scholarly journals Performance Of Islamic Law In Indonesia In The Fields Of Civil, Private Law, Public Law And Ethics

2021 ◽  
Vol 21 (1) ◽  
pp. 45
Author(s):  
Zarul Arifin
Keyword(s):  
Religious Experience ◽  
Constitutional Law ◽  
Islamic Law ◽  
Public Law ◽  
The State ◽  
Private Law ◽  
Positive Law ◽  
Law And Ethics ◽  
The Relationship

Abstrak.Wacana tentang hubungan Islam dan negara masih menjadi pembahasan yang menarik. Masalahnya, Indonesia negara yang mayoritas warganya beragama Islam tidak menjadikan hukum Islam sebagai dasar konstitusinya, namun Indonesia juga bukan negara sekuler. Indonesia dapat dikatakan sebagai negara yang moderat, dimana hukum ketatanegaraan tidak bertentangan dengan hukum Islam Hukum Islam di tengah masyarakat Indonesia mempunyai kedudukan yang lebih penting dari pada dua ciri hukum lainnya yaitu hukum positif dan hukum hukum, tetapi tentunya tidak secara normatif atau ideologis. rasa ordogmatis, lebih secara tekstual tetapi secara kultural. Islam sebagai agama yang dianut oleh mayoritas penduduk Indonesia tentunya sangat mempengaruhi gaya hidup bangsa Indonesia. Dalam pandangan masyarakat Indonesia, hukum Islam merupakan bagian penting dari ajaran agama dan Islam merupakan ruang utama ekspresi pengalaman beragama dan menentukan keberlangsungan serta identitas sejarahnya.Kata kunci. Kinerja, Hukum Islam, Indonesia.Abstract. The discourse on the relationship between Islam and the state is still being discussedwhich are interesting. The problem is that Indonesia is a country with a majority of its citizensbeing Muslim does not make Islamic law the basis of its constitution.However, Indonesia is also not a secular country. Indonesia cansaid to be a moderate country, where the constitutional law does not contradict Islamic lawIslamic law in the midst of Indonesian society has a positionwhich is more important than the two other legal features, positive law and lawadat, but certainly not in a normative or ideological sense ordogmatic, more so textually but culturally. Islam, as the religion embraced by the majority of Indonesia's population, certainly greatly influences the lifestyle of the Indonesian nation. In the view of Indonesian society, Islamic law is an important part of religious teachings and Islam is a space for the main expression of religious experience and determines its continuity and historical identity.Keyword. Performance,  Islamic Law, Indonesia.

scholarly journals UPAYA PERDAMAIAN UNTUK PENYELESAIAN PERKARA PIDANA Reaktualisasi Kearifan Lokal dalam Hukum pidana Indonesia

2021 ◽  
Vol 10 (2) ◽  
pp. 171
Author(s):  
Rusjdi Ali Muhammad
Keyword(s):  
Islamic Law ◽  
Public Law ◽  
Customary Law ◽  
Private Law ◽  
Criminal Cases ◽  
Peace Agreement ◽  
Positive Law ◽  
Peace Settlement ◽  
Rape Case ◽  
Settlement Of Disputes

One characteristic of Islamic law is not explicitly distinguished between the domain of public law with private law. Sanctions for deliberate murder is Qisas for example, where the victim's heirs have more permanent role to choose the death penalty imposed (Qisas) or give forgive me by asking Diyat (compensation). Amount number of Diyat is also can be negotiated through a kind of mediation method called Shulh (peace). So here the element of private law is more dominant. Even Diyat can be released at all heirs of the victim initiatives. In this last case the State may punish the offender with ta'zir, so here its public law elements recur. This idea is not unknown in Indonesian positive law provisions. The victim had usually been involved as a witness in his father murder case or rape case against her. In customary law in Aceh there are several institutions in efforts to realize peace for criminal cases, namely in the form of adat meulangga, dhiet, sayam or takanai (South Aceh). Principles of peace settlement of disputes may also be considered not only for civil cases but also in criminal cases. Thus the doctrine that says the criminal nature of a case will not remove although there is peace agreement, would need to be revisited. However it is important also to restrict that not every criminal case could be solved by peace agreement. Criminal cases like premeditated murder and rape should be excluded from the possibility of peace agreement. 

Part VI Rights—Structure and Scope, Ch.38 The Constitutionalisation of Indian Private Law

2016 ◽  
Author(s):  
Balganesh Shyamkrishna
Keyword(s):  
Constitutional Law ◽  
Tort Law ◽  
Contract Law ◽  
Public Law ◽  
Fundamental Rights ◽  
Property Law ◽  
Private Law ◽  
The Public ◽  
The Past ◽  
The Relationship

This chapter examines the relationship between private law and constitutional law in India, with particular emphasis on tort law. It considers the Indian Supreme Court’s expansion of its fundamental rights jurisprudence over the past thirty years, as well as its effort to transcend the public law/private law divide. It also explains how the Court’s fusion of constitutional law and tort law has affected the independent efficacy, normativity, and analytical basis of equivalent private law claims in India. It argues that the Court’s efforts have only undermined the overall legitimacy of private law mechanisms in the country, and that this phenomenon is evident not only with respect to tort law, but also to a lesser degree in other areas of private law, such as contract law and property law.

National Report for Mexico

2013 ◽  
Author(s):  
Carlos Sánchez-Mejorada y Velasco
Keyword(s):  
Constitutional Law ◽  
Common Law ◽  
Civil Law ◽  
Administrative Law ◽  
Public Law ◽  
The State ◽  
Profit Motive ◽  
Private Law ◽  
Commercial Law ◽  
The Status

In civil law systems, such as Mexico, a distinction is made between civil law (‘derecho civil’) and commercial law (‘derecho mercantil’), which can be confusing to persons unfamiliar with the system. As is the case in common law jurisdictions, law in civil law systems can be divided into public law and private law, the latter being those laws that govern relationships between and among private parties, regarding which the state functions more as a ‘supervisor’ or an ‘umpire’ than as an authority. Public law would include constitutional law, administrative law, etc. In turn, private law comprises civil law, ie those rules governing the status, rights, and obligations of the residents of the state as persons, their property, their estates, their obligations, and their contracts; and commercial law, those rules governing all acts of the residents of the state that have a profit motive, which in Mexico—as well as in other jurisdictions—are called ‘acts of commerce’ (‘actos de comercio’).

EFEKTIVITAS PELAKSANAAN PERATURAN PENCATATAN PERCERAIAN DI KANTOR URUSAN AGAMA

2020 ◽  
Vol 6 (1) ◽  
pp. 1-15
Author(s):  
Juriyana Megawati Hasibuan Dan Fatahuddin Aziz Siregar
Keyword(s):  
Islamic Law ◽  
The State ◽  
Judicial Process ◽  
Positive Law ◽  
State Administration ◽  
Shipping Costs ◽  
The Status ◽  
Happy Marriage ◽  
Religious Courts ◽  
Laws And Regulations

Marriage is a sacred bond which is ideally only held once in a lifetime. Both Islamic law and positive law require an eternal happy marriage. To support this the Koran proclaims marriage as mitsaqan galiza. The marriage is then registered in the state administration. In line with this, the laws and regulations are formulated in such a way as to make divorce more difficult. However, when there are acceptable reasons and due to coercive conditions, divorce can be done through a judicial process. The divorce must then be registered by taking certain procedures. The court delivered the notice and sent a copy of the decision to the marriage registrar to file the divorce properly. The implementation of this divorce record was not effective. The separation of the Religious Courts Institution from the Ministry of Religion has become a factor that causes the registration task not to be carried out. The loss of the obligation to submit a copy of the decision on the judge's ruling caused the recording to be constrained. The unavailability of shipping costs also contributed to the failure to register divorce. Even though there is a threat to the Registrar who neglects to deliver a copy of the verdict, unclear sanctions make this ineffective. As a result of the lack of recording of divorce, the status of husband and wife becomes unclear and opens opportunities for abuse of that status.

Private and Public Law

2020 ◽  
pp. 574-592
Author(s):  
Thomas W. Merrill
Keyword(s):  
Law And Economics ◽  
Public Law ◽  
Private Law ◽  
General Criterion ◽  
The Public ◽  
Private Ordering ◽  
Public Rights ◽  
Private And Public ◽  
The Relationship ◽  
Derivatives Of

This chapter explores the relationship between private and public law. In civil law countries, the public-private distinction serves as an organizing principle of the entire legal system. In common law jurisdictions, the distinction is at best an implicit design principle and is used primarily as an informal device for categorizing different fields of law. Even if not explicitly recognized as an organizing principle, however, it is plausible that private and public law perform distinct functions. Private law supplies the tools that make private ordering possible—the discretionary decisions that individuals make in structuring their lives. Public law is concerned with providing public goods—broadly defined—that cannot be adequately supplied by private ordering. In the twentieth and twenty-first centuries, various schools of thought derived from utilitarianism have assimilated both private and public rights to the same general criterion of aggregate welfare analysis. This has left judges with no clear conception of the distinction between private and public law. Another problematic feature of modern legal thought is a curious inversion in which scholars who focus on fields of private law have turned increasingly to law and economics, one of the derivatives of utilitarianism, whereas scholars who concern themselves with public law are increasingly drawn to new versions of natural rights thinking, in the form of universal human rights.

scholarly journals DEBATE OF ISLAM AND COUNTRIES IN THE CONSTITUANTE BOARD, 1956-1959

2019 ◽  
Vol 2 ◽  
pp. 155-174
Author(s):  
Heri Herdiawanto ◽  
Valina Singka Subekti
Keyword(s):  
Research Method ◽  
Islamic Law ◽  
Secondary Data ◽  
The State ◽  
Islamic State ◽  
Basic Group ◽  
Constituent Assembly ◽  
Library Research ◽  
The One ◽  
The Relationship

This study examines Hamka's political thinking about Islam and the State in the Basic State debate that took place in the Constituent Assembly 1956-1959. Hamka belongs to the basic group of defenders of the Islamic state with Mohammad Natsir in the Masyumi faction, fighting for Islamic law before other factions namely the Nationalists, Communists, Socialists, Catholics-Protestants and members of the Constituent Assembly who are not fractured. Specifically examines the issue of why Islam is fought for as a state basis by Hamka. and how Hamka thought about the relationship between Islam and the state. The research method used is a type of library research with literature studies or documents consisting of primary and secondary data and reinforced by interviews. The theory used in this study is the theory of religious relations (Islam) and the state. This study found the first, according to Hamka, the Islamic struggle as the basis of the state was as a continuation of the historical ideals of the Indonesian national movement. The second was found that the constituent debate was the repetition of Islamic and nationalist ideological debates in the formulation of the Jakarta Charter. Third, this study also found Hamka's view that the One and Only God Almighty means Tauhid or the concept of the Essence of Allah SWT. The implication of this research theory is to strengthen Islamic thinking legally formally, that is thinking that requires Islam formally plays a major role in state life. The conclusion is that Indonesian society is a heterogeneous society in terms of religion. This means that constitutionally the state recognizes the diversity of religions embraced by the Indonesian people and guarantees the freedom of every individual to embrace religion and realize the teachings he believes in all aspects of life. Hamka in the Constituent Assembly stated that the struggle to establish a state based on Islam rather than a secular state for Islamic groups was a continuation of the ideals of historical will.

The Sound of Constitutional Silence

City, State ◽  
2020 ◽  
pp. 17-50
Author(s):  
Ran Hirschl
Keyword(s):  
Collective Identity ◽  
Constitutional Law ◽  
Political Discourse ◽  
Public Law ◽  
The State ◽  
The Political ◽  
Human Sciences ◽  
Comparative Constitutional Law ◽  
Spatial Governance ◽  
Constitutional Discourse

This chapter examines four introductory dimensions of the political and constitutional discourse around cities. The first is the tremendous interest in cities throughout much of the human sciences as contrasted with the silence of public law in general, and of comparative constitutional law in particular. Next, the chapter takes a look at the dominant statist stance embedded in constitutional law, in particular as it addresses sovereignty and spatial governance of the polity. A brief account of what national constitutions actually say about cities, and more significantly what they do not is then given. Finally, the chapter turns to the tendency in political discourse on collective identity to understand the “local” almost exclusively at the national or regional levels, rather than distinguishing urban interests from those of the state. Taken together, the four angles of city constitutional (non)status examined here highlight the bewildering silence of contemporary constitutional discourse with respect to cities and urbanization, as well as the strong statist outlook embedded in national constitutional orders, effectively rendering the metropolis a constitutionally non-tenable entity.

1. Introducing constitutions and public law

2019 ◽  
pp. 3-24
Author(s):  
Anne Dennett
Keyword(s):  
Public Administration ◽  
Balance Of Power ◽  
Administrative Law ◽  
Public Law ◽  
The State ◽  
The Law ◽  
The Uk ◽  
And Control ◽  
The Relationship

This introductory chapter provides an overview of the idea and importance of constitutions. A constitution is essentially a rulebook for how a state is run, and its function is to impose order and stability; to allocate power, rights, and responsibility and control the power of the state. Indeed, a state's constitution sets out the structure and powers of government and the relationship between individuals and the state, and a balanced constitution ensures a balance of power between the institutions of government. New constitutions can arise either through a process of evolution or as an act of deliberate creation. The chapter then considers the UK constitution. Public law is a fundamentally important part of the UK's national law and is the law about government and public administration. It places limitations on the power of the state through objective, independent controls. It is also known as ‘constitutional and administrative law’.

Part I General Principles, 3 International Law as it Affects Private Law Conventions Governing Cross-Border Commercial Transactions

2015 ◽  
Keyword(s):  
International Law ◽  
Public Law ◽  
Private Law ◽  
Commercial Law ◽  
Typical Structure ◽  
The Public ◽  
State Security ◽  
The Subject ◽  
The Relationship ◽  
Domestic Law

Chapter 3, after describing general principles of international law and the relationship between international law and domestic law, focuses on the hitherto neglected subject of private commercial law conventions. Textbooks on international law invariably focus on public law treaties. By contrast this chapter addresses issues relating to private law conventions. It goes through the typical structure of a private law convention, the interpretation of conventions and the treatment of errors, and the enforcement of private conventional rights against States. The subject of private law conventions and public law has become of increasing importance with the appearance in several private law instruments of provisions of a public law nature designed, for example, to ensure that creditors’ rights are not enforced in a manner that adversely affects the public interest or State security. Reservations and declarations are also discussed, together with the subject of conflicts between conventions.

Part 1 Constitutionalism and Islam: Conceptual Issues, 1.1 Constitutionalism in Islamic Countries: A Contemporary Perspective of Islamic Law

2012 ◽  
Author(s):  
Kamali Mohammad Hashim
Keyword(s):  
Constitutional Law ◽  
Final Section ◽  
Islamic Law ◽  
General Characterization ◽  
The Third ◽  
Islamic Countries ◽  
Contemporary Perspective ◽  
Islam And Secularism ◽  
The Relationship

This chapter begins with a brief characterization of Islamic constitutional law and its underdeveloped status as compared with other branches of Islamic law. It then highlights salient differences between the Islamic and Western approaches to constitutional law and briefly discusses Islam and secularism. The next section provides a general characterization of the Islamic system of rule under four sub-headings. The first of these defines government in Islam as a trust (amānah); the second describes it as a limited and thus non-totalitarian government; the third addresses the Islamic system of rule as a qualified democracy; and the last characterizes it as a civilian not a theocratic system of government. The final section summarizes the main results of the preceding analysis and offers some tentative conclusions on the relationship between Islamic government and democratic constitutionalism.

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