scholarly journals KSISTENSI HUKUM ISLAM DALAM PEMBENTUKAN HUKUM PIDANA DI INDONESIA

2018 ◽  
Vol 2 (1) ◽  
Author(s):  
Rossa Ilma Silfiah
Keyword(s):  
Criminal Law ◽  
Legal History ◽  
Islamic Law ◽  
Socialization Process ◽  
Positive Law ◽  
Material Sources ◽  
History Of ◽  
Islamic Values

ABSTRACTIndonesia is a legal country that has experienced such a long legal history process. The existence of law in Indonesia become a necessary in order to arrange the citizen life. Before the independence, Indonesia followed custom laws and religious laws of the society. One of them is Islamic law having lived among the Indonesian people before the freedom time. This Islamic law has lived along with the Custom Law in Indonesia and being obeyed by the society based on the awarness each individual. Therefore, it is not suprisingly that the Islamic and Custom laws have higher position than the Positive law taken from the colonial/west law. Thus, in formulating the National Law, the Islamic and Custom laws become the material sources stated in formulating a positive law. Moreover, the formulating of the National Law, including the criminal law, needs the contribution of the Islamic law as well as the Custom and West Laws. The history of criminal law development in Indonesia has filled with Islamic values, because the socialization process of the Islamic law integrated with the custom development in resolving the celriminal cases. Keyterms: The Existence of Islamic Law, Criminal Law, National Law.

scholarly journals Interpretations of Verses about Islamic Criminal Law and its Polemics in Indonesia’s Positive Law

2021 ◽  
Vol 6 (1) ◽  
pp. 79
Author(s):  
Hasep Saputra ◽  
Nurma Yunita ◽  
Ainal Mardhiaturrahman ◽  
Wina Purnamasari
Keyword(s):  
Criminal Law ◽  
Islamic Law ◽  
Colonial Period ◽  
Positive Law ◽  
The Future ◽  
Vertical Relationship ◽  
Descriptive Approach ◽  
The Relationship ◽  
Islamic Values

This study was conducted to find out the interpretations of Islamic criminal law verses and to see the polemics which occurred in the applications of Islamic criminal law in Indonesia alongside the harmonization of its applications in Indonesia. This study used a normative-descriptive approach in a way that explained in detail the laws and the verses’ interpretations as well as the polemics of Islamic criminal law in the Indonesia’s positive law. In the context of the development and application of national law in Indonesia, Islamic law is one of the sources adopted. Islamic law itself regulates the vertical relationship with Allah and the relationship with humans. These two relationships have a role in the formation of national law in Indonesia. In terms of applications, Islamic law can contribute to the development of positive law with the following three alternatives: 1) Islamic law which is a continuation of legal politics in the colonial period, either through transitional rules of the 1945 Constitution’s article 2 or by means of being stipulated in the further new legislation, 2) positive Islamic law which is sourced from Islamic values, and 3) the theory of legal leveling.  This theory is applied to make Islamic law a source of national law in the future.

scholarly journals PEMBERLAKUAN SYARI'AT ISLAM DI BANTEN

ALQALAM ◽  
2010 ◽  
Vol 27 (2) ◽  
pp. 161
Author(s):  
B. Syafuri
Keyword(s):  
Islamic Law ◽  
Religious Culture ◽  
Islamic Education ◽  
Positive Law ◽  
The World ◽  
History Of ◽  
The Law ◽  
Islamic Values

Syari'a is religious value expressed functionally and concretely as a way that guides human 's life for virtue both in the World and in the hereafter. Islamic law (syari'a) is naturally put into effect in order to be Islamic law as a sub-system of National (positive) law. Based on the history of Banten, the sultanate of Banten had ever implemented the Islamic law as the law applied in the sultanate. It was based on the evidence that in the period of Sultan Ageng Tirtayasa, the amputation law for the ruslers had ever been applied. The historical religiosity and its actualization in Banten nowadats are potential to implement Islamic law comprehensively. Moreover, Bantenese society remains holding tightly on the Islamic values that have become the culture and principle in regulating their life as proven in the legislative of Banten that has issued local regulations of Islamic laws in the districts and cities of Banten. Optimalization of Islamic law implementation in Banten still goes on up to now through a significant numbers of the religious culture in the society, Islamic education institutions, religious proselytizing (dakwah), muamalah and al-akhwal syakhsiyyah. The challenge in endeavoring the implementation of Islamic law generally lies on the lack of the society's understanding on the detail and the meaning of Islamic law. The human sources of Banten (the strategic elites) support the implementation of Islamic law as both culture and values that can be absorbed in various law and regulations. Keywords: Syari'at Islam, Banten, perda syari'ah.

Judges, Juries, and the History of Criminal Appeals

2011 ◽  
Vol 29 (1) ◽  
pp. 297-302
Author(s):  
Benjamin L. Berger
Keyword(s):  
United States ◽  
Criminal Justice ◽  
Criminal Law ◽  
Legal History ◽  
Structural Changes ◽  
Criminal Procedure ◽  
The United States ◽  
Early History ◽  
Criminal Justice Systems ◽  
History Of

The three articles offered in this forum on the early history of criminal appeals do us the great service of adding much of interest on this important but neglected issue in the development of Anglo–North American criminal procedure. The opaqueness of the legal history of criminal appeals stands in stark contrast to their centrality and apparent naturalness in contemporary criminal justice systems in England, Canada, and the United States. These three papers look at the period leading up to and immediately following the creation of the first formalized system of what we might call criminal appeals, the establishment of the Court of Crown Cases Reserved (CCCR) in 1848. This key period in the development of the adversary criminal trial was marked by both a concerted political effort to codify and rationalize the criminal law and by profound structural changes in the management of criminal justice.

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 Analysis of Corporate Governance on Islamic Bank in Indonesia

2019 ◽  
Vol 19 (2) ◽  
Author(s):  
Muhamad Nadratuzzaman Hosen ◽  
Nasimul Falah ◽  
Fitriyani Lathifah
Keyword(s):  
Corporate Governance ◽  
Islamic Law ◽  
Qualitative Approach ◽  
Islamic Banks ◽  
Islamic Bank ◽  
Positive Law ◽  
The Right ◽  
Islamic Values

This research demonstrates conceptual corporate governance (CG) which has relationship with regulations and Islamic teaching. Then, to investigate CG in Islamic Bank in Indonesia and to review law aspects and Islamic values related to rules of corporate CG in Islamic Bank in Indonesia. The study used qualitative approach using study literature and interview to analyze the implementation of corporate governance in Islamic bank in Indonesia. This study found that Islamic Banks which issued the rules of CG were not following philosophy of Islamic principles and not following strongly Islamic law and positive law. Hence, there were several fraud cases on Islamic banks inIndonesia. Islamic corporate governance in Indonesia still not find the implementation like in Malaysia. Rules of CG through regulation for Islamic bank is involving futher researher to examine the right policy. The regulation of corporate governance regulations for Islamic bank still need to be refined and turned into Islamic corporate governance standard in accordance with Islamic principles and national laws which required by Islamic bank.

Connecting Tort and Crime: Comparative Legal History in England and Spain since 1850

2009 ◽  
Vol 11 ◽  
pp. 247-288
Author(s):  
Matthew Dyson
Keyword(s):  
Criminal Law ◽  
Legal History ◽  
Complete System ◽  
Civil Law ◽  
Tort Law ◽  
The Other ◽  
Criminal Courts ◽  
English System ◽  
History Of ◽  
The Relationship

Abstract This chapter explores the relationship between tort law and criminal law. In particular it tracks one line of developments in the procedural co-ordination of criminal and civil law: the ability of criminal courts to award compensation for harm. It is a study of legal change or development: how and why law has evolved from the middle of the nineteenth century through to the present day. The chapter is also comparative, looking at the English and Spanish legal systems. The history of powers to compensate has highlighted two fundamentally different ways to resolve claims based on a concurrently tortious and criminal wrong. The English system has slowly moved from disparate and piecemeal provisions to a general if under-theorised system. On the other hand, Spain created a novel and complete system of liability to be administered by the criminal courts. This chapter seeks to trace and explain this development with a view to understanding how much civil and criminal law can perform the same function: compensation.

scholarly journals Studi Komparatif Tindak Pidana Aborsi dalam Perspektif Hukum Article Positif dan Hukum Pidana Islam (Imam Madzhab)

2021 ◽  
Vol 1 (2) ◽  
pp. 204-213
Author(s):  
Moh. Faqih
Keyword(s):  
Criminal Law ◽  
Islamic Law ◽  
Secondary Data ◽  
Criminal Code ◽  
Research Approach ◽  
Legal Research ◽  
Medical Reason ◽  
Positive Law ◽  
Approach Method

The rise of promiscuity and free sex is the reason for a large number of abortion perpetrators in Indonesia. In the enactment of the law stipulated in the Criminal Code (KUHP) regarding abortion, it is very clear that abortion is prohibited as well as from the perspective of Islamic law it is forbidden to abort the fetus unless there is a medical reason that an abortion must be performed. However, in the opinion of Madzhab, there is still a classification of permissibility before the blowing of the spirit and the scholars agree that it is haram to abort the fetus after blowing the spirit. The research approach used in this study is the Normative Juridical Research Method, namely the approach method used in this study is the normative juridical approach or doctrinal legal research, which is legal research that uses secondary data sources. The results of the research conducted by the author are to provide insight to readers so that they better understand the meaning of abortion and also the punishment of the perpetrators of the crime of abortion both in terms of positive law and Islamic criminal law. In finding the comparison of the punishment between positive law and Islamic criminal law lies in the age limit of the fetus that is in the content of the sanction based on Islamic criminal law, the punishment is to pay ghurrah or diyat Kamilah Dari before the blowing of the spirit or after the blowing of the spirit.

scholarly journals Hukuman Mati Bagi Koruptor Pada Saat Keadaan Tertentu (Pandemi COVID-19) Perspektif Hukum Nasional dan Hukum Islam

2021 ◽  
Vol 15 (1) ◽  
pp. 137-150
Author(s):  
Dahyul Daipon
Keyword(s):  
Human Rights ◽  
Law Enforcement ◽  
Death Penalty ◽  
Criminal Law ◽  
Islamic Law ◽  
Positive Law ◽  
The Government

The current condition of the Covid-19 pandemic is a time where almost everyone feels social and economic difficulties. Communities whose regions apply restrictions/quarantines are highly dependent on assistance from the government. This paper is a study and analysis of one question how the death penalty can be applied to perpetrators of corruption during the Covid-19 outbreak or pandemic. In the criminal law that applies in Indonesia, the death penalty for perpetrators of criminal acts of corruption is contained in Article 2 paragraph 2 of Law no. 31 of 1999 concerning the Eradication of Corruption Crimes. Meanwhile, in Islamic law, corruption is categorized as jarimah ta'zir. The results of this study conclude that during a pandemic, the death penalty can be applied to corruptors in accordance with the provisions of Article 2 of the Anti-Corruption Law and the provisions of Islamic criminal law as jarimah ta'zir. There are fundamental differences in the application of the death penalty for corruptors according to positive law and Islamic criminal law, especially with regard to the conditions required for the imposition of the death penalty. Even though this seems cruel according to human rights supporters, this needs to be a concern for all law enforcers so that they can carry out strict law enforcement against perpetrators of corruption crimes during the pandemic.

scholarly journals Undang-undang Panji Selaten dan Beraja Niti tentang Hukum Islam di Kesultanan Kutai Kertanegara

2014 ◽  
Vol 5 (1) ◽  
pp. 142
Author(s):  
Makmun Syar’i
Keyword(s):  
Islamic Law ◽  
Customary Law ◽  
History Of ◽  
Clear Idea ◽  
Islamic Values

This paper discusses the problem of inter-marriage between customary law and Islamic law by referring to the laws of Panji Selaten and Beraji Niti as a case in point. These are the laws of Kutai Kertanegara Sultanate in Kalimantan. The paper particularly asks to what extent does customary law in Kutai Kertanegara absorbs Islamic law and vice versa. We argue that this case is a perfect example of not only the ability of Islam to adapt to a local scenario but also the genius of early Muslims in this particular region to understand the universal message of Islam. That Islam is universal means that it is applicable in different settings and contexts. We also discuss the history of the two laws, their characteristics and systems in order to present a clear idea of how they connote to the Islamic values. Further, through this study we try to show that in one way or another, the Dutch colonizing power at the time was aware that to keep the resistance at bay, it has to apply the policy of what Van Den Berg calls receptio in complexu, that is recognizing and applying Islamic law for the Muslims.

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