scholarly journals application of child adoption (balaku anak) and its legal effects on customary law system of the Dayak Ngaju tribe

2020 ◽  
Vol 8 (1) ◽  
pp. 1-8
Author(s):  
Rizki Yudha Bramantyo ◽  
Irham Rahman
Keyword(s):  
Rule Of Law ◽  
Research Method ◽  
Islamic Law ◽  
Secondary Data ◽  
Customary Law ◽  
Primary Data ◽  
The Rule Of Law ◽  
Law System ◽  
Positive Law ◽  
Child Adoption

The purpose of this research is to find out how the application of children's behavior and its influence on the customary law system of the Dayak Ngaju Tribe. The research method used is qualitative. Primary data comes from observations and interviews. Meanwhile, secondary data from previous studies were collected to support the findings. The findings reveal that there are differences in the rule of law between Islamic law and positive law and customary law of the Dayak Ngaju tribe. Islamic law regulates inheritance and inheritance rights according to lineage, positive law regulates the return of cases of adoption to civil law, and customary Dayak Ngaju law recognizes adoption.

scholarly journals KEDUDUKAN ADVOKAT DALAM PASAL 5 UNDANGUNDANG NOMOR 18 TAHUN 2003 TENTANG ADVOKAT PERSPEKTIF HUKUM

JURISDICTIE ◽  
2017 ◽  
Vol 5 (2) ◽  
pp. 188
Author(s):  
Adib Khoirul Umam
Keyword(s):  
Law Enforcement ◽  
Islamic Law ◽  
Legal Theory ◽  
Secondary Data ◽  
Primary Data ◽  
High Quality ◽  
Positive Law ◽  
The Law ◽  
Article 5

<p>This study aims to determine how Islam views which in this case is limited only four schools of opinion about the position of an advocate as law enforcement. In Islam indeed advocates known as providers of legal bantuah namely Hakam, mufti and mashalih alaih that functions similar to advokat.Penelitian function is called normative research with descriptive methods comparative analysis between positive law and Islamic law, namely Law No. 18 2003 and scholarly opinion four schools as primary data. Secondary data were taken from books or books that explain the legal theory of primary data. Article 5 of Law No. 18 of 2003 on lawyers has been explained that the position of advocate parallel with other law enforcement such as judges, prosecutors and police. But in fact appear black advocates not to enforce the law but instead became mafias that sell traded equity law. For it will be studied how exactly Islam's view of the position of Advocates with the formulation of the problem sebegai follows, first how the views of Islamic law for the position of advocate in Article 5 of Law No. 18 of 2003 on advocates, who both like where the relevance of Islam's view of the position of advocate in enforcement law in Indonesia. From research conducted authors argue for their refisi against the law number 18 of 2003 on advocates. alignment between advocates and other law enforcement must be followed by the high quality of an advocate and supervision of the performance of lawyers in order to minimize the occurrence of fraud in practice in providing legal aid.</p><p>Penelitian ini bertujuan untuk mengetahui bagaimana pandangan Islam yang dalam hal ini hanya dibatasi pendapat empat madzhab tentang kedudukan advokat sebagai penegak hukum. Dalam Islam memang advokat dikenal sebagai lembaga pemberi bantuah hukum yaitu hakam, mufti dan mashalih alaih yang secara fungsi hampir sama dengan fungsi advokat. Penelitian ini disebut penelitian normatif dengan metode deskriptif analisis perbandingan antara hukum positif dan hukum Islam, yaitu undang-undang nomor 18 tahun 2003 dan pendapat ulama empat madzhab sebagai data primer. Data sekunder diambil dari kitab-kitab atau buku-buku teori hukum yang menjelaskan tentang data primer. Dari penelitian yang dilakukan penulis berpendapat perlunya adanya refisi terhadap undang-undang nomor 18 tahun 2003 tentang advokat. kesejajaran antara advokat dan penegak hukum lainya harus diikuti dengan tingginya kualitas seorang advokat dan pengawasan terhadap kinerja advokat agar bisa meminimalisir terjadinya penyelewengan dalam praktiknya dalam memberi bantuan hukum.</p>

scholarly journals Peran Hukum Adat Perspektif Hukum Islam Dalam Ranah Hukum Positif

2020 ◽  
Vol 5 (1) ◽  
pp. 89
Author(s):  
Lutfi El Falahy
Keyword(s):  
Rule Of Law ◽  
Qualitative Method ◽  
Customary Law ◽  
Final Word ◽  
The Rule Of Law ◽  
Positive Law ◽  
Library Research ◽  
Written Law

Indonesia has written law in the form of positive law and law that lives in recognized societies and then becomes customary law, but recognition of customary law applies only to groups that recognize its existence, of course this is contrary to positive law that applies universally. Here the author tries to examine how the role of customary law in the formation of positive law and what its effects. The method used in this paper is a qualitative method and the approach uses library research. As a rule of law aimed at creating harmony and balance in society, the existence of customary law in a rule of law is absolutely necessary, because the rule of law as a feature of the rule of law is not a final word, but as a way to create justice in society.

scholarly journals THE SHARIA MICROFINANCE AND THE COUNTER-HEGEMONIC MOVEMENT: EXAMINING THE LEGAL NORMS REGULATING ASPECTS OF INSTITUTIONAL AND BUSINESS ACTIVITIES IN SURAKARTA

2019 ◽  
Vol 7 (3) ◽  
pp. 45-51
Author(s):  
Kelik Wardiono ◽  
Wardah Yuspin
Keyword(s):  
Islamic Law ◽  
Secondary Data ◽  
Qualitative Approach ◽  
Primary Data ◽  
Microfinance Institutions ◽  
Business Incubation ◽  
Legal Norms ◽  
Positive Law ◽  
Library Studies ◽  
Depth Interviews

Purpose of study: Research aims at the study of legal norms that are formed and used to regulate the institutional aspects and business activities of the Islamic Micro Finance (LKMS) as well as the counter-hegemonic movement that lies behind them. Methodology: This research employs qualitative approach, which based on secondary data in the form of written documents, collected through library studies and primary data from informants, collected through in-depth interviews and observations in four LKMS in Surakarta LKMS Al-Huda UNS, LKMS Al-Abidin, LKMS AmanahUmmahUMS, LKMS Al-Muayyad. Results: The Legal norms established and used to regulate the institutional and business aspects of the four Sharia Microfinance Institutions in Surakarta show that there are certain aspects in common, and differences on the other. The norms used in regulating the institutional and business aspects of Sharia Microfinance Institutions in Surakarta show a mixture of norms in Islamic law and the MUIs Fatwa, the Norms (in positive law) governing banks, financing institutions, partnerships, and cooperatives, with elements of the more prominent Islamic law. Applications: The existence of the equations of the norms used in the background by the existence of counter-hegemonic movement built by The Small Business Incubation Center (PINBUK), which has passed through the corporate phase but has not exceeded the hegemonic phase. While the differences of norms used, due to the different degrees of cultural penetration of each Sharia Microfinance Institutions against the hegemonic movement driven by PINBUK.

scholarly journals Inheritance of Community Property in Melayu Siak Community

2019 ◽  
Vol 6 (3) ◽  
pp. 234
Author(s):  
Lani Regina Yulanda
Keyword(s):  
Islamic Law ◽  
Secondary Data ◽  
Field Studies ◽  
Customary Law ◽  
Primary Data ◽  
Research Approach ◽  
Inheritance Law ◽  
Kinship System ◽  
Community Property ◽  
Qualitative Descriptive

The existence of legal events in the form of death results in inheritance regulated by certain inheritance laws. In Indonesia, there is still inheritance legal pluralism, including civil inheritance law, Islamic inheritance law and customary inheritance law. In Melayu Siak community, where Islamic law and customary law are their living laws, there are differences in those two laws regarding the inheritance which then raises the question of which law will apply. This study utilizes a qualitative descriptive method with an empirical juridical legal research approach. Research data are collected through field studies by conducting interviews with the respondents to obtain primary data and literature studies to obtain secondary data. The focus of this research is to find out and analyze inheritance over the community property in Melayu Siak community. The results of the study show that 1) there is a relationship between the kinship system and the existence of the community property. 2) the inheritance in Melayu Siak community is based on the Islamic inheritance law and its implementation is carried out based on the results of the deliberation.

scholarly journals Understanding the Rights of Wife in The Law Number 1 of 1974 About Marriage Among the Terrorist Wives in Central Java

2020 ◽  
Vol 8 (1) ◽  
Author(s):  
Rosdiana Rosdiana ◽  
Hotnidah Nasution
Keyword(s):  
Islamic Law ◽  
Secondary Data ◽  
Primary Data ◽  
Marriage Law ◽  
Positive Law ◽  
Central Java ◽  
Religious Doctrine ◽  
Library Research ◽  
The Status ◽  
The Law

AbstractThe terrorist or ex-terrorist wives in Solo have experienced diverse conditions after their husband officially becomes a terrorist prisoner who has been lived in jail. The Rights of Wife in Law No. 1 of 1974 about Marriage among terrorist wives in Solo have sharpened the analysis on how their level of perception of the wife’s rights that regulated by Law No. 10 of 1974. This study aims to reveal the reality of cases that took place with terrorist wives related to the fulfillment of their rights as a wife regulated by law, and to categorize their marital status related to the validity in a positive law (whether the marriage is registered or not in The Office of Religious Affairs (KUA)). Besides, this paper also wants to explore the terrorist wives' understanding who are legally married in KUA regarding their rights which are highly protected by the law. This research uses a qualitative method which aimed to find concepts and theories, and library research by applying the empirical or sociological legal approach. Data sources used are Primary Data, namely the terrorist prisoner’s wives in Solo, and secondary data from the Marriage Law (Law No. 1 of 1974), Compilation of Islamic Law (KHI), books, journals, articles, views of legal experts, and the results of other paper and writings related to the problems that become the subject in this research discussion. The descriptive data analysis method aims to figure out systematically, factually and accurately the facts about the understanding of terrorist wives related to their rights in the Marriage Law (Law No. 1 of 1974). After analyzing and interpreting the existing data, it can be concluded that the terrorist prisoner wives in Central Java have a fairly good understanding of their rights as wives regulated in Law No. 1 of 1974. If only there are rights that undermanned by them for the unfulfilled obligations by the husband, then it is caused by their sincerity attitude towards the husband status who becomes a prisoner. The religious doctrine that is strong enough makes the prisoner’s wife do not ask many of her rights, both physical and mental rights that are not well fulfilled. For them, the status of a husband to become a terrorist prisoner is a Shari reason which consequences must be accepted sincerely.Keywords: Understanding, wife's rights, Terrorist Prisoner’s Wives

scholarly journals FASAKH NIKAH DENGAN ALASAN SUAMI MISKIN (Studi Perbandingan antara Ulama Syafi’iyyah dan Hukum Positif di Indonesia)

2019 ◽  
Vol 8 (2) ◽  
Author(s):  
Syahrizal Abbas Sitti Mawar Muhammad Habibi
Keyword(s):  
Islamic Law ◽  
Comparative Method ◽  
Secondary Data ◽  
Primary Data ◽  
Is Research ◽  
Positive Law ◽  
Differences Of Opinion ◽  
Implementation Period ◽  
The Right

In a family sometimes painful actions arise from involuntary causes (not intentionally), not on the wishes of the husband, such as because the husband is poor or poor so he does not have a living to fulfill his wife's rights in the form of food, clothing and home at a certain time, which makes the wife ask to part with her husband through the divorce (fasakh) path. Regarding the problem of the wife asking for fasakh (carrying out divorce) by reason of a poor husband there are differences of opinion between the Syafi'iyyah Ulama and Positive Law in Indonesia concerning the provisions that must be fulfilled by both. This study wants to answer the question of how the provisions of fasakh marriage are based on the reasons of poor husbands according to Syafi'iyyah Ulama and Positive Law in Indonesia. To get answers, the author uses primary data sources and secondary data. The research method that I use is Descriptive Comparative method that is research by analyzing and comparing opinions, reasons and interpretations of the arguments used as the opinions of the two groups. The results of the study indicate that the fasakh of marriage on the grounds of a poor husband according to the Shafi'iyyah Ulama is permissible and validly carried out on condition; 1) A wife who is married between being patient and divorced, 2) Judge's decision, in the form of; a. determination of poor status according to the provisions, b. giving an opportunity to a husband to work for a living, c. Fasakh implementation period three days after the wife reported. 3) Separated by reciting fasakh instead of divorce, and still having three times the right of divorce if in the future you want to remarry with a new contract. Whereas according to Positive Law in Indonesia fasakh marriage by reason of poor and permissible husband with conditions, 1) occur shikak between wife and husband, 2) wife make a divorce letter, 3) Decision judge namely proof of poor husband in a literal manner, 4) Court decision drop one bain sughra talak. From the explanation above, it can be concluded that the provisions of the fasakh of marriage by reason of poor husbands in the opinion of the Syafi'iyyah clerics are better and fair because they are supported by a strong foundation and are most in accordance with the soul, basis and principles of Islamic law. Therefore in Indonesia requires more explicit rules about fasakh (divorce) with the excuse of poor husbands.Keywords: Fasakh and Poor. 

scholarly journals Kedudukan Suami Menurut Hukum Waris Bali dalam Perkawinan Nyeburin di Desa Adat Peliatan Ubud Gianyar

2021 ◽  
Vol 2 (2) ◽  
pp. 303-308
Author(s):  
Cokorda Gde Yudha Putra ◽  
I Made Suwitra ◽  
Gayatri Sudibya
Keyword(s):  
Rule Of Law ◽  
Married Couple ◽  
Secondary Data ◽  
Customary Law ◽  
Data Sources ◽  
Primary Data ◽  
Related Research ◽  
Sociological Approach ◽  
Male Side ◽  
The Family

Balinese men are the successors of the lineage / continuation of the future of the family so that a family continues to have descendants and does not experience extinction. However, these hopes cannot come true if the married couple cannot give birth to a son or even have no children or offspring at all. The purpose of this study was to determine the law of Balinese inheritance in nyeburin marriages in the traditional village of Peliatan. The formulation of the problem in this study is what is the position of the husband in the Nyeburin marriage according to the Awig-Awig of the Peliatan Traditional Village and the factors that encourage the implementation of the Nyeburin marriage in the Peliatan Traditional Village. The type of research used is empirical using a sociological approach, statutory approach, conceptual, case and customary law approaches. The data sources obtained from this research are primary data from interviews and observations and secondary data from Awig-awig traditional villages, legislation and related research. The results of the research include the husband's position as predana in intermarriage according to the Awig-Awig of the Peliatan Traditional Village, if the marriage breaks either those who still live at their wife's house or who have returned to their original home (mulih deha / truna), no one has explicitly regulated in positive rule of law. The factors that encourage the implementation of the Nyeburin marriage in the Peliatan Traditional Village are due to the request of the woman's parents due to not having a son and only having a daughter, a factor that comes from the male side (as predana), namely because of mutual love between the two both sides.

scholarly journals PERAN DESA ADAT DALAM TATA KELOLA LEMBAGA PERKREDITAN (LPD) DI BALI

2021 ◽  
Vol 5 (2) ◽  
pp. 580
Author(s):  
Mia Hadiati ◽  
Lis Julianti ◽  
Moody R Syailendra ◽  
Luthfi Marfungah ◽  
Anggraeni Sari Gunawan
Keyword(s):  
Informal Sector ◽  
Research Method ◽  
Conflicts Of Interest ◽  
Secondary Data ◽  
Customary Law ◽  
Primary Data ◽  
Microfinance Institutions ◽  
Credit Institution ◽  
Legal Research ◽  
The Village

LPD as one of the MicroFinance Institutions is very rapidly growing in Bali Province. LPD is said to be the business center of the informal sector. The existence of LPD as a credit institution in the village has been recognized based on customary law. In 2020 LPD in Bali amounted to about 1,433 LPD from a total of 1,485 Indigenous Villages in Bali which more served loans for villagers for various purposes. Therefore, in the management of LPD must be managed properly, correctly, transparency so that there is no misuse of LPD in its management and designation. The research method used in this research is normative-empirical legal research. This research is a blend of normative legal research and empirical legal research. Normative legal research is legal research that uses secondary data, while empirical legal research is legal research that uses primary data.  Based on the results of this pre-study can be concluded the occurrence of criminal acts of corruption committed both the Board and lpd managers cause disputes. Disputes conducted by lpd managers and managers cause conflicts of interest either between the manager with customary karma or between managers and managers both in the duties and functions of their authority. Disputes over customary issues in the Village within the scope of LPD either indicated that cause village losses or violations of applicable laws and regulations are often resolved through national law compared to customary law that applies in an LPD area. LPD sebagai salah satu Lembaga Keuangan Mikro sangatlah berkembang pesat di Provinsi Bali. LPD dikatakan sebagai pusat usaha sektor informal. Eksistensi LPD sebagai lembaga perkreditan di desa telah diakui keberadaannya berdasarkan hukum adat. Tahun 2020 LPD di Bali berjumlah sekitar 1.433 LPD dari total 1.485 Desa Adat di Bali yang lebih banyak melayani pinjaman bagi masyarakat desa untuk berbagai keperluan. Oleh karena itu didalam pengurusan LPD haruslah dikelola dengan baik, benar, transparansi agar tidak terjadi penyalahgunaan LPD di dalam pengelolaan dan peruntukannya. Metode penelitian yang digunakan dalam penelitian ini adalah penelitian hukum normatif-empiris. Penelitian ini merupakan perpaduan antara penelitian hukum normatif dan penelitian hukum empiris. Penelitian hukum normatif adalah penelitian hukum yang menggunakan data sekunder, sedangkan penelitian hukum empiris adalah penelitian hukum yang menggunakan data primer.  Berdasarkan hasil pra penelitian ini dapat disimpulkan terjadinya tindak pidana korupsi yang dilakukan baik itu Pengurus dan pengelola LPD menimbulkan sengketa. Sengketa yang dilakukan oleh Pengurus dan pengelola LPD menimbulkan konflik kepentingan baik antara pengurus dengan karma adat atau antar pengurus dan pengelola baik dalam tugas dan fungsi kewenangannya. Sengketa permasalahan adat di Desa dalam ruang lingkup LPD baik itu terindikasi yang menimbulkan kerugian desa ataupun pelanggaran Peraturan Perundang Undangan yang berlaku seringkali sengketa tersebut diselesaikan melalui hukum Nasional dibandingkan dengan hukum adat yang berlaku di suatu wilayah LPD.

scholarly journals Elaboration, Collaboration, And Contribution Of Traditional Law In Indonesian National Legal System

2021 ◽  
pp. 1-21
Author(s):  
Yohanes Firmansyah ◽  
Michelle Angelika S ◽  
Hanna Wijaya ◽  
Yana Sylvana
Keyword(s):  
Research Method ◽  
Civil Law ◽  
Customary Law ◽  
Comparative Approach ◽  
Legal Systems ◽  
Law System ◽  
Positive Law ◽  
National Tradition ◽  
The Supreme Court ◽  
Civil Law System

Indonesia uses customary Law as positive Law in the archipelago, is obeyed and implemented as a custom, from generation to generation respected by the community as a national tradition. As a rule of Law, Indonesia adheres to many legal systems at the same time that lives and develops in society, namely the civil law system and the customary law system. All these legal systems are complementary, harmonious, and romantic. As the original Law that grows and develops from community habits, Customary Law affects the process of law enforcement in Indonesia. The values ​​contained in customary Law in Indonesia were used in the formation of jurisprudence in the Supreme Court. This paper will explain how customary Law, which has an "unwritten" character, can fill the Indonesian civil law system's legal gap. This paper's research method is a normative legal research method and uses several approaches, namely the statutory approach, the comparative approach, and the historical approach. This paper concludes that legal pluralism in Indonesia can be a solution to the legal gap created by the rigidity of civil law application.

scholarly journals Juridical Review on Grants of Treasure Together Of Child Due Divorce In Religious/ Islamic Courts of Kendal

Jurnal Akta ◽  
2020 ◽  
Vol 6 (4) ◽  
pp. 741
Author(s):  
Bagus Malik Hakim ◽  
Akhmad Khisni ◽  
Munsharif Abdul Chalim
Keyword(s):  
Rule Of Law ◽  
Islamic Law ◽  
Secondary Data ◽  
Children Of Divorce ◽  
Primary Data ◽  
Community Property ◽  
Sense Of Justice ◽  
Religious Courts ◽  
Joint Property ◽  
Husband And Wife

Divorce in the event, then the entire joint property, the property acquired during the marriage is divided into two parts, namely the upper half of the husband and half to the wife. Kendal Religious Court in deciding the division of joint property, there are in accordance with the provisions of Islamic Law Compilation, is half portion for half of the husband and wife to. But there is also, Kendal Religious Courts decide part of the joint property of the wife is greater, which is part of the joint property to the wife more than in the joint property of the husband. There is also, the Religious Courts Kendal cut off all joint property is granted (given) to his son.The purpose of this research are: 1) To know and understand the implementation of joint property grants to children of divorce in the Religious Kendal. 2) To know and understand the considerations related decision Religious Court judges Kendal in community property donated to the children of divorce. 3) To know and understand the barriers and solutions implementation of joint property grants to children of divorce in the Religious Kendal. The data used in this study are primary data, secondary data and data that can support tertiary study, which was then analyzed by descriptive analytical method.Kendal Religious Court Decision on the Implementation of the Joint Grant Treasure Kids Due To Divorce Court Kendal Religion is a decision that truly reflects the sense of justice, reflect expediency and legal certainty. Therefore, when the divorced husband and wife agreed to grant the joint property willed to his son, accompanied by a deed of peace. Therefore, the verdict ideal is when it contains elements of Gerechtigekeit (justice), Zweckmassigkeit (benefit), and Rechtssicherheit (rule of law) in proportion.Keywords: Overview of Juridical; Grant; Treasure Together; Divorce.

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