Whose Authority? Contesting and Negotiating the Idea of a Legitimate Interpretation of Islamic Law in Indonesia

2015 ◽  
Vol 10 (2) ◽  
pp. 191-212 ◽  
Author(s):  
Alfitri

AbstractThis article examines the history of the evolution of Islamic legal authority in Indonesia and provides an account of how it is contested and negotiated in contemporary Indonesia, using the history of family law reform as an example. There is a plurality of sources of authority for Islamic law as they operate within the domain of family law. The case studies reveal tensions between continuity and change in the development of Islamic legal principles and the strategies that different actors employ to advance their preferred version of Islamic legal norms: while the state has adopted a synthetic approach in order to accommodate these multiple legal authorities and increase the efficacy of its own statutes, the ulama persistently insist on the authority of fiqh as the immutable point of reference in resolving legal problems faced by Muslims. These conflicts ensure that the statutes will continue facing challenges as a legitimate interpretation of Islamic law in Indonesia.

2019 ◽  
Vol 13 (2) ◽  
pp. 243-257
Author(s):  
Nurul Ma'rifah

This paper discusses the making Islamic family law a formal law in the perspective of the political history of Islamic law in Indonesia, which cannot be separated from the role of the regime since the beginning of the Old Order era. In this era, the regime showed its alignment with the renewal of Islamic law. However, when the regime was not as firm and tended to be democratic, as it was during the Reformation era, Islamic family law reform tended to be stagnant. On the other hand, the history of Islamic family law renewal also experienced ups and downs because it is affected by political configurations, in which Indonesian Muslims attitudes could be classified into progressive and Islamist groups. Progressive groups try to fight for the renewal of Islamic family law contextually; whereas Islamist groups are more textual in responding to Islamic family law reform.   


2016 ◽  
Vol 3 (1) ◽  
pp. 85-104 ◽  
Author(s):  
Melissa CROUCH

AbstractMyanmar is the only Buddhism-majority country in the world that has developed and maintained a system of family law for Buddhists enforced by the courts. This article considers the construction of Burmese Buddhist law by lawyers, judges, and legislators, and the changes made through legislative intervention in 2015. It begins by addressing the creation and contestation of Burmese Buddhist law to demonstrate that it has largely been defined by men and by its perceived opposites, Hinduism and Islam. Three aspects of Burmese Buddhist law that affect women are then examined more closely. First, Burmese Buddhist law carries no penalties for men who commit adultery, although women may risk divorce and the loss of her property. Second, a man can take more than one wife under Burmese Buddhist law; a woman cannot. Third, restrictions on Buddhist women who marry non-Buddhist men operate to ensure the primacy of Burmese Buddhist law over the potential application of Islamic law. This article deconstructs the popular claim that women are better off under Burmese Buddhist law than under Hindu law or Islamic law by showing how Burmese Buddhist law has been preoccupied with regulating the position of women. The 2015 laws build on this history of Burmese Buddhist law, creating new problems, but also potentially operating as a new source of revenge.


2020 ◽  
Vol 1 (2) ◽  
pp. 93-108
Author(s):  
Nurinayah Nurinayah

The application of family law in Muslim-majority countries, especially the Middle East and its surroundings, has different practices, we do not find uniformity in family law practices in these countries. This is influenced by differences in government systems, cultures, situations and conditions of society of each country. Egypt is one of the predominantly Muslim countries which has established Islam as the state religion. Therefore, the principles of Islamic law are the main source of law in the making and formulation of laws, including family law. The practice of Islamic law in Egypt does not fully apply only to areas of family law in a limited scope including the distribution of inheritance and marriage. However, the application of family law in Egypt continues to undergo reforms and reforms. Family law reform took place in Egypt in 1920. This was marked by the promulgation of Law no. 25/1920 regarding family law and care (Law of Maintenance and Personal Status / Qanun al-Ahwal al-Syakhsiyyah wa al-Siyanah). Family law reform in the 1970s was marked by the issuance of laws regarding the authority to the judiciary to force parties (husbands) to pay maintenance fees to wives, widows, children, or parents in 1976. the current era of family law in Egypt continues to experience development. Abstrak Penerapan hukum keluarga di negara-negara yang berpenduduk mayoritas Muslim khususnya kawasan Timur Tengah dan sekitarnya memiliki praktik yang berbeda-beda, kita tidak menemukan keseragaman praktik hukum keluarga di negara-negara tersebut. Hal ini dipengaruhi oleh perbedaan sistem pemerintahan, kultur, situasi dan kondisi masyarakat setiap negara. Mesir merupakan salah satu negara yang berpenduduk mayoritas Muslim yang menetapkan Islam sebagai agama negara. Karena itu, prinsip-prinsip hukum Islam menjadi sumber hukum utama dalam pembuatan dan perumusan undang-undang termasuk hukum keluarga. Praktik hukum Islam di Mesir tidak berlaku secara utuh hanya bidang-bidang hukum keluarga dalam ruang lingkup yang terbatas meliputi pembagian warisan dan perkawinan.  Namun, penerapan hukum keluarga di Mesir terus mengalami reformasi dan pembaruan. Pembaruan hukum keluarga terjadi di Mesir pada tahun 1920. Ini ditandai dengan diundangkannya UU No. 25/1920 mengenai hukum keluarga dan penjagaan (Law of Maintenance and Personal Status/Qanun al-Ahwal al-Syakhsiyyah wa al-Siyanah). Reformasi hukum keluarga pada tahun 1970an ditandai dengan dikeluarkannya aturan undang-undang mengenai kewenangan kepada lembaga peradilan memaksa pihak-pihak (suami) untuk membayar uang pemeliharaan kepada isteri-isteri, janda-janda, anak-anak, ataupun orang tua pada tahun 1976. Hingga era sekarang hukum keluarga di Mesir terus mengalami perkembangan.            


2014 ◽  
Vol 14 (1) ◽  
pp. 1
Author(s):  
Ahmad Bunyan Wahib

This article discusses about the history and the development of family law reform in Muslim countries.This work has taken a lot benefits from Anderson’s works on Islamic law in the Muslim world for bothdata and perspective. Islamic family law reform started from the second decade of twentieth century(1915) with the issuance of two Ottoman Caliph decrees on wife rights to ask religious court to divorcethem from their husband. This reform was followed by Sudan (starting from 1916), Egypt (1920),Jordan (1951), Syria (1953), Tunisia (1956/1959), Morocco (1958), Iraq (1959), Pakistan (1961) and Iran(1967). The reformation aims to administrate the members of community in the filed of social,economy, politics, and law. From the perspective of modernization, Islamic family law reform inMuslim countries has shown the process of modernization from above.


2019 ◽  
pp. 307-323
Author(s):  
Senad Ćeman

The theory of necessity (ḍarūra) questions the relations between norm and person, condition and regulation, permissible and forbidden, useful and harmful, variable and immutable, important and irrelevant. It is a comprehensive theory, applicable in all fields of Islamic law. In the theory of necessity, reason forms a whole with the Text, logic with Revelation, and everlasting Sharia values with juridical flexibility. The theory of necessity is studied within the scientific field of Methodology of Islamic law and the jurisprudence of legal principles, while its importance lies in the fact that when standardized, regulations become part of the general Sharia legal norms.


Author(s):  
Erin Ryan

This chapter uses the dynamic federalism model of constitutional dual sovereignty as an analytic window into the emerging legal pluralism discourse. Legal pluralism explores the significance of multiple sources of legal authority and identity with which individuals simultaneously engage. Overlapping sources of normative authority range from different levels institutions of government to private sources of “quasi-legal” norms generated by tribal, religious, commercial, professional, or other associations. Legal pluralism scholars challenge the tradition of legal monism—so entrenched that its presumptions often go unnoticed—which views legitimate legal authority as deriving only from an established source of sovereign or natural authority that unambiguously trumps all competing forces. Proponents contend that legal pluralism more accurately captures the scope of political contest in pluralist societies and the full array of normative forces operating on individual actors. Skeptics critique it for failing to distinguish between legitimate and illegitimately normative forces, and for threatening critical societal institutions by weakening the prerogatives of nation-states. Constitutional federalism, itself characterized by multiple sources of authority within a single geographical territory, provides a simple example of legal pluralism that sidesteps much of the controversy. Involving only sovereign authority, federalism avoids legal pluralism’s normative challenge to statism. Moreover, it resolves at least some of the heterarchical uncertainty unleashed by legal pluralism through the hierarchical ordering device of federal supremacy. Nonetheless, the structural features of dynamic federalism provide valuable platforms for cross-jurisdictional deliberation and dialogic policymaking that resonate with the good-governance proposals advocated by legal pluralists for more inclusive norm generation.


2020 ◽  
Vol 14 (2) ◽  
pp. 307-316
Author(s):  
Ibnu Elmi Achmat Slamat Pelu ◽  
Jefry Tarantang

The Indonesian Ulema Council (MUI) has an important role in answering the increasingly complex problems of Muslims through fatwas. However, in the Indonesian legal system, fatwas are not considered a source of material law that has legal validity as a solution to the problems of Muslims in Indonesia. Therefore, this study aims to describe the position of fatwas in the legal system in Indonesia and the existence of the fatwas of the Indonesian Ulema Council in addressing the problems of the ummah. This research is a normative legal research using three types of approaches consisting of a statutory approach, a historical approach, and a conceptual approach. The results of this study concluded that: firstly, the position of fatwas in the construction of Islamic law has a high position. Fatwas are seen as a solution that can break the ice in legal development that is not accommodated by the texts of the Quran. So, substantively and sociologically, fatwas have a strong and binding position in Islamic law. Secondly, the existence of the fatwa of the Indonesian Ulema Council in responding to the problems of the Ummah can be seen in two aspects. The first aspect, fatwas in the perspective of Islamic legal authority are binding sociologically in substance. This is because fatwas are explanations and interpreters of the texts of the Quran regarding Islamic law. The second aspect, fatwas from the perspective of the hierarchy of laws and regulations, legally and formally, do not have any position in the ranking of legal norms. However, it is constitutionally guaranteed through Article 29 of the 1945 Constitution that guarantees the realization of the fulfillment of all Islamic law for Muslims in Indonesia.


2019 ◽  
Vol 1 (2) ◽  
Author(s):  
Muhamad Mas’ud

The enactment of Islamic law during colonialism was marked by the thought of Sayyid Usman, a historical figure who had a great interest in the study of Islamic law in Indonesia during the Dutch East Indies colonization. As a scholar, he has special attention to the continuity of Islamic law in Indonesia, especially regarding Islamic family law, which at that time had been widely practiced by people to replace customary law. In addition, he also contributed a lot of thoughts in the context of enforcing Islamic law by organizing religious justice institutions and compiling Islamic family law. Formally the institutions of religious justice, especially in Java and Madura, were only formed by the Dutch East Indies government in 1882, through the Staatsblad 1882 No. 152. This formation is at once a measure of the reorganization of religious justice institutions, namely by establishing new religious courts in addition to each landraad (the same court) with the same legal area, on average as large as the district. It's just that if before the religious court was independent, then with this reorganization the power to carry out the verdict was handed over to landraad. K.F. Holle, L.W.C. Van den Berg, and Snouck Hurgronje, these three Dutch people were very influential in the birth of the theory of the enactment of Islamic law in Indonesia, L.W.C. Van den Berg is one of the initiators of the theory of receptio in complexu, which states that "for Muslims full Islamic law applies because he has embraced Islam even though there are still deviations in its implementation. Next to L.W.C. Van den Berg carries the theory of receptio in complexu, and Snouck Hurgronje as the originator of receptie theory, which states that for indigenous people basically customary law applies, and Islamic law applies to indigenous people if Islamic legal norms have been accepted by society as customary law.


Author(s):  
Nataliya Burdanova

Using the example of parental powers to determine and change the name, patronymic and surname of children, the article examines the regularity of the formation and development of the institution of personal non-property rights and responsibilities of parents in Russia. The author describes the legal situation of parents and children established in the monarchic period of Russian history by 1917. Issues such as the prerequisites for the establishment of the legal institution of the branch of family law in the Soviet legal system and the nature and causes of changes in the legal status of children depending on the legality of birth have been raised. The rights and duties of parents, differences in the legal status of men and women, and the influence of marital status and other circumstances were considered. The main sources of the study were normative legal acts and judicial practice of the Soviet and Russian periods of the history of the national state and law. The study concluded that a comprehensive approach had been developed in Soviet family law to regulate parental authority to determine and change the children’s first name, patronymic and surname. The modern Russian legal system has adopted rules establishing parental authority to determine and change the children’s first name, patronymic and surname of the Soviet legal system.


2020 ◽  
Vol 52 (2) ◽  
pp. 245-260
Author(s):  
Kate Dannies ◽  
Stefan Hock

AbstractThe 1917 promulgation of a new Ottoman family law is recognized as a landmark moment in the history of Islamic law by scholars of women and gender in the Middle East. Yet the significance of the 1917 law in the struggle over religious jurisdiction, political power, and Ottoman sovereignty has been overlooked in the scholarship on both Ottoman legal reform and World War 1. Drawing on Ottoman Turkish, German, French, and English sources linking internal interpretations of the law and external reactions to its passage, we reinterpret adoption of the family law as a key moment in the geopolitics of World War 1. We demonstrate that passage of the law was a critical turning point in the wartime process of abrogating the capitulations and eliminating the last vestiges of legal extraterritoriality in the Ottoman Empire. The law is situated in its wartime political context and the geopolitical milieu of larger Europe to demonstrate that, although short-lived, the 1917 family law was a centerpiece of the wartime struggle to define extraterritorial rights of the Ottoman Empire, the Great Powers, and their protégés within the empire.


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