scholarly journals HIBAH SEMUA HARTA KEPADA ANAK ANGKAT (TELAAH KOMPARASI ANTARA KUH PERDATA DAN KHI)

2020 ◽  
Vol 8 (1) ◽  
pp. 109-140
Author(s):  
Nor Mohammad Abdoeh
Keyword(s):  
Islamic Law ◽  
Civil Code ◽  
Human Beings ◽  
Normative Approach ◽  
Qualified Person ◽  
Similarities And Differences ◽  
The Law ◽  
The Difference

One of the ways that human beings use to obtain treasure is grants. The grant process cannot be separated from the limit of the donated property. In reality, many people grant his wealth to his adopted son with all his possessions. It is a matter of the adopted child's position in the law. The purpose of this paper is to explain how the views of the Civil Code and the Islamic Law about grant and that comparation. The approach of this research with normative approach, by investigating whether it is according to the norms that apply. The conclusion of this research, that the rules of grant in the Civil Code and KHI actually have similarities and differences. The similarity of the two rules is seen in defining the meaning of the grant, its elements and similarity in judging a qualified person to do the grant. The difference of the rules are both seen in the share of grant distribution. The portion in KHI is a maximum of 1/3. The existence parts and restriction of the treasures in the grant is nothing but to protect from the tendency of the benefactor to ignore their family. While in the Civil Code based on Legitime Portie

scholarly journals IMPLEMENTASI DALAM PENYELESAIAN PERMASALAHAN AHLI WARIS PENGGANTI (STUDI BANDING BERDASARKAN HUKUM WARIS ISLAM DAN HUKUM WARIS PERDATA)

Jurnal Akta ◽  
2017 ◽  
Vol 4 (1) ◽  
pp. 103
Author(s):  
Sarijo Sarijo ◽  
Akhmad Khisni
Keyword(s):  
Islamic Law ◽  
Civil Code ◽  
Theory Theory ◽  
Legal Research ◽  
Inheritance Law ◽  
Straight Line ◽  
Approach Method ◽  
The Law ◽  
The Difference ◽  
Theory Of Law

The study aims to determine the extent to which the replacement of substituted heirs in the case of a substituted heirs system, the implementation of substituted heirs and parts thereof, and the similarities and differences of substitute heirs under the Law of Inheritance and the Law of Inheritance of the Civil Code.The research used with approach method that is juridical normative method is legal research done by giving priority to researching library materials and documents. The specification in this research is using analytical descriptive, this method aims to provide an overview that is done by using a qualitative way that consists of: Theory-theory of law, legal doctrines, as well as opinions from legal experts.The results of this study and discussion: 1) The system of heirs according to Islamic Law is "the amount of property of the deceased in the net, after deducting the payment of the debts of the testator". Whereas in the law of the inheritance of the Civil Code there is no known regulatory difference on the basis of the kind or origin of goods left by the heirs.2) According to the Islamic inheritance law that the lineage entitled to obtain part of the substitute is replaced by a downward straight line, from a straight line upward and from a straight line to the side. Meanwhile, according to the law of the Civil Code inheritance from Hazairin's teaching that the brother of his father, both male and female, is not a barrier to replace his father's position, it is most important that his father had died earlier than the heir (grandfather). 3) The equality of the surrogate heirs in both laws is a person who succeeds the heirs who first passed away from the heirs who should have acquired the inheritance, and the replaced heir is the link between a person who succeeds and heirs. While the difference in terms of replacing the position of his father and: the rights obtained by the successor heirsKeywords: heirs, surrogate heirs, Mawali, Islamic Inheritance Law, Inheritance Law of the Civil Code.

scholarly journals Comparing the Contract Between Islamic and Indonesian Laws

2020 ◽  
Vol 1 (2) ◽  
pp. 145
Author(s):  
Atharyanshah Puneri
Keyword(s):  
Islamic Law ◽  
Contract Law ◽  
Civil Code ◽  
Crucial Element ◽  
The Common ◽  
Similarities And Differences ◽  
The Law

In the common transaction, the contract plays a crucial element made between the parties with their consent. Its importance reflects that the contract realizes the parties' agreements and the contract binds the parties mentioned in the agreements. This study aims to review the contract law by analyzing the law of contract from two different laws, which are Islamic and Indonesian laws. This study finds some similarities and differences between Islamic and Indonesian laws when they come to governing contracts. Every contract in Islamic law must comply with sharia aspects, and the law derived from the Quran and Hadith. Meanwhile, based on Indonesian law, a contract can be deemed legal when it complies with the requirements stated in Article 1320 Indonesian Civil Code, and every Contract in Indonesian Law comes and is derived from the Indonesian Civil Code. KEYWORDS: contract law, Islamic law, Indonesian law.

scholarly journals Analisis Hukum Bunga Bank Ditinjau dari Perspektif Maqashid Syariah

2019 ◽  
Vol 3 (1) ◽  
Author(s):  
Sya Rifah Isnaeni
Keyword(s):  
Islamic Law ◽  
Conceptual Approach ◽  
Operational Costs ◽  
Library Research ◽  
The Law ◽  
The Difference ◽  
Conventional Banks

The background of this research is the exixtance of the difference opinion between ulama and moslem scholars about the law of interest in Islam, which is until now still not discovered the solusion opinion and it make interesting for the researcher to make a research about the object more deep and more wide. But the researcher will not use Islamic law perspective as analysis basic, the researcher will use the objectives of sharia as analysis basic.This research is limited by several problems as following: (1) Why bank interest is needed by conventional banks? And (2) How is the law of interest if observed from the objectives of syariah (maqashid sharia)?This research is a library research. In this research the researcher choose to use a conceptual approach because the purposes which need to be achieved trouhg this research is to result an Islamic law thought about the law of interest which is not being bounded by the opinions or theories launched by majority of the moslem scholar. So this research can originally refer to the objectives of the sharia as what has been agreed by majority of ulama.The results of this research there are: (1) the interest is a money amount addition which have to paid by bank to the costumer based on the loan percentage that given by bank to their customer. Bank interest is used for the Bank's operational costs, if there is no interest instrument, it is likely that the Bank will not be able to survive. And (2) there are three opinions of ulama’s law judgments about the law of interest, it is forbidden (haram), permitted (halal) and dubious (shubhat). If this law opinions observed based on the objevtives of sharia, the researcher can make a conclusion that the opinion which is permit the interest is the most according to the objectives of sharia, and it is related to the concept of hifz al-nafs (take care of soul) and hifz al-mâl(take care of property) than the opinion whih has been forbid the interest. The permitted law of interest in the concept of hifz al-nafs (take care of soul) can be located in the dharuriyah, hajiyah and tahsiniyah degrees. While The permitted law of interest in the concept ofhifz al-mâl(take care of property)can be located in the dharuriyah and hajiyah degrees. Keywords: Interest, Usury, Maqashid Sharia, hifz al-nafs (Take care of soul), hifz al-mâl (Take care of Property).

scholarly journals Putusnya Perkawinan dan Akibatnya dalam Fikih Munakahat (Studi Analisis Undang-Undang Nomor 1 Tahun 1974 Pasal 38-41)

2021 ◽  
Vol 2 (3) ◽  
pp. 413-431
Author(s):  
Kasman Bakry ◽  
Zulfiah Sam ◽  
Jihan Vivianti Usman
Keyword(s):  
Islamic Law ◽  
Marriage Law ◽  
Marital Problems ◽  
Normative Approach ◽  
Descriptive Research ◽  
Qualitative Descriptive ◽  
The Law ◽  
Almost All ◽  
Legal Consequences

This research aims to find out and understand Fikih Munakahat and the analysis of Law No. 1 of 1974 article 38-41 which discusses the breakup of marriage. This research uses a type of qualitative descriptive research, which focuses on the study of manuscripts and texts with a theological-normative approach and a juridical approach. The results showed that: First, the urgency of marriage in Islam that lasted until now is the marriage of al-Wiladah, i.e. a man came to the girl's parents to propose to her. Then he married her with his dowry; Second, the basis of marriage law in Indonesia at the level of application is contained in Law No. 1 of 1974 on Marriage and Presidential Instruction No. 1 of 1991 on compilation of Islamic law (KHI) applied in almost all marital problems, and the law is always used as the basis and back of every judge in providing legal interpretations and solutions to various problems of marriage law today; Third, the legal consequences due to the termination of marriage both in the perspective of Law No. 1 of 1974 in articles 38-41 and in the perspective of Fikih Munakahat will have an impact on; 1) children; 2) innate property; and 3) a living.

scholarly journals A Comparative Study on the Principles of Online Buying and Selling from the Perspectives of Islamic Law and Indonesian Positive Law

2021 ◽  
Author(s):  
Dwiyana Achmad Hartanto
Keyword(s):  
Comparative Study ◽  
Consumer Protection ◽  
Qualitative Method ◽  
Islamic Law ◽  
Civil Code ◽  
Normative Approach ◽  
Positive Law ◽  
Online Trading ◽  
Analytical Research ◽  
Online Buying

The study aims to analyze the comparative perspectives between Islamic Law and Indonesian Positive Law in the practices of online buying and selling (trading). This study uses a juridical and normative approach with a specification of descriptive-analytical research. The data comes from primary law, secondary law, and tertiary law, and the researcher used a qualitative method to analyse the data. The shift and development of offline-based buying and selling (trading) practices to online practices today has required special regulation in the Indonesian Positive Law. The absence of specific rules regarding the practice of online buying and selling indicates that these activities should be subjected to the existing positive Indonesian laws. The principle of freedom of making contracts in the Civil Code (KUH Perdata) provides freedom to make any trade agreements. For the sake of legal certainty in the execution of online buying and selling, the parties must refer to the provisions of the Civil Code, the Information and Electronic Transaction Law (ITE Law), and the Consumer Protection Law (UUPK Law) that are relevant to the trading practice. In addition to these provisions, Islamic Law within the scope of mu’amalah also provides guidelines for the practice of direct buying and selling, but not online buying and selling; however, Islamic law also provides freedom in mu’amalah. The existence of these provisions makes it interesting to conduct a comparative study on the principles of online trading practices from the perspectives of Islamic law and Indonesian positive law. Islamic Law considers it legal to conduct online buying and selling if the terms and conditions of buying and selling are fulfilled, if it provides benefits and negates harm, and if it does not conflict with Al-Qur’an and Al-Hadith, and if it can be designated as al-‘adatu muhakkamah (a custom which is defined as law). According to the Indonesian positive law, in principle, online trading is legal as long as it fulfills the provisions of trading, that is the fulfillment of the terms, elements, principles, rights, and obligations of the parties regulated in the provisions of the Civil Code, Information and Electronic Transaction’s Law, and Consumer Protection Law, along with providing legal assurance and protection for the parties. Keywords: comparative study, online buying and selling, Islamic law, Indonesian positive law

scholarly journals A Comparative Exposition of the Law of Husband and Wife in terms of Islamic Law, South African Law and the Law of England and Wales

Obiter ◽  
2021 ◽  
Vol 41 (4) ◽  
pp. 704-750
Author(s):  
Razaana Denson
Keyword(s):  
Comparative Analysis ◽  
South African ◽  
Islamic Law ◽  
Primary Concern ◽  
Bill Of Rights ◽  
Legal Systems ◽  
Similarities And Differences ◽  
English Law ◽  
The Law ◽  
Personal Law

The primary concern of this article is a comparative analysis of marriage law in three legal systems – namely, Islamic law, South African law and English law. The similarities and differences between these legal systems are highlighted. The comparative analysis demonstrates that although there are similarities in the three legal systems, the differences outweigh the similarities. This begs the question whether Islamic law (Muslim personal law in general and family law in particular) can be recognised and accommodated and implemented in the South African and English legal systems (both constitutional democracies) without compromising the principles of Islamic law, while at the same time upholding the rights contained in the Bill of Rights. To this end, a comparative analysis is undertaken of the law of marriage that entails a discussion, inter alia, of betrothal (engagement), the legal requirements for a marriage, as well as the personal and proprietary consequences of a marriage as applicable in Islamic law, South African law and English law.

scholarly journals UNIVERSALITAS DAN LOKALITAS HUKUM ISLAM

2015 ◽  
Vol 10 (1) ◽  
pp. 71-91
Author(s):  
A. Malthuf Siroj
Keyword(s):  
Common Ground ◽  
Islamic Law ◽  
Legal Discourse ◽  
Two Dimensions ◽  
The Other ◽  
Human Beings ◽  
Mutual Attraction ◽  
Legal Thought ◽  
The Law

Islamic law has two dimensions at once, namely universality and locality. In contemporary Islamic legal thought, there are two trends that contain mutual attraction between the two to bring dimension of locality to the dimension of universality on one side, and vice versa on the other side. As a consequence, there will be two possibilities, absoluteness or relativization of Islamic law. The legal discourse increasingly gains its own intensity in recently in line with the development of science and the use of various approaches in the study of Islamic law. Islamic law that is universally used is called syari`ah. This syariah law is rules of Allah SWT that is produced from texts with qath’î quality either from the side of the existency or the meanings without human beings rasional (ra’y) intervention because those texts are not the object of Ijtihad. Meanwhile, local Islamic Law is called fiqh. It is the law which is produced from texts with zhannî quality and becomes an object of Ijtihad. Because Fiqh is the result of Ijtihad so that it is usual when there are many madzhabs on it. Therefore, this paper will put this issue in proportion to find common ground between the two trends of contemporary Islamic legal thought. So that, it will hopefully clear up us the limits of universality and locality dimension of Islamic law, a focus of this legal discourse.

scholarly journals Appraising the Legal Position of Parents Under The Qiṣāṣ Law: Immunity or A Waiver

2018 ◽  
Author(s):  
International Journal of Fiqh and Usul al-Fiqh Studies
Keyword(s):  
Criminal Justice ◽  
Criminal Justice System ◽  
Justice System ◽  
Due Process ◽  
Islamic Law ◽  
Human Beings ◽  
Bodily Harm ◽  
Significant Element ◽  
Legal Position ◽  
The Law

Islam always enjoins the believer to be their brother’s keeper. They should protect, respect, and preserve the honor and integrity of their fellow human beings. The religion does not allow any harm to be inflicted upon any person without following the due process of the law. Islām considers the concept of rendering “justice for all” as a very significant element in its criminal justice system. Thus, the Islāmic law of crimes and torts (jināyāt) spares no expense and defines all the crimes and as well as their prescribed punishments. The law punishes offenders equally regardless of their biological status, sex, affiliation, or background. However, in some circumstances, the law mitigates punishments in favor of specific people without exonerating them in toto from liability. Mitigation of punishment in Islām therefore, cannot be seen as a grant of immunity since the main objective of the law is to maintain justice amongst all. In recent times, many people hide under the guise of the law in order to take advantage of their actions. Many cases of murder and grievous bodily injuries were alleged to have committed by persons whose responsibilities were to provide protection to their murdered or injured victims. Parents are known to be producers and protectors of their progeny, but quite number of them nowadays are alleged to have committed or aided or abetted the crimes of murder or infliction of bodily harm against their progeny. Hence, this fact cannot be detached from the misconception that is deeply involved in demarcating between “immunity” and “a waiver” under the law of Qiṣāṣ. It is based on this fact that the paper examines the position of parents vis-a-vis the law of Qiṣāṣ with a view to differentiate the concept of “waiver” from that of “immunity”.

scholarly journals Analisis Perbandingan Fatwa Malaysia dan Indonesia: Kajian Terhadap Isu-Isu Halal yang Terpilih

2018 ◽  
Vol 13 (1) ◽  
pp. 16-32
Author(s):  
Norhidayah Pauzi ◽  
Saadan Man ◽  
Syed Mohd. Jeffri Syed Jaafar
Keyword(s):  
Islamic Law ◽  
Cross Contamination ◽  
Interview Methods ◽  
The Law ◽  
The Difference

In the determination of Islamic law, there are two main principles used namely 'al-thabit' and 'al-mutaghayyir'. With the principle of 'al-thabit' and 'al-mutaghayyir' proves that Islam is practiced at all times and circumstances as Islam accepts any changes or differences that occur in society as long as it does not violate the fundamental principles of Islam. The difference in fatwa decisions issued between Malaysia and Indonesia has caused polemic among Muslims. Hence, this article will analyze the fatwas that have been decided between Malaysia and Indonesia on certain selected halal issues. Methods of documentation and interview methods have been used to obtain authentic and authoritative data. The findings show that Malaysia is still bound by the practice of Syafii Madhhab in determining the law on halal products. In contrast to Indonesia that is open to accepting views other than the Shafii Madhhab in determining the law besides taking different uruf and maslahah in both countries. Keywords: fatwa, halal, halal standard, cross-contamination. ABSTRAK: Dalam penentuan hukum Islam, terdapat dua prinsip utama yang digunakan iaitu ‘al-thabit’ dan ‘al-mutaghayyir’. Dengan adanya prinsip ‘al-thabit’ dan ‘al-mutaghayyir’ membuktikan Islam sesuai dipraktikkan pada setiap masa dan keadaan kerana Islam menerima sebarang perubahan atau perbezaan yang berlaku dalam masyarakat selagi mana ia tidak melanggar prinsip-prinsip asas Islam. Perbezaan keputusan fatwa yang dikeluarkan di antara Malaysia dan Indonesia telah menimbulkan polemik dalam kalangan masyarakat Islam. Justeru, artikel ini akan menganalisis secara perbandingan fatwa yang telah diputuskan di antara Malaysia dan Indonesia terhadap beberapa isu halal yang terpilih. Metode dokumentasi dan metode temu bual telah digunakan untuk mendapatkan data-data yang sahih dan berautoriti. Dapatan kajian menunjukkan Malaysia masih terikat dengan pengamalan Mazhab Syafii dalam penentuan hukum terhadap produk halal. Berbeda dengan Indonesia yang terbuka dalam menerima pandangan selain Mazhab Shafii dalam menentukan hukum disamping pengambilan uruf dan maslahah yang berbeza di kedua-dua buah negara ini. Kata Kunci: fatwa, halal, piawaian halal, kontaminasi silang.

scholarly journals STUDI KOMPARATIF TENTANG ASAS LEGALITAS BERDASARKAN HUKUM PIDANA POSITIF INDONESIA DAN HUKUM PIDANA ISLAM

2021 ◽  
Vol 9 (1) ◽  
pp. 50
Author(s):  
Leni Dwi Nurmala
Keyword(s):  
Criminal Law ◽  
Islamic Law ◽  
Great Influence ◽  
Fundamental Principle ◽  
Advantages And Disadvantages ◽  
Positive Law ◽  
Similarities And Differences ◽  
The Difference ◽  
The Times ◽  
Principle Of Legality

The purpose of this study is to determine the legality principle according to positive criminal law in Indonesia and Islamic criminal law and to find out the comparison between the legality principle according to positive criminal law and Islamic criminal law. This type of research used in this research is using library research or known as literature research. The principle of legality in Indonesia's positive criminal law is a very fundamental principle. Because the principle of legality in criminal law is important to determine whether a criminal law regulation can be treated against a criminal act that occurs. In Islamic criminal law, the legality principle has a great influence on the judge's power, because the judge's power is very broad compared to the judge in positive law where the judge does not have sufficient power to act against the crime maker in accordance with the public interest. Comparison of the principle of legality between Islamic law and positive law. Whereas the application of the legality principle to positive criminal law and Islamic criminal law has similarities and differences. The similarity is that both apply the principle of legality in the legal process while the difference is that positive criminal law is the same in its application to offenses, whereas in Islamic criminal law there is a distinction between Jarimah qishas diyat, hudud, which is applied strongly, while in Jarimah ta'zir it is relaxed so that the benefit of society is fulfilled. In addition to having the similarities and differences above, the legality principle also has advantages and disadvantages, among others, in Islamic law the criminal provisions cannot be changed (added / reduced) because it is a provision from Allah which is standard, while in positive law the criminal provisions may change at any time. according to the times.

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