scholarly journals Sejarah Peradilan Islam di Nusantara Masa Kesultanan-Kesultanan Islam Pra-Kolonial

2020 ◽  
Vol 3 (2) ◽  
pp. 67-88
Author(s):  
Ismanto Ismanto ◽  
Suparman Suparman
Keyword(s):  
Criminal Justice ◽  
Social Science ◽  
Criminal Law ◽  
Historical Perspective ◽  
Islamic Law ◽  
Civil Law ◽  
Historical Reality ◽  
Positive Law ◽  
Political Interference ◽  
The Law

What about the development of Islamic criminal law in Nusantara? This question should have been raised for the position of Islamic civil law is widely related to positive law, both as an influencing element or as a modification of religious norms formulated in civil law, even stated in the substantial legal scope of Law No.7 1989 dealing with religious justice. While Islamic law in the field of criminal justice - to mention another term of the Islamic criminal law - has not attracted much attention like the field of Islamic civil law. Apart from that, the available academic studies are often political in nature and broaden the distance between the understanding of positive criminal law and Islamic law in the field of criminal law. From a macro-historical perspective, the plurality of laws is inevitably a historical reality. The Positivism School believes that: the development of law is formalized for the sake of the law only. These circles strongly reject political interference in law, law by law, legal science in the form of value-free science while political science especially when associated with social science can be in the form of value-loaded science. According to this group's view, the procedure of finding, forming, and implementing law are in the hand of legal apparatus, the law can only be found through the judge's decision. The legal formation process is limited to legitimator products passed by the law. Law is a command of the law giver.

PELUANG HUKUM PIDANA ISLAM DALAM PEMBENTUKAN HUKUM PIDANA NASIONAL DI INDONESIA

2018 ◽  
Vol 1 (4) ◽  
Author(s):  
Fitri Wahyuni
Keyword(s):  
Criminal Law ◽  
Legal System ◽  
Islamic Law ◽  
Civil Law ◽  
Legal Environment ◽  
Positive Law ◽  
National Legal System ◽  
The Future ◽  
Civil Laws ◽  
Islamic Civilization

Islamic law is prescribed by Allah SWT with the aim of realizing and realizing and protecting the benefit of humanity, both for the benefit of individuals, society or both. But Islamic criminal law is not understood correctly and deeply by society, even by the Islamic community itself. in the meantime, the position of Islamic law in the field of civilization has been broadly established in positive law, whether it is an element of influence, or as a modification of religious norms, which are formulated in civil laws and regulations, or which are covered by a substantial legal environment. Law No. 7 of 1989 concerning religious justice. Whereas Islamic criminal law has not yet gotten a place like the positive law of Islamic civilization. Whereas Islamic criminal law has the same opportunities as civil law in the national legal system based on three factors, namely philosophy, sociology and juridical. In addition to the three factors above, there are opportunities described in this study so that Islamic criminal law has the opportunity to establish national criminal law in the future  

DINAMIKA YURISPRUDENSI MAHKAMAH AGUNG DALAM BIDANG PERDATA ISLAM

2011 ◽  
Vol 3 (2) ◽  
Author(s):  
Hasbi Hasan
Keyword(s):  
Human Rights ◽  
Supreme Court ◽  
Islamic Law ◽  
Civil Law ◽  
Court Ruling ◽  
Background Factor ◽  
Supreme Court Ruling ◽  
Positive Law ◽  
The Supreme Court ◽  
The Law

<p><strong>This article </strong>discussed the dynamics of the Supreme Court jurisprudence in the legal setting, the problems that want revealed is how the dynamics of the Supreme Court ruling in Islamic law and what the aspects of philosophical and sociological background is. The results obtained indicates that the decisions of the Supreme Court in the civil law of islam have experienced a shift from the traditional framework of islamic law (conventional fiqh)</p> <p>into the framework of positive law (legislation fiqh). The shift was marked by a strong legislative paradigm both at the level of the law application (rechtshandhaving) and the discovery of the law (rechtsvinding). The issue of of justice, gender equality, and human rights is assumed as the background factor of the dynamics thought of Islamic law in the Supreme Court.</p> <p> </p> <p>Artikel ini mendiskusikan Dinamika Yurisprudensi Mahkamah Agung Ri dalam menetapkan hukum, permasalahan yang ingin diungkap adalah  bagaimana dinamika putusan Mahkamah Agung dalam bidang hukum islam dan apakah aspek-aspek filosofis dan sosiologis yang melatar belakangi terjadinya hal tersebut. hasil yang diperoleh menunjukkan bahwa putusan-putusan Mahkamah Agung dalam hukum perdata islam telah mengalami pergeseran dari kerangka hukum islam tradisional (fiqh konvensional) ke  kerangka  hukum  positif  (fiqh perundang-undangan).  Pergeseran  tersebut  ditandai oleh kuatnya paradigma legisme baik pada level penerapan hukum (rechtshandhaving) maupun penemuan hukum (rechtsvinding). Isu keadilan, kesetaraan gender, dan hAM diasumsikan sebagai faktor yang melatar belakangi dinamika pemikiran hukum Islam di Mahkamah Agung.</p> <p> </p>

الاحتجاج بالاستصحاب وأثره في اختلاف الفقهاء

Mahakim ◽  
2017 ◽  
Vol 1 (1) ◽  
Author(s):  
Abdul Wahab Ahmad Khalil
Keyword(s):  
Criminal Law ◽  
Islamic Law ◽  
Civil Law ◽  
Differences Of Opinion ◽  
Personal Status ◽  
The Law ◽  
The Difference

Islam is a complete and comprehensive religion. The comprehension of Islam does not lie in the completeness of the verses of the Qur’an and the words of Hadith, because in fact the verses of the Qur’an and the words of Hadith are limited, meanwhile the human problems continue to grow. So, the role of ijtihad as a means of reform of Islamic law is vital. One of the methods of ijtihad is Istishâb. This study describes the meaning of Istishâb, scholars’ opinion about the value of its strength as a source of law, as well as the influence of scholars’ opinion about the value of his resistance to differences of opinion in Islamic law. This study concludes that the majority of scholars of the Maliki, Shafii, and Hambali sect assert that Istishâb is a hujjah to defend (daf’i) and establish something (itsbat). The late ulamas of the Hanafi sect assert that Istishâb is a hujjah in defense of something, while the majority of the Hanafi scholars and some scholars of the Shafi’i sect state that Istishâb is not a hujjah at all. The difference of the ulama’s view of the use of Istishâb in ijtihad has led to differences in their views on Islamic law, as in the case of the law of the disappeared’s inheritance. In addition, the existence of Istishâb becomes a solution to find out contemporary Islamic law, Especially In the field of criminal law, personal status and civil law. Keywords: Istishâb, argumentative, Islamic Law

V. II principio dell’irretroattività della legge nell’esperienza giuridica romana dell’età repubblicana

2021 ◽  
Vol 138 (1) ◽  
pp. 245-273
Author(s):  
Umberto Laffi
Keyword(s):  
Criminal Law ◽  
Civil Law ◽  
First Century ◽  
The Political ◽  
Political Struggle ◽  
Dynamic Relationship ◽  
Depth Analysis ◽  
The Law ◽  
Criminal Legislation ◽  
Epigraphic Evidence

Abstract The Principle of the Irretroactivity of the Law in the Roman Legal Experience in the Republican Age. Through an in-depth analysis of literary and legal sources (primarily Cicero) and of epigraphic evidence, the author demonstrates that the principle of the law’s non-retroactivity was known to, and applied by, the Romans since the Republican age. The political struggle favored on several occasions the violation of this principle by imposing an extraordinary criminal legislation, aimed at sanctioning past behaviors of adversaries. But, although with undeniable limits of effectiveness in the dynamic relationship with the retroactivity, the author acknowledges that at the end of the first century BC non-retroactivity appeared as the dominant principle, consolidated both in the field of the civil law as well as substantive criminal law.

An Undergraduate Course in Psychology and the Law

1987 ◽  
Vol 14 (4) ◽  
pp. 238-239 ◽  
Author(s):  
Edith Greene ◽  
Edith Greene
Keyword(s):  
Decision Making ◽  
Dispute Resolution ◽  
Criminal Law ◽  
Alternative Dispute Resolution ◽  
Civil Law ◽  
Plea Bargaining ◽  
Jury Decision Making ◽  
Teaching Aids ◽  
The Law ◽  
Jury Decision

This article describes a course that bridged the disciplines of clinical and experimental psychology and the law. The course included discussion of issues in criminal law, such as the psychology of policing, the reliability of confessions, victimization, plea bargaining, jury decision making, and alternative dispute resolution, and in civil law, such as civil commitment, predicting dangerousness, and child custody. Course objectives, requirements, and teaching aids are outlined, and some thoughts on integrating these diverse topics are included.

scholarly journals Analysis of Wakaf and Maqashid Syari'ah Law on the Development of Wakaf Property in Lhokseumawe City

2021 ◽  
Vol 3 (1) ◽  
pp. 224-231
Author(s):  
Yasir Nasution ◽  
Alyasa’ Abubakar ◽  
Kafrawi
Keyword(s):  
Data Collection ◽  
Islamic Law ◽  
Legal Research ◽  
Government Regulations ◽  
Theoretical Concepts ◽  
Positive Law ◽  
Islamic Jurisprudence ◽  
The Law ◽  
Research Show

The development of waqf assets in the form of adding the function of waqf is a new phenomenon in the problems of Islamic law jurisprudence even in positive law in Indonesia. In national law (positive), Indonesia has regulated this issue with the existence of laws and government regulations regarding waqf both movable and immovable waqf assets, even in its development every property in waqf must have an Deed and / or certificate. Whereas in Islamic jurisprudence, the development of waqf assets in the form of additional functions is one of the problems that can be said to be new, it needs legal conclusions and even has to be seen from various theoretical concepts such as maqashidu sharia. Therefore this research will examine the issue of developing waqf assets based on the Waqf Law and maqashid syari'ah. This research is an empirical legal research using a sociological legal approach, with data collection through documentation and interviews. The results of the research show that the development of waqf assets is permitted according to the law, but with the stipulated conditions, besides that the development of waqf assets is also permissible in Islamic jurisprudence as long as it is solely for reasons in accordance with the concept of maqasidu syari'ah and the point is to seek maslahat.  

scholarly journals Legality Letter of Statement of Khilaf in Indonesia Criminal Justice System

FIAT JUSTISIA ◽  
2018 ◽  
Vol 12 (2) ◽  
pp. 128
Author(s):  
Rugun Romaida Hutabarat
Keyword(s):  
Criminal Justice ◽  
Criminal Justice System ◽  
Criminal Law ◽  
Justice System ◽  
Primary Source ◽  
Secondary Data ◽  
Criminal Offense ◽  
Criminal Procedure Law ◽  
The Law ◽  
Criminal Matters

In criminal law, a person charged with a criminal offense may be punished if it meets two matters, namely his act is unlawful, and the perpetrator of a crime may be liable for the indicated action (the offender's error) or the act may be dismissed to the perpetrator, and there is no excuse. The reasons may result in the death or the removal of the implied penalty. But it becomes a matter of how if the Letter of Statement Khilaf is the answer to solve the legal problems. The person who refuses or does not do what has been stated in the letters is often called "wanprestasi" because the statement is categorized as an agreement. The statement includes an agreement which is the domain of civil law or criminal law, so its application in the judicial system can be determined. This should be reviewed in the application of the law, are there any rules governing wrong statements in the criminal justice system. By using a declaration of khilaf as a way out of criminal matters, then the statement should be known in juridical rules. This study uses normative juridical methods, by conceptualizing the law as a norm rule which is a benchmark of human behavior, with emphasis on secondary data sources collected from the primary source of the legislation. The result of this research is that the statement of khilaf has legality, it is based on Jurisprudence No. 3901 K / Pdt / 1985 jo Article 189 Paragraph (1) of Indonesian criminal procedure law. However, this oversight letter needs to be verified in front of the court to be valid evidence, but this letter of error is not a deletion of a criminal offense, because the culpability of the defendant has justified the crime he committed. Such recognition, cannot make it free from the crime that has been committed.Keywords: Legality, Letter of Statement, Criminal Justice System

Reflections on Prosecutorial Independence and Impartiality in South Africa: The Recent Jurisprudence of the Courts

2021 ◽  
Vol 35 (2) ◽  
Author(s):  
Ntombizozuko Dyani-Mhango
Keyword(s):  
South Africa ◽  
Criminal Justice ◽  
Judicial Independence ◽  
The Past ◽  
Its Analysis ◽  
Political Interference ◽  
Effective Administration ◽  
Recent Developments ◽  
The Law ◽  
Constitutional Jurisprudence

Prosecutorial independence and prosecutorial impartiality are important for the effective administration of criminal justice in South Africa. These two concepts are interconnected and yet they are distinct, and distinguishable from judicial independence and judicial impartiality. In the past decade or so, controversy has surrounded and allegations have been made of political interference with prosecutorial independence and impartiality in South Africa. This article reflects on recent developments in the exercise of prosecutorial independence and impartiality in South Africa. The interest was sparked by recent constitutional jurisprudence in developing the law on prosecutorial independence and impartiality. In its analysis of the courts’ jurisprudence on prosecutorial independence, the article further demonstrates that this jurisprudence has had an influence in determining the independence of other institutions responsible for the administration of criminal justice.

12. Theft

2020 ◽  
pp. 356-406
Author(s):  
David Ormerod ◽  
Karl Laird
Keyword(s):  
Supreme Court ◽  
Criminal Law ◽  
Civil Law ◽  
The Supreme Court ◽  
The Law ◽  
Definition Of ◽  
Court Of Appeal

This chapter examines the law governing theft. It considers the extent to which the criminal law of theft conflicts with civil law concepts of property; whether it is possible to steal property that belongs to oneself; the types of property that may be stolen; and the extent to which it is possible to provide a definition of ‘dishonesty’. The test for dishonesty has been fundamentally altered by the Supreme Court and the Court of Appeal, developments which are analysed in this chapter.

14. Discrimination and Health and Safety

2019 ◽  
pp. 396-418
Author(s):  
Lucy Jones
Keyword(s):  
Criminal Law ◽  
Civil Law ◽  
Health And Safety ◽  
Employment Law ◽  
Direct Discrimination ◽  
Indirect Discrimination ◽  
Positive Action ◽  
Positive Discrimination ◽  
The Law ◽  
The Difference

This chapter considers the employment law aspects of discrimination and health and safety. It discusses the meaning of the protected characteristics which were brought together under the Equality Act 2010 and considers prohibited conduct under the Act. It explains the difference between direct and indirect discrimination and when direct discrimination can be justified. The chapter discusses the difference between positive action and positive discrimination and the interaction between protected characteristics and prohibited conduct. It also explains the law relating to harassment and victimization. The chapter concludes with a discussion of the law covering health and safety in the workplace, looking at both criminal law and civil law.

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