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Journal of Transcendental Law
Published by Universitas Muhammadiyah Surakarta
ISSN : 27149676     EISSN : 2714965X     DOI : https://doi.org/10.23917/jtl
Core Subject : Religion, Humanities, Social,
Religion Humanities Law, Crime, Criminology & Criminal Justice Social Sciences
Journal of Transcendental Law is an academic journal published twice a year by the Doctor Law Program of Universitas Muhammadiyah Surakarta. This journal was first published in 2019. The journal, intended as a communication, information, and development medium of law focuses its content on the results of studies in the field of law, conducted through a variety of known paradigmatic perspectives. This journal encompasses original research articles, short communications, including: penal law, private law, administrative law, constitutional law, islamic law, economic law, sociology law, and land law. In addition, to carry out its function as an opening bridge with other parties within the wider community, the journal openly accepts the contributions of writings from experts from other disciplines who take the object of law studies.
Arjuna Subject : Ilmu Sosial - Hukum
Articles 27 Documents
 1   2   3 
The Concept of "Austin and Jeremy Bentham" and Its Relevance to the Construction of Indigenous People Salam, Safrin; Karim, La Ode Muhammad; Gurusi, La; Kaswandi, Kaswandi; Tonny, Fajrin; Dewi, Rasmala
Journal of Transcendental Law Vol. 6 No. 1 (2024): Journal of Transcendental Law
Publisher : Universitas Muhammadiyah Surakarta

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.23917/jtl.v6i1.4153

Abstract

The concepts of positivism and utilitarian schools show differences in regulating or interpreting society and individual rights. The purpose of this research is to find the views of the pure law school and the utilitarian law school in reconstructing indigenous peoples. This research uses normative legal research. In its study, this research uses several approaches, namely the statutory approach and the concept approach. The results showed that John Austin's pure legal school places the construction of indigenous peoples in the standard norms contained in Article 18 B paragraph (2) of the 1945 Constitution. This flow limits the interpretation of the construction of indigenous peoples. Meanwhile, according to the utilitarian legal school of Jeremy Bentham, the view of Article 18 B paragraph (2) of the 1945 Constitution as the basis for the construction of indigenous peoples shifts by interpreting the existence of indigenous peoples is not only seen as law an sich, but the legal regulation of legal communities is seen in 3 (three) aspects, namely a) indigenous peoples are seen in the position of legal reality; b) Customary law becomes a translation of the legal provisions referred to in Article 18 B paragraph (2) of the 1945 Constitution; c) Recognition and protection of the law of indigenous peoples are constructed in the aspect of legal reality. Thus, the utilitarian school of law opens a new approach in the construction of indigenous peoples that is not only reviewed from the norms an sich in statutory regulations but the existence of utilitarian schools of law can be used to open more lively legal spaces in constructing recognition and protection of the rights of indigenous peoples as subjects of law.
Feminist Legal Theory as a Review of Legal Philosophy: Its Relation with Gender Equality in Indonesia Marita, Marita; Pramesti, Yustisia Pratiwi
Journal of Transcendental Law Vol. 5 No. 2 (2023): Journal of Transcendental Law
Publisher : Universitas Muhammadiyah Surakarta

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.23917/jtl.v5i2.4160

Abstract

The birth of the Feminist Legal Theory is caused by an imbalance in the legal order which tends to be patriarchal, including in writing history the role of women should be balanced with that of men. In the perspective of legal philosophy, fulfilling women’s right and gender equality is an effort to obtain justice as al legal goal to realize the principle of equality before the law. The research method is normative juridical research with a qualitative analysis approach using primary and secondary legal sources . As a conclusion that the need for equal participation for women and men to exercise their rights and obligations in every policy and program as well as legal norms in laws and regulations that can guarantee equality of policies and programs that provide benefits to men and women.
The Role of Local Wisdom on the Tradition of the Prohibition of KEBO BALIK KANDANG Marriage as an Effort of Family Resilience in Bendo Village, Ponggok Sub-District, Blitar (Javanese Spiritually Perspective, Customary Law) Harianto, Totok; Arifin, Mochammad; Khairun Nisa, Zulia; Laili, Afrohatul
Journal of Transcendental Law Vol. 5 No. 2 (2023): Journal of Transcendental Law
Publisher : Universitas Muhammadiyah Surakarta

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.23917/jtl.v5i2.5349

Abstract

Kebo Balik Kandang marriage is said to be a mythical procession in the community where the bride is prohibited from marrying a man who lives in the same region as her biological father. This means that even though the bride comes from a village outside the region, if there is a track record of the bride’s village-born origin categorized as a Kebo Balik Kandang marriage type design, mythically it has a significant influence on the pattern of her family’s resilience. Family resilience means managing physical and non-physical resources and facing problems with the aim of achieving a quality family as a foundation in maintaining national resilience. Research in Bendo Village aims to examine the community’s views on kebo balik kandang marriages and how they maintain household resilience. The results show that the perpetrators of kebo balik kandang marriages face many challenges in their marriage journey. However, there is one family who managed to live a good marriage through mutual submission, love, care, good communication, and pleasant interaction. According to Islamic studies, their marriage is in accordance with sharia and there are no prohibited blood ties.
Establishing Lar Land Rights on Critical Land Within Forest Areas as a Strategy For Sustainable Forest Management Dianto, Dianto; Gunawan, Jasardi
Journal of Transcendental Law Vol. 6 No. 1 (2024): Journal of Transcendental Law
Publisher : Universitas Muhammadiyah Surakarta

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.23917/jtl.v6i1.5396

Abstract

Critical land within forest areas in Indonesia is expanding. This has an impact on natural disasters and climate change. This condition is a serious concern of the international world so that almost every international meeting on critical land issues and climate change is the main topic discussed by offering a variety of critical land management schemes but is considered ineffective. Behind the legal policy of handling critical land that is considered ineffective, there is long-standing traditional knowledge carried out by the people of Sumbawa, namely lar, which maintains a balance between ecology, social, economic and spiritual. The purpose of this research is to analyze the determination of Lar’s land rights on critical land in forest areas as a strategy for sustainable forest management. This research method is normative research with a conceptual approach, legislative approach and sociological approach. The results of this study, first, the concept of lar has three forms of land rights status, namely customary rights, rights, state-owned land and privately owned land so that state-owned land in the form of forest areas whose conditions are critical can be assigned lar land rights. Second, the concept of handling critical land in the area must be based on a balance between ecology, economy, social and spiritual. Third, the establishment of lar land rights in the forest area does not have to change the main function of the forest area.  The conclusion of this research is that the establishment of lar land rights on critical land in forest areas can be carried out based on the balance between ecology, economy, social and spiritual without changing the function of the forest
The Authority of Bale Mediasi in the Settlement of Criminal Cases in West Nusa Tenggara Province (A Deliberative Approach) Nurmadiah, Geatriana
Journal of Transcendental Law Vol. 6 No. 1 (2024): Journal of Transcendental Law
Publisher : Universitas Muhammadiyah Surakarta

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.23917/jtl.v6i1.5397

Abstract

The settlement of criminal cases is the authority of law enforcement, in this case the police, prosecutors, and courts. In criminal law, penal mediation or diversion is also known, but the mediator is usually a law enforcement officer and is completed in law enforcement institutions, not in certain communities such as the West Nusa Tenggara Bale Mediasi. The research method used in this research is normative research with a statute approach and conceptual approach. The results of the research found that Bale Mediasi has the authority to resolve criminal cases as long as it does not conflict with statutory regulations, based on the spirit of restorative justice and diversion in Law Number 11/2012, local values, and handling cases through consensus procedures. So that an agreement between the parties is reached as referred to in Law Number 30 of 1999 concerning Arbitration and Alternative Dispute Resolution. The deed of peace in criminal cases produced through the mediation process at Bale Mediasi is final and binding. To strengthen the peace deed, it can be registered with the court to obtain executorial power. If no peace agreement is reached between the parties, the dispute settlement continues in accordance with applicable legal procedures in a professional and proportional manner. It is suggested that it needs to be clarified in regional regulation number 9 of 2019 concerning Bale Mediasi related to the type of religious civil disputes that can also be obtained to the religious court to obtain executorial power. In addition, it is necessary to hasten the signing of a memorandum of understanding between the Governor and the Head of the Regional Police, the High Prosecutor and the President of the High Court as the basis for the executorial deed of peace.
Child Adoption Without a Judicial Process in Sawentar Village, Blitar Regency (Perspective of Positive Law and Islamic Law) Amanu, Damar; Azizah, Aisyatul; Laili, Afrohatul; Tertibi, Yaoma
Journal of Transcendental Law Vol. 6 No. 1 (2024): Journal of Transcendental Law
Publisher : Universitas Muhammadiyah Surakarta

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.23917/jtl.v6i1.5412

Abstract

In Islam, adopting children has been known since the time of the Prophet Muhammad. Literally, tabbani means a family couple who tries to get a foster child from another family, then treats it as if it were their biological child. The reality of informants in Sawentar, Blitar, child adoption is based on the agreement of biological parents with adoptive parents, then the adopted child is manipulated as if he were the biological child of the adoptive parents, without going through the court process, Research qualitative approach type of observational research, field-research, determination of empirical approaches, subjected to 3 primary sources. Descriptive qualitative means using qualitative data, then described descriptively. Problems are solved by non-doctrinal empirical normative studies, sourced from primary and secondary data. The purpose of the research is to describe the process of adoption without trial, under HI / Islamic Law and or HP / Positive Law. Documentation, data collection by interviewing, observing reinforced the technique of analyzing documents in the design of descriptive qualitative methods, starting with reducing, presenting, ending with drawing conclusions, where the researcher holds the primary key. The conclusion was found that child adoption in Sawentar Village, the subject of the study carried out the adoption without going through the procedures as established by the government. This means that in positive law there is a violation of the law. The subject considers the judicial procedure to be a lot of time consuming, feels the complexity, does not meet the requirements of adoption, and the lack of understanding regarding child adoption according to the law. Implications, reviewing positive law, judicial child adoption is not fulfilled, if the socialization of adoption in the community is not intensified. Adoption is more about the agreement of both parties without a court process. Then, there is a lack of legal protection for adopted children, confidentiality in both, if not open, nasab (family ties based on blood relations, both up, down, and sideways) and the pleasure of the mother, father or biological person will be lost.
Ethics-Based Information Security System Law: Immanuel Kant's Transcendental Paradigm Jaya, Indra; Septyanun, Nurjannah; Erwin, Yulias
Journal of Transcendental Law Vol. 6 No. 1 (2024): Journal of Transcendental Law
Publisher : Universitas Muhammadiyah Surakarta

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.23917/jtl.v6i1.5714

Abstract

An ethics-based information security system based on Immanuel Kant's transcendental legal paradigm can give a strong foundation for tackling moral quandaries in AI, hacking, and information systems. Lavanya Singh highlights the necessity of instinctive ethics based on philosophical literature and presents a Kantian ethics application that adheres to the philosophical tradition. Meanwhile, Sanchita Saha et al. address ethical hacking as a method of disclosing vulnerabilities in information systems for the benefit of society, emphasizing ethical concerns in cybersecurity operations. Furthermore, Flávia Maria Santoro and Rosa Maria Esteves Moreira da Costa underline the significance of examining information systems via an ethical lens in order to negotiate conceptual conflicts and make informed judgments in delicate situations, which is consistent with Kant's moral philosophy. Using doctrinal research methodologies with legal material sources derived from literature studies and qualitative descriptive analysis. This study discovered that by incorporating Kant's concepts into information security systems, the transcendental legal paradigm may guide ethical decision making and promote responsible technological advancement. The Ethics-Based Information Security Systems Act, modeled after Immanuel Kant's Transcendental Paradigm, would prioritize universal ethical principles, respect for human autonomy, duty-bound behaviors, transparency, accountability, and a structured regulatory framework. The law will guarantee that information security is maintained not just through technological means, but also via a solid ethical foundation that respects the dignity and rights of all those concerned.
The Legality Principle's Expansion in the National Criminal Code as a Manifestation of the Idea of Balance (Tawazun) Jiwanti, Ainun
Journal of Transcendental Law Vol. 6 No. 2 (2024): Journal of Transcendental Law
Publisher : Universitas Muhammadiyah Surakarta

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.23917/jtl.v6i2.6452

Abstract

This paper aims to analyze the concept and justification of the legality principle’s expansion in the Indonesian National Criminal Code and how its expansion is a manifestation of the idea of balance in the Indonesian criminal law’s renewal. This paper employed doctrinal legal research, i.e., a process to find legal regulations, principles, as well as doctrines to answer the legal issues being faced. Based on the research results, the formulation of the legality principle (formal) in the Criminal Code (WvS) was developed based on the certainty principle which is difficult to adapt with the development of the living law in society. Therefore, the National Criminal Code expands the meaning of the legality principle from having formal characteristics into a legality principle with material characteristics. It is specifically formulated in Article 2 clause (1) of Law No. 1 of 2023 on the National Criminal Code. According to this regulation, the legal source which states that an action is categorized as a criminal action based on the formal legality principle (based on the law as referred to in Article 1 clause (1)) does not decrease the application of the living law in society which determines that a person can be penalized even though his actions are not regulated in legal regulations. The insertion of the material legality principle in the National Criminal Code has the objective that the living law is also acknowledged as a legal source. The formulation of the material legality principle aims to protect the standard of values and norms that live in society to fulfill a sense of substantial justice. This is to create a balance between “legal certainty” and “justice”.   Tujuan dari penelitian ini yaitu untuk menganalisis bagaimana konsep dan justifikasi perluasan asas legalitas dalam KUHP Nasional dan bagaimana perluasan asas legalitas sebagai wujud ide keseimbangan dalam pembaharuan hukum pidana Indonesia. Penelitian ini menggunakan penelitian hukum doktrinal, yaitu suatu proses untuk menemukan suatu aturan, prinsip, maupun doktrin-doktrin hukum guna menjawab isu hukum yang dihadapi. Berdasarkan hasil penelitian, formulasi asas legalitas (formil) dalam KUHP (WvS) dibangun di atas pondasi kepastian yang sulit beradaptasi dengan perkembangan hukum yang hidup di masyarakat. Oleh karena itu, KUHP Nasional memperluas makna asas legalitas dari yang sifatnya formil ke dalam asas legalitas yang sifatnya materil, tepatnya yaitu dirumuskan pada Pasal 2 ayat (1) KUHP Nasional. Menurut Pasal 2 ayat (1) KUHP Nasional, sumber hukum untuk menyatakan suatu perbuatan sebagai tindak pidana yang didasarkan pada asas legalitas formil (berdasarkan undang-undang sebagaimana dimaksud Pasal 1 ayat (1)) tidak mengurangi berlakunya hukum yang hidup dalam masyarakat yang menentukan bahwa seseorang patut dipidana walaupun perbuatan tersebut tidak diatur dalam undang-undang. Dimasukkannya asas legalitas materiel ke dalam KUHP Nasional bertujuan agar hukum yang hidup (the living law) juga diakui sebagai sumber hukum. Formulasi asas legalitas materiel bertujuan untuk melindungi standar nilai dan norma yang hidup di masyarakat demi memenuhi rasa keadilan yang substantif, sehingga akan terjalin keseimbangan antara “kepastian hukum” dan “keadilan”.
Implementation of Qiyas Dalil in Istinbath Contemporary Muamalah Law Yani, Sirajul; Septyanun, Nurjannah; Halim, Andy Fahmi
Journal of Transcendental Law Vol. 6 No. 2 (2024): Journal of Transcendental Law
Publisher : Universitas Muhammadiyah Surakarta

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.23917/jtl.v6i2.8058

Abstract

Qiyas is one of the methods of ruling in Islam that is used to determine the rulings of contemporary cases that do not have a direct text from the Qur'an and Sunnah. There are many contemporary cases that require a qiyas approach in determining the law. Therefore, this research is important to do in order to fill the void. This research is a descriptive qualitative research with a literature study approach. This approach is used to analyze the application of qiyas in contemporary muamalat based on the opinions of classical and contemporary scholars, as well as studies from fatwas of sharia institutions. This data is taken from various sources of literature relevant to the topic of qiyas, such as books of ushul fiqh, the views of fuqaha, and fatwas issued by sharia institutions, such as AAOIFI and Majma' Fiqh Islami. The stages of research are the stages of collecting literature data (library research), data validation, through triangulation. The next stage of data analysis and interpretations and the preparation of conclusions by systematically examining the application of qiyas in contemporary muamalat is carried out using qualitative descriptive analysis methods. The result of the study is that qiyas is defined as the similarity of the branch to the origin in terms of legal illat. The urgency of qiyas in contemporary muamalat law is crucial, especially due to the limitations of nash and ijma. Qiyas plays an important role in providing sharia legal certainty for various cases that continue to develop. The views of classical and contemporary scholars on the importance of qiyas in determining Islamic law, as well as several related fatwas issued by world fatwa institutions, are the basis for determining (istinbath) the law. With qiyas, Islamic law remains relevant to be applied in modern economic transactions. The application of qiyas in various contexts of contemporary muamalat, such as the qiyas of currency with dinars and dirhams, the validity of cash waqf with qiyas against weapons of war, as well as the validity of service lease transactions and qiyas on salam contracts. The application of qiyas leads to the determination of certain laws and leads to legal certainty regarding the contemporary issue in question.
The Election Supervisory Agency’s Political Mitigation Against Religious Polarization in Regional Head Elections: A Study of Democratic Transcendence Nuria Siswi, Enggarani; Farid, Achmad Miftah
Journal of Transcendental Law Vol. 6 No. 2 (2024): Journal of Transcendental Law
Publisher : Universitas Muhammadiyah Surakarta

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.23917/jtl.v6i2.8099

Abstract

Regional Head Elections in Indonesia are often colored with religious polarization, which becomes a challenge for democracy and may potentially trigger conflicts. The Election Supervisory Agency holds a crucial role in mitigating this polarization. This research aims to analyze the Election Supervisory Agency’s political mitigation model against religious polarization in Regional Head Elections. Using the qualitative approach with the doctrinal method, this research analyzed legal regulations and democratic principles related to the general election as well as analyze the Election Supervisory Agency’s role in handling religious polarization. Research results showed that religious polarization in Regional Head Elections is manifested in several forms, such as using issues related to ethnic groups, religion, race, and groups in campaigns, spreading religion-related hoaxes and hate speech, as well as mass mobilization based on religious sentiments. Even though the Election Supervisory Agency has a supervisory mandate, it faces limitations in handling religious polarization. This issue is often under the scope of political ethics, which is not specifically regulated in the General Election Law. The analysis also shows that democratic and religious principles, especially those of Islam, support deliberation and dialogs, which may become a base for mitigating polarization. This research concludes that the Election Supervisory Agency needs to develop a more comprehensive political mitigation strategy which involves cooperation with various parties and strengthens the public understanding of political and democratic ethics. This research recommends the expansion of the Election Supervisory Agency's authority in handling violations against political ethics, strengthening coordination with other institutions, and increasing society's political literacy.  

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