Kajian Ilmiah Hukum dan Kenegaraan
Kajian Ilmiah Hukum dan Kenegaraan (KIHAN) is a peer-reviewed journal that publishes quality papers in the fields of law and state. KIHAN aims to become a credible source related to law studies and mediates academicians, researchers, and practioners in dissemination their findings and ideas to solve various law and state issues.
Articles
40 Documents
<![CDATA[Tujuan Pemidanaan dalam Penjatuhan Pidana Tambahan Pembayaran Uang Pengganti Tindak Pidana Korupsi ]]>
<![CDATA[Rachmadi, Moch Rizky]]>;
<![CDATA[Dollu, Daud Yaferson]]>
<![CDATA[ Kajian Ilmiah Hukum dan Kenegaraan Vol. 3 No. 2 (2024): Desember ]]>
Publisher : <![CDATA[Penerbit Goodwood ]]>
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DOI: 10.35912/kihan.v3i2.5021
<![CDATA[Purpose: This study examines the rationale behind judges’ decisions to impose additional criminal penalties in the form of restitution payments in corruption cases, focusing on the extent to which such penalties align with the objectives of sentencing and restorative justice. Research methodology: This study employs a normative juridical approach supported by case, statute, and conceptual analyses. Data were collected from relevant court rulings and analyzed descriptively and qualitatively using legal interpretations. Results: The findings show that while judges tend to apply retributive justice by imposing prison sentences, the enforcement of restitution payments remains inconsistent. Some defendants return all or part of the state losses, while others do not comply. Conclusions: The imposition of restitution penalties formally supports the objective of recovering state loss. However, the actual implementation reveals gaps that hinder the full realization of restorative justice. Limitations: The study is limited by incomplete data accessibility and the geographical scope of the case studies, which may not comprehensively represent national practice. Contribution: This study highlights the need to reformulate corruption sentencing laws to prioritize restitution and offers a restorative justice model to balance punishment with asset recovery.]]>
<![CDATA[Pertimbangan Hakim dalam Memberikan Putusan pada Kasus Pembunuhan Begal untuk Melindungi Diri ]]>
<![CDATA[Hasan, Sawia]]>
<![CDATA[ Kajian Ilmiah Hukum dan Kenegaraan Vol. 3 No. 2 (2024): Desember ]]>
Publisher : <![CDATA[Penerbit Goodwood ]]>
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DOI: 10.35912/kihan.v3i2.5026
<![CDATA[Purpose: This research aims to analyze the judge's legal reasoning in a murder case involving self-defense by a minor, specifically evaluating the application of Article 49 of the Indonesian Criminal Code (KUHP) on necessary defense (noodweer), and assessing whether the verdict adhered to the principles of justice, benefit, and legal certainty. Research methodology: The study employs normative legal research with conceptual and case approaches. Legal materials include primary sources (statutory provisions and court rulings), secondary sources (books and journal articles), and tertiary sources (legal encyclopedias and dictionaries). Data collection was conducted through literature and document analysis, and the data were examined using statutory interpretation, legal theory, and jurisprudential review. Results: The findings indicate that the judge's decision to convict the minor under Article 351(3) KUHP for causing death through violence did not adequately consider the relevance of Article 49 KUHP regarding self-defense. The court focused on the delay between the threat and the act of defense, neglecting the child's psychological condition and the urgency of the situation. Although based on prosecutorial evidence, the verdict failed to incorporate contextual factors such as fear, coercion, and instinctive reaction, which were critical in triggering the defendant’s response. Conclusions: The judicial reasoning lacked depth in examining the mental and emotional state of the minor, reflecting a rigid interpretation of the law that may compromise restorative justice and child-sensitive adjudication. Limitations: The study is limited to a single judicial decision and does not incorporate empirical data or psychological expert assessments, limiting the analysis of mental condition and its legal implications. Contribution: This research highlights the importance of contextual and psychological analysis in judicial discretion for cases involving minors and contributes to the discourse on fair application of self-defense provisions in Indonesian criminal law.]]>
<![CDATA[Penerapan Hukum Responsif terhadap Tindak Pidana Korupsi Studi Kasus Putusan Nomor: 56/PID.SUS-TPK/2017/PN.KPG ]]>
<![CDATA[Radja, Valentri Marlita]]>
<![CDATA[ Kajian Ilmiah Hukum dan Kenegaraan Vol. 3 No. 2 (2024): Desember ]]>
Publisher : <![CDATA[Penerbit Goodwood ]]>
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DOI: 10.35912/kihan.v3i2.5027
<![CDATA[Purpose: This study aims to examine law enforcement against corruption in Indonesia from a responsive legal perspective, in response to the ongoing concern over corruption’s widespread impact on national integrity. Thus, this study seeks to evaluate whether existing judicial practices reflect the participatory and contextual principles inherent in responsive law, using a specific case decision as a focal point. Research Methodology: This study employs a normative juridical approach, focusing on legal norms and principles. This is supported by a document study that specifically analyzes Decision Number: 56/Pid. Sus-TPK/2017/PN.Kpg, to assess how judicial reasoning aligns with the responsive legal framework. Results: The analysis reveals that the court’s decision in this case does not fully embody the core values of the responsive law. In particular, it lacks sufficient public participation and does not address the restoration of social justice for communities affected by corruption. Judgments tend to focus on procedural legality rather than the broader societal impact and justice. Conclusion: The study concludes that current corruption law enforcement in Indonesia, as exemplified by the case analyzed, remains largely formalistic. To improve outcomes and public trust, a shift toward a responsive legal approach is necessary, one that emphasizes substantive justice, societal values, and community involvement. Limitations: This study is limited to the analysis of one court decision and does not encompass empirical field data or a broader range of judicial cases. Contribution: This study contributes to the discourse on judicial reform by highlighting the gap between legal decisions and responsive law principles.]]>
<![CDATA[Peran Negara dalam Menjamin Kebebasan Berekspresi Menurut Konstitusi dan Hukum HAM ]]>
<![CDATA[Natamiharja, Rudi]]>
<![CDATA[ Kajian Ilmiah Hukum dan Kenegaraan Vol. 4 No. 1 (2025): Juni ]]>
Publisher : <![CDATA[Penerbit Goodwood ]]>
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DOI: 10.35912/kihan.v4i1.4574
<![CDATA[Purpose: This study aims to critically analyze the role of the Indonesian state in guaranteeing freedom of expression as a constitutional and human right while examining the legal challenges and restrictions that hinder its implementation. Methodology/approach: This research applies a normative legal method using a conceptual and statutory approach. This study is based on legal instruments such as the 1945 Constitution of the Republic of Indonesia, the Electronic Information and Transactions Law (ITE Law), the revised Criminal Code (KUHP), and international human rights standards, particularly the ICCPR. Relevant judicial decisions and academic legal doctrines were reviewed. Results/findings: The findings indicate a normative gap between the constitutional guarantee of freedom of expression and the repressive implementation of sectoral regulations. Laws such as the ITE Law and the Criminal Code are frequently misused to criminalize criticism, especially on digital platforms, thus undermining democratic principles. Conclutions: The state plays a dual roleas both protector and limiter of freedom of expression. However, an imbalance in the exercise of these roles has led to systematic human rights violations. Legal harmonization and stricter adherence to international standards are urgently required. Limitations: This study is limited to normative analysis and does not include empirical data or case studies involving victims of expression-related repression. Contribution: This study contributes to the legal scholarship on constitutional rights, particularly in the field of freedom of expression and democratic governance. It may benefit researchers, legal reform advocates, policymakers, and human rights institutions concerned with freedom of speech in Indonesia and other democratic legal systems.]]>
<![CDATA[Eksistensi Kotak Kosong dalam Pemilihan Kepala Daerah terhadap Sistem Demokrasi Lokal ]]>
<![CDATA[Alyonni, Alvin]]>;
<![CDATA[Soerjatisnanta, Hieronymus]]>;
<![CDATA[Yusdiyanto, Yusdiyanto]]>;
<![CDATA[Muhtadi, Muhtadi]]>
<![CDATA[ Kajian Ilmiah Hukum dan Kenegaraan Vol. 4 No. 1 (2025): Juni ]]>
Publisher : <![CDATA[Penerbit Goodwood ]]>
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DOI: 10.35912/kihan.v4i1.4730
<![CDATA[Purpose: This study investigates the legal legitimacy and democratic consequences of the “empty box” (kotak kosong) mechanism in Indonesia’s local elections, particularly in uncontested single-candidate regional head races. The increasing frequency of such elections raises concerns regarding diminished political competition, legitimacy, and voter choice within Indonesia’s democratic processes. Methodology/approach: This study adopts a normative juridical approach by analyzing statutory laws, especially Law No. 10 of 2016, and key Constitutional Court rulings, such as Decision No. 100/PUU-XIII/2015. Additionally, this study incorporates secondary data from relevant local election cases and academic literature published between 2016 and 2024. Results/findings: The findings reveal that the empty box mechanism is legally acknowledged and constitutionally permitted as a tool for democratic resistance. However, its increasing usage reflects systemic problems: weak internal democracy among political parties, the dominance of political elites, and the absence of viable alternatives. These factors contribute to declining electoral competitiveness and limit the meaningful participation of voters. Conclusions: While the empty box offers a symbolic form of dissent, it does not resolve deeper structural constraints undermining local democratic processes. This mechanism highlights dissatisfaction but fails to generate substantive democratic alternatives. Limitations: This study is limited to doctrinal legal analysis and case study reviews without empirical field research, which may restrict the generalizability of its findings to other countries. Contribution: This study contributes to the ongoing discourse on electoral reform in transitional democracies by assessing the empty box as an instrument of political expression and identifying the need for structural democratic improvements.]]>
<![CDATA[Relevansi Hukum Keluarga Islam dalam Tantangan Perkawinan Beda Agama di Era Modern ]]>
<![CDATA[Zulfikar, Adznan Wijaya]]>
<![CDATA[ Kajian Ilmiah Hukum dan Kenegaraan Vol. 3 No. 2 (2024): Desember ]]>
Publisher : <![CDATA[Penerbit Goodwood ]]>
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DOI: 10.35912/kihan.v3i2.4869
<![CDATA[Purpose: This study investigates the suitability and effectiveness of Islamic family law in addressing interfaith marriages amid modern societal challenges and evolving cultural dynamics. Research Methodology: The study employs a qualitative library research approach by analyzing scientific journal articles and research reports related to Islamic family law and the complexities of interfaith marriage in the modern era. Results: The research reveals that scholarly perspectives on interfaith marriage under Islamic family law are diverse. While some scholars maintain an absolute prohibition based on traditional religious texts, others advocate for more inclusive and contextual interpretations that consider evolving social realities. The implementation of interfaith marriages encounters significant legal and societal challenges, including formal restrictions, community resistance, and social stigma. These findings suggest the need for legal reforms and reinterpretations that align with contemporary values and promote religious tolerance, individual rights, and social harmony. Conclusion: Islamic family law must evolve through legal reinterpretation and inclusive regulatory frameworks to remain relevant and equitable in responding to interfaith marriage in modern contexts. Limitations: This research is based solely on secondary data and lacks insights from empirical fieldwork, limiting its ability to represent the lived experiences of interfaith couples and diverse Muslim communities. Contribution: The study contributes to ongoing discourse on reforming Islamic family law, emphasizing the importance of balancing religious principles with human rights, legal inclusivity, and social harmony in pluralistic societies.]]>
<![CDATA[Meninjau Komitmen Indonesia Melarang Senjata Tertentu dalam Konflik menurut Hukum Humaniter Internasional ]]>
<![CDATA[Raka, Maria Wilhelsya Inviolata Watu]]>
<![CDATA[ Kajian Ilmiah Hukum dan Kenegaraan Vol. 4 No. 1 (2025): Juni ]]>
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DOI: 10.35912/kihan.v4i1.5031
<![CDATA[Purpose: The use of prohibited means in armed conflict aims to respect and uphold the principles of humanity and proportionality in International Humanitarian Law (IHL) and prevent unnecessary injuries. This study aims to determine Indonesia's international commitment to respecting the principles of IHL through Indonesia's participation in international agreements on the prohibition of the use of certain weapons. Methodology/approach: This study implements a normative method by analyzing Indonesia's participation in international agreements related to the use of prohibited weapons during times of conflict. Results/findings: This study found that Indonesia's participation in these agreements is low, which has an impact on the few national regulations governing the prohibition of the use of prohibited means during times of conflict. Conclusion: Indonesia needs to strengthen its commitment to the principles of humanity and proportionality under international humanitarian law by ratifying legal instruments prohibiting certain weapons. This step should be accompanied by internal military policies and official political statements demonstrating respect for humanitarian law, both in written and customary international law. Limitations: This research is limited to inventorying Indonesia's participation in international agreements related to the prohibition of the use of certain means in armed conflict. Contribution: This research is expected to be a reference for investigating national laws or actions of the Indonesian Government regarding the prohibition of the use of certain weapons in armed conflict.]]>
<![CDATA[Hambatan Pelaksanaan Putusan Pengadilan oleh Pemerintah ]]>
<![CDATA[Lamabelawa, Vergilius Septyanto]]>
<![CDATA[ Kajian Ilmiah Hukum dan Kenegaraan Vol. 4 No. 1 (2025): Juni ]]>
Publisher : <![CDATA[Penerbit Goodwood ]]>
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DOI: 10.35912/kihan.v4i1.5064
<![CDATA[Purpose: To explain the obstacles in the implementation of court decisions, as well as to describe the government's non-compliance in executing court rulings from the perspective of the principles of the rule of law and the principles of a democratic state. Methodology/approach: This research uses a normative approach to analyze legal issues related to the implementation of court decisions by the government, utilizing legislative and bibliographic approaches. Results/findings: The implementation of court decisions is based on the good faith of the government. This government action is justified by the principle that the government cannot be declared bankrupt and the principle of contrarius actus. It is also reinforced by regulations in the legislation. Conclutions: The government's liability is a form of repressive legal action to protect society from unlawful acts by the authorities (onrechtmatig overheidsdaad). However, the implementation of court decisions relies on the good faith of the government. The government's disobedience in executing decisions based on its good faith reflects a violation of the principles of the rule of law and democracy, and the government's actions contradict the principles of good governance. Limitations: This research is limited to normative research and is only of a recommendation nature. The implementation is up to the government to carry out. Contribution: Providing understanding in the development of legal science, and hopefully offering benefits for legal practitioners.]]>
<![CDATA[Perlindungan Hukum Pasca Perceraian: Analisis Strategi dan Implementasi di Indonesia ]]>
<![CDATA[Noor, Tajuddin]]>
<![CDATA[ Kajian Ilmiah Hukum dan Kenegaraan Vol. 4 No. 1 (2025): Juni ]]>
Publisher : <![CDATA[Penerbit Goodwood ]]>
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DOI: 10.35912/kihan.v4i1.5149
<![CDATA[Purpose: This research aims to analyze post-divorce legal protection in Indonesia, focusing on its strategy and implementation, as well as to explore the challenges faced by divorced individuals in accessing their rights. Methodology/approach: The research uses the normative juridical method to analyze relevant legal norms. The researcher also examines dispute resolution mechanisms both in litigation and non-litigation. Results/findings: The results show that despite a clear legal framework, many individuals do not receive adequate legal protection. This is due to social stigma, lack of understanding of rights, and weak execution mechanisms. Conclusion: Legal protection for individuals after divorce in Indonesia still faces various challenges. It is necessary to increase the capacity of judicial institutions and public understanding to guarantee the rights of individuals after divorce. Limitations: The limitations of this research include limitations in the scope of the study which may not cover all social and cultural aspects that affect the implementation of legal protection and there may also be bias in the data used. Contribution: The contribution of this research lies in a deeper understanding of the challenges faced after divorce and provides recommendations for improvements in the legal system and protection for individuals, especially children and ex-spouses. ]]>
<![CDATA[Urgensi Mediasi dalam Penyelesaian Sengketa Perceraian Perspektif Hukum Keluarga Islam dan Praktik ]]>
<![CDATA[Nur, Tarmizi]]>
<![CDATA[ Kajian Ilmiah Hukum dan Kenegaraan Vol. 3 No. 2 (2024): Desember ]]>
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DOI: 10.35912/kihan.v3i2.4868
<![CDATA[Purpose: This study aims to assess the effectiveness of mediation in resolving divorce disputes at the Religious Court, emphasizing its importance to ensure a faster, fairer process aligned with Islamic family law. Research Methodology: The research methodology employed is library research, utilizing scientific journal articles and research reports related to the legal aspects and practices of mediation in divorce. Results: The analysis reveals that: 1) Islamic family law advocates mediation as a suitable mechanism for divorce resolution, promoting family preservation through consultation and consensus based on Sharia law; 2) Mediation practices in Religious Courts face several challenges, including misunderstandings among mediators, resistance from parties, and psychological and social barriers; 3) Mediation is a vital, cost-effective solution that maintains family harmony, reduces the burden on courts, and mitigates social impacts of divorce, necessitating enhanced quality and awareness. Conclusion: Mediation aligns with Sharia principles and is advisable for divorce cases, as it preserves familial ties and facilitates peaceful, expedient resolutions. Limitations: The study is limited to secondary data sources and may not fully represent the current practical challenges faced by mediators in the field. Contribution: This research underscores the need for improved mediation practices within the Religious Court system, advocating for increased awareness and training to optimize its role in family dispute resolution in line with Islamic legal principles.]]>
