10. The future of Islamic law

2021 ◽  
pp. 132-136
Author(s):  
Mashood A. Baderin
Keyword(s):  
Islamic Law ◽  
Direct Reference ◽  
Modern State ◽  
State Law ◽  
State Legislation ◽  
Applicable Law ◽  
The Future ◽  
Law Making

‘The future of Islamic law’ assesses the future of Islamic law. Owing to the influence of modern state structures and modern modes of law-making, the form and application of Islamic law as part of state law today is not based strictly on direct reference to classical fiqh manuals, but indirectly through state legislation in the form of codified statutes. Codification raises two questions concerning the future of Islamic law. The first question relates to form, while the second relates to content. One aspect of classical fiqh that may be affected by codified Islamic law is the flexibility of ikhtilāf (differences of juristic opinion), as the codified fiqh becomes the applicable law.

scholarly journals PERGULATAN HUKUM DAN POLITIK DALAM LEGISLASI UU NO. 21 TAHUN 2008 TENTANG PERBANKAN SYARI’AH

Al-Ahkam ◽  
2013 ◽  
Vol 23 (1) ◽  
pp. 57
Author(s):  
Abdul Ghofur
Keyword(s):  
Islamic Law ◽  
Political Power ◽  
Historical Background ◽  
Islamic Banking ◽  
State Law ◽  
Indonesian Government ◽  
The Future ◽  
The Law ◽  
Political Configuration

This study intends to analyze the historical background of the enactment of Law No. 21 of 2008 concerning Islamic Banking in the perspective of relationship between law and political power. This study are considered attractive in the context of Indonesia as a state law that the majority of the population is Muslim, which is ethically Islamic law becomes an important part in the law development. Politically, the Indonesian government also has a historical background of the harmonious relationship with the Islamic forces. Determination of law No. 21 of 2008 concerning Sharia banking is not free from the constellation and political configurations that occured at that time. However, despite decorated by strict political configuration, the determination of this statue has a accountability of its juridical basis, sociological, and philosophical. Determination This law proves that Islamic law has become one of the sources of national law and has the opportunity to contribute to the development of national laws optimally in the future.

scholarly journals Aktualisasi Pemikiran Bustanul Arifin Tentang Politik Hukum Islam di Indonesia

POLITEA ◽  
2020 ◽  
Vol 3 (2) ◽  
pp. 139
Author(s):  
Muhammad Shohibul Itmam
Keyword(s):  
Islamic Law ◽  
State Law ◽  
State Legislation ◽  
State Institutions ◽  
Positive Law ◽  
Library Research ◽  
Political Approach ◽  
Critical Social

<p class="05Abstrak">This paper explains the actualization of Bustanul Arifin thought on the politics of Islamic law in Indonesia which aims to find out first, how the epistemology of Bustanul Arifin thoughts on Indonesian  Islamic law and scond, how the actualization of Indonesian Islamic law politics from Bustanul Arifin's perspective. This research is a library research or library research, which is carried out by collecting library data by using a critical social and political approach. The research concludes that first, the epistemology used by Bustanul Arifin is to position the Koran and al-Sunnah as the main sources in Islamic law and the development of legal values in the Koran and al-Sunnah using the Ijmak and Qiyas methods in Islamic law. Second, the actualization of Islamic law politics Bustanul Arifin's thought is to elaborate Islamic law with positive law through the transformation of Islamic law in state legislation and institutions, so that there is a union between Islamic law and State law within the framework of State institutions which he calls the institutionalization of Islamic law. Thus, the step that needs to be developed is to determine an institution that is in accordance with the principles and values of Islamic law in the Indonesian context.</p>

scholarly journals Legalitas Nikah Sirrî Ditinjau Dari Kaidah Fikih

2017 ◽  
Vol 9 (1) ◽  
Author(s):  
Fauzan Muhammadi
Keyword(s):  
Qualitative Analysis ◽  
Legal Status ◽  
Islamic Law ◽  
The State ◽  
Legal Issues ◽  
State Law ◽  
Legal Problems ◽  
The Family ◽  
The Future ◽  
The Government

<p>Unrecorded marriage becomes legal issues in Indonesia after the government has obliged that marriage must be registered with the Registrar of Marriage Officers or the Office of Religious Affairs. The propnents of this marriage maintain that such marriage is considered valid and legal under Islamic law, although it is not admitted by the state law. The objective of this research is to discuss the legal problems of unrecorded marriage in Islamic law in the Indonesian context and to understand the changes of legal status of unrecorded marriage from the perspective of Islamic legal maxim. The methodology used in this research is descriptive-qualitative analysis. This study shows that according to the perspective of Islamic legal maxim, unrecorded marriage is not restricted but it may fall under the category of forbidden. It is because there are many deviations in a marriage when it is not registered. Thus, this could harm the family lived in the future.</p><p><br />Pasca pemerintah mengeluarkan kebijakan untuk mewajibkan pencatatan nikah di hadapan Kantor Urusan Agama (KUA)/Petugas Pencatat Nikah (PPN), nikah Sirrî menjadi isu hukum yang hangat di Indonesia. Permasalahan ini muncul sebagai bagian dari pemahaman masyarakat bahwa pernikahan mereka dianggap valid dan sah secara agama (hukum Islam) namun ‘illegal’ secara hukum positif. Studi ini berusaha untuk mendiskusikan legalitas nikah sirrî dalam hukum islam di Indonesia sekaligus untuk memahami probabilitas perubahan hukum nikah sirrî melalui Kaidah Fikih. Penelitian ini menggunakan analisa deskriptif-kualitatif melalui studi literatur. Hasil dari studi ini adalah dimungkinkannya perubahan hukum nikah sirrî dari yang sebelumnya boleh menjadi haram. Ini berdasarkan fakta banyaknya penyimpangan wewenang pernikahan yang tidak tercatat yang merugikan kehidupan keluarga di masa yang akan datang. <br /><br /></p>

The new Uruguayan private international law: an open door to party autonomy in international contracts

2021 ◽  
Author(s):  
Eduardo Florio de León
Keyword(s):  
International Law ◽  
General Analysis ◽  
Private International Law ◽  
State Law ◽  
Open Door ◽  
Commercial Law ◽  
Party Autonomy ◽  
Applicable Law ◽  
General Law ◽  
Contractual Obligations

Abstract On 17 November 2020, the General Law on Private International Law (Law 19.920) was approved. This Law resulted from a process of hard work that took over two decades of discussions and debates.1 With this Law, Uruguay becomes one of a group of countries that have already carried out this kind of reform, particularly in regard to international commercial law and international contracts. The new Law 19.920 allows parties to choose the applicable law (State or non-State law) to regulate their international contractual obligations. This reform has a real disruptive imprint since Uruguay leaves behind its old and anachronistic regulation of the matter. This article provides a general analysis of the regulation of international commercial law under Law 19.920 (Articles 13 and 51) and the new regime applicable to international contracts, including the parties’ right to choose the applicable law (Article 45) (State or non-State law), which increases their autonomy in comparison with the previous regime.

On the Lives of Modern State Law

2022 ◽  
pp. 1-12
Author(s):  
Samera Esmeir
Keyword(s):  
Sexual Difference ◽  
Modern State ◽  
State Law ◽  
The World ◽  
Life Itself ◽  
History Of ◽  
British Colonial ◽  
Intimate Life ◽  
The Relationship ◽  
Key Questions

Modern state law is an expansive force that permeates life and politics. Law's histories—colonial, revolutionary, and postcolonial—tell of its constitutive centrality to the making of colonies and modern states. Its powers intertwine with life itself; they attempt to direct it, shape its most intimate spheres, decide on the constitutive line dividing public from private, and take over the space and time in which life unfolds. These powers settle in the present, eliminate past authorities, and dictate futures. Gendering and constitutive of sexual difference, law's powers endeavor to mold subjects and alter how they orient themselves to others and to the world. But these powers are neither coherent nor finite. They are ripe with contradictions and conflicting desires. They are also incapable of eliminating other authorities, paths, and horizons of living; these do not vanish but remain not only thinkable and articulable but also a resource for the living. Such are some of the overlapping and accumulative interventions of the two books under review: Sara Pursley's Familiar Futures and Judith Surkis's Sex, Law, and Sovereignty in French Algeria. What follows is an attempt to further develop these interventions by thinking with some of the books’ underlying arguments. Familiar Futures is a history of Iraq, beginning with the British colonial-mandate period and concluding with the 1958 Revolution and its immediate aftermath. Sex, Law, and Sovereignty is a history of “French Algeria” that covers a century of French colonization from 1830 to 1930. The books converge on key questions concerning how modern law and the modern state—colonial and postcolonial—articulated sexual difference and governed social and intimate life, including through the rise of personal-status law as a separate domain of law constitutive of the conjugal family. Both books are consequently also preoccupied with the relationship between sex, gender, and sovereignty. And both contain resources for living along paths not charted by the modern state and its juridical apparatus.

scholarly journals THE RIGHT TO ACQUIRE THE MOTHER'S NATIONALITY

2021 ◽  
Vol 03 (08) ◽  
pp. 225-240
Author(s):  
Hiba Thamer MAHMOOD
Keyword(s):  
International Law ◽  
Islamic Law ◽  
Comparative Approach ◽  
Private International Law ◽  
Human Right ◽  
Applicable Law ◽  
Mother And Child ◽  
The Right ◽  
International Conventions ◽  
Nationality Law

Acquiring the mother's nationality is a human right in general and the rights of the mother and child in particular stipulated in international conventions and the Iraqi constitution in force for the year 2005, in addition, the Iraqi Nationality Law stipulates the mother’s right to transmit nationality to her children, but according to conditions previously set by the Iraqi legislature, because it helps to reduce the issue of statelessness, is considered one of the important and contemporary jurisprudence topics, which stirred controversy among legal jurists between supporters and opponents, especially Islamic law jurists because the child is attributed to his father, and the state legislations differed in it, as well as in the legal implications of acquiring the mother’s nationality, including dual nationality, applicable law, inheritance issues and other Private international law matters. Therefore, the research dealt with the topic according to the comparative approach in two topics, the first study on the child's right to the nationality of his mother and was divided into two demands, the first requirement is what is the mother’s nationality, and the second requirement is about equality in the right to acquire a nationality, while the second topic examined the foundations of acquiring the mother’s nationality In the Iraqi Nationality Law, it was divided into two topics: The first requirement is the cases of acquiring the mother’s nationality in the Iraqi Nationality Law. The second requirement relates to how to acquire the mother’s nationality and its implications. Through the foregoing, where a number of results and proposals have been reached, we found that the transmit of nationality from the mother to the child born in the territory of a state would be beneficial in the event that the father's nationality had been rejected for political reasons, the issue of granting nationality by the mother to her children helped in the transfer of inheritance from the mother to the children and the acquisition of ownership, especially real estate, which states require the foreigner to have multiple conditions for approval of ownership, where countries have to unify their legislation regarding the mother's right to grant citizenship to her children based on the right of blood to limit the problems of international law, such as the issue of determining the applicable law, Actual nationality and other matters‎‎. Keywords: Mother's Nationality, Human Rights, Gender Equality, Acquisition of Nationality, Discrimination Against Women, International Conventions

scholarly journals GUGAT CERAI: MEMBEBASKAN PREMPUAN DARI PENDERITAAN

QAWWAM ◽  
2019 ◽  
Vol 13 (2) ◽  
pp. 101-122
Author(s):  
Nurmala Fahriyanti
Keyword(s):  
Life Cycle ◽  
Social Development ◽  
Islamic Law ◽  
Human Life ◽  
Daily Basis ◽  
State Law ◽  
Legal Systems ◽  
Religious Law ◽  
The Family

In Mataram West Nusa Tenggara, people is lives are regulated on daily basis by religious law, traditional (adat) law and state law. To understand these complex cultural and religious processes as they affect women in particular, I will examine the issue of divorce, also known as sue divorce. This tipe of divorce is socially-sanctioned. I will focus my examination in Mataram, an city of Lombok West Nusa Tenggara. In Lombok society marriage constitutes an important part of the life cycle.  Someone is not considered an adult until marriage.  Marriage is not only united two individual, but also united two families. However this dream canot be realized over the long term.  If family problems arise and  there are no suitable solutions, people may choose to divorce. For instance, if a wife unable to fulfill her obligations as a wife, her husband can divorce her by verbal means alone, according to any of the three existing legal systems (religious customary or state law). By contrast, if her husband unable to fulfill her obligations as a husband his wife can divorce him in only one way by making an application to Islamic Court to do divorce. In marriage available successful couple builds the family that sakinah, mawaddah and warahmah. But then available also that unsuccessful and end with separate or divorce. Separate constitutes a thing that often happens deep good human life divorce the initiating from the husband and also divorce the initiating from the wife, that its cause islamic law puts attention that adequately significant to that thing. It can appear if understand about islamic law, undoubtedly will find both of previous thing and its terminological  islamic law. There is no divorce without started by marriage. But upon that aim not attained, therefore divorce constitutes last way out that must been sailed through. Divorce can't be done but there is grounds which corrected by religion, adat and state law. In islamic law, that divorce grounds experience developing according to social development. Basically islamic law establishes that divorce reason which is wrangle which really culminates and jeopardize the so called soul safety with “ syiqaq ”. Intention is if worried a couple its happening dispute (dispute not only means wrangle among husband or wife can also distinctive principle and opinion) therefore delegate a someone of its husband family and a someone of wife family. And if both of wife and husband will goodness and they can make resolution and look for the solution, but if there are suitable solution wife or husband can do divorce.

scholarly journals MAKING THE CONTENTS OF LETTERS IN THE NOTARIS IN ISLAM'S LEGAL PERSPECTIVE

2017 ◽  
Vol 4 (2) ◽  
pp. 234
Author(s):  
Tubus Tubus
Keyword(s):  
Islamic Law ◽  
Field Research ◽  
Secondary Data ◽  
Point Of View ◽  
Primary Data ◽  
Legal Perspective ◽  
The Future ◽  
The Will ◽  
The Ideal ◽  
The Way

This paper aims to examine the making of the contents of wills examined from the point of view of Islamic law, in practice the reality in the lives of many people who have not heed the word basmallah as an incantation in the contents of the will for the followers of Islam. In this study using sociological juridical method, where the primary data obtained directly from field research, while secondary data obtained from the literature. The results obtained that the way of making the contents of the will and the absence of public legal awareness is optimal for the making of the contents of wills in accordance with Islamic law. And there are still weaknesses in the Making and Implementation of the contents of the current will, when the testament is oral, namely: The absence of the sacred intention or the noble intention of the collector must not necessarily occur; unsecured rights of the recipient, in the event of any problems of the future heirs of the pewasiat; there is a difficulty of proof in the absence of witnesses, when the will is brought before the Court. Law renewal in the making of the contents of the will in the presence of a notary in the perspective of Islamic law are: the reconstruction of its value, the Ideal Formation of the Will, the testament is done in writing witnessed by two witnesses and before the Notary. Ideal Construction Format of Testament Creation. The testament is written in the presence of two witnesses or in the form of a Deed or a Notary Deed. At the head of the will or the Deed or Notarial deed is included a sentence “Basmallah”.

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