scholarly journals STATUS ANAK DI LUAR NIKAH DALAM PERSPEKTIF SEJARAH SOSIAL

2016 ◽  
Vol 1 (1) ◽  
Author(s):  
Kudrat
Keyword(s):  
Nucleic Acid ◽  
Legal History ◽  
Islamic Law ◽  
Science And Technology ◽  
Constitutional Court ◽  
Social Approach ◽  
Private Rights ◽  
Islamic Jurisprudence ◽  
History Of

In literature of Islamic jurisprudence, children born outside marriage consider to have family line with their mother. It also has similarity with Indonesian’s law stating in the Marriage Act and the Compilation of Islamic Law. The significant changes occur after judgment of Constitutional Court No. 46/PUU-VIII/2010, stating that children outside of marriage have also family line with their father, as long as can be proofed biologically through science and technology and/or other evidences. This article use historical social approach to analyse a legal history of Constitutional Court judgment. The writer personally argues that Constitutional Court considers the welfare of children as justification of family line with father. The advance development in science and technology such as using Desoxyribo Nucleic Acid (DNA) can give evidence in searching the family’s line. This consideration gives a strong legal background for Constitutional Court to protect private rights of children born outside marriage. Abstrak. Dalam khazanah fikih Islam seorang anak yang lahir di luar nikah hanya mempunyai hubungan nasab dengan ibunya. Demikian pula dengan aturan hukum positif Indonesia dalam Undang-Undang Perkawinan dan Kompilasi Hukum Islam. Perubahan muncul pada Putusan Mahkamah Konstitusi Nomor 46/PUU-VIII/2010 menyebutkan bahwa anak yang lahir di luar nikah juga memiliki hubungan darah dengan laki-laki sebagai ayahnya, hubungan keperdataan dengan keluarga ayah selama dapat dibuktikan berdasarkan ilmu pengetahuan dan teknologi dan/atau alat bukti lain. Penelitian ini menggunakan pendekatan sejarah sosial untuk menganalisis histitorisitas munculnya putusan Mahkamah Konstitusi . Berdasarkan analisis penulis, Mahkamah Konstitusi menjadikan kesejahteraan anak sebagai alasan pembenaran hubungan keperdataan dengan dengan ayah biologisnya. Di samping itu juga kemajuan teknologi membantu membuktikan adanya hubungan antara anak dan ayahnya melalui tes DNA. Pertimbangan ini menjadi alasan kuat Mahkamah Konstitusi utuk melindungi hak-hak keperdataan bagi anak yang lahir di luar pernikahan. Kata kunci: status, anak, luar nikah

scholarly journals PERBANDINGAN SISTEM HUKUM COMMON LAW, CIVIL LAW DAN ISLAMIC LAW DALAM PERSPEKTIF SEJARAH DAN KARAKTERISTIK BERPIKIR

2018 ◽  
Vol 25 (1) ◽  
pp. 98
Author(s):  
Farihan Aulia ◽  
Sholahuddin Al-Fatih
Keyword(s):  
Legal System ◽  
Legal History ◽  
Islamic Law ◽  
Common Law ◽  
Legal Systems ◽  
Legal Tradition ◽  
History Of ◽  
Legal Thinking ◽  
Anglo American ◽  
The Comparative Study

The legal system or commonly referred to as the legal tradition, has a wealth of scientific treasures that can be examined in more depth through a holistic and comprehensive comparative process. Exactly, the comparison of the legal system must accommodate at least three legal systems that are widely used by countries in the world today. The three legal systems are the Continental European legal system, Anglo American and Islamic Law. The comparative study of the three types of legal systems found that the history of the Continental European legal system is divided into 6 phases, while Anglo American legal history began in the feudalistic era of England until it developed into America and continues to be studied until now. Meanwhile, the history of Islamic law is divided into 5 phases, starting from the Phase of the Prophet Muhammad to the Resurrection Phase (19th century until nowadays). In addition to history, the authors find that the Continental European legal system has the characteristic of anti-formalism thinking, while the Anglo American legal thinking characteristic tends to be formalism and is based on a relatively primitive mindset. While the thinking character of Islamic Law is much influenced by the thought of the fuqoha (fiqh experts) in determining the law to solve a problem, so relatively dynamic and moderate.

scholarly journals Ijtihad dan Beberapa Ide Pembaruan dalam Fikih Islam.

2016 ◽  
Vol 16 (1) ◽  
Author(s):  
Umar Al-Haddad
Keyword(s):  
Islamic Law ◽  
Fourth Century ◽  
Modern Times ◽  
Islamic Jurisprudence ◽  
History Of

Assumption that the door of ijtihad was closed, despite ever becoming conspicuous in general, has never been universally accepted by all scholars. In the period after the fourth century BC /10 AD—during the opinion was evolving—history still noted the emergence of figures not only by showing their thought on ijtihad but also by showing their firm rejection to the view which said that the door of ijtihad was closed. By reviewing the position of ijtihad and its development in the history of Islamic jurisprudence (fiqh), this article proves that ijtihad is a must in the dynamics of the Islamic law. With the spirit of ijtihad, various reform ideas in Islamic jurisprudence in modern times have become possible and kept open for discourse, such as the approach between schools, collective ijtihad, ijtihad in the field of principles (ushûl) , and a review toward the qualification of mujtahid in modern times.DOI: 10.15408/ajis.v16i1.2896

scholarly journals The Right of a Child Outside the Legal Marriage of a Biological Father: The Analysis of Ḥifẓ Al-Nafs as Law `Illat

2021 ◽  
Vol 5 (1) ◽  
pp. 153
Author(s):  
Ali Abubakar ◽  
Juliana Juliana ◽  
Maisyarah Rahmi Hasan
Keyword(s):  
Civil Rights ◽  
Islamic Law ◽  
Court Decision ◽  
Constitutional Court ◽  
Biological Father ◽  
Islamic Jurisprudence ◽  
The Right ◽  
Biological Fathers ◽  
Legal Marriage ◽  
Protection Of Life

This article aims to analyze the protection of life (ḥifẓ al-nafs) as the law reason (`illat) of the rights of children outside of legal marriage (ALPS) of biological fathers. Ḥifẓ al-nafs is assumed to be `illat emerging from many neglected ALPS phenomena and resulting in negative stigma and discrimination. This research is a study of Islamic law using the theory of `illat in analyzing the problem of children's rights outside of legal marriage. The research concludes that the presence of the 2010 Constitutional Court decision regarding the civil rights of ALPS with biological fathers reveals new spaces in seeing the nature of ALPS rights. This is different from the fatwa of the Indonesian Ulema Council and classical fiqh (Islamic jurisprudence) arguments, which tend to only link the child to the mother. Based on the Constitutional Court decision, the essence of ALPS rights from biological fathers is limited to civil rights. The responsibility of the biological father to ALPS is in the form of physical and mental support, while denying other rights such as guardianship of marriage; ALPS rights today have been largely abandoned. Thus, the protection/care is necessary. `Illat (the reason of law) in ḥifẓ al-nafs (protection of the life) is real and can be juxtaposed with `illat ḥifẓ al-nasl (protection of heredity). Ḥifẓ al-nasl does not completely fulfill the real requirements of an `illat which can abolish the abandonment of ALPS.

scholarly journals LIBERAL THINKING IN SALAF PESANTREN, IS IT POSSIBLE? (FREEDOM OF THOUGHT THE SANTRI MA’HAD ALY SUKOREJO, SITUBONDO)

2021 ◽  
Vol 19 (2) ◽  
pp. 175-191
Author(s):  
Marjuni Marjuni ◽  
Moch. Khafidz Fuad Raya
Keyword(s):  
Islamic Law ◽  
Educational Institution ◽  
Controversial Issues ◽  
General Curriculum ◽  
Islamic Jurisprudence ◽  
Interfaith Marriages ◽  
History Of ◽  
Islam And Christianity ◽  
Freedom Of Thought ◽  
Liberal Thought

The existence of Ma’had ‘Aly is an exciting thing and brings a narrative of controversy. Since being legalised in 2002, Ma’had ‘Aly has transformed into a modern Islamic educational institution under the auspices of a traditional Salaf pesantren. This article aims to explain Ma’had ‘Aly as an Islamic educational institution that specifically (takhaṣṣuṣ) produces fiqh experts and supports freedom of thought in exploring Islamic law. The research method uses a qualitative approach by studying documents extracted from the history of Ma’had ‘Aly, the takhaṣṣuṣ curriculum, and the Tanwirul Afkar (TA) bulletin. The results reveal the integration of the Ma’had ‘Aly curriculum, which is combined with the general curriculum and contemporary scriptures. Second, the controversy over TA as a forum for students to manifest their competence as fuqaha on various developing issues. Some of the controversial issues decided by TA were allowing interfaith marriages, allowing non-Muslim Indonesian President elections, and similarities between Islam and Christianity in relations and history. Some realities above show that Islamic liberal thought has emerged in salaf pesantren through Ma’had ‘Aly. The contribution of this research provides novelty that apparently Ma’had ‘Aly is trying to show that the door of ijtihād in the excavation of Islamic jurisprudence is still wide open.

scholarly journals The Early Development of Islamic Jurisprudence

1997 ◽  
Vol 14 (3) ◽  
pp. 83-86
Author(s):  
Abuhamid M. Abdul-Qadir
Keyword(s):  
Early Development ◽  
Islamic Law ◽  
Legal Theory ◽  
Primary Source ◽  
Second Century ◽  
Social Lives ◽  
Islamic Jurisprudence ◽  
History Of ◽  
The Subject ◽  
Independent Thinking

Professor Ahmed Hasan has made a great contribution to the understandingof the early history of Islamic jurisprudence up to the time of al Shafi'i (d. 204A.H.). A few works. such as The Origins of Muhammadan Jurisprudence byProfessor Joseph Schacht, have been published on the early development ofIslamic jurisprudence. and Hasan's work is a valuable addition. Islamic jurisprudenceis a dynamic, ongoing, and virtually limitless subject. The communitycannot survive without it as long as new issues arise to be resolved andIslamized. Thi field of study helps the community to move forward, encouragingmembers to solve new problems that arise in their social lives. Hasan discusseshow jurists debate one another over the extraction of God's law and how.ultimately, uch debates have developed Islamic jurisprndence and the differentlegal schools. ljma' (consensus) and qiyas (analogy) did not exist at the time ofthe Prophet; they developed through ijtihtid, based on the principle sources theQur'an and Sunnah. The subject has a kind of progressive flow, tide, and dynamiccharacter. Hasan divide his book into seven chapter, beside an introductionand a concluding discussion. He also includes a bibliography and an index. Theauthor chose a period in the history of jurisprudence for which sources for synthesisare difficult co obcain. He shows the historical development of lslamicjurisprudence in the first two centuries of Hijrah based mainly on the work ofMalik. Abu Yusuf, al Shaybani and al Shafi'i.This book is designed for readers who are particularly interested in Islamiclaw and history. In the introduction the author describes the meaning of fiqh andother allied terms. He analyzes the origins of the early schools of law-such asthe schools of Medina and Iraq-that developed through the work of scholarswho extracted God's law from the revealed sources. Further analysis by theauthor suggests that after the middle of the second century A.H., scholars weregenerally engaged in independent thinking on law. ln the same way. al Shafi'ideveloped his own legal theory and brought consistency into law. After him theregional character of the early schools began to disintegrate and faithfulness toone master and his principles gradually predominated.The author discusses the sources of Islamic law beginning with the developmentof the main five categories of judgment of Muslims' aces, namely, theobligatory. the recommended, the neutral, the disapproved, and the prohibited.These categories are ultimately based on four sources: the Qur'an, the Sunnah,ijma' and qiyas. The author first deal with the Qur'an, briefly pointing out thatit is the primary source of legislation and guidance. The author discusses thedoctrine of the abrogation of individual verses in the Qur'an (naskh) in a separatechapter, pointing out the development of the theory of naskh and its significantrole in Islamic jurisprudence. Although naskh is an established doctrine inthe field of Islamic jurisprudence, the author's long analysis of naskh suggeststhat since the Qur'an is eternal there can be no reasonable ground for the thesis ...

scholarly journals UPAYA PENGADILAN DALAM PERLINDUNGAN HUKUM ANAK LUAR NIKAH BERDASARKAN SILA KE-5 PANCASILA

2016 ◽  
Vol 3 (1) ◽  
pp. 86
Author(s):  
Dzanurusyamsyi Dzanurusyamsyi
Keyword(s):  
Child Protection ◽  
Islamic Law ◽  
Science And Technology ◽  
Legal Protection ◽  
Court Decision ◽  
District Court ◽  
Constitutional Court ◽  
Marriage Law ◽  
Illegitimate Child ◽  
The Law

In accordance with the Marriage Law Article 43 paragraph (1) and Article 100 Compilation of Islamic Law, that child out of wedlock obtain a civil relationship with her mother and her mother’s family. The provisions of article 43 paragraph (1) that the Court’s decision the Constitution of No. 046/PUU-VIII/2010 amended with the new norm, that “children born out of wedlock have links civil with her mother and her mother’s family as well as with men as a father to proven by science and technology and/ or other evidence under the law have blood relations, including civil relations with his father’s family’’ provisions of the new norm is still debatable and the pros and cons in the community that have not been finalized. Therefore, it is necessary to do research on: How Construction illegitimate child protection today; factors that affect the construction of the legal protection of a child out of wedlock is not justice at this time. This study used a qualitative approach with sosiolegal research. Factors that affect the protection of children out of wedlock is not justice due to several factors: -First; Factors Differing perceptions Ulama’ and Judges of children out of wedlock and protection against him; Factors Court decision is very diverse/ varied against illegitimate child protection issues; Factors diversity of perceptions on Registration of Population Administration in Indonesia. Then the provisions of the Marriage Law Article 43 paragraph (1)which has judicial review by the Constitutional Court Decision No. 046/PUU-VIII/2010 and Article 100 of the Compilation of Islamic Law must be reconstructed with the editor of a new article as follows: “a child born out of wedlock has relations civil with her mother and her mother’s family as well as with men as a father who can be proved by science and technology and/ or other evidence under the law have blood relation to the determination/ instruction judge and the Court’s decision, the Muslim Religious Court andbesides Islam in the District Court, including a civil relationship with his family “and there should be an affirmation form of additional chapters in the Marriage Law Article 43 with the editorial article as follows; “If it turns out according to a court ruling that the children who sought their origin was proven seedlings men and women and was born in/ from the marriage valid, then the child becomes legitimate child and have a relationship of civil full and relationships biological children with both parents and get inheritance rights.

scholarly journals History of Hospitality Laws - Do Islamic and South Asian Legal History Have the same Approach? (A Comparative Approach of Sharīʿah & Law)

rahatulquloob ◽  
2020 ◽  
pp. 1-13
Author(s):  
Dr. Lutfullah . ◽  
Farhad Nazir
Keyword(s):  
South Asian ◽  
Legal History ◽  
Islamic Law ◽  
Comparative Approach ◽  
Human Beings ◽  
Analysis Technique ◽  
Peculiar Characteristic ◽  
Common Notion ◽  
Religious Teaching ◽  
History Of

Respect for guests and visitors, indeed, always remain a common notion of civilized nations; existing on this earth since its inception. This peculiar characteristic, of course, differentiates human beings from animal where the previous are rightly called social animals. The South Asian countries i.e. Pakistan, India, Bangladesh and Nepal are not different in this regard. Their history is always remained a solid evidence of their generosity towards the guests and visitors. Being remained under the rule of the Great Britain, these countries have the same legal history and legal spectrum for dealing tourists and visitors. However, this similarity in terms of hospitality laws is also owing to the similar teaching of their corresponding religions. Findings show that Islam, Buddhism and Hinduism have some common teaching regarding the respect of guests. While having deep sentiments for religious teaching, the residents of such states want the inculcation of religious guidelines in their legal system. Islamic law offers a comprehensive guideline for hospitality comparatively to other religions. Being an Islamic country, it is supposed that such guidelines should be followed while framing legislation for hospitality and tourism. However, study shows that much work is not done yet in this regard. Content analysis technique of qualitative research has been followed in the present work for the investigation of the issue.

scholarly journals PENELUSURAN HISTORIS LANDASAN PEMIKIRAN USUL FIQH MUHAMMAD AL-KHUDLARI BIK

2009 ◽  
Vol 1 (1) ◽  
Author(s):  
Noer Yasin
Keyword(s):  
Islamic Law ◽  
The Other ◽  
Modern Time ◽  
New School ◽  
Legal Thought ◽  
Islamic Jurisprudence ◽  
History Of ◽  
Legal Methodology

The history of Islamic law witnesses the development of Islamic legal methodology, known widely as usul al-fiqh, which aims at discovering God’s intention through sound judg-ment. Usul fiqh is considered responsible for the dynamism of Islamic jurisprudence (fiqh). Every school of thought (madzhab) has its own method of deducing law from its source, which might be different from the other. Initially intending to combine two conflicting methods existent in his time, al-Syafi’i has established his own method upon which arose new school of legal thought. This paper aims at depicting the development of usul al-fiqh from the time of al-Syafi’i up to that of Khudlari Bik in modern time.<br /><br />Sejarah hukum Islam membuktikan bahwa perkembangan usul al-fiqh  bertujuan untuk menemukan maksud Tuhan melalui hukum yang  yang dikaji secara mendalam. Usul Fiqh dianggap bertanggung jawab terhadap dinamika  fiqh. semua Madzhab memiliki metode masing-masing dalam pengambilan dasar hukum yang mungkin berbeda satu sama lain. pada awalnya, Syafi’i bertujuan untuk mengkombinasikan two metode yang berbeda yang ada pada masanya, beliau membentuk metode sendiri yang kemudian berdiri sendiri sebagai madzhab baru. Tulisan ini bertujuan untuk menggambarkan perkem-bangan usul fiqh dari masa al-Syafi’i sampai khudlari Bik pada masa modern.<br /><br />Keywords: Yurisprudensi Islam, Usul Fiqh, Madzhab<br /><br />

scholarly journals Sejarah Mazhab Fikih di Asia Tenggara

2018 ◽  
Vol 4 (2) ◽  
pp. 20-39
Author(s):  
Muhammad Ikhsan
Keyword(s):  
Southeast Asia ◽  
East Asia ◽  
Islamic Law ◽  
Southeast Asian ◽  
South East Asia ◽  
Historical Aspects ◽  
Islamic Jurisprudence ◽  
History Of ◽  
National Constitution

This study explains the historical aspects of the spread of Islamic Jurisprudence in South East Asia which cannot be separated from the history of the spread ofIslam itself in Southeast Asia. It also describes the existence of Islamic jurisprudence as indicated by the intellectual works of Southeast Asian Islamic Jurisprudence scholars, especially in the Shafi'i School. The existence of Islamic jurisprudence was then developed in the form of influences that influence the National Constitution in South East Asia, especially in Indonesia, in the form of Compilation of Islamic Law.

scholarly journals Analytical Review of Noel James Coulson Book’s A History of Islamic Law

2020 ◽  
Vol 3 (01) ◽  
pp. 168-189
Author(s):  
Dr. Muhammad Ilyas ◽  
Dr. Zainab Ameen
Keyword(s):  
Critical Review ◽  
Islamic Law ◽  
Legal Reform ◽  
Theory And Practice ◽  
Law System ◽  
Muslim Society ◽  
Muslim Countries ◽  
Islamic Jurisprudence ◽  
Analytical Review ◽  
History Of

The Western Orientalism movement had resulted in the creation of a large academic asset of Islamic literature. The Orientalists had struggled in two ways; by introducing and editing old Islamic manuscripts, and by commenting on the various aspects of the Prophet’s (PBUH) life and his traditions. Moreover, some Orientalists had worked on the Islamic jurisprudence, too. As   Coulson, have been discussed analytical studies of Islamic jurisprudence,  in this regard his book, “ The History of Islamic Law”, is a sorely needed book; it will substantiate a highly impactful, direly beneficial and effective book; and above all, it is a remarkably well-constructed book. Mr. Coulson’s compact volume is a clear, comprehensive, and authoritative treatment of the genesis and history of Islamic law in theory and practice, and of the central problem of legal reform now confronting Muslim society. Islamic law, the Sharia of medieval Islam, is for Muslims and the comprehensive catalogue of God’s commands and recommendations laid down for the guidance of man… In recent times, with the wholesome adoption by Muslim countries of western legal ideas and institutions, the Sharia has seemingly been all but forsaken and abandoned… Unless the idea of a law system based on religion is to be abandoned entirely… [Coulson] points out, the task for modern Muslims, like that of their medieval predecessors, is once more to ascertain and impose the central ethical criterion norms of Islam upon the functioning’s of their society. N. J. Coulson was a chair of oriental laws at the School of Oriental and African Studies, University of London. In this article the analytical and critical review is discussed.

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