Authors:Kukuh Dwi Kurniawan, Fitria Esfandiari Pages: 375 - 400 Abstract: The Indonesian government opens the involvement of the private sector in organizing the Hajj and Umrah pilgrimages. High public interest for Umrah has the potential to cause legal problems if it is not managed properly. There have been many cases of fraud under the guise of an umrah service organizer, demanding a real legal action breakthrough. The method used in this research is the normative research method. This paper aims to analyze, through the use of the theoretical paradigm of Deterrence and Incapacitation, which is expected to be able to affirm legal solutions that can prevent criminal acts from occurring and provide a deterrent effect to the perpetrators. The results of this study indicate that in the process of law enforcement against fraudulent acts of Hajj and Umrah pilgrims in Indonesia, various weaknesses and shortcomings are still found. This is reviewed starting from the root of the problem, law enforcement factors, the investigation process to the formulation of criminal arrangements that are not sufficient for upholding law and justice against the phenomenon of fraudulent acts of prospective Hajj and Umrah pilgrims. PubDate: 2022-01-04 DOI: 10.21274/ahkam.2021.9.2.375-400 Issue No:Vol. 9, No. 2 (2022)
Authors:Faisal Faisal, Adelina Nasution Pages: 401 - 430 Abstract: The struggle for the making Islamic family law after independence still leaves debate, for those who reject Islamic law legislation considers that Islamic law does not need to be included in state law, on the contrary for those who support it, consider that the state cannot ignore Islamic law in the state legal system. Marriage regulations are the initial stage of the Islamic law legislation process because it is not comprehensive enough that a presidential instruction on the Compilation of Islamic Law was issued in 1991. This article aims to analyze the roots of the struggle for marriage law legislation and the presence of KHI in Indonesia. This research resulted from a normative study with legal politics and a historical approach. This paper argues that the birth of KHI cannot be separated from the role of Muslim parties and the insistence of Islamic religious leaders who view that the marriage law is not comprehensive in regulating marriage law. The marriage law tends to ignore traditional fiqh and customary law, so the presence of KHI can eliminate the debate between the government and traditionalist Muslims. PubDate: 2022-01-06 DOI: 10.21274/ahkam.2021.9.2.401-430 Issue No:Vol. 9, No. 2 (2022)
Authors:M. Rizki Syahrul Ramadhan, Syamsul Arifin, Miftahul Huda Pages: 431 - 460 Abstract: This paper aims to formulate a methodological pattern for Indonesian fiqh, which is a method for developing Indonesian Islamic law and giving an appreciation of Indonesian traditions. It is important to formulate this pattern in order to establish a methodological direction or starting point in establishing effective Islamic law in Indonesia and accordance with the socio-cultural conditions of the community. Several previous studies have contributed in establishing this methodological direction, but are not yet comprehensive. Through the study of comparative texts that analyzed using an Islamic legal philosophy approach to the thoughts of Hasbi Ash-Shiddieqy, Hazairin, and Abdurrahman Wahid, this paper concludes that the Indonesian fiqh methodology departs from the spirit to utilize fiqh so that it can be applied in Indonesian society mediated by local customs. To utilize the fiqh, the technical methodologies are various, but the pattern based on the fiqh methodology has a few things in common, that are utilizing "disagreed" legal sources, especially 'urf and istislah, using a meaning approach rather than just a lafaz approach, and applying ijtihad istiṣlāhī supported by bayani and qiyasi. This methodological pattern can be used to unify the various offers of Indonesian fiqh methodologies which in the future can be referred in formulating Islamic law in Indonesia. PubDate: 2022-01-07 DOI: 10.21274/ahkam.2021.9.2.431-460 Issue No:Vol. 9, No. 2 (2022)
Authors:Mu'tashim Billah Pages: 219 - 246 Abstract: This article attempts to analyze the right of the daughter’s heirs to prevent the decedent’s brothers and sisters from getting the inheritance. This article tries to describe comprehensively the rights of daughters in the classical and Indonesia’s fiqh discourse. This is library research that uses available data from books and articles. This article uses a normative-philosophical approach, as well as the theory of the maqāṣid asy-syarī’ah. This article reveals that in certain circumstances, the daughter has the right to deter the decedent’s brothers and sisters in ḥijab ḥirmān way. The opinion of the daughter’s rights to prevent siblings in Islamic inheritance was originally based on the opinion of Ibn ‘Abbas which was later adopted by Shia’s fiqh. This idea, sometimes, was also used by judges of Religious Court in some decisions. In addition, to rely their decision on Ibn ‘Abbas opinion, judges usually refer to the jurisprudence of the Supreme Court (MA). The main argument of this article is based on the expansion and reinterpretation of the meaning of walad that wrote at QS. An-Nisa (4): 11, 12, and 176. Furthermore, this argument could be strengthened by the consideration of maqāṣid’s benchmarks such as illat of law and benefits (maṣlaḥah). PubDate: 2021-11-30 DOI: 10.21274/ahkam.2021.9.2.219-246 Issue No:Vol. 9, No. 2 (2021)
Authors:Inama Ma Anusantari, Iffatin Nur Pages: 247 - 268 Abstract: Omnibus Law on Cipta Kerja has received a variety of strong reactions from various activists and womens’ advocacy institutions. They claim that the articles on the right to leave menstruation, pregnancy, miscarriages and childbirth for women workers have been abolished of the Omnibus Law on Employment Law. Whereas before the leave rights for women workers in certain circumstances have been neatly codified in the Manpower Act. Even though the Minister of Manpower has denied this, the absence of leave rights for women workers in certain circumstances in the Omnibus Law on Employment Copyright will provide the potential for violation of leave rights for women workers. This paper uses the theory of maqashid sharia Ibn ‘Ashur as material to study the potential violation of leave rights for women workers in certain circumstances. The reason for choosing Ibn ‘Ashur theory is because of this moderate and progressive mind. This paper uses the literature method with data sources in the form of written documents, namely accredited journals, books and online articles on the theme of writing. The results showed the potential violation of leave rights for women workers in certain circumstances in terms of the sharia maqashid Ibn ‘Ashur is very large. And this does not reflect the purpose of the shariah maqashid which is to safeguard religion, reason, soul, descent and wealth. PubDate: 2021-12-08 DOI: 10.21274/ahkam.2021.9.2.247-268 Issue No:Vol. 9, No. 2 (2021)
Authors:Muhammad Solikhudin Pages: 269 - 300 Abstract: The article presented by this author describes the political ijtihad of Nahdlatul Ulama (NU) which is associated with the political thought of KH MA. As is well known, NU is an organization that has an important contribution to building the nation-state and the basic framework of a democratic Indonesian political system. NU and Kiai Sahal have a distinctive political style because they can bring up dialectical reasoning between ahl al-sunnah wa al-jama'ah (Aswaja) and local traditions that lead to the indigenization of Islamic political thought that forms NU's distinctive knowledge. According to the author's understanding, NU's political ijtihad is realistic, inclusive and emphasizes free and honest dialogue between ideologies, cultures and philosophical thoughts to find a system of structuring society that prioritizes the realization of the goals of human life. To realize the purpose of life, there must be a legitimate and authoritative power to carry out its duties and functions. According to NU, the need for legitimate and authoritative power is both theological and sociological. The configuration of Kiai Sahal's political reasoning lies in three things. First, national politics as high-level politics. Second, Islam is an inspiration, not a political aspiration. Third, siyasah fikih is developed in the corridor of national welfare. In this context, siyasah fikih is used as an analytical tool to build a civil society based on three important aspects, including that government is not a right that is prioritized only for certain groups, a government that is not repressive and dictatorial as well as the participation of the community in the administration of government. PubDate: 2021-12-10 DOI: 10.21274/ahkam.2021.9.2.269-300 Issue No:Vol. 9, No. 2 (2021)
Authors:Fahrudin Fahrudin Pages: 301 - 324 Abstract: The problem of polygamy, which some internal Muslims say is teaching inherent in Islamic teachings, becomes a complicated problem when it is confronted with socio-cultural conditions, where the Muslim community resides, in various dimensions of time and space. What was previously said to have been standardized as teaching, in fact still leaves a long and dialectical debate. Even by reading a variety of classical literature, it turns out that polygamy still leaves a wide room for dialogue, and cannot be said to be a teaching that has a single value in its legality. So it becomes important when reading polygamy according to classical Islamic sources, and also how Muslim countries pay attention to polygamy problems that occur in the context of citizens who are in fact in their administrative responsibility. The symptomatic problem is the strengthening of the internal perception of some Muslims regarding polygamy. They consider that polygamy is a teaching that is recommended to be implemented. However, they often do not arrive at the spiritual value of the teachings of polygamy. How then the constitutions in various Muslim countries regulate the practice of polygamy in their countries, also becomes an interesting legal dialectic. Because indeed some of these countries loosely liberate it, while on the other hand, some strictly prohibit, or at least provide strict legal regulations in the case of polygamy. By reading polygamy through classical and contemporary Islamic sources, it is hoped that it can reopen the horizons of thinking about this problem. Also of course by looking at how the practice of polygamy law is carried out in various Muslim countries, by looking at the legal constitutions that are implemented in these countries. Because in truth the issue of polygamy is ijtihadiyah fiqhiyyah which at any time can lead to various legal conclusions, according to the context of space and time in which the law applies and is implemented. So the conclusion of the legal variant is something that must happen and needs to be shared by the Muslim community across generations. PubDate: 2021-12-13 DOI: 10.21274/ahkam.2021.9.2.301-324 Issue No:Vol. 9, No. 2 (2021)
Authors:Asmawi Asmawi Pages: 325 - 352 Abstract: The dynamics of development in the teaching of Islam, by the changes that exist in society. Likewise in terms of receiving rewards in conveying religious teachings in the community. The purpose of this study was to find out the practice of Ujrah ala Thaat by the clerics (asatidh) of Madrasah Diniyah Pondok Pesantren Al-Kamal', to find out the legal nature of Ujrah by Ustadh Madrasah Diniyah PP al-Kamal', to find out the impact of taking Ujrah (rewards) by Madrasah Diniyah clerics on Learning Activities at Al-Kamal Islamic Boarding School' This research method is a type of field research (field research) with a qualitative approach and also library research, literature. This research was conducted at Pesantren al-Kamal, with data collection by interviewing several Madrasah Diniyah teachers. Research Results: The practice of bisyarah in Madrasah Diniyah al-Kamal Blitar is the reward received by asatidh who has given up the benefits (services) of teaching Islamic religious knowledge at a voluntary rate. Bishara law or ujrah accepted by Asatidh Madrasah Diniyah al-Kamal Blitar is permissible or lawful, considering that it has fulfilled the concept of ijarah in fiqh review. The legal basis is that nothing is clearly prohibited in the Nash Al-Qur'an and Hadith. Whereas in Madrasah Diniyah ujrah or bisyarah is done voluntarily, the absence of bisyarah is used as the main goal in the implementation of Islamic religious teaching in Madrasah Diniyah. The impact of Ujrah (reward) for the asatid of Madrasah Diniyah al-Kamal is as an encouragement, fostering a happy attitude (bisyarah) for teachers, so that in carrying out teaching activities in an orderly, diligent, and orderly manner. Also as voluntary assistance from the Madrasah Institute for Asatidh, in alleviating the need for soap, gasoline and light necessities in their family's life. PubDate: 2021-12-21 DOI: 10.21274/ahkam.2021.9.2.325-352 Issue No:Vol. 9, No. 2 (2021)
Authors:Raja Ritonga Pages: 353 - 374 Abstract: Wasiat wajibah is an ijtihad’s concept about someone’s wealth changing to another who has no right to get the inheritance. However, together with the appearance of conception and implementation, so there is the contradiction of the application and realization. This research is library research and designed descriptive qualitative. The result of the research describes that wasiat wajibah is given to furu’ heir (generation) from inherit. As for the calculation concept of wasiat wajibah, a child who passed away is reputed alive and becomes heir. By the boy’s line, wasiat wajibah is given only to the grandchild and great grandchild’s level. While from the woman’s line, wasiat wajibah is only by the grandchild’s level. The implementation of wasiat wajibah is done if a grandfather is never given a gift to his passed away children when they are alive. The digit of 1/3 becomes the maximum limit which will accept by grandchild and great-grandchild. So, if the acceptance digit by children is more than 1/3, then their generation only gets 1/3 and the rest is given to another heir. PubDate: 2021-12-28 DOI: 10.21274/ahkam.2021.9.2.353-374 Issue No:Vol. 9, No. 2 (2021)
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