Добірка наукової літератури з теми "Gender - Conflicts of laws. between positive law and customary law"

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.

ABSTRACTThe actual and perceived conflicts between customary law and human rights law, especially in issues dealing with gender equality, have remained a major challenge in Africa. Some of these conflicts are further complicated by the varying and contradictory interpretation of some customary laws by the courts. Different approaches have been adopted at different times and in different places to deal with some of these conflicts. One of the most controversial areas of customary law has been the traditional exclusion of women from property inheritance. This paper takes a critical look at how the courts in Botswana have dealt with the issue of the right to inherit the homestead or family home. It examines this issue in the specific context of the recent case of Ramantele v Mmusi in which the Court of Appeal had to consider the customary law rule of male ultimogeniture – which permits only the last-born son to inherit the homestead intestate to the exclusion of other siblings, especially females. It argues that courts need to be more proactive and progressive in their approach to dealing with such issues than they have been in the past in order to recognise the nature and extent of changes that are taking place today. The main lesson that can be drawn from the Botswana case is that if customary law is to survive and develop, more needs to be done to promote research and scholarship in this area and judges also need to take advantage of this research and deal with these customary law disputes with knowledge, understanding and sensitivity.

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.

AbstractThis article analyses the legal processes of recognising customary and religious (Muslim) marriages in South Africa's constitutional democracy. It argues that the best interpretation of the Constitution requires laws that address cross-cutting issues of recognition and redistribution relating to religion/culture and gender, and that the best way to achieve this is through a ‘pluralistic solidarity’ that enables dialogue on how to secure cultural and religious recognition without undermining the rights of women. It examines how the different processes of cultural/religious law reform in South Africa have become sites of struggle over the meaning of collective and individual identity, public/private power, citizenship and rights, and gender and democracy, and how particular sociopolitical conditions, ideological struggles and overarching conflicts and interests have shaped each process of law reform. Thus it distinguishes between the ideal and the possible, the normative and the strategic, in law reform. It notes the conditions under which the incomplete process of recognition of Muslim marriage law has seen a greater deference to religious norms and private regulation than customary law reform, which saw a greater institutionalisation of gender equality norms. The article concludes by emphasising the open-ended nature of legal processes, the possibilities of using courts to challenge ongoing inequalities in religion and custom, and the ever-present role of politics in legal outcomes.

With regard to access to land and forest resources, forestry legislation maintains an imbalance between the state, corporations, and local communities. Since the colonial era, forestry regulation has facilitated restrictions on the ability of local communities to benefit from land and forest resources, while also concentrating power in the hands of the state. To uphold state ownership, forestry law criminalizes customary practices, putting local communities at risk. In this sense, conflicts between local communities, corporations, and government agencies arise because of structural issues in the legal framework of laws and regulations that undermine the land rights of local communities. The establishment of the Constitutional Court in Indonesia in 2003 has enabled local communities and NGOs to challenge the Forestry Law. They use the Constitutional Court to support the resolution of forestry tenure conflicts. This article examines the extent to which the Constitutional Court can contribute to the resolution of forest tenure conflicts through judicial review of forest laws. This article discusses twelve Constitutional Court decisions regarding judicial review of the Forestry Law and the Law on Forest Destruction Prevention and Eradication. We found that the Constitutional Court has made a positive contribution to addressing the deficiency of forest legislation regarding local and customary land rights. The implementation of Constitutional Court’s ruling is not, however, a matter of self-implementation. The ruling of the Constitutional Court will only have significance if it is continuously promoted by various stakeholders in support of forest tenure reform to facilitate the resolution of forest tenure conflicts.

There has been a growing interest in laws governing resources particularly land in reference to gender in Africa. Law reforms in relation to land have produced potentially useful regulations and espoused egalitarian land rights. However, the backdrop to these reforms contains a scene of land disputes, resistance to laws, violence against women and poor enforcement leading to injustices to women with a pervasive effect on families in vulnerable communities. Using focused ethnographic research methods, the writer investigated women's land rights between November 2015 and August 2016. In-depth interviews, focus group discussions, review of archival records and observations were utilised. The study found that in contexts of prolonged livelihood vulnerabilities, as in the case of the Luo people of south-western Kenya, women seeking refuge from livelihood difficulties employ two strategies to anchor their security. They migrate from marital homes to fishing villages and also lay claim to marital land, which is held by men according to customary laws. These strategies produce social dilemmas and risky manoeuvering. Statutory land laws that are enacted to mitigate land related conflicts undermine the existing customary land laws that advantage men. Therefore, women's land claims, and statutory land laws that espouse equality in land ownership, destabilise men's sense of masculinity. By drawing on the experiences of women, I show the intersection between land laws, enduring injustices and gender relations in a context of strained livelihoods.

Karo Batak customary inheritance law is based on a patrilineal system which determines that the main heir is the eldest son. However, it should be noted that women also have the right to inheritance in some cases, especially if there are no sons in the family. In general, inherited assets are divided equally between the children and surviving spouse of the deceased, but certain properties such as land or inherited property in particular are more likely to be passed patrilineally to the eldest male child to maintain the continuity of the bloodline. This system also recognizes the important role of ancestors in determining inheritance distribution and has strong customary mechanisms to resolve conflicts that may arise regarding inheritance distribution. Even though it is still recognized and implemented, Karo Batak customary inheritance law has faced several challenges and adaptations with the advent of the modern era. Changing living patterns, urbanization, greater education, and the influence of national laws often influence the way heritage is managed and shared. In many cases, inheritance arrangements may combine elements of customary law with national law to adapt to social changes and the practical needs of modern families. This could have the impact of a more equal distribution between children, without necessarily taking into account gender or birth order, as well as paying more attention to the economic and social needs of family members. Despite this, customary inheritance law practices are still respected and maintained in many Karo Batak communities, often as part of their cultural identity and traditions.

With the nature that is so important, the soil was ranked first most potential conflict both vertical conflict (conflict between the residents and the authorities) and horizontal conflicts (conflicts among fellow citizens). Therefore a government of a country should be able to put politics pertanahannya law precisely by considering all sides of the state of society so that potential conflicts as mentioned above can be minimized. Against that government of the Republic of Indonesia after the win independence from the Dutch, trying to land reform and political building a new national land law by changing land laws in force earlier, Agrarisch Wet (Stb 1870-55) was considered not appropriate with the personality of the Indonesian nation. Hence was born the Act No. 5 of 1960 (BAL No.5 / 1960), the Law on Agrarian, hereinafter referred to as UUPA. The focus of the problem in this research is the dimension of Public Important Giving Hak Guna Usaha (HGU) Above Communal Land of Indigenous People, research conducted with secondary data are descriptive qualitative research shows the first, very important to the principle of general interest not give customary land both, would need to be established specifically about the provisions of lands which have positive implications for the public interest.Keywords: Publik Interest, HGU, Communal Land

AbstractThis writing is intended to convey the analysis and critiques on issues and situations of the Lamaholot inheritance customary law must not only be under the ancestor's values that developed in the society but also following the development of the society that has gone through modernization and emancipation, which has resulted in equal positions between men and women in every aspect of human life. Through juridical normative research method, and the emphasis on the Lamaholot tribe, it is found that there are an imbalance position and rights between male and female successor, where the right to inherit is only owned by the male successor. This creates an injustice for the female successor, which fundamentally violates the concept of inheritance in the Indonesian Civil Law Code as the national guidelines of the private sphere of society. The existence of law has greatly impacted human life because where there are humans, that is where the law is. The law will only be classified appropriate if it achieves legal objectives, namely justice, legal certainty, and legal benefit. One of the spheres of human life which are also regulated by law is in the process of inheritance by the predecessor to the successor. This inheritance then enters the realm of private law, which is still dominated by customary law. Customary law as a form of cultural diversification of Indonesia and a core element of the development of the national law itself is still upright and implemented in the practice of inheritance. As a result, it can be concluded that gender-based rights disparities are evident in the socio-cultural life of the Lamaholot indigenous tribe. Thus, through this research, two paths should be implemented by the state. The first one is to approve the Bill on the Protection of Customary Law Communities as an instrument that will act as the implementative boundaries for the implementation of customary law and the second one is to accommodate customary law into Regional Regulations (Peraturan Daerah) as a form of preservation of the customary values of each tribe so that they are in line with the applicable positive laws without eliminating the uniqueness of each basic cultural values of each region.Keywords: customary law; Lamaholot tribe; inheritance AbstrakTulisan ini bertujuan untuk menganalisis dan mengkritik masalah dan situasi pengaturan pewarisan hukum adat Lamoholot yang sepatutnya tidak hanya sesuai dengan nilai-nilai nenek moyang yang berkembang di masyarakat, tetapi juga sesuai dengan perkembangan masyarakat yang telah melalui modernisasi dan emansipasi dalam masyarakat yang melahirkan kesetaraan kedudukan antara laki-laki dan perempuan dalam setiap lini kehidupan manusia. Metode yang digunakan ialah yuridis normative untuk menelaah kritis pada sistem waris adat suku Lamaholot, justru ditemukan adanya ketidakseimbangan kedudukan dan hak atas ahli waris yang berjenis kelamin laki-laki dan perempuan, dimana hak atas waris hanya dimiliki oleh ahli waris yang berjenis kelamin laki-laki saja. Tentunya hal ini menimbulkan sebuah ketidakadilan bagi ahli waris yang berjenis kelamin perempuan, dimana turut melanggar konsep pewarisan yang dianut dalam KUHPerdata selaku kaidah pedoman nasional yang mengatur ranah privat masyarakat. Eksistensi hukum sangat berdampak terhadap kehidupan manusia, sebab dimana ada manusia, disitulah hukum berada. Hukum baru dikatakan baik dan pantas bila mencapai tujuan hukum, yakni keadilan, kepastian dan kemanfaatan hukum. Salah satu lingkup kehidupan manusia yang juga diatur oleh hukum ialah dalam proses pewarisan oleh pewaris terhadap ahli waris. Pewarisan ini kemudian masuk ke dalam ranah privat hukum, yang mana kini masih didominasi pengaturannya oleh hukum adat. Hukum adat sebagai wujud diversifikasi budaya bangsa Indonesia dan unsur inti dari pembangunan hukum nasional pun masih tegak berdiri dan terlaksana dalam pewarisan adat tersebut. Alhasil, dapat disimpulkan bahwa ketimpangan hak berbasis gender pun begitu jelas nampak dalam kehidupan sosial-budaya masyarakat adat Lamaholot. Dengan demikian, melalui penelitian ini pun didapati dua jalan yang sepatutnya dilaksanakan oleh negara yaitu pengesahaan RUU Perlindungan Masyarakat Hukum Adat sebagai instrumen yang menggariskan batasan-batasan implementatif terhadap pemberlakuan hukum adat dan diakomodirkannya hukum adat ke dalam Peraturan Daerah (Perda) sebagai wujud pelestarian nilai-nilai adat setiap suku agar selaras dengan hukum positif yang berlaku tanpa menghilangkan keunikan dari setiap nilai-nilai dasar kebudayaan masing-masing daerah.

Purpose:The legality principle, a fundamental concept in Indonesian criminal law, underpins the legal framework for societal order. Originating from historical roots, it ensures justice, human rights protection, and transparent law enforcement. Article 1 Paragraph 1 of the Criminal Code solidifies its significance in Indonesian positive law. By examining the historical evolution, implications, and challenges of the legality principle, this article aims to deepen the comprehension of its impact on Indonesian criminal law. The ultimate goal is to contribute to a just and effective judicial system.Methodology:This study employs standard research methods, including a legal literature review and analysis of court decisions, to explore the application of the legality principle in the Indonesian criminal justice system.Findings:The principle enshrined in Article 1 Paragraph (1) of the Criminal Code emphasizes that punishment must align with pre-existing laws. It prohibits retroactive application and analogy use and ensures adherence to formal legal principles. In the Indonesian context, the legality principle is crucial for protecting citizens' rights, maintaining justice, and upholding societal values. Its application intersects with legal concepts like "nulla crimen sine lege," highlighting its significance in shaping the nation's legal landscape.Implication:The study highlights key findings on legal principles in the Indonesian criminal system, emphasizing the centrality of the legality principle, a formalistic approach, and ongoing efforts to integrate material aspects. Challenges include incorporating customary law and potential conflicts between legal systems.

Depuis environ vingt-sept ans, la République Démocratique du Congo (RDC) est en proie aux conflits armés qui se poursuivent actuellement dans l'Est de ce pays. On y compte plusieurs milliers de morts et de femmes et filles violées. Ces dernières ont subi des préjudices divers et exceptionnels causés par les actes de violences sexuelles, amplifiés par la stigmatisation et l'ostracisation sociale.Nonobstant l'existence d'un cadre juridique national et international progressiste, l'impunité persiste. Les victimes n'ont toujours pas accès au droit à réparation. Le système judiciaire national dysfonctionnel, conforté par les principes du droit pénal et du droit à réparation classiques en vigueur, se révèle la faiblesse de la réponse nationale aux crimes internationaux en cause.Dans le cadre de la relance de la justice transitionnelle, les réponses nationales de justice pénale et de réparation s'inscrivant dans l'approche classique apparaissent inadaptées au contexte national et international.Au travers d'une approche globale sui generis de prise en charge des crimes internationaux centrée sur l'affirmation de l'autonomie des violences sexuelles utilisées comme arme de guerre en RDC, émerge un mécanisme de justice transitionnelle à visée judiciaire et extrajudiciaire.Dans un contexte géopolitique contrasté par le désengagement des Nations Unies ou de l'effritement de la responsabilité internationale, la perspective d'un modèle de mécanisme judiciaire construit selon l'approche crescendo d'internationalisation ou de dénationalisation de la compétence concurrente entre les juridictions nationales (les Chambres Judiciaires Spécialisées) et le Tribunal Pénal Spécial pour la RDC, juridiction internationale, constitue l'innovation de la présente thèse
For approximately 27 years, the Democratic Republic of the Congo has been plagued by armed conflicts, currently persisting in the eastern part of the country. Thousands have lost their lives, and women and girls have endured various and exceptional harms from sexual violence, compounded by stigma and social ostracization. Despite progressive national and international legal frameworks, impunity persists, denying victims access to the right to redress. The dysfunctional national judicial system, guided by conventional criminal and reparative principles, reveals the weakness of the domestic response to the implicated international crimes. In the context of transitional justice revival, traditional national approaches to criminal justice and reparations prove inadequate in the dual national and international setting. A unique comprehensive approach addressing international crimes, focusing on the autonomy of sexual violence as a weapon of war in the DRC, gives rise to a transitional justice mechanism encompassing both judicial and extrajudicial aspects. In a geopolitical landscape marked by UN disengagement and the erosion of international responsibility, the prospect of a judicial mechanism constructed with a crescendo approach to the internationalization or denationalization of concurrent jurisdiction between national courts (Judicial Special Chambers) and the Special Criminal Court for the DRC, an international tribunal, constitutes the innovation of this thesis

This chapter discusses the right to freedom of religion in relation to women’s right to equality and non-discrimination. Based on a holistic understanding of the positive interrelatedness of all human rights, practical synergies between freedom of religion or belief and gender equality are not only possible; they are a reality in many cases. Unfortunately, this is sometimes ignored or even denied. Some observers tend to turn concrete conflicts arising in the intersection of these two rights into an abstract normative antagonism, to the detriment of a holistic view. The chapter explores policies aimed at eliminating stereotypes and prejudices, problems arising from religious family laws, the autonomy of religious institutions, educational matters, and other issues. It also deals with conflicts related to issues of sexual orientation and gender identity.