis secara kualitatif yang kemudian disajikan secara deskriptif untuk mendapatkan kesimpulan yang komprehensif. Hasil penelitian menunjukkan bahwa MDA dan MADN telah mengalami perkembangan yang sangat signifikan mulai dari tata kelembagaan hingga produk hukum yang dikeluarkan. Oleh karena itu, untuk memberikan kepastian hukum terhadap kedudukan lembaga adat serta status kedudukan produk hukum yang dikeluarkan oleh lembaga adat, maka perlu adanya pengaturan secara tegas di dalam Undang-Undang Nomor 12 Tahun 2011 sebagaimana telah diubah menjadi Undang-Undang Nomor 13 Tahun 2022 tentang Perubahan kedua atas Undang-undang Nomor 12 Tahun 2011 tentang Pembentukan Peraturan Perundang-undangan tentang Kedudukan Lembaga Adat dan Produk Hukum yang dihasilkan agar tidak terjadi tumpang tindih kebijakan antara hukum positif dengan hukum adat yang saat ini telah berjalan.