Authors:Alfitra Alfitra, Afwan Faizin, Ali Mansur, Muhammad Harfin Zuhdi Pages: 194 - 214 Abstract: This study aims to describe Islamic law norms as living Law are offered decency norms for law enforcers against online prostitution as Article 27 of Information and Electronic Transaction (IET) law, and the factors that prevent the enforcement of the decency norms under Article 27 against the massive development of online prostitution. This research was conducted in four provinces: Jakarta, West Java, East Java, and South Sulawesi. The interviewees are investigators from the Indonesian National Police and District Court judges in four cities of four provinces. The method used is a qualitative approach.The research subjects were selected by purposive sampling, and the data were analysed using descriptive analysis. The findings of this study show Islamic Law as decency norms or living law can be a priority for law enforcement to online prostitution by using Article 27 of the IET Law, where decency norms can be imposed on perpetrators, pimps, sex workers, and buyers. Sex services, as well as intermediaries. This study also shows the reluctance of law enforcers at the investigation and court levels to enforce Article 27 more strictly and maximally because it is not a cybercrime priority that must be enforced to prevent the massive development of online prostitution. PubDate: 2023-05-23 DOI: 10.29240/jhi.v8i1.7044 Issue No:Vol. 8, No. 1 May (2023)
Authors:Zikri Darussamin, Armansyah Armansyah, Ahmad Zikri Pages: 215 - 236 Abstract: This paper aims to explore aspects of the legitimacy of limiting the age of marriage from the perspective of maqâshid al-syarî'ah. Early marriage is regarded as highly common ini Indonesia. According to data for 2020, 1 in 9 or almost 11% of Indonesian girls get married before becoming 18 years old. Through Law Number 16 of 2019 about Amendments to Law Number 1 of 1974 about Marriage, the government is trying to suppress the practice of early marriage through limiting the age of marriage to 19 years. Research methods are qualitative-explanative method, this paper attempts to analyze the texts and doctrines of fiqh scholars relating to the age of marriage and relate them to the purpose of marriage through the point of view of maqâshid al-syarî'ah. Through this method, it has been discovered that that marriage is a noble Islamic law and the only institution that legalizes sexual relations as a primary need (daruri) for human being in order to realize the maintenance of religion (hifzh al-dîn) through the avoidance of the practice of adultery, as well as maintaining the sustainability of mankind (hifzh al-nasl). Considering that marriage is closely related to responsibilities, it can be concluded that arrangement 19 years as the ideal age for marriage is considered to be in line with the maqâshid of marriage. Carrying out underage marriages will cause mafsadah, because it has negatives effect on health, fertility and causes bad social impacts so that maqâshid marriage cannot be realized. PubDate: 2023-05-23 DOI: 10.29240/jhi.v8i1.5324 Issue No:Vol. 8, No. 1 May (2023)
Authors:Sakban Lubis, Rustam Ependi, Tumiran Tumiran, Muhammad Yunan Harahap, Abdul Hakim Pages: 237 - 252 Abstract: This research aims to find out the relevance of Jamal Al-Banna's Islamic Legal Thought with Religious Moderation in Indonesia. This research is a doctrinal Islamic legal research using historical approach method (content analysis). The primary data source of this research is Jamal al-Banna's own work, namely Nahwa Fiqh Jadîd and the book Religious Moderation written by the Balitbang Team of the Indonesian Ministry of Religion. This research is also supported by secondary sources in the form of works related to the topic of study. The result of this research is that the Relevance of Jamal Al-Banna's Islamic Legal Thought with Religious Moderation in Indonesia. textually there are 2 (two), namely: justice and tolerance. As for substantially there are also 2 (two), namely: the value of the principle of "convenience" is the same as tawassuṭ and compassion is the same as the principle of equality (musawah/egalitarian). PubDate: 2023-05-23 DOI: 10.29240/jhi.v8i1.6649 Issue No:Vol. 8, No. 1 May (2023)
Authors:Arifki Budia Warman, Zulkifli Zulkifli, Yustiloviani Yustiloviani, Wardatun Nabilah, Riska Fauziah Hayati Pages: 253 - 268 Abstract: This paper aims at explaining the background of the persistence of Pulang ka Bako marriage in Lasi area and its correlation to family resilience. This research is field research. The Minangkabaunese still carry out the tradition of Pulang ka Bako marriage (marrying the daughter of father’s female sibling) in Minangkabau community, especially in Lasi area. This marriage is considered the ideal type of marriage in Minangkabau. The data sources were obtained from the result of interview with married couples, traditional leaders, and religious leaders. The collected data were then reduced, presented, and concluded. This result showed that the background of Pulang ka Bako marriage was the community’s understanding that this type of marriage can guarantee the development and maintenance of inheritance, kinship social relations, and preservation of traditions and customs. This tradition can build family resilience in the terms of economic and social, and it strengthens cultural resilience as well. From the perspective of maqashid al-sharia, Pulang ka Bako marriage does not only bring benefit to the individual but also to the family. Besides fulfilling the elements of hifzun nasl (preserving offspring), hifzul mal (managing assets), and hifzul 'irdh (maintaining honor), Pulang ka Bako also fulfills the elements of tahqiqul sakn wal mawaddah wa rahmah (realizing the sense of peace, love, and compassion) and tanzimul janibul mali (managing family finances). It can be concluded that Pulang ka Bako type of marriage has fulfilled the objectives of Islamic law and is capable of being one of the solutions to family resilience issues. PubDate: 2023-05-24 DOI: 10.29240/jhi.v8i1.6971 Issue No:Vol. 8, No. 1 May (2023)
Authors:Sukiati Sukiati, Rahmadany Rahmadany, Muhamad Hasan Sebyar, Purnama Hidayah Harahap, Yovenska L Man Pages: 269 - 290 Abstract: This research aimed to analyze the position of copyright as a waqf object from the perspective of fiqh and positive law. This study was literature research with a normative approach. The data collection technique used in this study is the documentation technique. At the same time, the analysis technique in this study used descriptive inductive techniques. The results of this study indicated that copyright is protected by Sharia law. The owner has the right and authority over his or her copyright and is protected by the rules and laws. Copyright as a waqf object is permitted by Islamic law as long as the requirements for a waqf object are met. This is reinforced by the decision of the Indonesian Ulema Council (MUI) number 1 MUNAS/VII/5/2005, which allows Intellectual Property Rights (IPR) as a waqf object. The permissibility of copyright as a waqf object is also supported by positive law, i.e. Law No. 41 of 2004 concerning Waqf and Government Regulation No. 42 of 2006. In addition, copyright as part of IPRs fulfils the criteria of a waqf object, i.e. a valuable asset permissible by Sharia law whose ownership rights are transferrable. Accordingly, IPRs are legally used as a waqf object, and such rights should not be violated. PubDate: 2023-05-24 DOI: 10.29240/jhi.v8i1.6696 Issue No:Vol. 8, No. 1 May (2023)
Authors:Januddin Muhammad Yusuf, Nawir Yuslem Pages: 291 - 306 Abstract: This study aims to find the reaction or response of Acehnese dayah scholars (ulama) to the use of ‘urf in istinbath of Fiqh Law from Islam Nusantara. This study departs from the fact that Islam is a religion of rahmatan lil’alamin as a universal religion, and the development of society in Indonesia has a growing variety of cultures, thus requiring a special fiqh methodology in adapting culture to religion. This research is a field research with a descriptive qualitative research type. Data collection techniques using documentation, observation and interview techniques. The interviewees came from several dayah clerics who are members of several Islamic organizations such as the NU organization, the MPU organization, the HUDA organization, and the Tastafi Aceh organization. The results of the study show that the response of Islamic religious scholars in Aceh to the use of ‘urf in istinbath fiqh law of Islam Nusantara, some accepted and some refused. Those who refused reasoned that the use of ‘urf fashid is not in accordance with the Shari'a and leads to shirk as is customary of peulheuh alen, rabu abeh in Acehnese society. While the use of ‘urf shahih, Islamic religious scholars in Aceh accept it because it does not conflict with the Shari'a like khanduri blang because it is included in the generality of the argument for charity. Thus, it can be concluded that the istinbath method of Islam Nusantara fiqh law can be accepted and has its legality according to Acehnese Islamic scholars when using ‘urf shahih. The findings of this study contribute to the fact that customary practices need to be preserved if they do not conflict with Shari'a. PubDate: 2023-05-29 DOI: 10.29240/jhi.v8i1.5732 Issue No:Vol. 8, No. 1 May (2023)
Authors:Karimuddin Abdullah Lawang, Maimun A. Rahman, Syamsiah Nur, Muh. Zaim Azhar, Ali Suage Pages: 1 - 20 Abstract: This paper aims to answer the question of why breast milk can cause mahramiyah of breastfeeding in the same way as sperm can cause mahramiyah of nasab. Breast milk is food for babies that serves to grow flesh and strengthen bones. On the other hand, breast milk is a liquid that comes out of the human body, similar to blood. However, breastfeeding a baby who has not reached the age of two years can cause mahramiyah, which is the same as mahramiyah caused by sperm. This is different from blood transfusions, which do not have any legal consequences. The research method used is a descriptive qualitative research method. The data collection technique is documentation review sourced from classical literature and scientific journals. After the data is collected, it is analyzed using content analysis techniques. The results show that breast milk has a correlation with sperm so that it can cause a mahramiyah relationship to be established. This is because breast milk contains genes as found in sperm, so that the genes owned by the mother will be inherited to the child when she is breastfed. The similarity of the inherited genes is what causes a negative impact on offspring in the event of marriage, so Islam states that there is a mahramiyah relationship from breastfeeding. PubDate: 2023-05-04 DOI: 10.29240/jhi.v8i1.5253 Issue No:Vol. 8, No. 1 (2023)
Authors:Fauzan Arrasyid, Pagar Pagar, Dhiauddin Tanjung Pages: 21 - 36 Abstract: This study aims to see how Umar Ibn Al-Khattab's legal ijtihad typology responds to social changes that occur in society. Ijtihad is a legal decision-making process based on syar'i arguments. During his leadership, Umar ibn Khattab was known to history as one of the caliphs who often performed ijtihad and the results often differed from those of other companions of the Prophet in terms of understanding and practice of Islamic law. Umar bin Khattab often recited the Quranic texts and hadith of the Prophet by contextualizing verses and hadiths through his maqasid approach. This research uses normative legal research methods. The data were obtained through literature review and analyzed using a descriptive analysis approach. The results showed that Umar's ijtihad pattern of Islamic law in some cases is considered as an integrated, integral, and authentic understanding in order to realize the benefit of Muslims. He carried out the policy of Islamic law by paying attention to rapidly developing social changes. Although his Ijtihad seems contrary to the provisions of the text, in fact Umar can be said to be able to understand the general principles (al-ushul al-kulliyat) of the Koran. So that the Quranic text, which has descended historically, can always provide answers and solutions to social problems of society that are always undergoing changes. PubDate: 2023-05-16 DOI: 10.29240/jhi.v8i1.4872 Issue No:Vol. 8, No. 1 (2023)
Authors:Muhamad Subhi Apriantoro, M. Naufal Ibnu Alis, Sendy Septianozakia, Dadang Setiana Pages: 37 - 52 Abstract: From the perspectives of KHI and KHES, this study aims to evaluate the Judge's considerations in deciding on a joint property grant dispute with case number 145/Pdt.G/2021/PA.Slk at the Solok City Religious Court and a communal property grant dispute settlement. The researcher employed a normative juridical legal research method. This research method is a quantitative approach that investigates and analyzes problems using secondary legal principles and a qualitative system that relies on data from library research. The findings of this analysis, among other things, confirm the decision on the disagreement over the joint property grant with case number 145/Pdt.G/2021/PA.Slk complied with all legal requirements and that there are disparities between KHI and KHES in the grant assets withdrawal. PubDate: 2023-05-16 DOI: 10.29240/jhi.v8i1.6464 Issue No:Vol. 8, No. 1 (2023)
Authors:Danial Murdani Pages: 53 - 74 Abstract: This article examines the legal verses of polygamy from a hermeneutical perspective. The third verse of surah al-Nisa is often understood as a verse commanding polygamy, because it contains recommendations to marry more than one woman, namely: two, three and four. The data used in this article are divided into two categories. The collected data were then analysed using the hermeneutic theory of Emelio Betti, Martin Heidegger, Hans Georg Gadamer and Paul Ricoeur with a descriptive method. The results of the research based on the hermeneutic theories above show that the third verse of surah al-Nisa which is usually used as the argument for polygamy from the Koran actually reinforces the recommendation of monogamy because according to Betti the purpose of marriage is sakinah mawaddah wa rahmah, this goal is difficult to realize in polygamy. Then according to Heidegger the verse above talks about justice for orphans. Furthermore Gadamer that polygamy is carried out with 2 conditions; (1) the 2nd, 3rd and 4th wives are widows who have orphans; (2) there must be a feeling of worry that they cannot do good and justice to orphans except by marrying their mothers. Finally, Ricoeur is of the view that the verse above is an order to act fairly in protecting the assets of orphans. The conclusion is that the third verse of surah al-Nisa is a recommendation for monogamy, not an order for polygamy. PubDate: 2023-05-16 DOI: 10.29240/jhi.v8i1.5139 Issue No:Vol. 8, No. 1 (2023)
Authors:Elfia Elfia, Surwati Surwati, Bakhtiar Bakhtiar Pages: 75 - 94 Abstract: This research aims at determining the reasons and causes for dividing inheritance before the death of the testator, as well as the implications of this inheritance division pattern on the heirs. The disagreement between custom (also known as adat) and Sharia creates an issue in the division of inheritance in Sungai Duo Village, South Solok Regency, Indonesia. In its principle, inheritance is divided after the testator dies. However, in Sungai Duo Village it applies differently, where inheritance is distributed before the testator passed away. This is empirical legal research using a qualitative legal approach, which was investigated through the Islamic inheritance law's perspectives. The data included primary data, which were obtained from interviews, and secondary data generated from document studies. Data were analyzed through several stages, including data reduction, data display, and verification. Based on the research findings, the reasons for dividing inheritance before the testator dies are: first, to avoid disputes between the heirs; second, lack of knowledge of the heirs concerning the Islamic inheritance system, resulting in inheritance division contradicts the provisions of Sharia; third, inheritance division pattern applied in society is dominated by customs that have been passed down for generations, and fourth, the diverse community of Minangkabau and Javanese ethnicity causes their inheritance division pattern to reflect their regional customs. The implication of this inheritance division pattern to the heirs is that there is peace for the heirs in terms of inheritance responsibility because they consider the heirs to have had the maturity and ability to manage the assets of their parents who are no longer able to manage these assets. So that it can improve their children's economies or serve as a support for those who are married. These findings also prove the existence of legal duality, namely Islamic inheritance law and customary inheritance law. However, it appears that customary inheritance law is more prevalent than Islamic inheritance law. PubDate: 2023-05-16 DOI: 10.29240/jhi.v8i1.5480 Issue No:Vol. 8, No. 1 (2023)
Authors:A. Malthuf Siroj, Ismail Marzuki Pages: 95 - 116 Abstract: As a country with the largest Muslim population in the world, Indonesia is unique because constitutionally it is not an Islamic country but a democracy. However, some Islamic law has been practiced by its adherents since the time of the Islamic kingdoms in the archipelago (before Indonesia's independence) until Islamic law is called the law that was alive and practiced by the people at that time. However, the transformation of Islamic law in a number of periods until now is still limited by a small number of experts, especially in relation to its dynamics with customary law and Western law. Therefore, this study aims to investigate the transformation of Islamic law starting from pre-entry of Islam to Indonesia, the entry of Islam, colonialism (-1945), and independence to the current reformation (1945-present). Furthermore, various challenges in the future related to the formalization of Islamic law in Indonesia are also important to be studied. The method used in this research is a qualitative method with the type of library research. The results show that since the entry of Islam to Indonesia, Islamic law has been well accepted and implemented by the community and even its existence has gained legitimacy from both legal experts and the Dutch government itself. Even though in the middle to near the end of colonial rule, Islamic law came under a lot of pressure and marginalization because it was seen as a barrier to the political interests of the rulers. After Indonesia's independence, especially during the Old Order era, Islamic law did not undergo much transformation due to the strong hegemony of the Indonesian Communist Party (PKI). However, during the New Order era after the PKI collapsed, Islamic law began to transform a lot because it was supported by the legal politics of the rulers who were accommodating to the interests of the Muslim community. Interestingly, during the Reformation period, apart from being on a national scale, Islamic law legislation was also carried out on a regional scale in various forms of regional regulations (PERDA) due to the strengthening demands for regional autonomy. Even the legal material is not only related to public aspects such as liquor and prostitution, but also has entered into private aspects, such as praying in congregation, reading and writing the Koran and the use of Muslim clothing. Although since the reform period until now Islamic law has transformed significantly, the challenges of Islamic law in Indonesia for the future are relatively serious, both internal and external. Among the most dominant internal challenges are the not fully codified Islamic law, the very pluralistic condition of Indonesian society, the politics of the rulers' law, the misconceptions of some legal experts about Islamic law, and the low awareness of Muslims towards the formalization of Islamic law. Meanwhile, the external challenges of dominant Islamic law that are no less severe include the influence of transnational ideologies in the name of Islam which gives a negative stigma against Islam, the development of Western ideologies that clash with Islamic law and human rights, and the strong influence of the domination of Western law in Indonesia. PubDate: 2023-05-16 DOI: 10.29240/jhi.v8i1.6618 Issue No:Vol. 8, No. 1 (2023)
Authors:Husnul Fatarib, Meirison Meirison, Desmadi Saharuddin, Muchlis Bahar Pages: 117 - 134 Abstract: This article aims to describe the impact of legal dualism within the Ottoman Empire. After Constantinople was taken over, Sultan Muhammad Al-Fatih instituted a significant policy, including issuing laws and regulations for the benefit of society; then, there was also a dualism system within the Ottoman Empire, which was visible during the reign of Sultan Sulaiman I. During this time, foreign nationals were mainly recruited, and foreign traders began to gain impunity at the peak of power. This then prompted several questions, such as were the sultans free to create the laws they wanted, or was Islamic law still binding on them' Was Sultan's law an innovation from the Ottoman Empire or a legacy from the preceding dynasty in the form of Capitulation' To address those issues, the authors conducted a comparative historical analysis of various types of literature. We used a descriptive qualitative approach to Qānūn's position, which served as a springboard for foreign intervention in an Empire that was strong but weak in political policies which occasionally strayed outside the corridor of Islamic Sharia which had become customary and national culture. The tolerance separated from the corridors of Islam derailed during the crisis. This became a springboard for legal dualism in a state body with integrity in various dimensions.Keywords: Sultan's Law, Sharia, Judiciary, Ottoman PubDate: 2023-05-16 DOI: 10.29240/jhi.v8i1.4908 Issue No:Vol. 8, No. 1 (2023)
Authors:Rosdalina Bukido, Nurlaila Harun, Muhammad Alwi, Fahri Fijrin Kamaru Pages: 135 - 154 Abstract: This study aims to describe the response of the Muslim community to the new marriage age regulation. The existence of this new provision reaps pros and cons because the community and the government understand the age of marriage, especially Muslim people, who basically consider the age limit for marriage to be when they have reached puberty. This research was conducted in North Sulawesi with a qualitative-descriptive research type and a sociological approach. Data was collected through interviews with informants starting from the community level, religious leaders and community leaders and then analyzed in a descriptive way. The results obtained are that there is a strong religious doctrine and public ignorance of the issuance of Law no. 16 of 2019. With this rule in place, they hinder many couples who are ready to get married. Most people show an attitude of disapproval of the 19-year age limit for marriage. For society, the law does not look good, especially for those who are not yet 19 years old. The community’s understanding is that both partners have reached puberty, as explained in Islamic teachings. Even so, for religious figures to show the opposite attitude, the 19-year marriage penalty rule is very necessary because it involves emotional and economic stability in living a household life. Actually, the implementation of Law No. 16 of 2019 could be more effective if Perma No. 15 of 2019 was also socialized because they related it to the purpose and reasons for the intended marriage age limit. There is a lack of public understanding of the 19-year age limit for marriage because Law No. 16 of 2019, which is socialized, is only a prohibition which prohibits it. Perma No. 15 of 2019 is the answer to the regulatory age limit for marriage at 19 years, which is always questioned in society. PubDate: 2023-05-16 DOI: 10.29240/jhi.v8i1.5521 Issue No:Vol. 8, No. 1 (2023)
Authors:Joni Zulhendra, Firdaus Firdaus, Hardi Putra Wirman Pages: 155 - 172 Abstract: This article aims to elucidate Islamic criminal law's point of view on the existence of crown witnesses in the truth discovery of criminal cases in Indonesia. In fulfilling the shortage of witness evidence, one of the perpetrators of the crime was carried as a case witness in the case. This study uses normative research methods by reviewing books relevant to the problem (Library Research) by tracing, comparing, and analyzing normative doctrinal law through a qualitative approach regarding crown witnesses. This study found that Islamic criminal law requires fairness to be accepted as a witness. If a crown witness is indeed needed as evidence to reveal a criminal case without being accompanied by other supporting evidence, then a crown witness is permitted. Should there is other evidence, the crown witness will be disqualified because the crown witness does not meet fair requirements. The rule of law in Indonesia based on the Criminal Procedure Code (KUHAP) article 185 paragraph 2 states that the statement of one witness is insufficient to prove a criminal case called the principle of unus testis nullus testis (one witness is not a witness). Therefore, there are no other witnesses apart from the crown witness. PubDate: 2023-05-16 DOI: 10.29240/jhi.v8i1.6918 Issue No:Vol. 8, No. 1 (2023)
Authors:Ilda Hayati, Busman Edyar Pages: 173 - 194 Abstract: This paper aims to analyze the position of Islamic law in the national legal system during the democratic transition (2001-2004), which was led by Megawati Sukarnoputri. Although she and the supporting party she led (PDIP) are often associated with secularism (at least considered insensitive to the problems of Muslims), during her reign from 2001 to 2004 several regulations were born that accommodated the interests of Muslims in the form of laws. This study uses a normative research method with primary-based secondary data sources. This study found that of the 126 laws that were legislated during the 2001-2004 transitional government, fourteen of them had intersections with the interests of Muslims which were accommodated in two patterns; first, formalist accommodation where the law strengthened the enactment of Islamic law for Muslims in Indonesia, such as Law No. 18 of 2001 concerning Special Autonomy for the Province of NAD; Law No. 18 of 2003 concerning Advocates, and so on. Second, accommodation in the form of substantive laws that are in line with Maqashid Shari'ah or at least do not contradict Islamic teachings as illustrated in Law No. 20 of 2001 concerning Amendments to Law No. 31 of 1999 concerning Corruption, Law No. 30 of 2002 concerning the Corruption Commission, Law No. 23 of 2002 concerning Child Protection, and others. PubDate: 2023-05-22 DOI: 10.29240/jhi.v8i1.5657 Issue No:Vol. 8, No. 1 (2023)
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