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Brawijaya Law Journal : Journal of Legal Studies
Published by Universitas Brawijaya
ISSN : 23564512     EISSN : 25030841     DOI : -
Core Subject : Social,
Law, Crime, Criminology & Criminal Justice
BRAWIJAYA LAW JOURNAL, Journal of Legal Studies Brawijaya Law Journal (BLJ) is a newly established journal in the field of legal studies. The Journal is published annually by Law Faculty Brawijaya University, Indonesia. BLJ is an open access, peer-reviewed e-journal which aims to offer an international scientific platform for national as well as cross-border legal research. The materials published include major academic papers dealing critically with various aspects and field of laws as well as shorter papers such as recently published book review and notes on topical issues of law. Printed version of the series can be printed on demand (POD). The website of the journal can be accessed through lawjournal.ub.ac.id
Arjuna Subject : -
Articles 282 Documents
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A Realistic Theory of Law (Book Review) Kabir, Syahrul Fauzul
Brawijaya Law Journal Vol 6, No 2 (2019): State Regulations and Law Enforcement
Publisher : Faculty of Law, Universitas Brawijaya

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.21776/ub.blj.2019.006.02.09

Abstract

Despite the law has been developing through the span of the history of human civilization, law has been formulated by legal thinkers, theologians, philosophers; constructed with various pretexts and objectives: for legal certainty, utility, justice and order; used to regulate social life in various forms and dimensions: customary law, religious law, state law, international law, the formulation of legal theory, to date, is still an academic debate.            It is Brian Z. Tamanaha, a professor of law from America, who also entered the theoretical debate's arena through his academic works. In the contemporary legal discourse, Tamanaha is quite popular among academics and legal activists. Tamanaha is known globally due to his famous works, such as "A General Jurisprudence of Law and Society (2001)", which received Herbert Jacob Bookrize awards, and "On the Rule of Law: History, Politics and Theory (2004)", which have been translated into 6 languages. His position as an important legal thinker in the 21st century gained his legitimacy in 2013. Through a poll, which involved 300 deans and professors from various universities in America, Tamanaha was regarded as the most influential legal educator.            Tamanaha is often cited by many legal thinkers in Indonesia, among others, by Satjipto Rahardjo, especially regarding Tamanaha's concept known as the mirror thesis. Through this notion, Tamanaha argues that law is only a reflection of certain ideas, values, cultures and traditions of society. Because law is always particular, referring to certain societies in particular temporal circumstances, then, legal transplantation from and/or to other communities is not realistic if not impossible. His thinking, inevitably influenced by the Anglo Saxon legal tradition that grows and practiced in his homeland America, which tends to be more dynamic and reliant on jurisprudence.            On April 24, 2017, Cambridge University Press published Tamanaha's latest book entitled "A Realistic Theory of Law". Examining the composition of the book's contents: contained a debate regarding law's definition, the schools of law, genealogy of law, while questioning the truth and the universality of law, presumably implying that Tamanaha was constructing his own legal theory as reflected in the book's title ("Theory of Law"). Based on this description, the author is interested in exploring Tamanaha's legal thinking; outlining his opinions on the essence of law, through his newest book which numbered 202 pages.            The first part of the book discusses three most prominent theories or legal philosophies (Jurisprudence) in various legal discourses: The School of analytical law (legal positivism), philosophical/ethical (natural law) and historical (historical schools). Throughout history, from medieval times to renaissance, the conflict between these schools of jurisprudence was reviewed through its exponents thinkers. Then, Tamanaha entered the arena using the socio-legal framework's, in order to overcome the gap between these schools of law.            In the second chapter, Tamanaha reviews the classical debate on law, namely questioning the legal definition in a sub-title "what is law?". The three branch of jurisprudence, as mentioned previously, are joined to disscuss the problematic definition of law. Then, Tamanaha not only criticizes the proposed law definitions, elucidating the shortcomings and failures of established legal definitions, but also tries to reconstruct it.            Chapter three contains description with regard to the claim of law's universality. Here, Tamanaha critically discusses the basic assumptions of law and the implicit legal features from the mainstream law's perspective. Differentiation between laws as social construction, which varies in each society due to the variety of cultures, environments, etc. (a posteriori), is faced diametrically with the identification of idealized laws, which can be applied universally (a priori). The discussion raises a debate on the universality of the nature of law (universal truth); identification of legal characteristics, and the possibility of its implementation in a universal way.            Tamanaha, in the fourth part, uses genealogical approach of law; tracing the relationship between law and non-law elements, such as: economic, social, political, environmental, technological, cultural, in a diverse historical contexts. On the one hand, Tamanaha is concerned with historical developments related to legal structures; how law is formed and what elements have influenced law, by citing historians, sociologists, anthropologists viewpoint, etc. On the other hand, Tamanaha scrutinize analytical law's arguments, especially the positivist school; suing the basic assumptions of state law which has been hegemonic as the standard, in determining entity referred to as law.            The fifth part of the book is entitled "Law in the Age of Organizations". Tamanaha begins this chapter by claiming that legal theories have failed in calculating fundamental changes in law and society, which are marked by the rise of formal legal instruments. Tamanaha claims that his legal theory is more suited to modernity. Tamanaha distinguishes between law as the core regulation for social interaction and the use of law by the state. Furthermore Tamanaha explained how the interaction between the two categories affected the creation of legal structures in the community.            Before arriving at conclusions, Tamanaha ends the discussion in this book through the last part entitled "What is International Law". Tamanaha claims that international legal theories have a problem due to the confusions of concepts and ideological views constructed in international legal discourse. Conceptual barriers trigerred by Jeremy Bentham's theoretical paradigm in which he created a gap between domestic law and international law as separate entities. While ideological barriers stem from normative tendencies or commitments among international law experts in establishing a universal legal system; thus creating a false vision related to the locus of international law and its relation with national law. By outlining these confusion, Tamanaha believes he can provide a more comprehensive understanding of international law.
INTERNATIONAL PRINCIPLES OF SUSTAINABLE DEVELOPMENT AND THE CHALLENGES TO ENVIRONMENTAL RIGHTS ENFORCEMENT IN NIGERIA Murgan, Murtala Ganiyu A.; Ijaiya, Hakeem
Brawijaya Law Journal Vol 7, No 1 (2020): Contitutional Issues: Economic, Social and Cultural Rights
Publisher : Faculty of Law, Universitas Brawijaya

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.21776/ub.blj.2020.007.01.06

Abstract

Human existence in the environment with disregard for International Principles of Sustainable Environment has often led to overutilization of the nation?s natural and environmental resources, excessive gas flaring with consequences of global warming, flood, environmental degradation, desertification, water pollution, solid waste pollution, diseases and such conditions that violate human rights to a clean and healthy environment. Necessary International and National legal instruments as well agencies have also been put in place to overcome the above problems and enhance access to environmental justice for victims.  However, it observed that these instruments could still not save mankind from the threat to Sustainable Development and environmental rights. This paper examines the challenges to the enforcement of environmental rights on sustainable development in Nigeria. With the qualitative content analysis doctrinal method, the study concludes that the enforcement of human rights on environmental pollution is very poor in Nigeria. The challenges to enforcement of Environmental rights on sustainable development goals also identify with useful recommendations.
Legal Protection for Investee Company in Venture Capital Agreement in Indonesia Sihabudin, Sihabudin
Brawijaya Law Journal Vol 6, No 1 (2019): Alternative Dispute Resolution
Publisher : Faculty of Law, Universitas Brawijaya

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.21776/ub.blj.2019.006.01.07

Abstract

Business and entrepreneurship are one of the fundamental and important factors in the economy of a nation. In Indonesia lending is being intensified to small and medium-sized companies that are unable to borrow capital from banks through the establishment of venture capital by the government. The existence and role of financial institutions in the form of venture capital in Indonesia is important to study, because it is a new institution that is starting to develop, which certainly has an influence on the development of the business world and legal institutions and institutions. The research method used is empirical juridical, which is qualitative by means of descriptive analysis. The results of the study are that although venture capital has not been based on clear legal aspects, in practice, venture capital activities are complemented by an agreement. Venture Capitalist has a stronger position on the investee company, while freedom of contract can only be applied well when both parties have the same position. However, venture capital tends to protect interest (capital) with special provisions, including its responsibilities. Therefore there is a need for a model and further regulation of the contents of the "standard venture capital agreement", especially the financing mechanism as well as its implementation instructions, so as to provide clearer, more complete and stronger implementation guidelines. A financing agreement made between a venture capital company and its partner company is based on a standard contract that requires supervision and protection to maintain balance. Measures of protection and supervision are through the basis of legislation, control carried out by the government, control carried out by judges (courts) and legal consultants and notaries.
Arbitration Mechanisms in Settlement of Maritime Disputes in Nigeria: Challenges and Prospects Babatunde, Ekundayo O
Brawijaya Law Journal Vol 6, No 1 (2019): Alternative Dispute Resolution
Publisher : Faculty of Law, Universitas Brawijaya

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.21776/ub.blj.2019.006.01.01

Abstract

The maritime industry is globally recognized as one of the most economically viable industry capable of facilitating sustainable development thus, amicable settlement of maritime disputes is paramount to guarantee unhindered trade and commerce environment. Arbitration is an age-long Alternative Dispute Resolution (ADR) mechanism applied in the amicable settlement of disputes in a relaxed and semi-formal environment. It is particularly suitable for resolving commercial disputes because of the enforceability of arbitral awards as depicted by the existing international arbitral jurisprudence. Various law of the Sea tribunals such as the International Tribunal for the Law of the Sea (ITLOS) or an ad hoc panels expressly recognizes arbitration as one of the models for settlement of disputes as a suitable alternative to litigation. In Africa, as nations recover from the era of ocean blindness, maritime practice and administration is prioritized to aid economic growth. The objective of this study is to evaluate application of arbitration as an ADR mechanism for settling maritime disputes in Nigeria’s maritime practices with the aim of identifying the challenges confronting Nigerian’s involvement in maritime business, particularly as it relates to application of Arbitration to dispute settlement. It was found that there are certain loopholes in relevant laws which work hardship against local businesses in cases of maritime disputes settlement. The study suggests viable solutions based on lessons from other climes to create level playing field for parties who opt for arbitration to settle maritime related disputes.
ROLE AND POSITION OF THE DEFENDANT IN THE PLEA AGREEMENT Sadriu, Vaxhid; Hajdari, Azem
Brawijaya Law Journal Vol 6, No 2 (2019): State Regulations and Law Enforcement
Publisher : Faculty of Law, Universitas Brawijaya

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.21776/ub.blj.2019.006.02.05

Abstract

The object of this study is the plea agreement in the criminal procedure of Kosovo. The study focuses on defining the understanding of the plea agreement, specifying the role and position of defendant in the plea agreement, specifying the rights and obligations of the defendant in the plea agreement, and on the elaboration of the importance and effects of the plea agreement for the defendant and withdrawal of such agreement for the reasons that may be related to it. The results of this paper prove that the guilty plea agreement in the Kosovo courts practice has had a direct effect on mitigation the level of sentence or in some cases acquits punishment. Looking into this aspect, the biggest benefits resulted on favor of defendants with the status of cooperative witness. The contribution of this paper is theoretical and practical, since it deals with an issue almost untreated in Kosovo. These issues focus on legal solutions, theoretical approach, as well as operational aspects concretized in the practical activity of criminal procedure subjects. The legal, comparative, tracing and theoretical analysis methods have been helped in the preparation of this study.
Piracy off The Coast of Indonesia: Potential Implications on The Craft Industry Anele, Kalu Kingsley
Brawijaya Law Journal Vol 7, No 1 (2020): Contitutional Issues: Economic, Social and Cultural Rights
Publisher : Faculty of Law, Universitas Brawijaya

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.21776/ub.blj.2020.007.01.01

Abstract

Piracy off Indonesia may implicate on craft, a significant non-oil foreign exchange earner in the country’s economic development. For instance, piracy may affect tourists’ use of cruise ships, the exportation of craft products, and the importation of raw materials and equipment for craft production in Indonesia. Consequently, it is imperative to repress piracy off the Indonesian coast. In determining the potential effects of piracy to craft, this paper addressed the linkages between piracy and craft with observed, that piracy may pose a threat to the Indonesian craft industry. Afterward, the causes and effects of piracy on Indonesia’s craft industry were interrogating. It was submitted that hijacking a cruise ship may have humanitarian and financial implications on the Indonesian craft industry.  The paper suggested measures to curb piracy off the Indonesian coast and argued, inter alia, that updated piracy legal regimes, strengthened institutional framework, and regional cooperation are central to combating piracy off the coast of Indonesia.
Examining on Indonesian Legal Challenges for Future Transnational Healthcare Service Kusuma, Febrian Indar Surya; Hermawan, Sapto
Brawijaya Law Journal Vol 7, No 1 (2020): Contitutional Issues: Economic, Social and Cultural Rights
Publisher : Faculty of Law, Universitas Brawijaya

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.21776/ub.blj.2020.007.01.07

Abstract

Facing the fourth industrial revolution, the state must strengthen its role to protect its citizens as a part of its efforts to provide social security. Indonesia as a nation also have to face this challenge, especially on the ability to provide healthcare and medication for their citizen neither they lived in the country nor stay overseas. This kind of issue has to be our concern because of our current situation in the globalization era force us to eliminate the national border and start to design transnational services to fulfill our basic needs. Therefore, this paper will conduct research that focuses on the healthcare and medication services in the South East Asia, especially a comparison between Malaysia and Indonesia’s government. Furthermore, this study will also give a brief preview of the 4.0 industrial revolution that brings the shifting of a new era for fulfilling a necessary healthcare service by using transnational big data. Through a social justice perspective and sociological law approach, the researcher uses social security theory that will lead us to reach the concept of the welfare state. This comparison will give us a larger image to see Indonesian government legal challenges and opportunities to provide a new form of healthcare services.
The Shifting of Alternative Dispute Resolution: from Traditional Form to the Online Dispute Resolution Latifah, Emmy; Bajrektarevic, Anis H; Imanullah, Moch Najib
Brawijaya Law Journal Vol 6, No 1 (2019): Alternative Dispute Resolution
Publisher : Faculty of Law, Universitas Brawijaya

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.21776/ub.blj.2019.006.01.02

Abstract

The emergence of disruptive technologies has transformed how the conflict is resolved. If Alternative Dispute Resolution (ADR) has been understood as a more efficient method of resolving dispute than through the court, then in line with the development of technologies, Online Dispute Resolution (ODR) considered as the most efficient mechanism in ADR. Through ODR, access barriers are reduced, effectiveness increases, software becomes smarter and some ADR elements are challenged. This article focuses on the shifting of dispute resolution from the traditional approach to the new generation one which called digital justice.
Criminal Law Enforcement of Indonesian Commerce Act Number 7 the Year 2014 for Corporation Perpetrators: Why It Will Be Difficult Zakaria, Alfons
Brawijaya Law Journal Vol 6, No 2 (2019): State Regulations and Law Enforcement
Publisher : Faculty of Law, Universitas Brawijaya

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.21776/ub.blj.2019.006.02.01

Abstract

Indonesian laws have recognized the legal person as a subject of criminal law. It can be seen in all regulations enacted recently acknowledging that “any person” is a natural person (natuurlijk persoon) and legal person (rechtspersoon) who are liable for criminal punishments. Related to legal person or corporation, Indonesia, on the other hand, regulates corporate criminal responsibility differently in every single law. Some laws contain complete provisions, but others may fail to set the regulation properly. The Indonesian Commerce Act Number 7 the year 2014, for example, the legislators might miss drawing the provisions regulating corporate criminal responsibility. The Act recognizes corporations as a legal subject, but there is the absence of provisions related to when corporations shall be categorized committing a crime, which party shall be responsible when corporations shall be responsible, and what punishments shall be proper for corporations. Furthermore, it is commonly used, that if there is an absence of criminal law provisions in an act, the Criminal Code and Criminal Procedure Code will be the referral sources. In terms of corporate criminal responsibility regulation, however, both the Criminal Code and Criminal Procedure Code do not recognize the corporation as the subject of criminal law. Thus, the codes may not suitable as the referral sources for corporate crime law. Unfortunately, corporations violating the Act, then, will be difficult to be enforced in the judicial process. As a legal research paper, it will argue that the absence of the provision related to corporate criminal responsibility leads to the failure of law enforcement of corporation wrongdoings by presenting prospective consequences of the absence of such provisions.
Compensation as Sanctions for the Perpetrators of Corruption in the Dimensions of Indonesian Criminal Law Renewal Kurniawan, Kukuh Dwi; Indri Hapsari, Dwi Ratna; Fajrin, Yaris Adhial; Triwijaya, Ach. Faisol
Brawijaya Law Journal Vol 6, No 2 (2019): State Regulations and Law Enforcement
Publisher : Faculty of Law, Universitas Brawijaya

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.21776/ub.blj.2019.006.02.06

Abstract

Corruption is one of the negative consequence of corporate crime. Corruption perpetrators from corporations are still relatively new in Indonesia, so legal reform is still needed, which is close to the purpose of criminal law. The existence of legal sanction in the form of compensation becomes a breakthrough for one type of sanction and can impose the perpetrator of corruption. Thus, in this study, we want to find a theoretical basis for corporate punishment that commits corruption and the existence of criminal sanctions for corporate compensation as perpetrators of corruption in efforts to renew criminal law. This study uses normative research by approaching the conceptual approach. From this research, finding a corporate foundation that commits corruption can be imposed by a criminal is in line with the purpose of punishment as well as by ius constituendum. For compensation that is an alternative to corporate punishment as a perpetrator of corruption, it can be brought down along with the principal penalty which has the purpose of accountability and reconciliation, guidance, reintegration, socialization or means of resolving conflicts to the community.

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