Harm to others: the moral limits of the criminal law

JURNAL CITA HUKUM

Article 5 (1) of Law Number 48 Year 2009 concerning Judicial Power becomes ineffective if acentralistic ideology still working in view of the judge. The type of study used in this researchwas a non-doctrinal legal studies (sociolegal research). Research conducted in the DistrictCourt and Religious Court in Madura based on the judges perception by meaning of article 5paragraph (1) law 48/2009 and justices consideration to verdict making process. The resultsshowing the judges majority interpret the Article 5, paragraph 1 Law 28/2009 to legaldiscovery (rechtsvinding) as an efforts if a legal vacuum, otherwise the judges did notinterpret used living law when there are legal gaps. Thus showing domination of the state lawover the law that lives in society. DOI: 10.15408/jch.v5i2.4190

BC Third World LJ, 1988

Neo-Federalism Working Paper, 2015

This paper questions the relevance of constitutional law in legal systems. Comparative constitutional law scholars have become used to the assumption that constitutional law is a universal point of reference which can be addressed in comparison. If comparative constitutional law is intended to refer to different constitutions, it will be necessary to check the relevance of the particular constitutional law first. Comparative constitutional studies have to develop criteria to address the relevance of constitutional law on the one hand and, on the other hand should be able to go beyond constitution and law to find the relevant comparative perspective.

AL-ITQAN, 2023

It is an undeniable fact that the textual sources of the law are limited whereas, the issues and problems that human society encounters are unlimited. This obviously necessitates the adaptation of a dynamic method by virtue of which solutions could be sought through its application into the text of the law based on its objectives and purposes. Therefore, the theory of the purpose of the law by virtue of its comprehensive nature reflecting the dynamism of Islamic Law could be used to this end. The theory draws its structure on two fundamental elements: the underlying meanings and purposes of the text, and the general principles that are based on the consideration of maslahah. Thus, it has the potential to extend the law beyond the confines of its literal implication. In view of the dynamic nature of the theory and its significance, this article attempts to investigate the underlying motion of the theory and its development. Tracing its link in the classical works on jurisprudence, it also elaborates various aspects of the methodology of discovering the purposes of the law, their relation and classification. Relevant data of the study have been collected from the print and online media. The document and textual analysis methods have been employed in analyzing the pertinent data of the study.

DOAJ (DOAJ: Directory of Open Access Journals), 2017

The interpretation of law was and remains an indispensable postulation, inherent and the most significant in the application of the law. Through interpretation the aim is to clarify the obscure text, to rectify the imperfection of the text of the legal norm, to remedy its shortcomings, and in consequence, to specify the exact meaning of the legal norm. Interpretation concerns itself with emphasizing the authentic meaning of the normative texts, finding the spirit of the lawmaker-author, the authentic legal sense of the actions that occurred, of the conduct of the perpetrator, and the significant legal connection of these meanings. The necessity of interpreting legal norms is justified by several considerations, out of which the most important remains the one regarding the act that the lawmaker cannot and need not provide everything in the normative text. The unity between the spirit and the letter of the law, the continuity of interpretation, the useful effect of the legal norm are just a few of the principles that need to be taken into account in interpretation. Be it official (obligatory), or unofficial (doctrinary), interpretation remains an extremely important stage in the application of the law: the literature of specialty consecrates five important methods of interpretation (grammatical, historical, systematical, teleological, and logical). The latter method allows for the formulation by the interpreter of certain rational assessments, done through operations of generalization, of logical analysis of the text, of analogy, through applying formal logic. The present study will mainly deal with this method, analyzing the main logical arguments used in interpretation.

In all its many versions, the rule of law has to do with the relationship between law and the exercise of power, particularly public power. As an ideal, it signals that law can and does well to contribute to articulating, channeling, constraining, and informingrather than merely servingsuch exercise. Beyond that, what it rules out, what it allows, what it depends on, and indeed what it is, are all matters of disagreements that stem from differences among political and legal histories and traditions, and reflect dilemmas and choices that recur, in different forms and weights, in many such histories and traditions. This article is concerned with these enduring themes, dilemmas, and choices, as they occur within particular traditions, especially the common law 'rule of law' tradition, on the one hand, and the Continental Rechtsstaat tradition, on the other. (and Rechtsstaat)

2020

In every legal case, especially a case that is special in nature, always brings up two side by side. The hegemony of one field of law over other fields of law raises losses for those who experience dominance of the Law Enforcement Officials. The emergence of differences in understanding, in the end will only lead to interpretive authority. That is, the result of a valid interpretation is an interpretation that is revealed only by public authorization by utilizing power and authority. As a result, public law, in this case is criminal law, presupposes the status of the legal subject. Criminal law no longer matters whether it is a persoonor a recharge persoon. Although, the Supreme Court has issued Supreme Court Regulation No. 13 of 2016 concerning Procedures for Handling Corporate Crimes, but the interpretation of the Supreme Court Regulation is still returned to the interpreting public authority.

As in ancient times, the abuse of rights is a noticeable social problem even in contemporary times, as a result of which a response from the legal order is expected. Roman experience tends to show the external theory route. Inevitably, internal theory is only possible in the legal system. However, in the age of decodification, it is not – at least in the enlightenment sense – every legal order which increases the significance of making reference to the experience of Roman law. And it is precisely in the context of the question about the abuse of rights that Roman law enables the trend to be noticed in man, which is more original than conviction and not necessarily rooted permanently in the individual or collective consciousness, while simultaneously being independent of any reception, acquisition or model of conduct. This trend usually appears in extreme cases. It manifests itself in specific reactions to wrongly exercising the rights granted by the law – wrongly more in the social than in the individual meaning. It most clearly manifests a sense of justice, which is part of human nature. A sign of natural law is visible here, because this trend in the method of perceiving reality proves to be a regularity which is, by nature, original with respect to human convictions – rather than just their derivative. Compared with ancient sources, this observation appears to be so important to the question of humanistic universality that the Roman example in this regard is very different from contemporary examples. In the case of the ancient examples mentioned, there is still no mention of the influence of Christianity. Questions of natural law should not necessarily be combined with religious issues, but they should without doubt be combined with moral issues. And this does not contain any ideology. The Roman example is always interesting because the legal solutions used by the Quirites still appear as central pragmatic considerations. And so, Roman private law shows that the ethical element can play an important role and makes itself known in the practice of applying the law. The source of this is a trend which is noticeable in man. It constitutes not only one of many expressions of public awareness, but an important and interesting expression of public awareness arising from common sense, which shapes social relations and reaches as deep as the natural and original sense of justice. To conclude, even if there is no reception of law, it does not mean there are no historic arguments – particularly deriving from Roman law – that are interesting and instructive.

Baudouin Dupret, Positive Law from the Muslim World: Jurisprudence, History, Practices (Cambridge University Press), 2021

This chapter addresses the question of the concept of law and its analytical relevance. By mixing conceptual clarification and semantic probes, and by shifting its scrutiny towards the Western legal experience, it seeks to underscore the problematic nature of characterizing law as a universal concept. On the contrary, we intend to show that law, in the sense by which it is globally understood today, is the outcome of a contingent experience whose extension to other historical and cultural contexts has been achieved at a huge price: heuristic weakness, analytical vacuity, grammatical incoherence, pluralist dogmatism. We conduct this exploration of the concept of law in three stages. First, we examine works dealing with "legal pluralism" and "legalism" to identify the reasons why the term 'law', its conceptual extension, and the attribution of its predicative quality are problematic and badly reflect the gap that can exist between a 'legalistic way of thinking' about the world and the existence of law in its contemporary meaning. Second, we specifically address works dealing with 'Islamic law' and law in Muslim contexts to try to see what law can be at the margin, at what Herbert Hart nicely called its fringe of penumbra, but also what people make it into, often abusively. Third, we seek to outline the contours of a conceptual inquiry, delimiting its relevance, specifying its limits, taking advantage of its analytical razor, clearing the mist, opening the domain of grammar. We thus pave the way for a later examination of the historical ontology of the concept of law and for the ethnography of its practices. Uses and Abuses of the Concept of Law Let us start with concepts of law presented as alternatives to positivism. From the critique of several collections, we will review the notions of 'folk law', 'legal pluralism', and 'legalism', with the aim of tackling the conceptual issues they raise and the analytical dilution resulting from them. It will allow us to stress the contingency of the concept of law and the stalemate into which its extensive meanings lead us. Folk Law and Legal Pluralism Folk Law: Essays in the Theory and Practice of Lex Non Scripta is a kind of manifesto of the current of folk law and legal pluralism (Dundes Renteln & Dundes, 1994). It is emblematic of the stalemate into which the search for a universal concept of law leads us. While recognizing, as Gluckman does, that the term 'law' and its derivatives have various meanings (Gluckman, 1965: 227), most contributions are based on an implicit concept that allows us to describe the many historical and geographical experiences as instances of the same concept. In the same way, many contributions make the correct observation that the study of the constitutive elements of so-called 'primitive law' starts from the characteristic features of modern law and doctrine (Josselin de Jong, 1994: 111); or that the idea that the 'Common Law' is a set of rules constituting a system is closely associated with legal positivism and derives from the concept of any law in terms of the model of legislated law (Simpson, 1994: 122); or that the concept of law held by an English lawyer today is largely influenced by Austinian theory and its later positivist versions, like Kelsen's or Hart's, all of them tending to think of law as a system of rules emanating from a focal point at the top of a pyramidal structure (Hag Ali, 1994: 36). However, they do not draw the conclusions of this assessment, that is, that the very idea of a 'law' characterized as primitive, customary,

Rechtstheorie , 2013

Ratio Juris, 2004

The purpose of this paper is to assess the validity of the Razian conception of the rule of law by subjecting it to the acid test of Michel Troper's "realist theory of interpretation." The author argues that, in light of the Wittgensteinian view of rule-following, a serious indeterminacy can be seen as inherent in both this conception of the rule of law and Troper's theory of interpretation.

Law Phil, 1993

Revista da Faculdade de Direito da UERJ, 2012

This study has as scope the discussion about the rupture of the legality paradigm, overpassed by the juridicity one. Thus, we analyse the reasons upon wich the legality was founded, and also the reasons why it became surpassed. Still, seeks the understanding of the concept of juridicity, by drawing its possible practical consequences. KEYWORDS: Juridicity. Legality. Legal system. Hermeneutics.