scholarly journals BATAS-BATAS KONSTITUSIONAL HUKUM ISLAM DALAM HUKUM NASIONAL

2020 ◽  
Vol 8 (1) ◽  
pp. 12-22
Author(s):  
Muhamadun Muhamadun

Indonesia is known as a country with a mixed legal system. The legal system currently in effect is dominated by three major legal systems, namely the Western legal system, the customary law system and the Islamic legal system. The basic rules that serve as guidelines and guidelines for citizens are extracted from the value system. This value system is expressed in the form of "collective agreement". This form of collective agreement is translated into the five basic principles of having a state, namely Pancasila. Within these limitations, there are gaps in applying Islamic teachings, which are limited to their substantive value. This study wants to explain why Islamic law cannot be used as the basis of the constitution and the extent to which the limitations are allowed in applying Islamic teachings as the teachings of the majority of Indonesian citizens. In responding to the issues surrounding the application of Islamic law in Indonesia, the discussion will focus on the concept of the constitution, sources of national law, and the form of the Muslim community's strategy in an effort to apply Islamic law within the national legal framework. 

2017 ◽  
Vol 14 (2) ◽  
Author(s):  
Abdurrahman Konoras

Islamic Law and Customary Law is part of the national legal system in addition to some other legal systems that also give meaning and role. But as a system and legal system, Islamic Law and Customary Law show a clear separation.Thus, both are standing alone and independent. The continuing development of both shows which of them can continue to exist and which of them is increasingly left behind or even reduced in terms of role.


2019 ◽  
Vol 11 (2) ◽  
pp. 231-248
Author(s):  
Muhmmad Ahsan

Islamic law is the legal system based of Islamic teachings. To understand the meaning of Islamic law, necessary to understand the terms associated with Islamic law: the sharia, fiqh, usul fiqh, and Islamic law itself. The Sources of Islamic law are the Qur'an and Sunnah which iquipped with the ratio used to perform ijtihad. In general, there are two scopes of Islamic law, i.e. ibadah (worship) and muamalah. The worship regulates human relationships with his God, while the muamalah regulates human relationships with one another. Islamic law has different characteristics from other legal systems. Among of these characteristics is a perfect, elastic, universal, dynamic, systematic, and ta'aqquli- ta'abbudi. Islamic law has some basic principles too, such as not to burden, defined in stages, and consider the welfare and overall justice.


2021 ◽  
Vol 8 (1) ◽  
pp. 15-35
Author(s):  
Egzonis Hajdari

Fraud is a specific type of defect in consent that manifests the purpose of one of the parties to establish a contractual relationship through deceptive actions. As such, fraud is an unlawful and unethical action that emerged beginning with some of the earliest agreements in human society. Moreover, the practical treatment of fraud is likely to have occurred since the genesis of its appearance. More appropriate and advanced treatment of fraud can be seen after the implementation of the first legal systems, which focused on contractual relationships. Fraud in contractual relationships will be examined starting with Babylonian, Ancient Greek, Roman, and Islamic law and will continue with a focus on Albanian customary law and modern laws implemented in Kosovo. Furthermore, in this article, we will show how the treatment of fraud has evolved in the legal framework in Kosovo.


Author(s):  
Asasriwarnia Asasriwarnia ◽  
M. Jandra

This paper will discuss the comparison of Islamic legal system, civil law, and common law. Knowing the comparison is important. This method is very appropriate considering that the legal system has its own character and scope. The questions of this study are: (1) how is the comparison concept of legal systems; (2) how was the comparison of legal systems’ source; (3) how was the comparison of its history and (4) the comparative material of law content. The purpose of this study is to reveal the concepts of legal systems comparison; the comparison of its source, history and the material comparison of law system’s content. This study use normative legal method. The results of this study are: (1) the concept of legal system comparison is defined by the similarities and difference on the collection of law elements. The needs of legal systems comparison are grouped into scientific needs and practical needs; (2) the comparison of legal system source is that the source of Islamic legal system, civil law, and common law has similarity in the effort of legal discovery. (3) The comparison of the history of legal system have similarities in growth and development influenced by the traditions of human life from one generation to the next generation in wide definition. (4) Comparison of the content of law system have similarities that all aspects of human life is generally regulated by law. In this context Islamic law is comprehensively regulate various aspects of human life including the relationship with the universe, the Lord and the hereafter.


2021 ◽  
Vol 22 (2) ◽  
pp. 128
Author(s):  
Muhammad Habibi

AbstractThis article will explain the legality of Islamic law in the justice system in Indonesia. The importance of this topic to be discussed is because judicial institutions in Indonesia are formed as a result of their multiple historical developments. It was said that because until now in the Unitary State of the Republic of Indonesia, several legal systems had various features, structures, and characteristics, namely; the Islamic legal system, customary law system, and Western legal system. The problem that he explains is related to the legality of Islamic law in the judicial system in Indonesia. To answer the questions above, this article uses a qualitative research method with a library research model as a data collection method. The search results found that there are several regulations that have been legalized so that they become positive laws in Indonesia, namely: 1) the 1945 Constitution; 2) Law Number 17 of 1999 concerning the Implementation of Hajj; 3) Law Number 36 of 1999 concerning Management of Zakat; 4) Law Number 41 of 2004 concerning Waqf; 5) Law Number 44 of 1999 concerning the Implementation of the Specialties of the Aceh Region; 6) Law No. 3 of 2006 concerning Amendments to Law No. 7 of 1989 concerning Religious Courts; 7) Law Number 1 of 1974 concerning Marriage.Abstrak: Artikel ini menjelaskan tentang legalitas hukum Islam dalam sistem peradilan di Indonesia. Pentingnya topik ini untuk dibahas karena, lembaga peradilan di Indonesia terbentuk akibat dari perkembangan sejarahnya yang bersifat majemuk. Dikatakan demikian, karena sampai saat ini di Negara Kesatuan Republik Indonesia berlaku beberapa sistem hukum yang memiliki corak, susunan dan karakteristik yang beragam, yaitu; sistem hukum Islam, sistem hukum Adat, dan sistem hukum Barat. Permasalahan yang jelaskan berkaitan dengan legalitas hukum Islam dalam sistem peradilan di Indonesia. Untuk menjawab pertanyaan di atas, artikel ini menggunakan metode penelitian kualitatif dengan model library reseach sebagai metode pengumpulan data. Hasil penelusuran ditemukan bahwa ada beberapa aturan yang telah dilegalisir sehingga menjadi hukum positif di Indonesia, yaitu: 1) Undang-Undang Dasar tahun 1945; 2) Undang-Undang Nomor 17 tahun 1999 tentang Penyelenggaraan Ibadah Haji; 3) Undang-Undang Nomor 36 tahun 1999 tentang Pengelolaan Zakat; 4) Undang-Undang Nomor 41 Tahun 2004 tentang Wakaf; 5) Undang-Undang Nomor 44 tahun 1999 tentang Penyelenggaraan Keistimewaan Daerah Aceh; 6) Undang-Undang Nomor03 Tahun 2006 tentang Perubahan atas Undang-Undang Nomor 7 tahun 1989 tentang Peradilan Agama; 7) Undang-Undang Nomor 01 tahun 1974 tentang Perkawinan.


Author(s):  
Sayyid Mohammad Yunus Gilani ◽  
K. M. Zakir Hossain Shalim

AbstractForensic evidence is an evolving science in the field of criminal investigation and prosecutions. It has been widely used in the administration of justice in the courts and the Western legal system, particularly in common law. To accommodate this new method of evidence in Islamic law, this article firstly, conceptualizes forensic evidence in Islamic law.  Secondly, explores legal frameworks for its adoption in Islamic law. Keywords: Forensic Evidence, legal framework, Criminal Investigation, Sharīʿah.AbstrakBukti forensik adalah sains yang sentiasa berkembang dalam bidang siasatan jenayah dan pendakwaan. Ia telah digunakan secara meluas dalam pentadbiran keadilan di mahkamah dan sistem undang-undang Barat, terutamanya dalam undang-undang common (common law). Untuk menampung kaedah pembuktian baru ini dalam undang-undang Islam, artikel ini, pertamanya, konseptualisasikan bukti forensik dalam undang-undang Islam. Kedua, ia menerokai rangka kerja undang-undang untuk penerimaannya dalam undang-undang Islam.Kata Kunci: Bukti Forensik, Rangka Kerja Guaman, Siasatan Jenayah, Sharīʿah.


2018 ◽  
Vol 25 (1) ◽  
pp. 98
Author(s):  
Farihan Aulia ◽  
Sholahuddin Al-Fatih

The legal system or commonly referred to as the legal tradition, has a wealth of scientific treasures that can be examined in more depth through a holistic and comprehensive comparative process. Exactly, the comparison of the legal system must accommodate at least three legal systems that are widely used by countries in the world today. The three legal systems are the Continental European legal system, Anglo American and Islamic Law. The comparative study of the three types of legal systems found that the history of the Continental European legal system is divided into 6 phases, while Anglo American legal history began in the feudalistic era of England until it developed into America and continues to be studied until now. Meanwhile, the history of Islamic law is divided into 5 phases, starting from the Phase of the Prophet Muhammad to the Resurrection Phase (19th century until nowadays). In addition to history, the authors find that the Continental European legal system has the characteristic of anti-formalism thinking, while the Anglo American legal thinking characteristic tends to be formalism and is based on a relatively primitive mindset. While the thinking character of Islamic Law is much influenced by the thought of the fuqoha (fiqh experts) in determining the law to solve a problem, so relatively dynamic and moderate.


Author(s):  
Виктор Момотов ◽  
Viktor Momotov

In Russian legal science there is a wide-spread belief according to which legal precedents are not sources of Russian law, because Russian legal system forms a part of continental legal system. Various researchers believe that judicial practice does not contain legal norms and consequently case law is not a component of Russian legal framework. The present paper contains the theoretical and historical legal research of the place and role of case law in Anglo-American and continental legal systems. It’s shown that for long historical periods legal precedents were recognized as sources of law not only in Great Britain and the USA, but also in major European legal systems, while at the present time differentiation of legal systems with respect to their attitude towards case law is becoming outdated. Furthermore, based on the research of various legal scholars’ traditions (principally of the positivistic and the sociological traditions) this article demonstrates that negative attitude towards case law is largely determined by the formalistic and obsolete understanding of the term ”source of law”, coming from the misinterpretation of positivism. The paper also presents the current development trends of case law as a source of law. In particular the article outlines the proactive interpretations of new statutory provisions issued by the Plenum of the Supreme Court of the Russian Federation, the global uniqueness of such interpretations and the influence of scientific–technological progress and public needs on the highest court’s interpretations. The mutual interference of case law and statutory law is shown.


2020 ◽  
Vol 7 (1) ◽  
pp. 94-106
Author(s):  
Muhammad Lutfi Syarifuddin

In practice, in Indonesia children adoption has become a public phenomenon in society and is part of the family law system because it involves individual interests in the family. In the case of adoption, parents need to pay attention to the best interests of the child and be implemented based on local customs, applicable laws and regulations, this has been regulated in Article 39 of the Child Protection Act. Adoption of children is divided into two types, namely adoption of children between Indonesian citizens (domestic adoption) and adoption of Indonesian citizens by foreign citizens (adoption between countries). Appointment of children must be done by legal process, through the establishment or decision of the Court. The research method is normative juridical research. Based on the research results, the inheritance Indonesian citizens rights in the Indonesian inheritance law case are implemented based on Islamic law, adopted children do not inherit from adoptive parents and remain the biological parents. Under customary law, the inheritance of adopted children depends on customary law in the area. By law adoption children do not inherit from adoptive parents, and adopted children remain the heirs of their biological parents.


2019 ◽  
pp. 47-73
Author(s):  
Mahendra Pal Singh ◽  
Niraj Kumar

There are systems of law within the Indian jurisdiction that either do not rely on the state legal system at all or rely on it only partially. These include systems of religious personal law, tribal customary law, and other similar indigenous mechanisms of administering justice and settling disputes. The formal definition of law in India, along with constitutional provisions which guarantee religious and cultural freedom and allow for modes of self-governance, accommodates different legal systems with indigenous or traditional roots. Moreover, local and village bodies such as traditional or caste councils operate in independent India as well, further questioning the rhetoric of uniform law in India.


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