scholarly journals URGENCY CRITICAL LEGAL STUDIES PARADIGM FOR THE PROTECTION OF WOMEN VICTIMS OF DOMESTIC VIOLENCE IN THE DIVORCE CASE

2018 ◽  
Vol 18 (2) ◽  
pp. 167
Author(s):  
Nita Triana
Keyword(s):  
Domestic Violence ◽  
Women Victims ◽  
Qualitative Method ◽  
Islamic Law ◽  
Critical Legal Studies ◽  
New Paradigm ◽  
Legal Studies ◽  
Domestic Violence Victims ◽  
The Law ◽  
Religious Courts

This research describes the protection of women victims of domestic violence in divorce cases. Domestic violence victims are hidden in divorce cases in the Religious Courts. The positivistic paradigm adopted by the Judges gives less protection to victims of domestic violence. The method used in this study is a qualitative method, a type of doctrinal legal research with a socio-legal  approach. Domestic violence victims in the Religious Courts need a new paradigm to provide protection for victims of domestic violence. Religious Court Judges who have a positivistic paradigm see the law as a book (act). The judge in examining the domestic violence in divorce only adheres to the law relating to marriage, namely Law No. 1 of 1974 and Compilation of Islamic Law. Paradigm of Critical Legal Studies. build critical awareness in law enforcement by improving the legal system and carrying out a reformation in the institutions responsible for the protection of victims of domestic violence, one of which is the Religious Courts. Also consider the PKDRT Law No. 23 of 2004 concerning the elimination of domestic violence even covering legal culture of family, community, health and psychological.

scholarly journals Progressivity of Judges in Domestic Violence Disputes Settlement in The Case of Divorce in The Religious Court

2018 ◽  
Vol 2 (1) ◽  
pp. 1
Author(s):  
Nita Triana
Keyword(s):  
Domestic Violence ◽  
Islamic Law ◽  
Descriptive Analysis ◽  
Religious Texts ◽  
Court Judge ◽  
Holistic Understanding ◽  
The Law ◽  
One Year ◽  
The Right ◽  
Religious Courts

This study aims to describe and analyze the Judge Progressiveness in the case of a �divorce �related �to domestic violence. The principle of law governing civil judges is passive, in reality this principle creates difficulties for women (wives) victims of domestic violence to achieve justice. The research method used is �non-doctrinal tradition with a socio-legal approach, and qualitative descriptive analysis. The results of the study illustrate. Religious Courts Judges as one of the law enforcers are very potential to seek justice for victims of domestic violence, the majority of whom are women, because many cases of domestic violence ended in divorce cases in the Religious Courts. But the consideration of the religious Court Judge in deciding the case of a divorce petition �is not yet progressive, the Judge still adheres to the principle of law, that the Civil Judge is passive. So that when the Plaintiff (Wife) does not demand income and compensation from her husband. The Plaintiff (Wife) as a victim of domestic violence will not get a living idah, mut'ah, maskan, kiswah and any compensation from the Defendant (Husband). Religious Court Judges have not yet explored other relevant legislation, including progressive religious texts that favor women as victims of domestic violence to strengthen the building of their arguments. Whereas in the case of divorce by talak, the Judge views the law in book in his legal considerations �by giving protection to the wife, namely by giving the wife the right to earn a living Idah, Mutah (a living for one year to entertain the wife divorced by her husband), maskan and kiswah, according with what is stipulated in the Marriage Law and the Compilation of Islamic Law. The paradigm of the operation of the Judge in a country with a pluralistic culture such as Indonesia, it's time to change to a more progressive direction, Judge is no longer limited to the existence of a mouth that sounds the sentence of the law ( le judge est uniquenment la bouche qui pronance le most de lois) Judge also not tools designed to be logical and work mechanically, but whole people who have sensitivity to humanitarian and social concerns. Progressive judges learn and are good at making interpretations that are not literal (connotative), and have a high sense of empathy to be able to catch social norms that contextually support each prescription of the Act. The holistic understanding of the judges has the potential to provide justice for women victims of domestic violence.

scholarly journals Perlindungan Hukum bagi Perempuan Korban ‎Kekerasan dalam Rumah Tangga Perspektif Hukum ‎Islam

2016 ◽  
Vol 2 (2) ◽  
pp. 255-274
Author(s):  
Amirul Ikhsan
Keyword(s):  
Domestic Violence ◽  
Civil Rights ◽  
Women Victims ◽  
Islamic Law ◽  
Legal Protection ◽  
Household Environment ◽  
The Law ◽  
Husband And Wife

Abstract: This article discusses the legal protection for women-victims of domestic violence within the perspective of Islamic law. Legal protection for women-victims of domestic violence is clearly regulated in Law No. 23 of 2004. It should be recognized that the presence of the law is to open a way for unfolding of domestic violence and to safeguard the civil rights of victims, where it was previously considered as a private area that no one outside the household environment entries. On the perspective of Islamic law, legal protection in the Law number 23 of 2004 has been consistent with the objectives of shariah. It is to enforce Islamic law to gain the pleasure of Allah. In this context, husband and wife should complement each other and work together in building a harmonious household.Keywords: Legal protection, victims, domestic violence, Islamic law. Abstrak: Artikel ini membahas tentang perlindungan hukum bagi perempuan korban kekerasan dalam rumah tangga perspektif hukum Islam. Perlindungan hukum bagi perempuan korban kekerasan dalam rumah tangga (KDRT) diatur dalam undang-undang nomor 23 tahun 2004 (UUPKDRT), harus diakui kehadirannya membuka jalan bagi terungkapnya kasus KDRT dan upaya perlindungan hak-hak korban, yang pada awalnya KDRT dianggap sebagai wilayah privat yang tidak seorang pun di luar lingkungan rumah tangga dapat memasukinya. Perspektif hukum Islam, perlindungan hukum dalam Undang-Undang nomor 23 tahun 2004 (UUPKDRT) telah sesuai dengan tujuan syariah yaitu untuk menegakkan syariat Islam, menuju ridha Allah swt, suami dan istri harus saling melengkapi dan bekerja sama dalam membangun rumah tangga yang harmonis menuju derajat takwa.Kata Kunci: Perlindungan hukum, korban, kekerasan dalam rumah tangga, hukum Islam.

Legal and Institutional Functionality in the Protection of Women – Victims of Domestic Violence in the Republic of Macedonia – Present Situation and Future Perspectives

2017 ◽  
Vol 10 (2) ◽  
pp. 131
Author(s):  
Zorica Saltirovska Professor ◽  
Sunchica Dimitrijoska Professor
Keyword(s):  
Domestic Violence ◽  
Women Victims ◽  
Violence Against Women ◽  
Social Protection ◽  
National Level ◽  
Gender Based Violence ◽  
Republic Of Macedonia ◽  
The Law ◽  
The Republic ◽  
Gender Based

Gender-based violence is a form of discrimination that prevents women from enjoying the rights and liberties on an equal level with men. Inevitably, domestic violence shows the same trend of victimizing women to such a degree that the term “domestic violence” is increasingly becoming synonymous with “violence against women”. The Istanbul Convention defines domestic violence as "gender-based violence against women", or in other words "violence that is directed against a woman because she is a woman or that affects women disproportionately." The situation is similar in the Republic of Macedonia, where women are predominantly victims of domestic violence. However, the Macedonian legal framework does not define domestic violence as gender-based violence, and thus it does not define it as a specific form of discrimination against women. The national legislation stipulates that victims are to be protected in both a criminal and a civil procedure, and the Law on Prevention and Protection from Domestic Violence determines the actions of the institutions and civil organizations in the prevention of domestic violence and the protection of victims. The system for protection of victims of domestic violence closely supports the Law on Social Protection and the Law on Free Legal Aid, both of which include provisions on additional assistance for women victims of domestic violence. However, the existing legislation has multiple deficiencies and does not allow for a greater efficacy in implementing the prescribed measures for the protection of victims of domestic violence. For this reason, as well as due to the inconsistent implementation of legal solutions of this particular issue, the civil sector is constantly expressing their concern about the increasingly wider spread of domestic violence against women and about the protection capabilities at their disposal. The lack of recognition of all forms of gender-based violence, the trivial number of criminal sentences against persons who perform acts of domestic violence, the insufficient support offered to victims – including victim shelters, legal assistance, and counseling, and the lack of systematic databases on domestic violence cases on a national level, are a mere few of the many issues clearly pointing to the inevitable conclusion that the protection of women-victims of domestic violence is inadequate. Hence, the functionality and efficiency of both the existing legislation and the institutions in charge of protection and support of women – victims of domestic violence is being questioned, which is also the subject for analysis in this paper.

scholarly journals PENGAMBILALIHAN HAK ATAS JAMINAN (EKSEKUSI) JAMINAN FIDUSIA DAN RAHN TASJILY PERSEPEKTIF HUKUM POSITIF DAN HUKUM ISLAM

2019 ◽  
Vol 10 (2) ◽  
pp. 186
Author(s):  
Heri Kuswanto
Keyword(s):  
Financial Institutions ◽  
Islamic Law ◽  
Descriptive Analysis ◽  
Critical Legal Studies ◽  
Legal Studies ◽  
Positive Law ◽  
Qualitative Descriptive ◽  
The Right ◽  
And Storage ◽  
Laws And Regulations

The phenomenon that occurs is related to the taking over of the right to guarantee (execution) of fiduciary security and Rahn Tasjily in the execution of executions carried out by financial institutions that do not comply with applicable laws and regulations. This research uses Normative legal methods, with qualitative descriptive analysis and critical legal studies. The results of the study that the process of taking over the right to guarantee (execution) fiduciary regulated in article 29 (1) of the fiduciary guarantee law. Among the first, execution based on Grosse fiduciary guarantee certificate or executable title (fiat execution) contained in the Fiduciary Guarantee Certificate carried out by the fiduciary recipient. Second, an execution based on the execution of separate executions through public auctions by fiduciary recipients. Third, execution by sale under the hand by the creditor fiduciary himself, and fourth, fiduciary execution by claiming. Based on Islamic law, the process of expropriation of the right to guarantee (execution) Rahn Tasjily, that the procedure for executing Marhun (collateral object), if due. Murtahin must warn Rahin to pay off her debt immediately. If the Rahin still cannot repay its debt, then Marhun is forcibly sold/executed through an auction, according to sharia. Marhun sales proceeds used to pay off debt, maintenance, and storage costs that have not paid and sales costs. The excess proceeds from the sale belong to Rahin, and the shortcomings become Rahin obligations. The execution process carried out by sharia companies must be based on fatwa no. 25/DSN-MUI/III/2002, and fatwa no. 92/ DSN-MUI/IV/2014. Positive law and Islamic law, which become normative references, have not been well understood and applied by the finance parties, causing injustice and legal uncertainty.Keywords: expropriation of rights, fiduciary guarantee, rahn tasjily ABSTRAKFenomena yang terjadi terkait pengambilalihan hak atas jaminan (eksekusi) jaminan fidusia dan rahn tasjily pada pelaksanaan eksekus yang dilakukan oleh lembaga pembiayaan tidak mematuhi aturan perundang-undangan yang berlaku. Penelitian ini menggunakan metode hukum Normatif, dengan analisis deskriptif kualitatif dan studi hukum kritis. Hasil penelitian bahwa, proses pengambilalihan hak atas jaminan (eksekusi) fidusia telah diatur dalam pasal 29 (1) undang-undang jaminan fidusia. Diantaranya pertama, eksekusi berdasarkan grosse sertifikat jaminan fidusia atau titel eksekutorial (secara fiat eksekusi) yang terdapat dalam Sertifikat Jaminan Fidusia yang dilakukan oleh penerima fidusia. Kedua, eksekusi berdasarkan pelaksanaan parate eksekusi melalui pelelangan umum oleh penerima fidusia. Ketiga, eksekusi secara penjualan di bawah tangan oleh kreditor pemberi fidusia sendiri, dan keempat, eksekusi fidusia secara mendaku. Berdasarkan hukum Islam, proses pengambilalihan hak atas jaminan (eksekusi) rahn tasjily, bahwa prosedur pengeksekusisan marhun (objek jaminan), apabila jatuh tempo. Murtahin harus memperingatkan Rahin untuk segera melunasi hutangnya. Apabila rahin tetap tidak dapat melunasi hutangnya, maka marhun dijual paksa/dieksekusi melalui lelang sesuai syariah. Hasil penjualan marhun digunakan untuk melunasi utang, biaya pemeliharaan dan penyimpanan yang belum dibayar serta biaya penjualan. Kelebihan hasil penjualan menjadi milik rahin dan kekurangannya menjadi kewajiban rahin. Adapun proses eksekusi yang dilakukan oleh perusahaan syariah harus berdasarkan fatwa Nomor: 25/DSN-MUI/III/2002, dan fatwa Nomor:92/DSN-MUI/IV/2014. Hukum positif dan hukum Islam yang menjadi rujukan normatif, belum difahami dan diterapkan dengan baik oleh pihak pembiayaan, sehingga menimbulkan ketidakadilan dan ketidakpastian hukum. Kata Kunci : jaminan eksekusi fidusia,pengambilalihan hak, rahn tasjily

scholarly journals EKSEKUSI NAFKAH PERCERAIAN DI PENGADILAN AGAMA KOTA MALANG

Ulumuddin ◽  
2018 ◽  
Vol 11 (1) ◽  
pp. 116
Author(s):  
Rendra Widyakso
Keyword(s):  
Rule Of Law ◽  
Islamic Law ◽  
Public Order ◽  
Scholarly Journals ◽  
Financial Responsibility ◽  
The Public ◽  
Legal Studies ◽  
Preliminary Study ◽  
The Law

This article aims to answer to important questions in legal studies that how to implement the legal execution of earning the expenses caused by divorce based on Indonesian law? And, how do the perspective of Islamic legal schools deal with the execution? There are numbers of scholarly journals studying this specific issue. However, the preliminary study that specifically focuses on the Legal Verdict of the Religious Court of Malang No. 0957/Pdt.G/2014/PA.MLG is offered by this article. It finds that legally, the judge has authority to order the ex-husband to pay the expences of the divorce compensation (mut’ah), financial responsibility due to divorce (iddah) and financial claim (madiyah) and financial childcare (hadhanah) before the divorce pledge is pronounced. If the expences cannot be paid, the ex-wife has right to purpose the legal execution to the court. Due to the purpose the chief of justice is responsible for and has authority to remind the ex-husband (aanmaning) and doing the legal execution if he disrespectly avoided the court’s order. The concept of legal expenses due to divorce is ruled by the fiqh of Islamic legal schools, in spite of the fact that the details of execution remain no any explanation. This article argues that the execution has been done referring to the law. It purposes to fulfil justice, expediency and rule of law. Furthermore, these purposes are the beginning step in order to achieve the public order (mashlahah) and the higher objective of Islamic law (maqashid al-syari’ah).

scholarly journals HUKUM ISTRI MENCARI NAFKAH DALAM TINJAUAN MAQASHID SYARIAH

2018 ◽  
Vol 2 (2) ◽  
pp. 193
Author(s):  
Elimartati Elimartati
Keyword(s):  
Content Analysis ◽  
Qualitative Method ◽  
Islamic Law ◽  
Science And Technology ◽  
Analysis Approach ◽  
Main Task ◽  
Gender Analysis ◽  
Family Needs ◽  
Library Research ◽  
The Law

<p><em>In common tradition, m</em><em>aking a living is a husband's obligation, but now many wives play a role in earning a living. The aim of the study was to find out the law of the wife looking for a nafka, viewed the condition and ability of the husband to provide a living, in the review of Maqashid Shari'a proposed by Syatibi. The influence of science and technology and the increase in household needs triggers many wives to take part in making a living, and become the main breadwinner. This certainly raises the question, how does the view of Islamic law on wives earn a living in library research, using the normative qualitative method of gender analysis approach is content analysis. Islamic law explains that a wife cannot leave her house without her husband's permission and her main task is at home. This certainly raises the question, how does the view of Islamic law on wives earn a living. The results of the study explain that wife's law makes a varied living circumcision, makhruh and haram based on the ability of the husband to provide his wife with the benefit and the level of family needs (maqashid).</em></p><p><em><br /></em></p>

“Critical Empricism” and American Critical Legal Studies: Paradox, Program, or Pandora's Box?

2011 ◽  
Vol 12 (1) ◽  
pp. 115-158 ◽  
Author(s):  
David M. Trubek ◽  
John Esser
Keyword(s):  
Empirical Research ◽  
Legal Order ◽  
Law And Society ◽  
Sociology Of Law ◽  
Critical Legal Studies ◽  
Critical Sociology ◽  
Legal Scholarship ◽  
Legal Studies ◽  
The Law

What should we make of Susan Silbey's call for socio-legal scholarship that is both critical and empirical? Do we think the law and society movement can and should develop a critique of the legal order? Can empirical research contribute to such a critique? Does the idea of a “critical sociology of law” make any sense at all?

The educative ambition of Law and Literature

Legal Studies ◽  
1993 ◽  
Vol 13 (3) ◽  
pp. 323-331 ◽  
Author(s):  
Ian Ward
Keyword(s):  
Law And Literature ◽  
The Political ◽  
Critical Legal Studies ◽  
Legal Studies ◽  
Theoretical Approaches ◽  
The Law ◽  
The Many

In 1979, Allen Smith suggested that there was to be a ‘coming renaissance’ in Law and Literature as a teaching discipline. In fact, Law and Literature had already arrived. In 1973, James Boyd White had publishedhis The Legal Imagination, and had geared it primarily to the teaching and study of law. Of the many intriguing characteristics of the Law and Literature movement, one of the most exciting and most valuable, is the fact that, unlike many other theoretical approaches to the problems of law, the ambition of Law and Literature is firstly educative, and only then, secondly, social and political. Moreover this secondary ambition, has tended, in two senses, to be appended to the educational ambition. In one sense, it is additional in that the political manifesto is supposed to emerge from the educational force of literature. In a second sense, it is additional because politics was certainly not such a ranking ambition in the earliest days of the Law and Literature movement, and it is no concidence that the politicization of Law and Literature has come about as its star has risen, whilst that of Critical Legal Studies has declined

scholarly journals Kedudukan Anak Non Muslim Terhadap Harta Warisan Ditinjau dari Kompilasi Hukum Islam

2019 ◽  
Vol 1 (1) ◽  
pp. 13-24
Author(s):  
Nizmah Nizmah
Keyword(s):  
Islamic Law ◽  
Literature Analysis ◽  
High Court ◽  
Muslim Children ◽  
The Law ◽  
The Right ◽  
Religious Courts

The noble Qur'an has explained the laws of inheritance, the conditions of each heir with a sufficient explanation, where no one among humans escapes the inheritance or inheritance. Because the Qur'an is the backing in establishing the law and the extent of its parts. And very few are determined based on Sunnah or ijma. there is no position of nonMuslim children on inheritance in compilation of Islamic law. While the Religious Court is a court that has the authority to examine and try inheritance disputes for people who are Muslim. Thus, if there is a dispute over inheritance issues between children of Muslims and non-Muslims, it must be resolved through the Religious Courts. Formulation of the problem in this study is how the position of non-Muslim children on the inheritance of Islamic heirs is reviewed from the Compilation of Islamic Law. with literature analysis it means that the author takes data based on existing literature. Based on the results of the study, according to the Compilation of Islamic Law dividing inheritance to the entitled heirs is the obligation of heirs to the heir to be implemented after the heirs have carried out other obligations as contained in. The position of nonMuslim children on the inheritance of Islamic heirs based on Islamic law does not obtain inheritance from the inheritance of their parents. According to the Compilation of Islamic Law as in the case of the Religious Court, it shows that the position of non-Islamic children on inheritance from the inheritance of the property of their parents does not receive the right inheritance, but based on the Religious High Court, get a section called "Wasiah Wajibah".

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