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Jurnal Jurisprudence
Number of Followers: 0  Open Access journalISSN (Print) 1829-5045 Published by Universitas Muhammadiyah Surakarta  [33 journals]
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- Legal Assurance: A Comparative Study of the Good Faith Doctrine in
Australia and Indonesia
Authors: Muhammad Jibril, Talitha Amanda Ekadhani
Pages: 129 - 140
Abstract: Purpose: This study aims to analyze and compare the legal assurance of the good faith doctrine in Indonesia and Australia by examining the doctrine's existence in each jurisdiction.Methodology: This study used a normative legal research method through a case approach, both in Australia and in Indonesia.Results: The results of this study show that good faith does not have a definite definition in either Indonesia or Australia, but the existence of good faith is clearer in Indonesia than in Australia.Applications of the study: This study examines the comparison of good faith in Australia and Indonesia both in terms of definition and position in contract law. Furthermore, it also provides an overview of legal assurance in two different legal systems.Novelty/Originality: This study compares the regulation of the doctrine of good faith in Indonesia and Australia using a case approach (jurisprudence) which is still rarely used in Indonesia.
PubDate: 2022-03-15
DOI: 10.23917/jurisprudence.v11i2.13718
Issue No: Vol. 11, No. 2 (2022)
- Legal Politics of Pancasila Ideology against Radicalism in the State of
Law Enforcement
Authors: Shinta Ayu Purnamawati, Sidik Sunaryo
Pages: 141 - 155
Abstract: Purpose of the study:This study aims to analyze the legal politics of Pancasila as an ideology to eradicate radicalism in Indonesia.Methodology:The method employed in this study is a normative legal method using statutory, conceptual, and case approaches.Results:This study found that the fundamental problem in preventing radicalism within the framework of a rule of law is the inability to comprehend (ground) the basic values of ideology and the state constitution in a complete manner (kaffah) to manage and maintain the Unitary State of the Republic of Indonesia. The isolation and divides that negate the constitutional foundation and the ideal foundation in managing and maintaining the dignity of the nation's and state's sovereignty are another form of error in guiding the steps on the journey of the nation and the Indonesian State to the gate of bankruptcy as a sovereign nation and state. Applications of this study:This research can be used by academics and practitioners in philosophical of law so that they can create an instrument to strengthen Pancasila as an ideology to combat radicalism. Novelty/Originality of this study:Legislation may not immediately have an impact on changes and habits of people's behavior. Society does not abide by the law as autonomous individuals because principally, they are all social creatures. The social structure of a living society, called semi-autonomous social fields (SASF), gives rise to external regulations (national law) that are examined and interpreted. Therefore, the result of the encounter (clash) of internal rules with external rules in society is the formulation of strategic objectives of society that are constrasting with those originally intended by legislators.
PubDate: 2022-03-15
DOI: 10.23917/jurisprudence.v11i2.14742
Issue No: Vol. 11, No. 2 (2022)
- The Law Of Transcendence Liberation
Authors: Ridwan Ridwan
Pages: 156 - 169
Abstract: Objective: This paper aims to reveal the problem of how prophetic legal thought in the perspective of its relation to morals' Methodology: Doctrinal Law research types, philosophical approach, secondary data, Heuristic, and Interpretative analysis. Results: The core of law in legal prophetic thought is its axiology/goal that emphasizes the liberation of transcendence. It can be reviewed from the pattern of legal and moral relations in general, namely integrative dialogue, starting from the same legal and moral object in the form of Allah's verses (implied and expressed), the equal source (integrative relationship) in the form of senses, ratio, and intuition (heart), to different methods and approaches. However, they are interrelated. Morals are formed through internalization (psychological transformation) while the law is formed through a process of objectification (social transformation). Therefore, the relation in this aspect is dialogue. Meanwhile, according to prophetic law, both moral and legal in the aspect of goals have specific purposes. Morals form a perfect person while law aims at humanization, liberation, and transcendence. Nevertheless, both form a unified goal in the form of ethical ideals for a just and egalitarian society. Purpose: In the philosophical or metatheoretical realm, with the explanation of legal prophetic thought, especially in the perspective of legal and moral relations, it is expected that new ideas in the field of law will emerge to complement even as an alternative to various legal ideas in the future. Novelty/Originality: The most significant novelty value from the results of this research is the development of new legal ideas, namely the theory of transcendent liberation law. It can also be called the prophetic law of ethics, with the following characteristics: First, the level of substance or legal ontology places revelation as a constitutive element, in addition to the elements of reason and the five senses. It becomes a crystal-clear distinction with the naturalist metaphysical natural law school of thought (Plato and Aristotle), especially legal positivism (Immanuel Kant, J. Austin, Hans Kelsen, Hart). Second, the perspective on cultural reality also distinguishes it from naturalist metaphysics that reduces cultural relativity. Meanwhile, prophetic positions culture or empirical reality as one of the objective conditions. Third, the prophetic has similarities to the metaphysical schools of thought, both naturalists (Plato) and religious ones (Thomas Aquinas), which place conscience as a critical part of understanding law. Fourth, Prophetic law, apart from having numerous similarities with progressive law developed by Satjipto Rahardjo, also has dissimilarities, especially, the weak point of progressive law that is considered to reduce legal certainty. Meanwhile, with Von Savigny's thought, prophetic has similarities in terms of recognizing the existence of cultural particularities but not in the context of the particularity of truth. Fifth, in terms of axiology, the most prominent characteristic of prophetic law is that all stages of law are covered by an ethical mission, namely the mission of humanization, liberation, and transcendence.
PubDate: 2022-03-15
DOI: 10.23917/jurisprudence.v11i2.14047
Issue No: Vol. 11, No. 2 (2022)
- Electronic Trial At The Supreme Court: Needs, Challenges And Arrangement
Authors: Nurjihad Nurjihad, Ariyanto Ariyanto
Pages: 170 - 186
Abstract: Purpose of thestudy: This study aims to find out about the current needs, challenges, and arragment for The Electronic Trial at The Supreme Courts. The implementation of e-court that has been running so far still causes problems, so it needs an in-depth study.Methodology: In this research, the method used was normative juridical using a statutory and conceptual approach.Results: The result of this study conclude that: first, the factual needs of the implementation of electronic trials in Indonesia cannot be separated from the social transformation that occurs in Indonesian society itself. Second, the general challenge in the implementation of electronic trials, which are trials and verdicts pronounced in court hearings that are open to the public or in public, is one part that is inseparable from the principle of fair trial. Third, the regulations related to the public trial should start from the preparation of PERMA that must obey the principle and with laws that are hierarchically higher than PERMA.Applications of this study: This research is expected to identify the challenges posed in electronic courts, and provide policy recommendations on the regulation of electronic courts in Indonesia.Novelty/ Orginalty of this study: Changes to the Law on Judicial Power must be formulated first in order to facilitate electronic court process services in the current digital era. Then, the existing PERMA needs to be adjusted to the principles of the principle of a trial open to the public in order to prevent conflicts with the laws and regulations on it.
PubDate: 2022-03-18
DOI: 10.23917/jurisprudence.v11i2.16348
Issue No: Vol. 11, No. 2 (2022)
- Legal Protection for Borrowers and Business Dispute Resolution in Fintech
Lending Services
Authors: Lu Sudirman, Hari Sutra Disemadi
Pages: 187 - 204
Abstract: Objective: This study aims to identify how progressive the legal protection for borrowers as a fintech lending service user is and how the business dispute resolution model for these services is applied in Indonesia.Methodology: This research utilized a normative juridical research method with legal and conceptual approaches. The data used in this research were secondary legal data analyzed using qualitative analysis techniques to draw the right conclusions.Findings: Fintech lending service is an alternative solution for the community to carry out the procedure of fund borrowing by accessing the sites and applications of lending companies without having to go through banking transactions and financing institutions. Although fintech lending contributes to various financial activities, this innovation encounters issues in protecting consumers as borrowers. The rise of personal data misuse, intimidating money collection procedures, and sexual harassment have threatened consumers' sense of security, so law enforcement is urgently needed to overcome these crimes. Regarding the borrower protection in the fintech business, OJK, under its power, has ratified “OJK Regulation Number 77/POJK.07/2016 concerning Information Technology-Based Fund Borrowing Services”. However, these regulations cannot protect borrowers, so the problems continue to rise. Furthermore, business disputes that arise in fintech lending need further guidance from independent institutions and the government to protect consumers and business actors when involved in disputes. Applying a non-litigation route, namely Alternative Dispute Resolution (ADR), is recommended with the disputing parties and third parties.Implication: This research is expected to support literacy to the public in selecting the right online financing and loan institutions. In addition, the results of these studies can be a source of reference for legal scholars.Novelty/Originality: In contrast to previous research, this research focuses on studying how important the legal protection of borrowers who use fintech services is and the steps that can be taken to resolve business disputes in the industry that have not yet been specifically identified.
PubDate: 2022-03-25
DOI: 10.23917/jurisprudence.v11i2.15853
Issue No: Vol. 11, No. 2 (2022)
- Sexual Exploitation of Children in the Digital Age in the Victimology
Perspective
Authors: Marisa Kurnianingsih, Khudzaifah Dimyati, Kelik Wardiono, Absori Absori
Pages: 205 - 220
Abstract: Purpose: This study aims to determine the criminal law policy on sexual exploitation in Indonesia and discover the current legal policy from the perspective of victimology.Methodology: This study is based on doctrinal legal research or normative juridical procedures with a legal perspective in the traditional sense of “law in the book”. Normative legal research is essentially a legal research library in which the author studies the legal principles beginning with specific sectors of the legal system and the identification of legislatively enacted legal norms.Results: The findings revealed that the criminal law policy on sexual exploitation in Indonesia and the current legal policy from a victimology view, comprising the legal protection from Law Number 21 of 2007 concerning the Crime of Trafficking in Persons, Law Number 23 of 2002 concerning Protection Children, and Law Number 35 of 2014 concerning Amendments to Law Number 23 of 2002 concerning Child Protection, have attempted to fulfill the rights of victims, although a detailed explanation of legal protection efforts has been more based on the child protection law. Moreover, according to victimology, focusing on victims, criminal law policies addressing incidents of human trafficking or, more specifically, commercial sexual exploitation of children have prioritized victims’ interests.Benefits: This study was designed to serve as a reference for the government and parties concerned with Indonesia’s criminal law policy on sexual exploitation and its current legal policy from a victimology viewpoint. It is intended to result in law enforcement being more equitable and capable of combating sexual exploitation in the digital age.Novelty/Originality: Regarding responsibility for certain sorts of child sexual exploitation, the child protection legislation is more onerous than the trafficking statute in terms of penalties and threats. The two laws have endeavored to uphold victims’ rights in legal protection. However, the child protection statute includes a more extensive description of the legal protection measures. According to victimology, focusing on victims, criminal law policies addressing incidents of human trafficking or, more specifically, commercial sexual exploitation of children have emphasized victims’ interests
PubDate: 2022-03-25
DOI: 10.23917/jurisprudence.v11i2.16030
Issue No: Vol. 11, No. 2 (2022)
- IJARAH AND RIBA IN THE SHARIA CARD: Analysis Of ‘Illat Hukmi Of Sharia
Card In The Adz-Dzari’ah Perspective
Authors: Syaifuddin Zuhdi, Dania Nalisa Indah, Dewati Candraningtyastuti, Tsurayya Shafa Kamila
Pages: 221 - 233
Abstract: Purpose: This article aims to analyze whether the imposition of ijarah (membership fee) in the sharia card belongs to the practice of usury, which will later affect Adz-Dzari’ah’s view of the permissibility of using sharia card.Method: This research employed a normative method by obtaining information from various scientific literature sources as well as national and Islamic law materials.Findings: Indonesia allows sharia card usage based on the concept of Adz-Dzari’ah following the ‘illat (legal or basic cause) attached to establish the banking products. In addition, it is also considered whether, in practice, there are also some acts considered usury, especially in the addition of fees due to ijarah imposed by the issuer on the user.Practicality: This article is intended for academics and practitioners in Islamic economic law, especially for sharia banking activists.Novelty/Originality: In essence, ijarah can be utilized as a variable to influence one’s opinion on Islamic law from a sharia perspective since the advantages exceed the risks, and it is preferable to allow it than forbid it. However, these permits are also issued when new or revised rules are being developed or revised. Concerning procurement, not only in the MUI fatwa but also in the sharia card, the law is written to be utilized as a legal foundation binding the associated parties and providing broad legal recommendations. Additionally, it will bolster the Fath Adz-Dzari’ah position on the permissibility of using the sharia card since the specifications of its contents will almost definitely be more precise to avoid a legal vacuum.
PubDate: 2022-03-25
DOI: 10.23917/jurisprudence.v11i2.15307
Issue No: Vol. 11, No. 2 (2022)
- Utilization of Land Pawning in Customary Law and Its Solutions Under
Islamic Law
Authors: Imron Rosyadi, Rizka Rizka
Pages: 234 - 252
Abstract: Purpose: This research aims to ascertain the practice of land pawning as security for loans and understand its law. A land pawner utilizes the collateral and retains the proceeds. However, a land pawnbroker is not entitled to obtain the pawner’s land management results.Methodology: This study belongs to normative juridical research, examining the relevant legal provisions and their implementation in society. This research investigated problem-solving in the practice of land pawning under customary law.Findings: The findings reveal that the customary pawning practice refers to the pawner’s land position as collateral. Muslim communities sometimes commit land pawning to obtain loans. The land pawner utilizes the collateral and retains the proceeds. In contrast, the land pawnbroker receives no benefit from the pawner’s land management.Practicality: This study is anticipated to guide pawnshops and banking institutions to ensure that solutions that conform to Islamic law are developed when pawning land following customary law. Islamic law offers a solution to employ a multi-contract, not a single one, as conducted so far, among others via qard and ijarah contracts.Novelty/Originality: The solution to the land pawning issue is utilizing a multi-contract, such as qard and ijarah contracts. An ijarah contract is not a condition or ta’aluq of the qard contract, as is the case with customary law’s practice of pawning. The ijarah agreement is entered into when pawned commodities are used as a means out of the deadlock created by the practice of land pawning contracts according to customary law, which utilizes a single contract. The profit earned by the pawner is derived from ijarah. Both parties gain equally in this case; the owner of the pawned property retains ownership of the lien and receives a profit share from the rent on the land used as collateral for his obligations.
PubDate: 2022-03-25
DOI: 10.23917/jurisprudence.v11i2.16374
Issue No: Vol. 11, No. 2 (2022)
- The Legality of Debt Agreement Via Whatsapp Messages
Authors: wildan arif, Suci Kamilah, Renaldy Afriyanto
Pages: 253 - 266
Abstract: Objective: This paper analyzes and studies the legal power of debt agreements through WhatsApp messagesMethodology: This research methods was juridical normative to analyze constitutional regulations or other legal sources that concern the legal basis of agreements. It uses a practical approachResults: The results showed that the debt agreement has fulfilled the required elements to make an agreement valid. It is a type of written agreement; thus, it can become written legal evidence in civil law trials in IndonesiaPurpose: The chat messages via WhatsApp indicate the creation of debt may become a piece of evidence in court. It is categorized as evidence of a written agreement. There are five kinds of evidencing instruments according to civil law procedures in Article HIR/284 RBG that is amended into Article 1866 of the Civil Law, namely written evidence, witness evidence, presupposition, confession, and oath. Thus, in the case of the debt agreement via WhatsApp messages, that message is categorized as a written agreement. It must be printed and legalized according to the legal stipulations.WhatsApp is a social media application. Thus, it is categorized as a shred of evidence in court according to Article 5 clause (1) of the Law No. 11 of 2008 on Electronic Information and Transaction as changed into the Law No. 19 of 2016 on the Change of the Law No. 11 of 2008 on Electronic Information and Transaction.Novelty/Originality: The debt agreement via application whatsap was categorized a new legal event. The most significant novelty value from the results of this research is the legal status of new debt agreement methods, namely the debt agreements through WhatsApp messages. Whatsapp was a social media. the agreement through the WhatsApp messages is legally valid so long as it fulfills the requirements of an agreement as stipulated in Article 1320 BW and that the agreement is categorized as a written agreement. Thus, it contains legal consequences if a party violates that agreement. This agreement is still valid even without a piece of evidence in the form of an authentic letter, as an authentic letter is a deed letter that can be divided into an authentic deed (Authentiek) and underhand deed (Onderhands).
PubDate: 2022-03-28
DOI: 10.23917/jurisprudence.v11i2.16889
Issue No: Vol. 11, No. 2 (2022)
- Legal Accountability of Recording Transparency in Village Fund Financial
Reporting
Authors: Atrya - Yusnidhar, Harun Harun, Aidul Fitriciada Azhari
Pages: 267 - 281
Abstract: Objective: This article aims to find out the legal accountability of recording transparency in village fund reporting, especially in Gatak Village and Krecek Village, Delanggu District, Klaten Regency, knowing what obstacles are hamper to realizing transparency in recording and reporting village funds.Method: This type of research is empirical or sociological research. Empirical research is a type of research that is used to solve problems by examining secondary data first and then proceeding with conducting primary data research in the field and the application of law in society. The writing method used in this research is descriptive research. Findings: Transparency of Recording and Reporting of Village Funds of Gatak and Krecek Villages, to realize good governance, this has been proven by the accountability reports and the results of interviews that have been carried out by the authors in accordance with existing mechanisms based on Law No. 6 of 2014 concerning Villages, and Minister of Home Affairs number 113 of 2014. About Guidelines for Regional Financial Management. From the interviews, it was found that there were weaknesses in terms of delays in funds coming down from the center, and this would also result in a delay in activities along with existing recording and reporting, in addition to the lack of maximizing technology resources in order to fulfill transparency to the public of existing human resources, but these obstacles are still able to be resolved and do not interfere with the performance of the village government for the better.Purpose: This research is expected to be able to contribute ideas in the development of legal science, especially state administrative law, especially regarding the implementation of good governance at the village level. This research can know the recording and reporting mechanisms to achieve transparency in village fund financial reporting, and can provide the views of readers and writers who have problems with similar problems, also determine the author’s ability to apply the knowledge that has been obtained.Novelty: Different from previous research, this paper has differences that emphasize more on the role of village officials in legal responsibility in the transparency of recording and reporting village funds.
PubDate: 2022-03-28
DOI: 10.23917/jurisprudence.v11i2.16384
Issue No: Vol. 11, No. 2 (2022)
- Constitutionality of Indigenous Law Communities in the Perspective of
Sociological Jurisprudence Theory
Authors: Sapto Hermawan, Muhammad Rizal, Farchana Haryumeinanda, Yella Hasrah Cahya Oktiviasti
Pages: 282 - 296
Abstract: Objective: This study aims to determine the existence and position of customary law communities in Indonesia and to examine how the constitutionality of customary law in Indonesia is from the perspective of sociological jurisprudence.Method: The method used in this research is a normative juridical approach which is focused on examining various kinds of laws and regulations and theoretical concepts. In this study, researchers examine the 1945 Constitution of the Republic of Indonesia, Law No. 41 of 1999 concerning Forestry, until the Constitutional Court Decision No. 35/PUU-X/2012 concerning Customary Forests, while for the theoretical conceptual approach the researcher examines the concept of customary law, and the concept of customary law communities and their relation to the concept of sociological jurisprudence.Finding: The results of the study show that the concept of customary law as part of the State of Indonesia when viewed from the perspective of Sociological Jurisprudence as a law that grows and lives in society. Juridically, the traditional rights of indigenous and tribal people are also constitutional rights because they are stated in the constitution, as emphasized in Article 18 paragraph (2) of the 1945 Constitution of the Republic of Indonesia, in relation to sociological jurisprudence, the new positive law will be effective if its implementation is appropriate and contains the principles that live in society. The gravity of the law is not found from the law itself, but from the community. So it is proper that the content and protection and recognition related to the existence of customary law are regulated in laws and regulations.Usage: This article can provide input for policy makers, especially the central and local governments regarding the urgency of the formation of a draft law on customary law communities, where the law is expected to provide legal protection to the rights of indigenous peoples because indigenous peoples have existed long before the Republic of Indonesia was formed so that its existence was recognized in the Constitution.Novelty: Legal certainty regarding the constitutionality of customary law in Indonesia is particularly important for indigenous peoples, and extremely useful for recognizing the existence of indigenous peoples in Indonesia. Determining the constitutionality of customary law in Indonesia in the perspective of sociological jurisprudence will ensure legal certainty in relation to customary law, which until now there are no explicit rules governing customary law in Indonesia.
PubDate: 2022-03-28
DOI: 10.23917/jurisprudence.v11i2.12998
Issue No: Vol. 11, No. 2 (2022)
- The Job Creation Act: Implication of National Strategic Project on
Regional Spatial Planning (Study in Madiun City, East Java Province)
Authors: Riska Purbasari, Mohammad Jamin
Pages: 297 - 309
Abstract: Purpose of the study: This study aims to examine the implications of implementing the National Strategic Project for regional spatial planning, especially Madiun city, after the enactment of Act Number 11 of 2020 on Job Creation.Methodology: This study is normative legal research using a statute and conceptual approaches. The research was conducted by analyzing laws and regulations as primary legal materials and expert notions/doctrine and literature studies as secondary legal materials.Results: The study results indicate that the implementation of the National Strategic Project after the enactment of Act Number 11 of 2020 on Job Creation has implications for the existence of agricultural land, environment, economic, and social aspects in Madiun City.Applications of this study: This study is expected as a consideration for the Central Government in reviewing and formulating national strategic policies that affect spatial planning in the regions. For city/district governments, this study can be used as a contribution of thought to determine the steps that need to be taken in implementing National Strategic Projects in their regions.Novelty/Originality of this study: This research has a novelty by examining the laws and national strategic policies that the government has just released in recent years. The similarity of regional characteristics between Madiun City and many cities/districts that implement the National Strategic Project can provide an overview of the implications faced by the regions.
PubDate: 2022-03-28
DOI: 10.23917/jurisprudence.v11i2.15528
Issue No: Vol. 11, No. 2 (2022)
