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Journal articles on the topic 'Legal and customary'
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1
Tatum, Melissa. "Customary Law of Indigenous Communities: Making Space on the Global Environmental Stage." Michigan Journal of Environmental & Administrative Law, no. 9.1 (2020): 77. http://dx.doi.org/10.36640/mjeal.9.1.customary.
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The high stakes often involved in controversies regarding who owns valuable natural resources and who has the authority to regulate environmental contaminants have resulted in fierce legal battles and struggles to establish and define international principles of law. Grand theoretical debates have played out on the international stage regarding the principle of free, prior, and informed consent and the legal contours of corporate social responsibility. Meanwhile, often under the radar, Indigenous people around the world have worked to create a sustained niche for their community and culture in the face of exploitation and environmental devastation at the hands of the dominant culture. Working both within and outside of formal legal systems, Indigenous communities have consciously stayed rooted in their customary law and traditions to address the biggest challenges facing their way of life. As the beginning of an effort to study these approaches more thoroughly, this article sets forth a taxonomy for classifying different uses of the customary law of Indigenous peoples. A taxonomy will provide a common language for identifying and discussing these efforts and how they fit into a multicultural, international legal system.
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Lubis, Ramiah, and Hijriyana Safithri. "LEGAL PROTECTION OF ULAYAT RIGHTS." Nurani: Jurnal Kajian Syari'ah dan Masyarakat 21, no. 1 (June 9, 2021): 81–92. http://dx.doi.org/10.19109/nurani.v21i1.6627.
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Land is the surface of the earth which is one of the objects regulated by Agrarian Law. The new Agrarian Law must comply with the legal awareness of the people at large. Because the Indonesian people are largely subject to customary law, the new agrarian law will also be based on the provisions of customary law as original law, which are refined and adjusted to the interests of the community. Customary law is the main source in the formulation of national land laws, as the first source. In the land law, the hierarchy of land tenure rights is regulated, including the Ulayat Rights. The method used in this research is field research. Writing this research aims to describe the application of the distribution of customary land rights owned by the customary law community of the MuaraEnim district, namely Paya Angus Village and the form of legal protection for the indigenous people of Paya Angus, but because their work does not reside in Paya Angus Village. The result of this research is that the residents of Paya Angus village have obtained their customary rights in accordance with the regulations in force in the village and the form of legal protection obtained by the residents of Paya Angus village who live outside the village because they work in MuaraEnim district is not clearly explained about There is a legal basis and rules that regulate, but customary rights are recognized by law and its application refers to the Basic Agrarian Law and customary law in force in Paya Angus Village so that with an agreement from the village head, the community is still entitled to get rights. Ulayat and obliged to continuously cultivate the land
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Pillay, Navi. "Legal Eye: Equality and Customary Law." Agenda, no. 20 (1994): 44. http://dx.doi.org/10.2307/4065869.
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Yahya, Taufik, and Fauzi Syam. "RETHINKING THE ROLE OF INDIGENOUS LAW COMMUNITY IN MANAGING INDIGENOUS FOREST IN JAMBI PROVINCE." Jambe Law Journal 1, no. 1 (July 9, 2018): 35–54. http://dx.doi.org/10.22437/home.v1i1.1.
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This paper examines the synchronization of legal regulations in forestry, green farming, and mining sectors along with their implementation regulations. The certainties of the existence of customary law community in Legal Acts No. 41 year 1999 concerning Forestry does not give certainties for customary law community in managing forest in Indonesia. Meanwhile, Legal Acts No. 6 year 2014 about Village stresses out that there is a specific acknowledgement about local customary village as a part of Customary Law Community. In the Legal Acts about Village, the establishment of Customary Law Community is strongly stated in provincial government regulations. This paradox has brought a bad consequence to customary forest that is managed by customary law communities in Jambi province.
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Yahya, Taufik, and Fauzi Syam. "RETHINKING THE ROLE OF INDIGENOUS LAW COMMUNITY IN MANAGING INDIGENOUS FOREST IN JAMBI PROVINCE." Jambe Law Journal 1, no. 1 (July 9, 2018): 35–54. http://dx.doi.org/10.22437/jlj.1.1.35-54.
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This paper examines the synchronization of legal regulations in forestry, green farming, and mining sectors along with their implementation regulations. The certainties of the existence of customary law community in Legal Acts No. 41 year 1999 concerning Forestry does not give certainties for customary law community in managing forest in Indonesia. Meanwhile, Legal Acts No. 6 year 2014 about Village stresses out that there is a specific acknowledgement about local customary village as a part of Customary Law Community. In the Legal Acts about Village, the establishment of Customary Law Community is strongly stated in provincial government regulations. This paradox has brought a bad consequence to customary forest that is managed by customary law communities in Jambi province.
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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.
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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.
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Webber, Jeremy. "The Grammar of Customary Law." McGill Law Journal 54, no. 4 (May 4, 2010): 579–626. http://dx.doi.org/10.7202/039646ar.
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Abstract All law is customary. This article explores how we should conceive of the customary nature of law, proposing a framework for understanding how legal orders are related to their various societies. The article builds upon the pragmatist conception of law developed by Lon Fuller and Gerald Postema, but it goes well beyond their accounts, arguing that their predominantly functionalist approaches are inadequate. Although law does serve to coordinate social interaction, it does so through specific conceptual languages, through particular grammars of customary law. Law can only be understood if one takes those grammars seriously. The article pursues this argument by drawing comparisons between indigenous and non-indigenous legal orders, both to expand the comparative range and to explore what indigenous legal orders can reveal about law generally. It explores the limitations of functionalist accounts (including law and economics) in the law of persons and property, in presumptions about the foundational requirements of legal order, and in the presence of the sacred or mythic in law. The article concludes that attending to the various grammars of customary law allows one to engage, productively and with insight, in legal reasoning across the normative divide separating different legal cultures.
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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.
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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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Disantara, Fradhana Putra. "Konsep Pluralisme Hukum Khas Indonesia sebagai Strategi Menghadapi Era Modernisasi Hukum." Al-Adalah: Jurnal Hukum dan Politik Islam 6, no. 1 (January 1, 2021): 1–36. http://dx.doi.org/10.35673/ajmpi.v6i1.1129.
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The purpose of this legal research is to describe the concept of Indonesian legal pluralism or Indonesian legal pluralism in facing the era of legal modernization; as well as describing the Indonesian legal pluralism strategy in integrating customary courts into the national legal system. This legal research uses a statute approach and a conceptual approach. In this legal research, the primary and secondary legal materials used are inventoried in order to obtain proper legal review; and provides a conceptual analysis of the legal issues discussed. The results of the study stated that as a novelty concept; The concept of typical Indonesian legal pluralism provides equality for the enactment of state law, transnational law and customary law so that they can run together based on the 1945 Constitution of the Republic of Indonesia in the era of legal modernization. Then, the concept of typical Indonesian legal pluralism can be used as a strategy to integrate customary justice into the national legal system through aspects of legal development. Thus, this research is expected to be useful theoretically; namely as a scientific development of customary law, and practical benefits; namely as a reference for drafting regulations on customary villages by local governments. Therefore, researchers recommend that the Indigenous Peoples Bill be a priority in the 2021 National Legislation Program (Prolegnas).
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Marzuki, Al Araf Assadallah. "Penerapan Peradilan Adat Berbasis Kuasi Yudisial Dalam Memutus Sengketa Adat." Legalitas: Jurnal Hukum 12, no. 2 (December 23, 2020): 260. http://dx.doi.org/10.33087/legalitas.v12i2.225.
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The customary court is not a judicial institution that can decide a dispute with the direction of justice as in the national court so that recognition of customary decisions does not get permanent legal force which results in legal uncertainty in dispute resolution through customary court institutions. Thus, there is an idea that is offered in this research that implements customary courts as quasi-judicial in resolving customary disputes. Through normative juridical research, it is found that: first, the position of customary courts is only limited to deliberative dispute resolution, and in the judicial hierarchy its position is not recognized. Second, the quasi-judicial model that can be applied in customary courts can emulate KPPU in deciding disputes where to obtain permanent legal force, the KPPU's decision needs to be ruled by a district court, and if some object to the verdict, they can file an objection legal remedy in the domestic court. a period of 14 days from receipt of the decision on the parties.
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Wirya Darma, I. Made. "New Paradigm of Indonesian Criminal Law Policy to Formulate Sanctions for Cases of Customary Crimes." PADJADJARAN Jurnal Ilmu Hukum (Journal of Law) 8, no. 2 (2021): 275–91. http://dx.doi.org/10.22304/pjih.v8n2.a6.
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Legal politics examines changes within present law due to consistent demands and needs of people. Legal politics continue to develop the rule of law, from the Ius Constitutum, which is based on the previous legal framework, to the formulation of the law in the future, the Ius Constituendum. The Indonesian 2019 draft of Criminal Code formulates customary sanctions as the fulfillment of customary obligations in several articles. These articles provide a new paradigm of criminal law policy to formulate criminal law reform in the future for customary sanctions in cases of customary crimes. The study used normative juridical or library research on normative legal substances. It aims to reveal the truth based on scientific logic from the normative side by examining library materials or secondary data consisting of primary and secondary legal materials. The results show that the fulfillment of customary obligations can be expected to become criteria or signs/guidelines for judges to determine “law that lives in society” or “The Living Law” as a source of law (material legality) in the future. It is a form of new paradigm in the renewal of customary criminal law. Thus, customary (criminal) law can become (1) a positive source of law, in the sense that customary criminal law (sanctions) can be the legal basis to examine cases at the Court; and (2) negative sources of law, in the sense that the provisions of customary criminal law (sanctions) can be justified reasons, reasons for mitigating punishment or providing more severe punishment.
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Seregig, I. Ketut. "Legal Sanction of Kesepekang in Balinese Customary System (In Perspective: Empiricism Theory of David Hume)." FIAT JUSTISIA:Jurnal Ilmu Hukum 11, no. 3 (February 28, 2018): 302. http://dx.doi.org/10.25041/fiatjustisia.v11no3.1109.
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Legal sanction of Kesepekang is a moral sanction that has been a habit in Balinese custom society and has been done from generation to generation, both the one in Bali and outside Balinese custom society. The implementation of Kesepekang sanction currently is considered by the intellectuals of Balinese custom society as a behavior that violates social values in society. In its development, legal sanction of Kesepekang has been politicized as a factor causing the occurrence of custom society disharmony, both the one in Bali and outside Bali. This society resistance has weakened the function of Balinese customary law sourced from one of Hinduism belief which is “believing the presence of karmaphala (result from behavior) law.” The issue occurring in Balinese custom society, especially the one in the Province of Lampung, is “whether the legal sanction of kesepekang is still relevant if it is applied in Balinese traditional system.” Based on the observation result, the term of Kesepekang is the attitude of “silence” that is done by the other members of customers who do not obey the customary regulations in their groups. Certain groups consider that the legal sanction of Kesepekang has violated human nature as social beings. To prove this argument, a study entitled: Legal Sanction of Kesepekang in Balinese Customary System–(In Perspective: Empiricism Theory of David Hume) is conducted. The result of the study can be concluded that the legal principles in Kesepekang sanction are the law of causation (causality), which each action certainly affects “when doing good, the result will be good – when doing bad, the result will be bad.” In the perspective of David Hume’s Empiricism theory, Kesepekang sanction is a sensory experience that occurs in custom society. Experience, according to David Hume, is the only source of knowledge, so the act of “silence” done by the member of custom as the effort in giving punishment to the member of customer who does not obey is a reality received by sense as an experience. Keywords: Kesepekang Legal Sanction, Empiricism Truth Theory
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Subekti, Subekti, and Suyono Yoyok Ucuk. "PEWARISAN BERDASARKAN HUKUM WARIS ADAT TERKAIT SISTEM KEKERABATAN DI INDONESIA." Jurnal Aktual Justice 5, no. 1 (June 8, 2020): 56–70. http://dx.doi.org/10.47329/aktualjustice.v5i1.520.
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There are three kinds of inheritance law in Indonesia, namely Islamic inheritance, Customary inheritance and BW inheritance. The scope of this writing is limited to customary inheritance law. The parts of customary law have a big influence on customary inheritance law and vice versa. Customary inheritance law has its own characteristics and characteristics that are unique to Indonesia, which is different from Islamic law and western law (BW). Because the difference lies in the natural background of the Indonesian people who have the philosophy of Pancasila with a society that is Bhinneka Tunggal Ika. The inheritance law that exists and applies in Indonesia to date is still not in the form of legal unification. The purpose of this study is to analyze the inheritance system according to the customary inheritance law related to the kinship system in Indonesia.The type of research used in this research is normative juridical research, namely research on legal systematic is research conducted on primary and secondary legal materials, the terms of reference used are the basic definitions contained in the legal system. The approach used is a conceptual approach, a statute approach and a case approach. Types of Legal Materials are primary legal materials and secondary legal materialsThe results of this study indicate that the inheritance system according to the Adat Inheritance Law does not refer to the kinship system of the customary law community. Customary law communities whose system of collective inheritance can occur are parental kinship systems. Heritage assets related to inheritance must be distinguished from the origin of the assets, because they are related to the kinship system that exists in the local customary law community, whether parental, patrilineal or matrilineal, because not all inheritance can be divided individually.
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Karista Putri, Luh Putu Yeyen, and Eric Gordon Withnall. "Protecting the Village Credit Institution: Should Traditional Communities Adopt Modern Financial Management Practices?" Udayana Journal of Law and Culture 2, no. 2 (July 31, 2018): 115. http://dx.doi.org/10.24843/ujlc.2018.v02.i02.p01.
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A Lembaga Perkreditan Desa (Village Credit Institution or LPD) is a type of financial institution that is associated with a Balinese customary village. LPDs face competing pressures to both maintain their traditional character and align themselves with national standards for financial management. This article establishes the hybrid legal character of LPDs (under Balinese customary law and Indonesian national law) in order to analyse their evident shortcomings, being the vulnerability of some monitoring and protection systems to misappropriation. We rely on normative legal research methods, including statutory analysis and analysis of case studies. We examine the LPD Regulations and Balinese customary law, supplemented by interviews on issues of relevance. We conclude that the recognition of LPDs under the law, given the fundamental basis of the LPD in the customary village, ought to be given primacy to their status under Balinese customary law. However, the monitoring and protection systems of LPDs must be improved and uniform standards must be enforced – otherwise, their customers will simply use other financial institutions. We also conclude that it is possible to improve management practices while respecting the autonomy of customary villages. Therefore, we assert that properly implemented measures will make a direct intervention from government unnecessary.
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Adnyana, Dewa Putu, and I. Ketut Sudantra. "Kepastian Hukum mengenai Penjamin Simpanan bagi Nasabah pada Lembaga Perkreditan Desa di Bali." Jurnal Magister Hukum Udayana (Udayana Master Law Journal) 9, no. 4 (December 31, 2020): 572. http://dx.doi.org/10.24843/jmhu.2020.v09.i04.p14.
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The regulation of legal protection for customers who have savings funds in village financial institutions (LPD) is unclear. This causes no legal certainty for customers if the LPD experiences financial problems. The existence of LPDs in Bali is regulated in two types of legal rules, namely state law and customary law (legal pluralism). Analyzing the legal certainty aspects of deposit guarantor in statutory regulations and customary law is the aim of this research. This study uses a normative legal research methodology. This study uses two types of approaches namely, the statute and the conceptual approaches. The legal materials chosen as the basic analysis are primary and secondary legal materials. The conclusion of this study shows that the role of state law is more dominant than customary law. The above conclusion is shown by the fact of the research that most of the matters related to the technical operations of the LPD are regulated by the state law, in this case, is regional regulation about LPD. Based on the results of the study on the norms of local regulations on LPD and the nine awig –awig as a form of customary law from representatives of the nine regencies and city in Bali, there is no regulation on deposit guarantor institutions for LPD customers in Bali to provide legal protection. So that, regulating LPDs in Bali with two legal systems, namely the state law and the customary law system, does not guarantee legal certainty for the safety of customer's deposits.
Pengaturan perlindungan hukum bagi nasabah yang mempunyai dana simpanan di Lembaga Perkreditan Desa (LPD) saat ini tidak jelas. Hal ini menyebabkan tidak ada kepastian hukum bagi nasabah apabila LPD mengalami masalah keuangan. Keberadaan LPD di Bali diatur dalam dua jenis aturan hukum yaitu hukum negara dan hukum adat (pluralisme hukum). Mengkaji aspek kepastian hukum penjamin simpanan dalam setiap norma dalam peraturan perundang-undangan serta dalam hukum adat merupakan tujuan penelitian ini. Penelitian ini menggunakan metode penelitian hukum doktrinal (normatif). Penelitian ini menggunakan dua jenis pendekatan yaitu pendekatan peraturan perundang-undangan (statute approach), dan pendekatan konsep (conceptual approach). Adapun bahan hukum yang dipilih sebagai dasar analisis adalah bahan hukum primer dan bahan hukum sekunder. Kemudian kesimpulan dari penelitian ini menyebutkan bahwa dua sistem hukum dalam pengaturan LPD di Bali menunjukkan peran hukum negara lebih dominan daripada hukum adat. Kesimpulan ini ditunjukkan oleh fakta penelitian yang ditemukan bahwa sebagian besar hal yang berkaitan dengan teknis operasional LPD yang merupakan satu-satunya organisasi keuangan milik Desa Adat di Bali diatur oleh hukum negara dalam hal ini diatur dalam peraturan daerah tentang LPD. Kemudian, berdasarkan hasil kajian terhadap norma peraturan daerah tentang LPD dan terhadap sembilan awig–awig sebagai bentuk hukum adat dari perwakilan Kabupaten dan Kota di Bali, tidak ada ditemukan pengaturan tentang lembaga penjamin simpanan bagi nasabah LPD di Bali untuk memberikan perlindungan hukum. Dengan demikian pengaturan LPD di Bali dengan dua sistem hukum yaitu hukum negara dan sistem hukum adat ternyata tidak menjamin kepastian hukum bagi keamanan dana simpanan para nasabah.
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Wirazilmustaan, Wirazilmustaan, Rahmat Robuwan, and Rio Armanda Agustian. "Urgensi Pembentukan Lembaga Adat Urang Lom Guna Memberikan Perlindungan Suku Lom." PROGRESIF: Jurnal Hukum 15, no. 2 (December 23, 2020): 169–92. http://dx.doi.org/10.33019/progresif.v15i2.1983.
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Bangka Belitung Province have a community called a native population known as the Lom or Urang Lom. Legal recognition of the Urang Lom community in the formation of the Village Customary Institution where Urang Lom still lives is a very important part of the perspective of legal protection. The form of legal protection against the existence of Urang Lom is only limited to the recognition of a traditional institution called Mapur Customary Institution which is under the auspices of the Malay Customary Institution of Bangka. The formal and material legality problem in the formation of the Urang Lom Customary Institution in Gunung Muda and Gunung Pelawan Villages is related to the synergy of the Mapur Customary Institution that has been formed with the Village Customary Institutions based on the Village Law. Gunung Muda Village, and Gunung Pelawan Village made the formation of the Village Customary Institution be difficult because it clashed with the village territorial area.
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Tchoukou, Julie Ynès Ada. "A Conceptual Framework for Regulating Customary Law within Pluralistic African States: Reassessing Justice Sector Reforms for Reconciling Legal Traditions." Global Journal of Comparative Law 9, no. 2 (June 19, 2020): 245–70. http://dx.doi.org/10.1163/2211906x-00902004.
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Customary law and traditional institutions once constituted the comprehensive legal system regulating a wide spectrum of activities within African states. However, colonialism created a framework for the politics of legal dualism, which led to a process of transformation and shift in the nature of structures and practices of states. As such, now independent states are constantly trying to identify ways to sustain the cultural heritage reflected in customary laws and institutions, as they attempt to also function as modern democratic states. Scholars have highlighted the practical and structural changes that need to be made to ensure effective regulation of customary law. To this work, my paper provides a framework to supplement current judicial reforms within African states. I argue that for customary law to be effectively used as a mechanism for legal regulation within cultural communities, the current legal framework within African states needs to move beyond the idea of legal recognition and tolerance, to one that reconciles the complexities of different legal traditions.
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Demian, Melissa. "On the Repugnance of Customary Law." Comparative Studies in Society and History 56, no. 2 (April 2014): 508–36. http://dx.doi.org/10.1017/s0010417514000127.
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AbstractThe Constitution of Papua New Guinea (PNG) features a peculiar artifact of colonial-era law known as a repugnancy clause. This type of clause, used elsewhere as a neutral mechanism to identify conflicts between legal provisions, has in PNG become a tool for the moral-aesthetic evaluation of “customary law.” In this article, I follow the history of the PNG repugnancy clause from its colonial origins and through the relevant case law since the country's independence in order to ask both how the clause acquired its non-legal meaning through legal usage, and why it has been retained in its original form in PNG when so many postcolonial legal regimes have discarded it. Comparative material from Indonesia, sub-Saharan Africa, and especially Australia is used to contextualize the durability of the PNG repugnancy clause, and theoretical material on the affect of disgust and shame is brought to bear in order to understand the use of repugnancy in its moral-aesthetic sense. The article concludes with a meditation on the way the repugnancy clause has enabled the judiciary of PNG to distance the law of the country not simply from an uneducated or inadequately Christian general populace, but also from a history in which all Papua New Guineans were regarded as a contaminating threat to the European colonizers whose legal system the country has inherited.
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Carty, Anthony. "What Use Is Customary International Law?" Korean Journal of International and Comparative Law 9, no. 1 (May 28, 2021): 119–31. http://dx.doi.org/10.1163/22134484-12340149.
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Abstract Customary international law as a source of general law is given a primary place in Article 38 of the ICJ Statute. However, it is historically a concept created by legal doctrine. The very idea of custom supposes legal persons are natural persons living in a dynamic, evolving community. This was the assumption of the historical school of law in the 19th century when the concept of custom was developed. Now the dominant notion of legal personality is the State as an impersonal corporation and international legal theory (Brierly and D’Amato) can see well that the death of the historical school of law has to mean the death of the concept of custom. What should replace it? Two steps need to be taken in sequence. Firstly, following the Swedish realist philosopher Haegerstrom, we have to ascertain the precise constellations of the conflictual attitudes the populations of States have to the patterns of normativity which they project onto international society. Secondly, we should follow the virtue ethics jurisprudence of Paul Ricoeur and others, who develop a theory of critical legal doctrinal judgement, along the classical lines of Aristotle and Confucius, to challenge and sort out the prejudices of peoples into some reasonable shape, whereby these can be encouraged to understand and respect one another. Then one will not have to endure so many silly interpretations of international law such as the one declaring that there are only rocks in the South China Sea and not islands. Such interpretations have nothing to do with the supposedly ordinary legal language analysis of a convention and the State practice surrounding it. They have to do entirely with a continued lack of respect by Western jurists for non-Western societies and nations.
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Lefkowitz, David. "(Dis)solving the Chronological Paradox in Customary International Law: A Hartian Approach." Canadian Journal of Law & Jurisprudence 21, no. 1 (January 2008): 129–48. http://dx.doi.org/10.1017/s0841820900004355.
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As traditionally conceived, the creation of a new rule of customary international law requires that states believe the law to already require the conduct specified in the rule. Distinguishing the process whereby a customary rule comes to exist from the process whereby that customary rule becomes law dissolves this chronological paradox. Creation of a customary rule requires only that states come to believe that there exists a normative standard to which they ought to adhere, not that this standard is law. What makes the customary rule law is adherence by officials in the international legal system to a rule of recognition that treats custom as a source of valid law. Confusion over this distinction arises because in the international legal system the same agents whose beliefs give rise to a customary rule are the legal officials whose adherence to the rule of recognition leads them to deem that rule legally valid. The proposed solution to the chronological paradox employs H.L.A. Hart’s analysis of the concepts of law and a legal system, and in particular, the idea of a rule of recognition. Yet Hart famously denies the existence of a rule of recognition for international law. Hart’s denial rests on a failure to distinguish between the ontological and authoritative resolution functions of a rule of recognition, however. Once such a distinction is drawn, it can be argued that customary international law rests on a rule of recognition that serves the ontological function of making customary norms legal, though not the authoritative resolution function of settling disputes over the alleged legality of particular norms.
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Masputri, Siti Marlina. "TINJAUAN HUKUM ISLAM TERHADAP PEMBERIAN UANG ADAT (SELEMAK SEMANIS) DALAM PERKAWINAN ADAT MELAYU JAMBI." ADHKI: Journal of Islamic Family Law 1, no. 1 (November 21, 2019): 57–74. http://dx.doi.org/10.37876/adhki.v1i1.2.
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The background of the problem in this research is, in Jambi in the traditional wedding ceremony there is what is called adat money (Selemak Semanis), which is the traditional money given by men to women who will be married if the adat money is not fulfilled so it will not happen marriage. As for the purpose of this study, we want to know the position and legal consequences of giving customary money in Jambi Malay customary marriage, wanting to know the legal consequences of giving customary money in Jambi Malay customary marriage and want to know the Islamic legal review of giving customary money in Jambi Malay customary marriage in Jambi. The approach in this study is a qualitative normative sociological approach. In this study the authors used the type of field research (Field research), by conducting interviews with the local community, village heads, officials of the sharia ', traditional leaders, community leaders, religious scholars, and various parties needed information in writing this research. Based on the data obtained by the author in the field, after being reviewed and understood, the following research results are obtained, firstly that the position of giving customary money is a condition for the implementation of marriage and its nature is a mandatory gift from men to women and legal consequences. from giving customary money in Jambi Malay customary marriage depends on whether or not the man can fulfill the customary money which is determined by the female family, presumably able to fulfill the customary money then the marriage will be held and if the man is unable to fulfill the customary money then marriage and customary money will occur outside of the gift dowry. The two reviews of Islamic law on the giving of customary money do not violate the Qur'an and the Hadith, but there is a mistake in the community in determining the amount of customary money that is too high so that it is burdensome to the men.
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Stephens, M., and M. Boyce. "Finding a Balance: Customary Legal Terms in a Modern Maori Legal Dictionary." International Journal of Lexicography 24, no. 4 (September 15, 2011): 432–45. http://dx.doi.org/10.1093/ijl/ecr021.
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Muddin, Ahmad, and Hardianto Djanggih. "PENYELESAIAN SENGKETA TANAH ULAYAT YANG TELAH BERSERTIFIKAT BERDASARKAN HUKUM ADAT MALIND-ANIM." Arena Hukum 14, no. 1 (April 30, 2021): 150–66. http://dx.doi.org/10.21776/ub.arenahukum.2021.01401.8.
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Abstract This study aims to analyze dispute resolution, the dispute resolution approach that guarantees legal certainty and examine the factors that influence the construction of the settlement of land rights of the customary community of Malind-Amin. This normative and empirical legal research is analized descriptively and analytically. The results shows that the nature of customary land dispute with customary law can be resolved through positive legal mechanisms and customary law mechanisms, while dispute resolution on disputed objects that have certificates based on the release of traditional institutions through mediation, synchronization / harmonization of laws and the making of local regulations. However, efforts to resolve this have experienced various factors of internal and external obstacles.
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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.
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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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Rochaeti, Nur, and Rahmi Dwi Sutanti. "Revitalization of Customary Court in the Juvenile Criminal Justice System in Indonesia." SHS Web of Conferences 54 (2018): 07011. http://dx.doi.org/10.1051/shsconf/20185407011.
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At present in Indonesia, the existence of customary court in society is still recognized as a mechanism that is applied in solving the problems of customary or criminal violations, which are carried out without involving the law enforcement officers. This study aims to answer two problems. The first is how the customary court in the Dayak Kanayatn tribe and the second is how revitalization customary court in the juvenile justice system in Indonesia. The research will be conducted in Pontianak, West Kalimantan. The method used is a socio-legal research, which analyzes the legal implementation based on legal and society. The results showed that Dayak Kanayatn indigenous peoples have customary court mechanisms capable of solving community problems based on collective agreements and various existing sanctions show that customary court in the community is able to provide a sense of justice in handling cases that occur in the community and the revitalization of customary court in the juvenile criminal justice system in Indonesia needs to be done through a mechanism of participation of traditional people as an alternative in solving problems with customary law characteristics, cultural pluralism, moral values, and religion that bring the best interest for children.
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Batubara, Chuzaemah, and Fatimah Fatimah. "STRUGGLING TO SURVIVE IN COMPLEX AND MODERN ERA." ALQALAM 34, no. 1 (June 30, 2017): 65. http://dx.doi.org/10.32678/alqalam.v34i1.735.
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The holistic implementation of Islamic law in the life of Acehnese community has brought “big changes,” one which is force the majority Acehnese involved in conflicts or disputes bringing their cases solved to Mahkamah Syari’ah as a formal legal instituon which mostly leads disputants to expensive costs, long consumed and waste time as well as exhausting, even unjust feeling. However, the implementation has revitalized the existence of customary court which almost gave up in New Order regimes. The paper argues that the Acehnese legal culture embodied in Peradilan Gampông as customary Law is living law that would resolve destructive conflict and reduce the intention and huge suggestion of some people to resolve their cases through formal legal solution in State Courts (Mahkamah Syariah). With a socio-legal approach the research is focused on case studies on resolving dispute in Aceh customary courts (Peradilan Adat Gampông) at several Gompông in Aceh. The study found that peace, equilibrium, societal hood and justice as dominant principles in the life of Acehnese people at gampôngs and cities have brought customary law revived and as socities’ primary choices in resolving their legal cases. Keywords: Alternative Dispute Resolution; Islamic Law; Customary Courts
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Malik, Surendra. "Indian Legal Literature." International Journal of Legal Information 36, no. 2 (2008): 300–302. http://dx.doi.org/10.1017/s0731126500003073.
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Indian Legal literature is comprehensive and exhaustive in that it fully encompasses the law prevailing in India in all its varied aspects. Statutory law, case law, and minor portions of customary and religion-based laws are well documented and readily accessible. Fortunately, from the point of view of a foreign reader, nearly all of the law currently prevalent in India is available in English.
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Viktorovich Erin, Pavel, Natalia Vladimirovna Melekhova, and Vadim Pavlovich Nikolashin. "Traditional Law and Russian Peasantry." International Journal of Engineering & Technology 7, no. 4.38 (December 3, 2018): 152. http://dx.doi.org/10.14419/ijet.v7i4.38.24342.
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This article analyzes the application of customary law in peasant legal pro-ceedings. The authors consider reasons for the domination of customary law in the everyday life of peasants in the early 20th century. They also determine the causes of the declining authority of customs in legal regulation. Law becomes the most convenient tool for resolving legal disputes. The paper presents the attitude to the customary law of leading lawyers and public officials and re-veals different viewpoints on the problem under consideration. The analysis of these positions enables researchers to consider the attitude to legal norms in modern society from a moral perspective.
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Ибрагим Дагаевич, Хабаев. "LEGAL STATUS «IULTESH» IN CUSTOMARY LAW BY CHECHENS." NORTH CAUCASUS LEGAL VESTNIK 1, no. 1 (March 30, 2020): 32–38. http://dx.doi.org/10.22394/2074-7306-2020-1-1-32-38.
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Andiki, Febri, and Lita Tyesta ALW. "Legal Political Study on Translation of Human Rights in the Indigenous Peoples in Dharmasraya West Sumatera District." Walisongo Law Review (Walrev) 2, no. 1 (April 30, 2020): 85. http://dx.doi.org/10.21580/walrev.2020.2.1.5290.
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<p>The national land law structure in force in Indonesia does not mention and does not prohibit the sale and purchase of customary land rights. The fact in customary law has conditions that must be met regarding the transfer of the sale of customary land rights. If it does not meet the requirements, then buying and selling rights to customary land is said to be a deviation regarding the objectives contained in the customary order. Formulation of the first problem, why the legality of buying and selling rights over customary land of the Malay tribe in Dharmasraya Regency, West Sumatra Province. Second, what is the form of transfer of customary land rights according to customary law and national land law in Dharmasraya Regency and what kind of government legal policy is capable of providing protection to customary community rights relating to customary land rights? This paper is the result of research using the Socio Legal Research method that uses primary data and secondary data is a source of questions with the collection techniques carried out by observation and interviews equipped with literature studies and analyzed descriptively prescriptive. The results of the study found a deviation regarding the substance of the transfer of title to the Malay customary land. One of the factors is the undeniable development of the age related to economic survival without thinking about the common rights inherent in customary land. The conclusion is that the customary land is a common right of the customary law community. The meaning of collective rights here is not owned by individuals, ‘ninik mamak’ or customary leaders only. Therefore, the sale and purchase of customary land rights must be returned in accordance with customary law norms attached to the customary law community itself. So that the existence of customary land is maintained in the days to come and is not eroded by time. The future legal politics of the government pays attention to the existence of customary land and recognizes the customary community's customary land to be poured in the form of an authentic deed and poured in the form of a Regency / City Regional Regulation in terms of the transfer of customary rights to other parties, especially investors.</p>
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Sahari, Alpi. "The Rights of Controlling State in Indonesia Against Land Tenure of Customary Law Community." Randwick International of Social Science Journal 2, no. 2 (April 30, 2021): 141–48. http://dx.doi.org/10.47175/rissj.v2i2.224.
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In order to achieve public welfare as tasks and responsibilities delegated to the government in the administration of public welfare (bestuurzorg) including the land sector which includes, among others, regulation, implementation of authority to enforcement of land law. Implementation of bestuurzorg by the government is more oriented towards economic democracy so that ignoring the principle of justice for indigenous peoples in controlling land parcels. The method used in this paper is juridical normative by applying an approach to legal principles and a legal synchronization approach both vertically and horizontally to the State's right to control over land tenure by customary law communities. The results show that land tenure for customary law communities in the UUPA emphasizes as long as it still exists and does not conflict with national interests. This implies that there has been legal pluralism. The occurrence of weak legal pluralism in national land law is indicated by the enactment of UUPA and its various implementing regulations as positive law in the form of written state/national law, on the one hand and on the other hand customary law which is generally unwritten and applies specifically to each other. The applicable customary law in each region. Weak legal pluralism is one of the factors causing legal disputes in substantive settings, especially in land disputes over customary rights which affect their implementation in the field and cause injustice. legal pluralism and making UUPA the center of various land regulations (legal centralism), and is the only land rule that applies nationally (legal unification).
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강병기, Kyeong Park, and 장은미. "A Study of Validity of Geographic Names as a Customary Law and the Right to Naming." KOOKMIN LAW REVIEW 25, no. 1 (June 2012): 141–75. http://dx.doi.org/10.17251/legal.2012.25.1.141.
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Mahendra, I. Putu Elvin, I. Made Suwitra, and I. Ketut Sukadana. "Perjanjian Sewa Menyewa Tanah Adat di Desa Serangan Denpasar Selatan." Jurnal Preferensi Hukum 1, no. 1 (July 27, 2020): 145–50. http://dx.doi.org/10.22225/jph.1.1.2245.145-150.
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The position of the Customary Village as a customary legal alliance, has the authority and obligation to control, regulate and manage all the land belonging to the Customary Village within the Customary Village area as customary rights. In entering into an agreement to lease customary land with another party, Desa Adat has the right to land in terms of granting permits based on agreements made by both parties. Agreements that have been agreed should be accountable so as not to lead to defaults in the future. The method used in this research is the empirical method, by reviewing the statutory procedures that apply in making lease agreements for customary land and using a sociological problem approach to social law relating to legal norms both in legislation and in awig-awig. In PERDA Number 4 of 2019 concerning Customary Villages in Bali regulates the duties and authority of the Customary Villagers in maintaining the economy of the village, so that they are authorized to carry out legal actions (agreements) especially lease agreements for customary land provided they have fulfilled the requirements of the shah. An agreement can be regulated in article 1320 Civil Code. Whereas regarding the application of sanctions for parties who defaulted in the lease agreement on customary land, it was given to those who violated the agreement based on the agreement of the village paruman. Where the sanctions can be resolved based on positive law in Indonesia, namely through the judicial process.
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Ibrahim, Eviandi. "PERANAN PENGHULU TERHADAP HAK ULAYAT DI MINANGKABAU." JCH (Jurnal Cendekia Hukum) 6, no. 1 (September 30, 2020): 161. http://dx.doi.org/10.33760/jch.v6i1.296.
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Sumatra in general and Banuhampu District in particular the existence of customary rights is decreasing day by day both in terms of quantity and quality. The reduced existence of customary rights is because the customary rights have been traded by the legal community, in the case that Minangkabau customary law prohibits the sale and purchase of customary rights, this is stated in the customary kato "Jua indak eaten by bali, pawning indak eaten sando" means that ulayat rights can not be traded and transferred ownership to parties outside the legal community fellowship. Based on the above, the authors are interested in conducting research with the following problems: How are customary rights in Banuhampu District? What is the role of the leader / Pangatuo of the tribe / clan or the head of the inheritance of the ulayat rights in Banuhampu? What is the solution taken to defend the existence of customary rights in Banuhampu District? This research is juridical-social, because the researcher will examine how the application of law, namely customary law, in the development of the existence of customary rights among the Banuhampu community. Based on the discussion that the author puts forward, the following conclusions can be drawn: Whereas Customary Land (Ulayat) Currently its existence in Banuhampum can still be maintained. Even though it's been much less. This can be proven that until now the Legal Alliance in the Customary Law Community, namely Nagari, Tribe, Kaum, are still alive and existent, and each Legal Alliance still has customary rights although both in terms of quantity and quality have decreased. Whereas Ninik mamak / Penghulu / Pangatuo Suku / Kaum is a person who plays a very big role in the midst of his community / association, because ninik mamak has the right and obligation to take care of his children and nephews along with their communal customary rights, and has the obligation to preserve their customary rights. Whereas the customary rights must be maintained, because the ulayat rights are the identity of the association and the ulayat rights are not property rights, therefore the ulayat rights are prohibited from being transferred or sold.
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CHANOCK, MARTIN. "NEITHER CUSTOMARY NOR LEGAL: AFRICAN CUSTOMARY LAW IN AN ERA OF FAMILY LAW REFORM." "International Journal of Law, Policy and the Family" 3, no. 1 (1989): 72–88. http://dx.doi.org/10.1093/lawfam/3.1.72.
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M Maithufi (In Memory) and CA Maimela. "Teaching the “Other Law” in a South African University: Some Problems Encountered and Possible Solutions." Obiter 41, no. 1 (April 1, 2020): 1–9. http://dx.doi.org/10.17159/obiter.v41i1.10545.
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African customary law is a legal system that is recognised in South Africa and forms part of the law of the indigenous people of South Africa. Due to colonialism and apartheid, this legal system was rejected and underdeveloped in favour of common law. The supremacy of the Constitution and its recognition of African customary law as an independent legal system, separate from the common law, aimed to correct past injustices that flowed from the underdevelopment of this important legal system. Whether the Constitution and higher learning institutions have attained the goal of developing African customary law in South Africa is a question that will be explored and debated in this contribution. Its aim is to assess the role of higher learning institutions in developing African customary law through their teaching of this system of law, as well as to outline some of the challenges faced by these institutions in offering an African customary law course to students. Possible solutions are discussed; the aim is to ensure that the teaching component of African customary law is developed, and to contribute to the current debate about curriculum transformation among universities and various stakeholders in higher learning. Curriculum transformation is key to the future development and inclusiveness of the South African community that is so diverse.
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Sinitsina, Irina. "African Legal Tradition J. M. Sarbah, J. B. Danquah, N. A. Ollennu." Journal of African Law 31, no. 1-2 (1987): 44–57. http://dx.doi.org/10.1017/s0021855300009232.
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The Systematic study of African customary law and of the establishment of its role in the legal systems of African states was initiated, above all, by works of A. N. Allott. The scholar gives unflagging attention to the local legal schools which laid a serious basis for the present-day comparative study both of customary law and of national legal systems, for clarifying the possible ways of their development, and for a search for optimal legal forms which would take due account of the interests of small ethnic groups. The formation of national legal systems of African states has aroused a major interest in the customary law of ethnic groups. A. N. Allott correctly observed that it was necessary to pay heed, in particular, to the historical aspect of customary law.The most vivid example of the high level of development of autochthonous legal institutions and of their study by local legal scholars is furnished by the legal school of the ethnolinguistic group known as Akan (the Gold Coast, later Ghana).Present day Ghana in the pre-colonial period formed the states of the Akan peoples—Fanti and Ashanti—and of the inhabitants of the Birim-Volta river region—Akim and Akuapem. Screened by a tropical forest from the north and facing the Gulf of Guinea, the region remained isolated from external influences for many long epochs, creating specific systems of state law. The types and forms of their customary law mechanism characterize the level of development and specific features of appropriate societies.
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Swift, Hester. "Researching Customary International Law." Legal Information Management 19, no. 3 (September 2019): 169–75. http://dx.doi.org/10.1017/s1472669619000410.
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AbstractThis article written by Hester Swift is based on the online course entitled, ‘Customary International Law’, which was created by the Institute of Advanced Legal Studies (IALS) Library for the Postgraduate Online Research Training (PORT) platform and is available to all at <https://port.sas.ac.uk/course/view.php?id=120>. The PORT service is provided by the University of London's School of Advanced Study.
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Monteiro, Josef, and Jimmy Pello. "PENGELOLAAN PERIKANAN BERBASIS HUKUM ADAT MELALUI MODEL CO-MANAGEMENT." Arena Hukum 14, no. 1 (April 30, 2021): 67–83. http://dx.doi.org/10.21776/ub.arenahukum.2021.01401.4.
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Abstract This research examines the Lamaholot customary law as an idea or unwritten customary idea but contain ethics and morals, in the form of a belief system, rituals, abstinence, and sanctions, which are then accommodated into a co-model management. This research becomes important to assist the top law enforcement fisheries management violations committed by traditional fishermen in the district East Flores and Lembata Regency, East Nusa Tenggara Province. This empirical legal research uses a statutory approach, the concept of legal anthropology with a socio-legal perspective, and cases. The results shows the number of cases of violations of fisheries management by traditional fishermen still high in the last few years. This proves that law enforcement has not been effective both from the structure, legal substance and culture. To overcome this, it is necessary to re-institutionalize customary law through a co-management model, namely the local government and law enforcement agencies forming a partnership model with customary stakeholders or functionaries to function re-belief systems, rituals, customary sanctions and mechanisms in the enforcement process law against traditional fishermen who exploit fishery resources illegally.
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Sushkova, Yulia N. "Common Law Principles of Environmental Protection of the Mordovians." Legal education and science 10 (October 8, 2020): 21–27. http://dx.doi.org/10.18572/1813-1190-2020-10-21-27.
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Purpose. The author examines the essence of the fundamental customary legal principles of nature protection in the traditional legal culture of the Mordovian people, because each nation, including the Mordovians, had a kind of unwritten environmental code, which usually prescribed a careful attitude to nature, environmental resources, allowed to take only as much as was necessary for a person to live, etc. Methodology: the article is written using a legal-anthropological approach to understanding the basic principles of customary law in the field of environmental relations. The author used the historical-legal method of scientific knowledge, as well as analysis and synthesis. Conclusions. Customary law recorded historically established and sustainable ways of using objects of the animal and plant world and other natural resources that ensure inexhaustible use of natural resources. The main object of nature management was considered land and, accordingly, the most important direction of traditional management — agriculture. Traditional customary views on public property “gifts of nature”, the equal distribution of natural resources in terms of socio-economic transformation and development of the official legislation of the Russian state lost its primary importance, but their nature as a key started people’s sense of justice still retains a lot of potential. Scientific and practical significance. The study of customary law and its individual branches allows us to identify the fundamental principles of traditional legal culture, which have not lost their significance to this day. Understanding the depth of legal views of a particular ethnic group can help improve the domestic legal system.
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Tjiptabudy, Jantje. "Legal Development of Coastal Marine Management Based on the Idea of Pancasila." Hasanuddin Law Review 4, no. 1 (May 22, 2018): 113. http://dx.doi.org/10.20956/halrev.v4i1.1325.
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In relation to the positive law, the management of marine and coastal natural resources, there is also the rule of customary law. Customary law that still lives and develops in indigenous peoples also regulates the management system and utilization of natural resources in coastal and marine areas. Recognition of the rights of indigenous peoples is constitutionally contained in the 1945 Constitution of the State of the Republic of Indonesia where the state recognizes the existence of the Customary Law Community. In Maluku, marine potency management in general is still done traditionally known as marine customary rights that have been going on for generations but not yet fully recognized either by the government or entrepreneurs who are actually important partners in the development process.
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Plotskaya, O. A. "USUALLY-LEGAL NATURE OF PROPERTY RELATIONS UNDER THE LAWS OF KING HAMMURABI." Law Нerald of Dagestan State University 37, no. 1 (2021): 30–34. http://dx.doi.org/10.21779/2224-0241-2021-37-1-30-34.
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This paper examines the customary legal nature of property relations regulated by the most famous ancient Mesopotamian source of law, the Laws of Hammurabi. Considerable attention is paid to the article-by-article analysis of the historical and legal texts of the Laws of King Hammurabi and the Middle Assyrian laws containing empirical data. The article examines various examples of the use of customary legal imperatives by the ancient Mesopotamian legislator.
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Kalalo, Julianto Jover Jotam, and Irwansyah Irwansyah. "Dikotomi Politik Hukum Nasional dengan Politik Hukum Adat di Daerah Perbatasan." Amsir Law Journal 1, no. 1 (October 15, 2019): 22–35. http://dx.doi.org/10.36746/alj.v1i1.19.
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The existence of a pluralistic law in the border area causes customary law communities who live and develop in the border area applying variety of laws. The concept of dualism is even deeper in the application of law as a reality that exists in border areas. The position of national law which is side by side with customary law apparently still has a gap which is entered by other countries' laws which are none other than neighboring countries. The existence of this plural law causes the disharmony of the legal regulations applied in the border area. The analysis shows that the dichotomy of regulations often conflicts and differences in the application of the law in each of the legal arrangements. Due to customary politics in the border areas are seeking for the truth in the application of the law. The position of national law does not guarantee the existence of legal arrangements in border areas because customary law in border areas has a strong position. National law is difficult to become a legal basis in border areas. However, the contradictions and differences in these three legal arrangements can actually be synergized, thus, thecontradictions and differences can also form a new law that is dynamic and appropriate, and does not change into a problem in the customary community.
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Bardhoshi, Nebi. "Legal dynamics in a border area." Journal of Legal Anthropology 1, no. 3 (September 1, 2013): 314–32. http://dx.doi.org/10.3167/jla.2013.010303.
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This article considers factors that have effected and influenced the continuity of the customary law named the Kanun of Lek Dukagjini in some areas of Albanian and Kosovo. It draws on ethnographic data on the border area villages between Albania and Kosovo to discuss the dynamics and tensions that are created between state and non-state law vis-à-vis justice in highly complex and problematic social, economic, and political contexts. Customary law and state law seem to be two conflicting legal ideologies. However, the article considers everyday settings where people make use of both legal systems in order to regulate matters especially related to property issues. The new legal realities create around property ownership imply new type of relations vis-à-vis family and kinship structures which oscillate between the two systems.
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Sulistiorini, Baiq Santi. "PROBLEMATIKA EKSEKUSI PUTUSAN HARTA BERSAMA DI ATAS TANAH ADAT (STUDI DI DESA LEBAH SEMPAGA KECAMATAN NARMADA KABUPATEN LOMBOK BARAT)." JURNAL SCHEMATA Pascasarjana UIN Mataram 8, no. 2 (December 21, 2019): 217–36. http://dx.doi.org/10.20414/schemata.v8i2.1037.
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This study aims to determine the customary provisions of the Village of Lebah Sempaga regarding the mastery of buildings on customary land, know the legal considerations of the judges and the barriers to execution of shared property on customary land. This research is a field research using normative and sociological juridical approaches and involves judges and litigants, community leaders and traditional leaders of Lebah Sempaga Village. Data mining is done by observation, indepth interviews and documentation studies. The results of this study indicate that the customary provisions of the Lebah Sempaga Village regarding the mastery of buildings on "pauman land" are that the community only has ownership rights to the house building and does not have ownership rights to the land where the house was built. Legal considerations applied by the Panel of Judges of the Giri Menang Religion Court in deciding joint property disputes on customary land include, among others: (a) Consideration of evidence (b) Consideration of factual events (3) Consideration of legal facts. The legal basis used is Article 37 paragraph 1 of Law Number 1 of 1974 in conjunction with Article 97 of the Compilation of Islamic Law and Jurisprudence of the Supreme Court of the Republic of Indonesia Number 58 K / AG / 2015 dated January 27, 2015, that a claim for joint property on customary land can only just sued value. The obstacle in the execution of the object of joint property disputes on customary land is the difficulty to sell the disputed object because no one wants to buy the house because only the house is purchased, not the land because the land is customary land.
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Batubara, Chuzaemah, and Fatimah Fatimah. "STRUGGLING TO SURVIVE IN COMPLEX AND MODERN ERA." ALQALAM 34, no. 1 (June 30, 2017): 39. http://dx.doi.org/10.32678/alqalam.v34i1.1797.
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The holistic implementation of Islamic law in the life of Acehnese community has brought “big changes,” one which is force the majority Acehnese involved in conflicts or disputes bringing their cases solved to Mahkamah Syari’ah as a formal legal instituon which mostly leads disputants to expensive costs, long consumed and waste time as well as exhausting, even unjust feeling. However, the implementation has revitalized the existence of customary court which almost gave up in New Order regimes. The paper argues that the Acehnese legal culture embodied in Peradilan Gampông as customary Law is living law that would resolve destructive conflict and reduce the intention and huge suggestion of some people to resolve their cases through formal legal solution in State Courts (Mahkamah Syariah). With a socio-legal approach the research is focused on case studies on resolving dispute in Aceh customary courts (Peradilan Adat Gampông) at several Gompông in Aceh. The study found that peace, equilibrium, societal hood and justice as dominant principles in the life of Acehnese people at gampôngs and cities have brought customary law revived and as socities’ primary choices in resolving their legal cases.
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Plotskaya, O. A. "COMMON LAW IN MEDIEVAL HUNGARIAN SOURCES." BULLETIN 3, no. 391 (June 12, 2021): 159–64. http://dx.doi.org/10.32014/2021.2518-1467.115.
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This work examines the issues of consolidation of customary law in medieval Hungarian sources. The relevance of the study of customary law as the most important part of the socio-normative culture and the traditional legal regulator, normatively fixing ethnic identity, expressed not only in the national-cultural worldview, but also in the written medieval Hungarian sources that operated for many centuries, starting from the origins of the creation of the Hungarian state until the beginning of the XVI century, no doubt. The aim of the work is to study customary law, its institutions in the sources of law of medieval Hungary. The novelty of the research lies in the fact that it analyzes the empirical historical and legal material, which makes it possible to identify the institutions of customary law in the medieval Magyar sources of law. In a comprehensive study of customary legal aspects, in Hungarian sources of law, it is important to be guided not only by the formational approach, which makes it possible to understand the changes that took place in the medieval period, during the emergence and development of feudal relations in the Western European state, but also by the civilizational approach, revealing the historical, political, socio-cultural components of the feudal Christian state. The methodological basis of this research is formed by a system of cognitive methods developed by various modern sciences. Thanks to the application of the systemic method, the customary law of the Hungarian people is important to consider as an element of the legal space of Hungary as a Central European state. The study shows that the Hungarians had a law as their initial act. Many Hungarian customs and customary legal institutions found their fixation precisely in written sources of law.
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Nwapi, Chilenye. "Land Grab, Property Rights and Gender Equality in Pluralistic Legal Orders: A Nigerian Perspective." African Journal of Legal Studies 9, no. 2 (July 28, 2016): 124–46. http://dx.doi.org/10.1163/17087384-12340005.
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This article considers the impact of land grab on the promotion of gender inequality within the Nigerian pluralistic legal order. It examines the interface between customary law and statute law in the determination of land ownership and access in Nigeria. It makes two key arguments. (1) While legal pluralism presents opportunities for curtailing the excesses of customary law, it has often resulted in the dominant legal system – statute law – fostering gender inequality in a manner that is beyond the capacity of the so-called barbaric customary laws. (2) The capacity of law to effectively address the problem of gender inequality within the context of land grab is very limited, because the nature of most land grab-related activities that promote gender inequality are appropriately legal and it is their unintended consequences that undermine women’s rights. The article argues for an effective use of the political process to complement legal interventions.
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Atmaja, Gede Marhaendra Wija. "Legal pluralism politics towards recognition of social unity in customary law and local regulation." International journal of social sciences and humanities 2, no. 2 (August 2, 2018): 124–40. http://dx.doi.org/10.29332/ijssh.v2n2.152.
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The present study at discussing the about Legal Pluralism Politics towards Recognition of the Society Unity of Customary Law and Local Regulations. The two important term was discussed i.e. (1) the political principles of the legal pluralism whether as the recognition direction for the social unity of the customary law; (2) the rationale for the need to recognize the social unity of the customary law with a local regulation. The customary law unity has a specificity that requires flexible regulation in the law, and enforcement to its acknowledgment with local regulations. The utilization wonder, the law can make people happy by ensuring access to their rights. The recognition of customary law unity society guarantees access to rights, in accordance with laws that mandate acknowledgment with local regulations. The legal certainty requires that the law can be formulated, unlike a clear and systematic way. It can be made thus, it is clear about the recognized identity is given for more limited scope and local government to be better recognize local uniqueness.
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Daugirdas, Kristina. "International Organizations and the Creation of Customary International Law." European Journal of International Law 31, no. 1 (February 2020): 201–33. http://dx.doi.org/10.1093/ejil/chaa012.
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Abstract This article argues that international organizations ‘as such’ can contribute directly to the creation of customary international law for three independent reasons. First, the states establishing an international organization may subjectively intend for that organization to be able to contribute to the creation of at least some kinds of customary international law. Second, that capacity may be an implied power of the organization. Third, that capacity may be a byproduct of other features or authorities of the international organization – specifically, the combination of international legal personality and the capacity to operate on the international plane. Affirming international organizations’ direct role in making customary international law will not dramatically change the content of customary international law or the processes by which rules of customary international law are ascertained. But recognizing that role is significant because it will reinforce other conclusions about how international organizations fit into the international legal system, including that customary international law binds international organizations. Such recognition may also shift the way lawyers within international organizations carry out their work by affecting the sources they consult when answering legal questions, the materials they make publicly available and the kinds of expertise that are understood to be necessary to discharge their responsibilities. Finally, affirming international organizations’ role in creating customary international law may make international organizations more willing to comply with those rules.