scholarly journals Progresivitas Hukum Kewarisan Beda Agama di Indonesia Berbasis Keadilan dan Maṣlahah

2018 ◽  
Vol 20 (2) ◽  
pp. 217
Author(s):  
R Rohmawati
Keyword(s):  
Islamic Law ◽  
Human Life ◽  
Positive Law ◽  
The Law ◽  
The Difference ◽  
The Times ◽  
Made In ◽  
Religious Differences ◽  
Inheritance Laws

<p>The Division of the inheritance of the most crucial of them, there is a difference of religion between the heirs and the muwarriṡ, both the difference when <em>muwarriṡ </em>was still alive or when a heir has died. Indonesia, Islamic law as contained in the compilation of Islamic law (KHI), have determined that religious differences can be a hindrance to each other can be inherited. Along with the development of the times, the provision in the KHI was not considered relevant to the needs of today's society, so the necessary progressive efforts to respond to the problem of Islamic inheritance laws in Indonesia. Complexity and plurality of society Indonesia demanding the Islamic jurist to do the renewal of the law, as the religious court judges has been made in resolving the different religious inheritance matters by using the <em>rechtsvinding </em>function justified by positive law and compile Islamic law, when there is no law that governs. The renewal of the law in the form of the granting of the estate to the heirs of <em>muwarriṡ</em> Muslims from non-Muslims and the granting of probate wajibah to non-muslim heirs of <em>muwarriṡ</em> of Islam. This is done for the sake of Justice and benefit of tegaknya in human life.</p>

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.

scholarly journals PERLINDUNGAN HUKUM BAGI KORBAN TINDAK KEKERASAN SEKSUAL KAUM TUNARUNGU DALAM PRESPEKTIF HUKUM PIDANA

2020 ◽  
Vol 13 (2) ◽  
pp. 218-228
Author(s):  
Yulianti Ningsih Cahyani ◽  
Alfa Galih Verdiantoro ◽  
Febriyanti Uma
Keyword(s):  
Sexual Violence ◽  
Social Care ◽  
Islamic Law ◽  
Human Life ◽  
Legal Protection ◽  
People With Disabilities ◽  
Persons With Disabilities ◽  
Positive Law ◽  
The Law

AbstractVictims of sexual violence against persons with disabilities need legal protection through justice or social care, legislation is one of the references in the process of handling sexual violence because so far women have had difficulty in obtaining justice. With the aim of providing Islamic law in order to realize a better and fairer human life, as well as for the recovery of victims of sexual violence so that it can be accepted in the community and discrimination is not done which can make victims more traumatized. From the research that has been done that many people with disabilities who do not know the legal protection for them to avoid violence, harassment or taking away their rights are often ignored because of physical deficiencies, the positive law lies in the fact that the law is made and can be erased from everything acts that have been done by humans and are independent of the norms themselves.Keywords: legal protection; victims of violenceAbstrakKorban kekerasan seksual pada kaum difabel memerlukan perlindungan hukum baik melalui peradilan ataupun kepedulian sosial, perundang-undangan adalah salah satu rujukan dalam proses penanganan tindak kekerasan seksual karena selama ini perempuan sulit mendapatkan keadilan. Dengan tujuan memberikan penetapan hukum islam agar dapat mewujudkan kehidupan manusia yang lebih baik dan adil, sebagaimana untuk pemulihan pada korban kekerasan seksual agar dapat diterima dimasyarakat dan tidak dilakukannya diskriminasi yang dapat membuat korban menjadi lebih trauma. Dari penelitian yang telah dilakukan bahwa banyak kaum difabel yang belum mengetahui perlindungan hukum kepada mereka agar terhindar dari tindak kekerasan, pelecehan atau pengambilan hak mereka yang seringkali diabaikan karena dengan adanya kekurangan fisik, dalam hukum positif terletak pada fakta bahwa hukum dibuat dan dapat dihapuskan dari segala perbuatan yang telah dilakukan oleh manusia itu dan terlepas dari norma-norma itu sendiri.Kata kunci: korban kekerasan; perlindungan hukum

scholarly journals The Technique of Determining Ijtihad and Its Application In Life: Analysis Of Istihsan, Maslahah Mursalah, ʻUrf, and Syarʻu Man Qablana

2019 ◽  
Vol 4 (1) ◽  
Author(s):  
AHMAD MAULIDIZEN ◽  
Ashilah Raihanah
Keyword(s):  
Islamic Law ◽  
Human Life ◽  
Human Actions ◽  
Best Friend ◽  
Differences Of Opinion ◽  
Life Analysis ◽  
The Law ◽  
The Times

Islam as a comprehensive religion has regulated the Shari'a for the conduct of all human actions which the Shari'a is universal and its use is not limited by the times. There are four main sources in the determination of law in Islam, namely Alquran, Sunnah, Ijma and Qiyas. Apart from the source of the law, there are several methods used by ulul Usul Fiqh to determine the law on a new problem. The issue in this research is whether the methods of ijtihad such as Istihsan, Maslahah Mursalah, Urf, and Syar'u man qablana can be accepted and allowed by the Ulema Ushul fiqh in determining a law? What is the success in Islamic law? And how is it applied in human life and activity? The method used in this paper is the library study method. The results of the research obtained that Istihsan, Maslahah Mursalah, ‘Urf, and Syar’u man qablana are part of Islamic Shari'a. Despite the differences of opinion among the scholars regarding the ability to use the ijtihad methods. There are those who directly allow, some also give certain conditions in the process of determining the law. Described the arguments that strengthen the opinions of the scholars in issuing their fatwa. There are also examples of the implementation and application of the ijtihad method both at the time of the Prophet's best friend and in the present in accordance with the true Islamic Shari'a

On the Proportion of Marriages at different Ages of the Sexes

1858 ◽  
Vol 7 (4) ◽  
pp. 188-200
Author(s):  
Samuel Brown
Keyword(s):  
Human Life ◽  
Progressive Increase ◽  
Natural Laws ◽  
Different Ages ◽  
Social Statistics ◽  
Moral Qualities ◽  
The Subject ◽  
The Law ◽  
The Difference ◽  
Natural Decay

In a paper which was read before the Institute of Actuaries on the 31st May, 1852, “On the Uniform Action of the Human Will, as exhibited by its Mean Results in Social Statistics,” I drew attention to the remarkable regularity with which marriages are contracted in any country, and the very small limits of difference from the average number which appear from year to year. The observations made by M. Quetelet in Belgium, from 1825 to 1845, showed that the extreme difference in the total number of marriages was little more than half the difference of the extremes in the number of deaths in the same period. Such a conclusion seemed to imply that the subject was worthy of more research. If the law of mortality can be so accurately defined at different ages, that pecuniary interests, amounting to some hundreds of millions sterling, can be valued and adjusted with the greatest nicety, it is reasonable to conclude that the labour of a statistical inquiry into the proportion of marriages at different ages would be rewarded with the discovery of some equally defined law, since the variations from year to year in a given number of facts appear, from a large number of observations, to be even less than in the former case. It is true that, as human life must fail at some time, from the natural decay of the powers of life, every interval of age after man has once attained maturity may be expected, under ordinary circumstances, to show a steady and progressive increase in the liability to disease and death. On the other hand, it may be, argued that marriage is the exercise of the free will of man—that consequently, it does not depend on the age or period of life, but on the arbitrary exertion of those feelings or mental and moral qualities which are not subject to natural laws, or at least not to such laws as we are able to express numerically in the same manner we can the law of mortality in any given population. If we consider, however, marriage as, in one sense, the natural provision for the preservation or increase of the species, and the counteraction to the law of mortality by which the species would perish, we should not be surprised to find that, however imperceptibly to individuals, there is a tendency to obey some unknown law of nature which at the period of maturity would lead to the maximum of marriages, and gradually diminish with age in the same manner as the tendency to disease and death increases with age. The motives and caprices of individuals would only have the same effect on the general results which the different habits of individuals may have in increasing or diminishing the rate of mortality. Accordingly, M. Quetelet, in a comparison of the number of marriages in Belgium for each five years of age after 21, for both sexes, for a period of five years consecutively, showed that the average results in each period scarcely differed at all from year to year. The table is so remarkable, that I have reduced the proportion to 100 of the total marriages in each year, and present it to show the small differences which will then be seen to prevail.

scholarly journals Analysis of Wakaf and Maqashid Syari'ah Law on the Development of Wakaf Property in Lhokseumawe City

2021 ◽  
Vol 3 (1) ◽  
pp. 224-231
Author(s):  
Yasir Nasution ◽  
Alyasa’ Abubakar ◽  
Kafrawi
Keyword(s):  
Data Collection ◽  
Islamic Law ◽  
Legal Research ◽  
Government Regulations ◽  
Theoretical Concepts ◽  
Positive Law ◽  
Islamic Jurisprudence ◽  
The Law ◽  
Research Show

The development of waqf assets in the form of adding the function of waqf is a new phenomenon in the problems of Islamic law jurisprudence even in positive law in Indonesia. In national law (positive), Indonesia has regulated this issue with the existence of laws and government regulations regarding waqf both movable and immovable waqf assets, even in its development every property in waqf must have an Deed and / or certificate. Whereas in Islamic jurisprudence, the development of waqf assets in the form of additional functions is one of the problems that can be said to be new, it needs legal conclusions and even has to be seen from various theoretical concepts such as maqashidu sharia. Therefore this research will examine the issue of developing waqf assets based on the Waqf Law and maqashid syari'ah. This research is an empirical legal research using a sociological legal approach, with data collection through documentation and interviews. The results of the research show that the development of waqf assets is permitted according to the law, but with the stipulated conditions, besides that the development of waqf assets is also permissible in Islamic jurisprudence as long as it is solely for reasons in accordance with the concept of maqasidu syari'ah and the point is to seek maslahat.  

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).

The London ‘Insurrection’ of December 1792: Fact, Fiction, or Fantasy?

1978 ◽  
Vol 17 (2) ◽  
pp. 66-86 ◽  
Author(s):  
Clive Emsley
Keyword(s):  
Saturday Morning ◽  
House Of Lords ◽  
The Commons ◽  
The Law ◽  
Law Courts ◽  
The Government ◽  
The Times ◽  
Made In

As the likelihood of war with revolutionary France grew at the end of 1792 and beginning of 1793, the pro-government press in England reported that a serious plan for an insurrection, scheduled for the first weekend in December 1792, had been nipped in the bud by the authorities. On December 3 The Times stated that, as it had not wished to create alarm, it had not previously mentioned the full facts of the seditious attempts being made in the country. These attempts, the newspaper maintained, had prompted almost daily meetings of the Cabinet climaxing in a meeting at Lord Grenville's house which had lasted until one a.m. on the preceding Saturday morning (December 1). It was from this meeting that the Cabinet had issued the royal proclamation which embodied part of the militia and which deplored the ineffectiveness of the May 1792 proclamation against seditious meetings and writings. Three weeks later, beneath the headline “Revolution Plans,” the World reported that two parties were involved in the projected insurrection: the “moderates” who sought first the destruction of the House of Lords, the Herald's Office, and the Horse Guards, and then the enlarging of the Commons; and those whose plans were “more extensive” and who would have gone on to destroy St. James's Palace, the Bank, the law courts, the prisons, the customs house, and excise office. A month later, under the headline “Project of an Insurrection,” the London Chronicle gave similar details of a plot “to overturn the government and the constitution of this country.”

scholarly journals Fleksibelitas Hukum Ekonomi Syariah

2018 ◽  
Vol 1 (2) ◽  
pp. 161
Author(s):  
Murtadho Ridwan
Keyword(s):  
Literature Review ◽  
Islamic Law ◽  
Economic Law ◽  
The Law ◽  
Islamic Economic ◽  
The Times ◽  
To Receive

<p><em>This study aims to examine the flexibility of Islamic law in general and the flexibility of Islamic law in particular. This study is a literature review. Data is collected from various works that have been produced by the scholars and analyzed descriptively. The results of the study show that in general, Islamic law is divided into two types; First, Islamic law is static (fixed) and will not change, this type of law is based on Nash qath'i. Second, Islamic law that is flexible (dynamic) that can change according to the demands of the times, this type of law is based on the results of ijtihad. Many flexible laws are found in the law of muamalat (Islamic economics) and this has happened since the beginning of Islam. There are many examples of the flexibility of Islamic economic law, including: Umar stopped distributing the land from the war, even though the Messenger of Allah had distributed the land; Umar stopped the portion of the zakat property for the convert group even though they belonged to eight groups who were entitled to receive zakat shares; Umar made a policy to excise non-Muslim traders as big as Usyur (10%) and Dzimmah Expert traders by 5% when they entered the Islamic region; and Umar founded the Diwan (Baitul Mal) even though it never existed at the time of the Prophet.</em><strong><em></em></strong></p>

scholarly journals TEORI KEADILAN DALAM PERSPEKTIF FILSAFAT HUKUM DAN ISLAM

2018 ◽  
Vol 14 (2) ◽  
pp. 27-44
Author(s):  
Muhammad Kurniawan Budi Wibowo
Keyword(s):  
Social Justice ◽  
Islamic Law ◽  
Human Life ◽  
General Concept ◽  
Legal Philosophy ◽  
Human Interest ◽  
Theory Of Justice ◽  
Divine Justice ◽  
The World ◽  
The Law

The existence of Islamic law in the world is to regulate human life, both as a person and as a member of society in order to behave according to the wishes of the Creator. This is different from the general concept of law which is only intended to regulate human life as members of society or in other word the law exists because of the conflict of human interest. Among the problems in the philosophy of Islamic law, the most frequent discourse is about the issue of justice in relation to the law. This is because the law or regulation must be fair, but in fact it is often not. This paper will describe this issue of justice from the perspective of legal philosophy and Islam. In the perspective of legal philosophy, the author will only parse the theory of justice Aristotle and John Rawl. Whereas in the perspective of Islamic legal philosophy, the author will parse the theory of the Muktazilah and Asyariyah divine justice, and the Islamic Maqasyid Theory as the ideals of Islamic legal social justice.

scholarly journals Analisis Pertanggungjawaban Tenaga Medis yang melakukan Tindak Pidana Malpraktek menurut UU Nomor 36 Tahun 2009 Tentang Kesehatan

2015 ◽  
Vol 1 (1) ◽  
Author(s):  
Suwari Akhmaddhian
Keyword(s):  
Health Worker ◽  
Criminal Law ◽  
Defense Response ◽  
Health Personnel ◽  
Criminal Liability ◽  
Positive Law ◽  
The Law ◽  
Omission Errors ◽  
Made In

A defense against criminal liability of a health worker who commit criminal acts of malpractice can be argued that the criminal liability lies in the form of omission errors or omissions when power kesehatantersebut their profession . As a result of mistakes resulting in death or injury , an element of health personnel mistakes made in this case is the gross negligence or culpa lata which will be requested a defense response of the consequences of his actions . In the application of the criminal law against the perpetrators of malpractice , the application of positive law for perpetrators of malpractice contained in Article 361 and Article 359 of the Code of Criminal Law and Law no . 36 of 2009 on Health . But in the application of these articles dilemma arises in understanding the elements of negligence which measures whether the health worker negligence or not in terms of their profession , to the order of the Book  of the  Law is  being revised  Criminal Law should  regulate the issue of negligence is regulated in detail and.clear.Keywords : Health , Criminal , Malpractice.

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