AbstractAs an affected COVID-19 pandemic country, Indonesia took policy options through Social Restrictions on Large-Scale (PSBB), supported by six legal documents from Government Regulation in Lieu-of-The Law, Government Regulations, to Presidential Decrees. This socio-legal research aims to analyze the COVID-19 countermeasure policy through Roscoe Pound's sociological jurisprudence. Base on empirical data from March to December 2020, the results showed that the policy to overcome COVID-19 is supported by six legal documents when examined through analysis of the hierarchy of norms, clarity of the purpose and usefulness very contradictory to the purpose of the deployment restrictions of COVID-19 itself. Referring to sociological jurisprudence, the COVID-19 policies should be based on four essential elements adjusted to public requirements so that the implementation of the policies can perform effectively. AbstrakSebagai negara yang terdampak pandemic Covid-19, Indonesia mengambil opsi kebijakan melalui Pembatasan Sosial Berskala Besar yang ditopang oleh enam produk hukum mulai Peraturan Pemerintah Pengganti Undang-Undang, Peraturan Pemerintah, sampai dengan Keputusan Presiden. Penelitian sosio-legal ini bertujuan menganalisis kebijakan penanganan COVID-19 melalui penggunaan teori sociological jurisprudence Roscoe Pound. Berdasarkan data penelitian dari Maret sampai dengan Desember tahun 2020, hasil penelitian menunjukan bahwa kebijakan penanganan COVID-19 yang didukung oleh enam produk hukum apabila dikaji secara hierarki norma, kejelasan tujuan, dan kemanfaatan ternyata kontradiktif dengan tujuan membatasi ruang gerak sebaran virus COVID-19 itu sendiri. Selanjutnya mendalilkan kepada aliran sociological jurisprudence maka kebijakan penanganan COVID-19 seyogyanya disandarkan kepada empat poin mendasar yang disesuaikan dengan kebutuhan publik sehingga implemenetasi kebijakan penanganan COVID-10 dapat berjalan dengan efektif.
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.
Vols. 4-6 lack ed. statement. ; 1. Understanding.-2. Purpose.-3. Conciliation.-4. Justice under law and for humanitarianism as foundation of society and challange of civilization.-5. Justice, science, and religion as contributions to civilization.-6. Uniformitarian process under supreme law. ; Mode of access: Internet.
Marginal notes in manuscript. ; Extracted from Archiv für Sozialwissenscahft und Sozialpolitik, 34. Bd., Heft 2. ; Caption title. ; Mode of access: Internet.
"Grant Sultan" land certificate is not the basis of rights. The certificate only explained that the land was Grant Sultan's previous right. The Sultan Grant Certificate is a guide for the National Land Agency to see the basis for land ownership. In accordance with the Basic Agrarian Law (UUPA) No. 5/1960, land that is certified by Grant Sultan will be converted to land, either direct or indirect conversion, further consideration and assessment needs to be done. From the background of this writing the problem is formulated How Legal Certainty Land Registration holders of Grant Sultan Land in Deli Malay Customary Community, how Grant Sultan Land in Deli Malay society is seen from Positivistic Theory The research method used in this writing is a regulatory approach and concept. Legal Certainty Land Registration of Grant Sultan Land holders in the Deli Malay Customary community if seen from the positivistic school of thought that Grant Sultan's land must be registered by Grant Sultan holders to ensure legal certainty. Grant Sultan's land in the Deli Malay community is seen from the Positivistic Theory. According to the Pound the law is a Social Engineering conflict with interests compared to the others. From positivistic theory Grant holders must immediately register Grant land in accordance with Government Regulation No. 24 of 1997 concerning Land Registration.
In Buchanan v. Warley the Supreme Court found that a Louisville, Kentucky, residential segregation ordinance was unconstitutional because it interfered with the Fourteenth Amendment right to own and dispose of property and could not be justified as a police power measure.' The Buchanan decision came at a crucial juncture in the history of American race relations. Several cities in the southern and border states had recently passed residential segregation ordinances, and other cities were poised to follow suit if the Supreme Court ruled that such ordinances were constitutional. Several northern cities were considering adopting residential segregation laws as well,' and there was considerable agitation in the rural South for de jure segregation. The spread of residential segregation laws reflected the antipathy the average white American felt toward African-Americans. Most whites, including most white intellectuals, believed that African- Americans were culturally and biologically inferior. Progressive political and intellectual leaders generally shared the racism of the day, and Progressive social scientists promoted pseudo-scientific theories of race differences. Not surprisingly, the idea of coerced segregation resonated with Progressive reformers, who, consistent with their statist outlook, believed in "public control" of the housing market. Some Progressives insisted that capitalism forced unwilling races to live together. Others justified segregation laws as furthering the "public interest" by preventing miscegenation between "superior" whites and "inferior" African-Americans." Progressives argued that segregation laws promoted public safety, protected property values, and helped maintain the public order. National political leaders supported segregation laws as well.
Defence date: 13 June 2019 ; Examining Board: Professor Stefan Grundmann, European University Institute (Supervisor); Professor Claire Kilpatrick, European University Institute; Professor Peer Zumbansen, Osgoode Hall Law School; Professor Simon Deakin, Cambridge University ; Over the last forty years, legal theory and policy advice have come to draw heavily from an 'evolutionary' jurisprudence that explains legal transformation by drawing inspiration from the theoretical successes of Darwinian natural selection. This project seeks to enrich and critique this tradition using an analytical perspective that emphasizes the material consequences of concepts and ideas. Existing theories of legal evolution depend on a positivist epistemology that strictly distinguishes the objects of social life—interests, institutions, systems—from knowledge about those objects. My dissertation explores how knowledge, and especially non-legal expertise, acts as an independent site and locus of transformation, mediating the interaction between law and social phenomena and acting as a catalyst of legal innovation. Prior work by Simon Deakin has integrated insights from systems theory to show how the interaction between law and economic institutions can only be properly understood by attending to the epistemic frame law uses to interpret economic practice. Using a case study on the impact of 'law and finance' literature on World Bank policy advice and, consequentially, on legal reforms adopted by many developing countries between 2000 and the present, I show that such attention to legal knowledge is inadequate. The case points, first, to the contingency of the intellectual tools used to understand legal institutions. Rather than deploying a determinate rationality, private and public actors address legal, economic, and ethical problems using a variety of paradigms: viewpoints are not determined by realities. More fundamentally, the cases suggest that successful paradigms, rather than economic or political realities alone, shape the dynamics of socio-legal change. My conclusions address some normative questions that arise when researchers in a social scientific mode are implicated in the processes they seek to document.
1) the unconditional endorsing of the instrumental approach to law; 2) the weakening of the link between society and law. The weakening of the link between society and law is particularly hazardous because individuals' voluntary obedience to the rule of law gives basis for the existence of society as such. The symbiosis between democracy and the market gave rise to consumer society whose members are foremost interested in expanding the possibilities for individual freedom and the quality of life. Their attitude to law is based on the gratification of personal interests. The impact of globalization has uncovered two contradictory trends. On the one hand, the role of the nation state in establishing and maintaining public order is weakening and a spontaneous public order is emerging. This trend suggests a deteriorating voluntary obedience to the rule of law. On the other hand, individuals have to be concerned about increasing their social security. This should actualize the idea of strengthening the relationship between separate social groups and law. This means that the further development of jurisprudence should be increasingly linked with the interpretation of the post-modern sociological approach to law, the analysis of the legal practices related to it and the data provided by this research.
1) the unconditional endorsing of the instrumental approach to law; 2) the weakening of the link between society and law. The weakening of the link between society and law is particularly hazardous because individuals' voluntary obedience to the rule of law gives basis for the existence of society as such. The symbiosis between democracy and the market gave rise to consumer society whose members are foremost interested in expanding the possibilities for individual freedom and the quality of life. Their attitude to law is based on the gratification of personal interests. The impact of globalization has uncovered two contradictory trends. On the one hand, the role of the nation state in establishing and maintaining public order is weakening and a spontaneous public order is emerging. This trend suggests a deteriorating voluntary obedience to the rule of law. On the other hand, individuals have to be concerned about increasing their social security. This should actualize the idea of strengthening the relationship between separate social groups and law. This means that the further development of jurisprudence should be increasingly linked with the interpretation of the post-modern sociological approach to law, the analysis of the legal practices related to it and the data provided by this research.
[spa] La presente tesis doctoral, desde un prisma socio-jurídico, analiza el tratamiento de la inmigración internacional en Chile. El objetivo de esta investigación es indagar los razonamientos predominantes al abordar los flujos de personas en dicho país. En este sentido se reconocen cuatro lógicas prevalentes: instrumental, securitaria, caritativa, y racista, segregadora y discriminadora. Estas lógicas imperan en la gestión de la movilidad humana en Chile, tanto a nivel normativo, como político-institucional, discursivo y social. A través del estudio de la legislación, de los programas implementados, de las políticas adoptadas, de la institucionalidad vigente, de las retóricas empleadas y de los comportamientos sociales se traza un diagnóstico del tratamiento de los desplazamientos de personas, cuestionando la forma de gestionar los mismos, en tanto no respondería a un Estado de Derecho coherente, sino más bien, se condice con una gestión securitaria, criminalizadora, instrumental y victimizadora de la migración, que visualiza al otro como una amenaza laboral, económica, sociocultural y a la seguridad, en fin, en Chile la migración se aborda desde el paradigma del control y no desde el prisma de los derechos humanos. Comprendiendo que quien se desplaza debe ser reconocido por su calidad de persona, se plantean propuestas que buscan propender a una mejor forma de abordar los flujos humanos en este país. ; [cat] La present tesi doctoral, des de un prisma soci cultural, analitza el tractament de la immigració internacional a Xile. L'objectiu d'aquesta recerca és indagar els raonaments que predominen en abordar els fluxos de persones en aquest país. En aquest sentit es reconeixen quatre lògiques prevalent: la instrumental, la de seguretat, la caritativa i racista, la segregadora i discriminatòria. Aquestes lògiques imperen en la gestió de la mobilitat humana a Xile, tant en un nivell normatiu, com polític – institucional, discursiu i social. A través de l'estudi de la legislació dels programes implementats, de les polítiques adoptades, de la institucionalitat vigent, de les retòriques emprades i dels comportaments socials es traça un diagnòstic del tractament dels desplaçaments de les persones, qüestionant la forma de gestionar els mateixos, en tant que no respondria a un Estat de Dret coherent, sinó més aviat es condice amb una gestió de seguretat criminalitzadora instrumental i victimitzadora, de la migració, que visualitza a l'altre com una amenaça laboral, econòmica, sociocultural i de seguretat, en fi a Xile la migració s'aborda des del paradigma del control i no pas des del prisma dels drets humans. Comprenent que qui es desplaça ha de ser reconegut per la seva qualitat com a persona, es plantegen propostes que busquen propendir a una millor forma d'abordar els fluxos humans en aquest país. ; [eng] This doctoral dissertation analyses the treatment of international migration in Chile from a socio-legal standpoint. The objective of this research is to delve into the traditional arguments used for addressing the entry of people in this country. Accordingly, the research recognizes four prevalent justifications: instrumental, securitarian, charitable, and racist, segregated and discriminatory. These justifications have prevailed in the management of the migration process in Chile, at a normative level, but also at a political-institutional, discursive and social levels. Through the study of legislation, implemented programs, adopted policies, current institutions, used discourses, and social behaviors, a diagnosis is proposed on the treatment for the movement of people. This diagnosis questions the way of handling migration, because it would not be aligned with a coherent Rule of Law, but with a securitarian, criminalizing, instrumental and victimizing way of management, that understands the other as a labor, economic, sociocultural, and security threat. In a nutshell, in Chile, migration is handled from a control paradigm and not from a human rights' paradigm. Assuming that who is migrating must be recognized as a human being, the research sets out proposals that look to address in a better way the migration phenomenon in Chile.
This paper analyzes several flows of legal philosophy that predispose the thinking of jurists/lawyers. The legal flows include law of nature, classical to modern, legal positivism, sociological jurisprudence and flow American legal realism. In detail, it can be concluded that thus far in Indonesia the dominance of the flow of legal positivism is still quite influential on the thinking of the jurists and legal practice. This study was conducted using normative legal research method. Conceptual approach and statute approach to law were used in collecting and analyzing data of this research. In the data analysis results, it was found that there are various flows of law that significantly influence the thinking of jurists and lawyers, namely Sociological Jurisprudence, Realistic Legal Realism, The Critical Jurisprudence. Thoughts of the jurists are still developing, on the one, hand in relation to the National Law Development debates whether our choice is from the political side of law, codification, modification or unification by prioritizing customary law materials or retaining the patterns of Western law, including legal justice concepts and social justice.
Many developed countries in the world has been operating an anti-bullying strategy to prevent bullying among students for many years, but Ukraine has still achieved much in this regard. That's why changes to the legislation that defines bullying as an offense are a positive development. But first of all the article is devoted to the research of the problem of bullying from the aspect of society in jurisprudence, because this phenomenon is multifaceted and, in my opinion, needs a comprehensive solution and research. The first part of the article considers the sociological aspect of the study of bullying in educational institutions, explains a brief history of the study of bullying, highlights the negative consequences of bullying. In article also was made an attempt to analyze this phenomenon from the standpoint of both position — the offender and the victim, which deepens us in the study of the essence of the problem. At the end of the first section of the article was made a brief conclusion about opportunities how bullying can be prevented at the level of social education without bringing the offender to administrative responsibility. The second part of the article is devoted to the legal component of combating bullying. Changes to the legislation on this issue are analyzed, the composition of the administrative offense is highlighted. Mentioned on appearance of a new subject of legal relations - the educational ombudsman and also the main powers of all subjects of the educational process are described. The case law, which was shaken in resolving the issue of bringing the offender to administrative responsibility, was also analyzed. There are three main types of decisions in these cases — the first is to bring the offender to justice, the second is to close the case, and the third is to refer the case to the authorized body of the national police for revision. In the end, the main ways of development of the anti-bullying strategy of Ukraine are also highlighted, the recommended means for successful prevention ...
Defense date: 26/06/2009 ; Examining Board: Bruno De Witte (EUI), Christian Joerges (Supervisor, former EUI, University of Bremen), Hans Lindahl (Tilburg University), Hans-W. David Nelken (University of Macerata) ; First made available online: 27 July 2021 ; This thesis argues for a sociologically observable equilibrium between the competing forces of legal unity and legal diversity within the European Union (EU) in order to conceptualise the contested process of the Europeanisation of law as a contingent, reciprocal one that has no endpoint in either uniformity or discontinuity. The main point of departure is the concept of legal culture, which provides for an institutionally-bounded and territorially-delimited jurisdiction with a unique socio-historical context. Member State legal cultures, within the overarching EU legal space, are conceptualised as a segmentary form of legal system-internal differentiation on the basis of territory, whereby communications originating in and pertaining to a particular Member State are conditioned in terms of the legal-cultural context of that Member State. This thesis argues that this "fragmentation" is a force of diversity within the Europeanisation process, which operates against a unifying force, understood here to be a similarly legal-system internal differentiation on the basis of areas of law and their related epistemic communities. This thesis advances the argument that, instead of viewing the existence of legal diversity within the EU as being essentially problematic for the process of Europeanisation of law, legal diversity should be reconceptualised as a productive counterweight to any purported legal unity in the EU and re-entered into the process in order to maintain its openness. While the concept of legal unity provides the framework for the operation of the Europeanisation process, that of legal diversity within that framework provides the means by which the process remains open-ended and fully contingent. Legal unity, in turn, is positioned as a counterbalance to legal diversity in that it places restraints upon the diversifying forces of both nationalism and fragmentation within the EU, thus maintaining the overarching framework within which the process of Europeanisation can occur. Legal "unity in diversity", conceptualised both as a precondition of the process of the Europeanisation of law and as a default aim, sits in stark contrast to the two main theoretical approaches to the Europeanisation of law, namely deracinated formalism and autochthonous culturalism. This thesis proposes a middle way that avoids the pitfalls of these two extreme schools of thought by operationalising the conundrum of unitas in diversitate in a way that both maintains the critical openness of the ongoing Europeanisation of law process, and facilitates a form of organically-evolving social validity for this process and the resultant legal structure of the EU.
AbstractThe issue of regulation has indeed become a lively discourse in recent years. Laws and regulations, which in essence is a set of regulatory systems to provide an orderly legal order and society, often creates conflicts, both internal conflicts between regulations and external conflicts involving government agencies and the community. The study of legal science in the perspective of sociological jurisprudence is a scientific instrument that makes sense to analyze the phenomenon of legal problems that occur in indonesia, this is because the beginning and the end of a regulation is society. The results show that regulatory conflicts occur because in practice the formation of laws and regulations often ignores procedural due process of law and substantive due process of law, one of the main points is that the widest possible public participation is required in the regulatory formation process. As a result, several regulations that have been produced often cause conflicts due to a mismatch between the substance of the regulations and the conditions and needs of the community. AbstrakIsu permasalahan regulasi menjadi diskursus yang sering mencuat beberapa tahun terakhir. Peraturan perundang-undangan yang esensinya merupakan sekumpulan sistem aturan untuk menghadirkan tatanan hukum dan masyarakat yang tertib, justru realitanya sering kali memunculkan konflik, baik konflik internal antar peraturan maupun konflik eksternal yang melibatkan lembaga pemerintahan dan masyarakat. Kajian ilmu hukum dalam perspektif sosiologi hukum menjadi instrumen keilmuan yang masuk akal untuk membedah fenomena permasalahan peraturan perundang-undangan yang terjadi, hal ini dikarenakan hulu dan hilir suatu regulasi adalah masyarakat. Hasil penelitian menunjukkan bahwa konflik regulasi terjadi dikarenakan di dalam praktik pembentukan peraturan perundang-undangan masih sering kali mengabaikan procedural due process of law dan substantive due process of law yang salah satu poin utamanya adalah dibutuhkan partisipasi publik yang ...
This Article examines the indeterminacy of standing doctrine by deconstructing recent desegregation, affirmative action, and racial profiling cases. This examination is an attempt to uncover the often unstated meta-principles that guide standing jurisprudence. The Article contends that the inherent indeterminacy of standing law can be understood as reflecting an unstated desire to protect racial and class privilege, which is accomplished through the dogma of individualism, equal opportunity (liberty), and "white innocence." Relying on insights from System Justification Theory, a burgeoning field of social psychology, the Article argues that the seemingly incoherent results in racial standing cases can be understood as unconscious attempts to preserve the status quo. The Article proposes moving "beyond the transcendental nonsense" of standing doctrine and its inevitable replication of economic and racial privilege by completely eliminating all standing limitations to the access of justice.