scholarly journals The Provision of Radd in Inheritance Between Islamic Jurisprudence and the Algerian Family Law

2018 ◽  
Vol 10 (1) ◽  
pp. 12
Author(s):  
Maiza Aissa
Keyword(s):  
Family Law ◽  
The Other ◽  
Legal Certainty ◽  
Conceptual Approach ◽  
Other Hand ◽  
Islamic Jurisprudence ◽  
To Receive ◽  
Family Code

<p><em>This study is aimed to figure out  on how current legal device gives legal certainty over the excess of heritage partition (radd) in Algeria. The comparation between Islamic jurisprudence and the Algerian Family Law is used to analyse judicial consideration on which matters regarding the excess of heritage partition are based. The writer used normative law method which consists of statute approach and conceptual approach. The understanding of radd in Islamic scholars’ views differ from one another. Some scholars accept the concept and some do not. Those who disagree with radd consider that the excess of heritage should be given to bayt al mal as muslims representative. On the other hand, scholars who agree with the concept of radd ha</em><em>ve</em><em> also different opinions regarding who </em><em>are entitled</em><em> to receive the excess of heritage</em><em>. Some include spouse (husband or wife) but some exclude him/her. The Algerian Family Law gives provision in this case for a legal certanty, as it’s stated in </em><em>the article number 167 of the Algerian Family Code</em><em> that wife and husband are excluded to receive radd. They can only receive it in the absence of ashaba heirs/residuaries, other fixed share heirs, and  dzaw al arham (</em><em>uterine </em><em>relatives).</em></p><p><em>Penelitian ini bertujuan untuk mengetahui bagaimana perangkat hukum saat ini memberikan kepastian hukum atas kelebihan bagian warisan (<em>radd</em>) di Aljazair. Penelitian ini menggunakan pendekatan perbandingan antara fikih Islam dan Hukum Keluarga Aljazair. Penulis menggunakan metode hukum normatif yang terdiri dari pendekatan perundang-undangan dan pendekatan konseptual. Pemahaman <em>radd</em> dalam pandangan sarjana Islam berbeda satu sama lain. Beberapa sarjana menerima konsep itu dan beberapa tidak. Mereka yang tidak setuju dengan <em>radd</em> menganggap bahwa kelebihan warisan harus diberikan kepada <em>bayt al mal</em> sebagai perwakilan muslim. Di sisi lain, para sarjana yang setuju dengan konsep radd juga memiliki pendapat berbeda tentang siapa yang berhak menerima kelebihan warisan. Hukum Keluarga Aljazair memberikan ketentuan dalam kasus ini untuk kepastian hukum, seperti yang dinyatakan dalam pasal 167 dari Kode Keluarga Aljazair bahwa istri dan suami dikecualikan untuk menerima <em>radd</em>. Mereka hanya dapat menerimanya tanpa adanya ahli waris/<em>ashaba</em><em>h</em>, pewaris bagian tetap lainnya, dan <em>dzaw al arham</em> (kerabat dekat).</em></p>

scholarly journals Kedudukan Kompilasi Hukum Islam Dalam Legalitas Pernikahan Di Indonesia

2018 ◽  
Vol 5 (4) ◽  
Author(s):  
Gilang Rizki Aji Putra ◽  
Ahmad Mukri Aji
Keyword(s):  
Ethnic Groups ◽  
Growth And Development ◽  
Family Law ◽  
Human Life ◽  
The Other ◽  
Legal Certainty ◽  
Marriage Law ◽  
Important Thing ◽  
Polygamous Marriage ◽  
Other Hand

Islam is a religion of rahmatan lil'alamin, which is easy to adapt to grow in all places and times, such as in marriage. For ethnic groups who have customs and culture, marriage is a very important thing for humans in life which is carried out in an honorable ceremony. On the other hand, Islam also regulates marriage procedures that must be carried out by Muslims. Marriage is something that is very important in human life, therefore a marriage must be in accordance with religious provisions and statutory regulations so that the marriage gets legal certainty and protection. However, nowadays in society there is a tendency for marriage to be carried out in a sirri way, this tendency often occurs, especially for a man's second marriage or polygamy. This study wants to reveal the position of polygamous marriage in a family law perspective and reveal whether or not polygamous marriage is legal according to the UUUP and according to Islamic law.Keywords: Com Marriage, Law and AqadAbstrak:Islam is a religion of rahmatan lil'alamin, easy to adapt to growth and development wherever and whenever, such as in marriage. For people who have customs and culture, marriage is a very important thing in human life, and is carried out in a solemn ceremony. On the other hand, Islam also regulates marriage procedures that must be carried out by Muslims. Marriage is a very important thing in human life, so marriage must be in accordance with religious regulations and statutory regulations, so that marriage can be determined and protected by law. But nowadays society has a tendency to get married, and this tendency often occurs, especially for men with second marriages or polygamy. This study wants to reveal the position of polygamous marriages in a family law perspective and reveal whether or not polygamous marriages are legal according to UUUP and according to Islamic law.Kata Kunci: Pernikahan, Hukum, dan Aqad

scholarly journals Upaya Perubahan Undang-Undang Nomor 42 Tahun 1999 Tentang Jaminan Fidusia

2015 ◽  
pp. 166-183
Author(s):  
Yelia Natasya Winstar ◽  
Devie Rachmat Ali Hasan R
Keyword(s):  
Legal Protection ◽  
The Other ◽  
Legal Certainty ◽  
Legal Research ◽  
Conceptual Approach ◽  
Other Hand ◽  
The People ◽  
Maximum Protection ◽  
The Law

The Fiduciary Act should provide legal protection of the parties and legal certainty, but on the other hand there are still some weaknesses of the Fiduciary Act. This paper analyzes the weaknesses of Act Number 42 Year 1999 on Fiduciary and the need for revising the Act. The type of research is a normative legal research or library which includes a study of the principles of law and the systematics of law. The research uses the statute approach and the conceptual approach. Based on the analysis it can be concludde that it requires to revise the Fiduciary Act. Legislators should produce the law not only ensuring the legal certainty but they also can provide the law presenting justice and prosperity for the people. Revision of the Fiduciary Act is expected to provide maximum protection to the people who use the fiduciary as a guarantee agency; so that the justice will be obtained by the people to create a conducive atmosphere in the economy to increase the prosperity for them.

MAPPING CONTEMPORARY ISLAMIC JURISPRUDENCE OF MUḤAMMAD SAʻĪD AL-‘ASHMĀWĪ AND MUḤAMMAD SHAḤRŪR

2018 ◽  
Vol 1 (1) ◽  
pp. 32
Author(s):  
Yusroh Yusroh ◽  
Mohd. Zaki Abd. Rahman
Keyword(s):  
The Other ◽  
Russian Philosophy ◽  
New Approach ◽  
Marriage And Divorce ◽  
Other Hand ◽  
Islamic Jurisprudence

Muḥammad Saʻīd Al-‘Ashmāwī and Muḥammad Shaḥrūr are well known as contemporary Muslim thinkers. This article tries to map their contemporary ideas on Islamic jurisprudence. The main data of this research taken mainly from the works both of Al-‘Ashmāwī and Shaḥrūr. In particular, the paper tries to analyze Al-‘Ashmāwī‘s ideas on sharia, politics, hijab, marriage and divorce. On the other hand, the ideas of Shahrour on al-Qur'an, Sunnah and Fiqh, the theory of borders, pluralism, the commandment, inheritance, hijab, marriage, divorce, dowry, politics, and imamate are also critizised. After analyzing their lives and their ideas on Islamic jurisprudence, the paper found that their social, educational and practical backgrounds have affected their intellectual formations and ideas. Ashmawi is encouraged by diligence and enlightenment and is believed to be enlightened. Shahrour, however, takes a new approach in order to create the ḥudūd theory as a new way. As well as their intellectual background, Ashmawi has a good queen in Arabic, English and French as well as religion, Sharia, jurisprudence and theology. Shahrour is a good queen in Arabic, English, Russian, philosophy, philology and historical language.

scholarly journals ARABIC: تغيير الفتوى بمقتضيات الزمان والمكان

rahatulquloob ◽  
2021 ◽  
pp. 1-13
Author(s):  
Dr. Abdul Wadood Abed ◽  
Dr. Hedayatullah Modaqiq
Keyword(s):  
Islamic Law ◽  
The Other ◽  
Scientific Development ◽  
Spatial Factors ◽  
Other Hand ◽  
Islamic Jurisprudence ◽  
Temporal And Spatial ◽  
The One

Islamic law, by having features in its principles that are fixed and variable, expresses its authority in any situation and time. Of course, this feature reflects the unique legislative miracle of Islam itself. The source of Islamic law is divine and heavenly, so it has always descended directly through the revelation of Allah Almighty, the Lord of the worlds, and has been arranged according to His wisdom and providence and has been considered in the context of time and place according to their nature and needs. Changing of a fatwa is the change of one rule in a specific issue to another one along with a Sharia cause that agrees with the aims and purposes of the Sharia. Therefore, there is no change in the prescribed rules and the fixed principles of Shari, but Ijtihad, Qiyas and expedient rules can be changed; Because there are many rulings that have been permitted for expediency, after the passage of time and the change of place have led to corruption, which again has become impermissible. The rule of fatwa changing has been valid in the Sharia; Because, on the one hand, the Companions and their followers have used it in their ijtihad fatwas, and on the other hand, Islamic jurisprudence is a developmental debate that progresses together with the caravan of life, no awareness of the demands of time, place and scientific development is synonymous with depriving the Islamic Ummah from virtues and facilities of life, so it is necessary that the change of the fatwa has to be compatible to the change of expediencies, otherwise it will lead to corruption and harm. Statement of the problem: The Islamic jurists have divided the Islamic rules into fixed and variable. This means that the prescribed laws, which are in harmony with meek nature, do not accept changes but the rules which are based on ijtihad can be changed. The discussion of changing the fatwa and its temporal and spatial factors is one of the important issues of jurisprudence that scholars have paid attention to and therefore the answer to these two questions is necessary for the researcher whether changing the fatwa is permissible? Are the requirements of time and place effective in its changing?

scholarly journals CRIMINAL LAW CONSIDERATIONS (Ratio Decidendi)

2020 ◽  
Vol 1 (2) ◽  
pp. 90
Author(s):  
Prayitno Iman Santosa
Keyword(s):  
Criminal Law ◽  
The Other ◽  
Objective Measures ◽  
Legal Certainty ◽  
Criminal Cases ◽  
Criminal Offense ◽  
Judicial Practice ◽  
Other Hand ◽  
Ratio Decidendi

Judicial practice in Indonesia, judging from the decisions of criminal cases, generally judges give legal considerations only to prove the elements of a criminal offense. In contrast, the determination of the crime is not objectively considered, and most are merely considerations of incriminating and mitigating matters. On the other hand, the judge has absolute authority in imposing a crime; the judge's freedom is guaranteed by law. The supreme power of judges who are used freely without objective measures has the potential to produce corrupt decisions and injustices. Criminal objectives must be aligned with legal goals, namely to realize penalties that guarantee legal certainty, justice, and expediency. Ideally, good sentences reflect the three purposes of the law.

scholarly journals Studying the Types, Bases and Features of Sale from the Perspective of Islamic Jurists

2021 ◽  
Vol 9 (SPE3) ◽  
Author(s):  
Morad Jafarzadeh ◽  
Seyed Mohsen Razmi ◽  
Mohammad Reza Kazemi Golvardi
Keyword(s):  
Research Methodology ◽  
Point Of View ◽  
The Other ◽  
View Point ◽  
Fixed Price ◽  
Other Hand ◽  
Islamic Jurisprudence ◽  
Different Types ◽  
Library Method

Sale is known as one of the most widely used words in Islamic jurisprudence. Islamic jurists have each defined the nature, bases and types of sale as one of the specific and important Islamic contracts. Regarding sale, it should be mentioned that in some definitions, the early Imami jurists considered its nature as the exchange of two properties, while the famous Islamic jurists consider its nature as the demand and acceptance, which makes the object of sale the property of the customer and regards the price as the property of the seller. Another point is that, in the definitions of late and contemporary Imami jurists, there is a kind of semantic alteration in the interpretation of sale. From the view point of Islamic jurists, it seems that the elements of possession and ownership in the sale are concepts with wide conceptual scopes, and this is the superiority and distinction of Imami jurists over other jurists regarding the truth of sale. On the other hand, from the point of view of Islamic jurists, there are different types of sale, the most important of which are strict sale, contractual sale, absent sale, harmful sale, credit sale, general sale, deferred sale, gifted (mohabati) sale, debt sale, Morabahe (a sale based on a fixed price), etc. On the other hand, the bases of sale from the perspective of Islamic jurists are: demand and acceptance, buyer and seller, property sold, and price in the sale contract. Also, the features of sale from the point of view of jurists are: the ownership of the sale, the exchange of the sale, the objectivity of the property, the necessity of the sale contract. The research methodology in this paper is descriptive-analytical using the library method.

scholarly journals Fikih Pluralisme (Titik Temu Agama-Agama dalam Bingkai Hukum Islam)

AKADEMIKA ◽  
2020 ◽  
Vol 14 (01) ◽  
Author(s):  
Moch. Bachrurrosyady Amrulloh
Keyword(s):  
The Other ◽  
Other Hand ◽  
Islamic Jurisprudence ◽  
Nahdlatul Ulama ◽  
Pros And Cons ◽  
Muslim Communities

Abstract: Not a few Muslim communities in Indonesia reject the concept of pluralism, even the MUI itself has issued a special fatwa on the prohibition of this understanding. They assume that pluralism is against Islam, because there is a tendency to equate Islam with other religions. Pluralism is also widely understood as a form of ideology that seeks to justify all religions. Thus, people can change religion as they wish at any time, like people change clothes. Contemporary era Indonesia also witnessed a polemic around this issue. Misunderstanding of the concept of pluralism has at some level created two poles of Islamic understanding between the pros and cons of this concept. Nahdlatul Ulama’ (NU) and Muhammadiyah were even divided internally in their communities. This article will examine through a review of Islamic jurisprudence (fiqh) related to the meaning and nature of pluralism. This research becomes relevant because in addition to the polemic that still exists in this concept, on the other hand the diverse social realities of Indonesian society, also requires an understanding that needs to prioritize tolerance and respect for differences.Keyword: Islamic Jurisprudence, Pluralism

scholarly journals URDU: عصر حاضر میں اسلام کے تصور ولایت کی اہمیت و ضرورت

rahatulquloob ◽  
2021 ◽  
pp. 109-120
Author(s):  
Dr. Ambreen Atiq ◽  
Dr. Abu Sufyan Qazi Furqan Ahmad ◽  
Dr. Khawaja Saif ur Rehman
Keyword(s):  
Real Life ◽  
The Other ◽  
The Real ◽  
Other Hand ◽  
Islamic Jurisprudence ◽  
Potential Problems ◽  
Physical Attraction ◽  
The Guardian ◽  
Total Agreement ◽  
Selection Of

According to Islamic Jurisprudence, one of the most important requirements for a sound marriage is the total agreement of the woman under the guardianship of her father or any other mahram relative. In case of none, the ruler or the judge assume to be a guardian or Wali of a woman. A guardian or Wali is responsible for the selection of the righteous person for the woman and assures the protection and welfare of her Rights and interests. He has the authority to reject and refuse the proposal if the suitor did not deem a sound and sincere match. A marriage without a guardian is considered unlawful, as there is no concept of love affairs and courtship without a guardian in Islam. The guardian evaluates the religious, social and economic compatibility of the couple, while on the other hand a woman selects the spouse on physical attraction and romantic notion which vanishes out soon as the real life starts causing potential problems in relationship. That why Islam lays down principle and law of wilayat for a lady to protect her interests and rights and consider to be a shield and safeguard for her welfare in future marital life.

scholarly journals Critique of the radical religious paradigm: An epistemological analysis from the principles of Islamic jurisprudence

2021 ◽  
Vol 11 (1) ◽  
pp. 163-184
Author(s):  
Ade Dedi Rohayana ◽  
Muhammad Jauhari Sofi
Keyword(s):  
The Other ◽  
Public Security ◽  
Personal Safety ◽  
Literal Interpretation ◽  
Other Hand ◽  
Global Issue ◽  
Islamic Jurisprudence ◽  
The Absolute ◽  
Epistemological Analysis ◽  
Religious Understanding

One important factor enabling Islamophobia, radicalism has been a global issue endangering personal safety and public security. It is strongly associated with incorrect understanding of religious doctrines. This paper aims to present a critique of the religious paradigm promoted by the radical groups from the principles of Islamic jurisprudence (ushul fiqh) perspective. Using an epistemological analysis to uncover the nature of their religious understanding and its justification, this study argues that the radical religious paradigm is characterized by a monolithic, textual, and rigid interpretation of the sacred texts. According to the radical groups, the sources of Islamic laws or teachings are restricted to only the Qur’an and the hadith, leaving no space for alternative interpretations. They do not give place for ra’yu (reason) in determining the laws or teachings. On the other hand, ushul fiqh perspective maintains that the sources of the Islamic laws or teachings are not restricted to only the two said sources; it also gives place for ra’yu (reason). The sources can also be found in the form of isyarah (signaling) and ruh (spirit) of the Qur’an and the hadith. In this sense, ushul fiqh refuses the literal interpretation proposed by the radical groups since not all of the texts in the Qur’an and the hadith can be understood literally. Taken together, these findings strengthen the idea that incorrect understanding of religious doctrines helps lead to the absolute, puritanical, and intolerant stance towards differences.

Gender Dalam Pendidikan Islam: Sebuah Refleksi

Edupedia ◽  
2021 ◽  
Vol 6 (1) ◽  
pp. 87-93
Author(s):  
Syaifullah Syaifullah ◽  
Sukandi Sukandi
Keyword(s):  
Gender Equality ◽  
Gender Studies ◽  
Gender Issues ◽  
The Other ◽  
Islamic Education ◽  
Equal Rights ◽  
Other Hand ◽  
Equality In Education ◽  
To Receive ◽  
Gender In Education

Gender issues become a very serious issue today. This is identified by a number of discourses on the women’s equal rights and men. Although the actual focus of gender studies is not limited to aspects of women, but also men. But in fact, the figure who is often marginalized is women. On the other hand, men often get more privileges in terms of rights and opportunities. Therefore, this discussion focuses on gender studies of women's aspects by comparing men's rights. Indonesian citizens have the particular rights to receive education, especially Islamic education. This paper designed to describe the problems of gender in education, the theoretical lens of Islamic education on gender equality, as well as the strategy towards gender equality in education.

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