scholarly journals URGENSITAS PENGUATAN KOMPETENSI PENYELESAIAN SENGKETA EKONOMI SYARIAH DI PENGADILAN AGAMA DALAM MENGAWAL PERTUMBUHAN INDUSTRI KEUANGAN SYARIAH DI INDONESIA

2017 ◽  
Vol 14 (1) ◽  
Author(s):  
Suhartono Suhartono
Keyword(s):  
Los Angeles ◽  
Islamic Law ◽  
Research Data ◽  
Law School ◽  
Islamic Finance ◽  
Access To Justice ◽  
Finance Industry ◽  
The Poor ◽  
Survey Report ◽  
Religious Courts

The appreciation of the reputation and achievements of the Religious Courts continued to flow from experts and credible international survey organizations. Among others, Mark Cammack[1], Daniel S. Lev[2], Markus Zimmer, Cate Summer[3], Tim Lindsey, CJ Diana Bryant, Yoshiharu Matsuura etc. Meanwhile, the survey agency, among others, The Asia Foundation[4], ACNielsen, UN Women -institute under the auspices of the United Nations-, IALDF, etc. that in essence they satisfy with the performance of the Religious Court. This condition is contradictory to the situation in their own country, even though de jure has received an additional mandate (competence) as mandated by Article 49 of Law No. 3 of 2006, but de facto skepticism and pessimism in some quarters, indirectly weaken and reduce the competence of the Religious Court. This is often done by a handful of party, unsupported by valid research data. In fact, the true increase Religious Court's competence born from the womb of reform, but already at the age of eight years of this, it still has not gained the trust and support of the maximum. Expectations of economic actors to the sharia court Religion should be coupled with efforts to strengthen the real from stakeholders to the Religious Court can maximize its role in escorting the growth of the Islamic finance industry, that will be the focus of study in this paper.[1] Guru besar Southwestern Law School, Los Angeles California USA, dalam bukunya: Islamic Law in Contemporary Indonesia; Ideas and Institutions’ (2007), ia mengatakan, Peradilan Agama merupakan kisah sukses dalam sistem hukum yang disfungsional (disfunctional legal system) di Indonesia.[2] Dia mengakui bahwa Peradilan Agama merupakan pengecualian dari persepsi publik yang kurang baik terhadap pengadilan, menurut Lev, Pengadilan Agama telah bekerja dengan baik.[3] Cate Summer dan Tim Lindsey dalam bukunya, Courting Reform: Indonesia’s Islamic Courts and Justice for the Poor, mengatakan:”.. as champion within the judicial system of justice and access to justice reform in Indonesia......”. “From this perspective, the Relegious Court can be seen as one of the most successful of Indonesia’s judicial institutions. This is in some senses, ironic, as these courts have also historically been neglected by the state...”.[4] Lihat Anonim. 2005. Citizens’ Perceptions of the Indonesian Justice Sector (Survey Report). Jakarta: The Asia Foundation. hal. 63 hasil surveynya menyatakan Peradilan Agama sebagai satu-satunya institusi penegak hukum yang memiliki performance paling baik, dibandingkan lembaga penegak hukum lainnya.

scholarly journals Sale with the temporary exclusion of usufruct

2018 ◽  
Vol 10 (1) ◽  
pp. 85-93
Author(s):  
Abdulbari Mashal ◽  
Amer Hajal ◽  
Om Kalthoum Majoul ◽  
Mir Riaz Ansary
Keyword(s):  
Design Methodology ◽  
Islamic Law ◽  
Added Value ◽  
Islamic Finance ◽  
Content Type ◽  
Finance Industry ◽  
Market Rate ◽  
Islamic Jurisprudence ◽  
Finance House ◽  
Associated Risk Factors

Purpose This paper aims to investigate sale with the temporary exclusion of usufruct, a format debated in classical Islamic jurisprudence. More specifically, it examines the application of this sale format in the diminishing partnership arrangement used by American Finance House LARIBA to finance house purchases. It analyzes the Sharīʿah issues and assesses the risks involved. Design/methodology/approach The research is qualitative, surveying and critically analyzing classical fiqh literature and contemporary juristic resolutions, as well as LARIBA’s financing documents. Finally, it systematically surveys the associated risk factors, first qualitatively, and then by quantifying them. Findings The research concludes that sale with the temporary exclusion of usufruct is a valid contract in Islamic law. When the usufruct is priced at market rate, the financing arrangement is genuinely Islamic and brings added value. Moreover, it is very effective in addressing risks for Islamic banks, particularly in countries with legal systems not designed to accommodate Islamic finance. Originality/value This study systematically examines all aspects of a contract that has not received sufficient academic attention, that has been underutilized by the Islamic finance industry and that is more fitting for implementation than many of the contracts currently being used.

scholarly journals Consistency between Musrenbang Results and Southeast Aceh District Government Work Plan (RKP)

2020 ◽  
Vol 3 (2) ◽  
pp. 876-883
Author(s):  
Hendra Hendra ◽  
Erlina Erlina ◽  
Asfriyati Asfriyati
Keyword(s):  
Islamic Law ◽  
Research Data ◽  
Sociology Of Law ◽  
Analysis Tool ◽  
Work Plan ◽  
The Poor ◽  
Government Work ◽  
District Government ◽  
The City ◽  
Husband And Wife

This research presents the latest information on the analysis of Islamic law on the practice of fulfilling the rights of wives and children in the household among the Tablighi Jama'ah. This research is presented in a qualitative form with the approach of sociology of law (Islamic law). This study uses Islamic law (mashlahat theory) as an analysis tool in analyzing research data. In the end, this study concluded that the rights and obligations of husband and wife and children in the household among the Tablighi Jama'ah were actually subject to and did not differ from the provisions of Law No. 1 of 1974, KHI and so from the opinion of Imam Shafi'i, although in reality related to the Tablighi Jama'ah policy, especially when selecting members who want to leave the khuruj still needs to be improved so that there are no more members of the jama'ah who are mentally incapable, especially financially making khuruj, so this does not impact on the non-implementation of the obligations of the husband in the household and the poor image of preaching khuruj in the midst of society, especially the city of Medan.

scholarly journals SUBHAT INCOME OF SHARIA FINANCIAL INSTITUTIONS ACCORDING TO DUAL LAW (Formal and Sharia Law)

2019 ◽  
Vol 19 (2) ◽  
Author(s):  
Nurhadi Nurhadi
Keyword(s):  
Financial Institutions ◽  
Research Method ◽  
Islamic Law ◽  
Research Data ◽  
Islamic Finance ◽  
Technical Data ◽  
Sharia Law ◽  
Library Research ◽  
The Social ◽  
Social Interests

The research aims to determine the purpose of non-halal funds in the business of Islamic finance, as well as a review of the philosophy of Islamic law. The research method uses descriptive qualitative concepts, types of Risert library research, data collection using primary and secondary, and technical data analysis using the analysis contents method, with a measure of benefit (philosophy of Islamic law). The result is that non-halal funds are any income originating from non-halal businesses (al-Kasbu al-Ghairi al-Masyru'). Use for the benefit of the ummah or the social interests of the community. While the review of Islamic law philosophy of non-halal funds is if the halal funds are more dominant, then all of these funds become halal, if the halal funds are the same or less, then the percentage of illicit funds must be issued. While the remaining funds are lawful, this is because of General al-Balwa, Raf'ul Haraj Wal Hajah al-Ammah, Muro'at Qowa'id al-Katsrah Wa al-Ghalabah and because of the rules about tafriq shafqah (separating halal transactions from those haram). Subhat income according to dual law, halal according to formal and sub-law according to sharia law.

scholarly journals Fulfillment of Wife and Child's Rights in the Tabligh Family (Case Study of Khuruj against the Jama'ah Tabligh Medan Area and Medan Helvetia)

2020 ◽  
Vol 3 (2) ◽  
pp. 884-894
Author(s):  
Ahmad Suhaili ◽  
M. Amar Adly ◽  
Akmaluddin Syaputra
Keyword(s):  
Islamic Law ◽  
Research Data ◽  
Sociology Of Law ◽  
Analysis Tool ◽  
The Poor ◽  
Family Case ◽  
The City ◽  
Family Case Study ◽  
Husband And Wife

This research presents the latest information on the analysis of Islamic law on the practice of fulfilling the rights of wives and children in the household among the Tablighi Jama'ah. This research is presented in a qualitative form with the approach of sociology of law (Islamic law). This study uses Islamic law (mashlahat theory) as an analysis tool in analyzing research data. In the end, this study concluded that the rights and obligations of husband and wife and children in the household among the Tablighi Jama'ah were actually subject to and did not differ from the provisions of Law No. 1 of 1974, KHI and so from the opinion of Imam Shafi'i, although in reality related to the Tablighi Jama'ah policy, especially when selecting members who want to leave the khuruj still needs to be improved so that there are no more members of the jama'ah who are mentally incapable, especially financially making khuruj, so this does not impact on the non-implementation of the obligations of the husband in the household and the poor image of preaching khuruj in the midst of society, especially the city of Medan.

Part II Islamic Law and Contracts in Practice, 8 Derivatives and Islamic Finance

2020 ◽  
Author(s):  
Eisenberg David M
Keyword(s):  
Risk Management ◽  
Financial Institutions ◽  
Islamic Law ◽  
Islamic Finance ◽  
Futures Options ◽  
Finance Industry ◽  
Considerable Debate ◽  
Islamic Financial Institutions ◽  
Lack Of Knowledge

This chapter studies how conventional derivatives—especially futures, options, and swaps—have been or may be based on bay’ salam, bay’ ʻurbun, and other traditional Islamic transaction structures. Bridging the gap between traditional Islamic transaction structures and conventional derivatives continues to be among the most urgent challenges facing the global Islamic finance industry, not least to provide Islamic financial institutions with a crucial tool for risk management. Salam and ʻurbun clearly illustrate the nature of the challenge to create Shari’a-compliant derivatives. Paradoxically, it is their deviation from the standard conditions for a valid sale contract that allow them to function to some extent as proxies for conventional derivatives. Among jurists, a consensus (ijma’) emerged as to the validity of salam, although special conditions were imposed not only to minimize gharar (uncertainty) and the kindred contractual defect of jahl (lack of knowledge), but also to reduce the possibility of riba (unlawful gain). There is still considerable debate among the various schools of law as to whether ʻurbun constitutes a valid sale contract under the Shari’a.

scholarly journals Present at the Resurrection: Islamic Finance and Islamic Law

2018 ◽  
Author(s):  
Haider Ala Hamoudi
Keyword(s):  
International Law ◽  
Islamic Law ◽  
Comparative Law ◽  
Law School ◽  
Islamic Finance ◽  
Short Paper ◽  
Washington Dc ◽  
American University ◽  
Legal Studies ◽  
International Academy

26 American University International Law Review 1107 (2011)This short paper summarizes an extremely stimulating plenary session, held at the XVIIIth Congress of the International Academy of Comparative Law in Washington DC, dealing specifically with the topic of Islamic finance. The speakers were three renowned leaders in the field. Specifically, they were Kilian Balz, a partner at Amereller who has both practiced extensively in the field, and written about it while at the Harvard Islamic Legal Studies Program at Harvard Law School, Frank Vogel, coauthor of a leading book on Islamic finance and former director of the Islamic Legal Studies Program, and Mahmoud El Gamal, a prolific writer and fierce critic of the practice who also served as the appointed Islamic finance scholar in residence at the Department of the Treasury in 2004.

Bridging Islamic Juristic Differences in Contemporary Islamic Finance

2012 ◽  
Vol 26 (3) ◽  
pp. 313-337
Author(s):  
Younes Soualhi
Keyword(s):  
Dispute Resolution ◽  
Capital Market ◽  
Islamic Law ◽  
Middle Eastern ◽  
East Asian ◽  
Islamic Finance ◽  
Islamic Banking ◽  
Finance Industry ◽  
Inherent Feature

Abstract This article is an attempt to formulate a viable Sharīʿah framework for juristic differences in contemporary Islamic finance. While acknowledging the legitimacy of juristic differences as an inherent feature of Islamic law, such differences could jeopardize a nascent Islamic finance industry, leading to what has come to be arbitrarily termed ‘Sharīʿah risk’ in Islamic finance. Two blocks appear to represent the two disputing sides since the launch of this industry, i.e., the Middle Eastern and South East Asian markets. Thus, this article aims to bridge differences in Islamic finance by proposing a framework and set of parameters that can be applied to all Islamic banking, Islamic capital market and takāful products. Apart from the outlined framework that aims to circumvent juristic disputes, this article concludes that juristic dispute resolution in Islamic finance will not be attainable until one can appreciate the legal and regulatory differences in which Islamic finance operates worldwide.

scholarly journals EVOLVING MONETARY ECONOMICS IN ISLAMIC PERSPECTIVE

2021 ◽  
Vol 7 (2) ◽  
pp. 317-340
Author(s):  
Muhammad Ayub ◽  
M. Fahim Khan
Keyword(s):  
Monetary Policy ◽  
Islamic Law ◽  
Monetary Economics ◽  
Islamic Finance ◽  
Modern World ◽  
Public Confidence ◽  
Islamic Perspective ◽  
Banking And Finance ◽  
Finance Industry ◽  
Ethical Finance

The challenges facing the Islamic banking and finance industry include, inter alia, resolving the issue of ‘form over substance’, adopting value-based social and ethical finance, and reinforcing public confidence that its business and services conform to the principles of Shari’ah in both letter and spirit. These challenges can be faced only if Islamic finance is based on the money and monetary perspective of Islamic economics. An important aspect for discussion in this context is the issue of money creation. This paper is based on an analysis of the literature on conventional and Islamic economics and Islamic finance. It comprises observational and narrative research mainly because monetary policy from an Islamic perspective has not been implemented in any jurisdiction in the modern world. Its objective is thus to suggest how monetary policy might evolve from the perspective of Islamic law of contracts. It discusses an economic model in which a new theory of monetary economics could become a basis for evolving Islamic finance in its value-based perspective. It also discusses monetary economics and monetary policy from an Islamic perspective in the context of contemporary Muslim economies. The Islamic financial system must be based on the Islamic system of money, monetary economics and exchange principles. Hence, economists and policymakers may first focus on evolving monetary economics and policy from an Islamic perspective, to serve as a basis for structural reforms.

scholarly journals ISLAMIC FINANCE DOCTRINE: THE NATURE AND EVOLUTION (the end)

2018 ◽  
Vol 2018 (2) ◽  
pp. 65-78
Author(s):  
Oleg MOZGOVYI ◽  
◽  
Oleksii SUBOCHEV ◽  
Oksana YURKEVYCH ◽  
◽  
...  
Keyword(s):  
Financial Markets ◽  
International Finance ◽  
Asset Management ◽  
Islamic Law ◽  
Commercial Banking ◽  
Islamic Finance ◽  
Real Sector ◽  
Finance Industry ◽  
Financial Hedging ◽  
Political Economic

The article identifies basic models of Islamic finance industry and provides a critical assessment (compared to conventional finance) оf mechanism of their functioning. Despite having obvious positive aspects, such as limitation of speculative or risky securitization, focusing on financing the real sector of economy and encouraging the direct interrelationship between financial and productive sectors, in our view, the mechanism of Islamic economics in some ways is at variance with a number of fundamental principles of effective economic activity. Objective factors (demographic, political, economic) cause an increase of role and influence of the industry over regional financial markets and international finance and determine the relevance of further research in this area. Today, Islamic finance comprises such commercial areas as capital markets, asset management and insurance. They represent all segments of modern financial market – commercial banking, operations with equity and venture capital, trade financing, insurance and even financial hedging. Only a small share of Muslims’ financial relations is provided in accordance with Islamic law. Under conditions of introducing the convenient, liquid and standardized financial instruments and further improvement of regulation for financial markets, redistribution of resources in favor of Islamic financial markets, as well as rapid growth of their share in international finance are expected.

scholarly journals Penalty and Compensation in Financial Commitments - A Critical Shariah Review

2021 ◽  
Vol 38 (2) ◽  
pp. 253-266
Author(s):  
Abdulazeem Abozaid
Keyword(s):  
Qualitative Research ◽  
Comparative Analysis ◽  
Research Methodology ◽  
Islamic Law ◽  
Islamic Finance ◽  
Finance Industry ◽  
Qualitative Research Methodology ◽  
Actual Harm ◽  
The Subject ◽  
Market Practices

Purpose: The aim of this paper is to critically review the position of Shariah and contemporary ijtihād on penalty provisions in financial commitments. It is also to show that some relevant fiqh resolutions have dealt differently with similar issues despite the absence of any grounds for such differentiation and to show how penalty provision in contracts has been expanded to include what cannot be accommodated by Shariah principles. All this necessitates a review of those stances, as they may have both unnecessarily burdened the Islamic finance industry and challenged some Shariah principles. Methodology: This paper employs a qualitative research methodology that adopts textual and fiqh comparative analysis approaches. The methodology also incorporates a macro perspective for treating the subject by analyzing the issues being examined from the perspective of Maqāṣid al-Shariah (Shariah objectives) in consideration of existing market practices and needs. Findings: This study primarily indicates that penalties or compensation provisions in contracts are accepted if they are intended to prevent actual harm rather than for gain, because profiting merely through stipulation is forbidden in Islamic law. Originality: Although this paper addresses an issue that has been addressed before, it acquires significance and value by setting the basis for what constitutes a valid penalty provision in Islamic finance and by showing areas of conflict and inconsistency in some of the contemporary stands on the matter, thus necessitating a review of these stances.

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