scholarly journals The Jurisprudential Maxim (Translator’s Statement is Absolutely Accepted) Between Islamic Law and Civil Procedures Law in the Sultanate of Oman And Contemporary Applications: القاعدة الفقهية: (يُقبل قول المترجم مطلقا) دراسة مقارنة بين الفقه الإسلامي وقانون الإجراءات المدنية والتجارية في سلطنة عمان

2020 ◽  
Vol 6 (3) ◽  
Author(s):  
Fahad Khamis Ahmad Al-Fahdi
Keyword(s):  
Legal Status ◽  
Islamic Law ◽  
Sultanate Of Oman ◽  
Islamic Jurisprudence ◽  
Judicial Ruling ◽  
The Law ◽  
Definition Of ◽  
Education Courses ◽  
Civil Procedures ◽  
Single Statement

This research aims at clarifying the significance of and studying and establishing the jurisprudential maxims, especially those related to the judiciary so that they help judges in their work, muftis in their understanding and students in their memorization. The maxim of (Translator’s Statement is Absolutely Accepted) is a great maxim since it represents a principle in the judicial ruling. This research is a new addition to the comparative jurisprudential literature, an approach between Islamic jurisprudence and contemporary law, and a manifestation of the greatness of Islamic Sharia that cares for all aspects of life. This research is divided into two subjects: First: the definition of terms such as maxim, jurisprudence and law in three sections. Second: the explanation and establishment of the maxim and the legal status in four sections, as well as the judicial applications. The researcher concludes the study with the most important results, that of the jurisprudential maxims combine different issues in simple eloquent phrases, and that the procedures law has noble Sharia purposes, represented in caring for the interests of people and achieving the highest meanings of integrity and justice. The Islamic jurisprudence pays attention to the maxims of the rules of procedures more than the positive laws do. The law considers the Islamic Jurisprudence regarding the translator issue, unless in oath-taking. Translators shall be fair, familiar with both languages, and accepts a single statement. Among the most important recommendations: the provisions of jurisprudential maxims shall be contained in bills, and the judges shall consider the maxim in all filed cases. In addition, education courses should be held for translators so that they know the procedures of the progress of cases in courts, and the criticality of accuracy.

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 LEGAL STATUS OF THE POLICYHOLDER IN THE COMPULSORY STATE SOCIAL INSURANCE AGAINST AN ACCIDENT AT WORK AND AN OCCUPATIONAL DISEASE

2020 ◽  
Vol 1 (9) ◽  
pp. 43-50
Author(s):  
Oleksii Soloviov ◽  
Keyword(s):  
Occupational Disease ◽  
Social Insurance ◽  
Legal Status ◽  
Civil Law ◽  
Insurance Premium ◽  
Material Loss ◽  
Social Contribution ◽  
The Law ◽  
Definition Of ◽  
Compulsory State

The article considers the definition of the insured, which is contained in the Law of Ukraine «On collection and accounting of a single contribution to compulsory state social insurance» and based on this it is concluded that it includes only the persons and the main obligation of the insured – payment of insurance premium and does not establish additional or qualifying features that the insured must have. Given that the social security insurance mechanism was borrowed from civil law, the author examined the definition of the insurer from the standpoint of civil law and concluded that the presence of insurance interest is a prerequisite for determining a person as an insured and proposed his own definition of insurance interest – a certain property interest related to the need to suffer material loss in connection with damage to life, health and ability to work of the insured person as a result of an accident or occupational disease that occurs during the performance or in connection with the performance of certain work in the interests of the insured. The author emphasizes that the insurers in the relationship of social insurance against accidents at work and occupational diseases can be primarily employers. Based on the results of the analysis of the definition of the employer in various regulations, it was concluded that there is a certain inconsistency in science and legislation regarding this term, and therefore the legislative definition of the employer needs to be specified. This made it possible to develop proposals for making the necessary changes to certain regulations that contain this term. The concept and features of a single social contribution are researched. Peculiarities of insurance of persons performing works on the terms of civil law contracts are analyzed. Emphasis is placed on the unresolved issue of the customer - an individual who uses the work of other individuals under a civil contract, but without registering them as a business entity. It is believed that such persons should also act as payers of the single social contribution, and therefore it is necessary to amend the Law of Ukraine «On the collection and accounting of the single contribution to the obligatory state social insurance».

scholarly journals The Impact of (Lot Upon Dispute) Maxim on Judiciary - A Comparative Study between Islamic Jurisprudence and Positive Law in the Sultanate of Oman-: أثر قاعدة (القرعة عند التَّشَاحِّ) في القضاء – دراسة مقارنة بين الفقه الإسلامي والقانون الوضعي في سلطنة عمان –

2020 ◽  
Vol 4 (12) ◽  
Author(s):  
Fahad Khamis Ahmad Al- fahdi
Keyword(s):  
Comparative Study ◽  
Social Interactions ◽  
Legal Status ◽  
Colleges And Universities ◽  
Due Diligence ◽  
Sultanate Of Oman ◽  
Positive Law ◽  
The People ◽  
Islamic Jurisprudence ◽  
The Impact

The importance of this research lies in identifying the significance of giving due regard to the jurisprudential maxims, especially those related to judicial work. Islamic jurists have paid attention to the maxim of “lot upon dispute” to console the souls and reconcile litigants. This maxim represents the highest and loftiest degrees of social interactions in the Islamic community depending on a prudent Quranic provision and wise prophetic Sunnah. This study is divided into three subjects: First: the definitions of study terms. Second: the researcher addresses the impact of the maxim in the judiciary literature and related topics in the code of procedures, personal affairs and civil transactions. Third: the researcher mentions some exceptions of maxim and the characteristic of lot, then clarifies the legal status of the maxim. The researcher concludes the study with the most important results, such as the jurisprudential maxim combines different issues in a phase of an eloquent meaning and precise wording. Jurists adopt this maxim more than the people of law do in order to achieve justice and block the accusation door. The study refers also to the necessity that those who work in the judiciary work should consider these jurisprudential maxims through establishment and application. Judge or arbitrator shall also act upon this maxim, and seek to reconcile between people through balloting. In addition, the specialized colleges and universities shall adopt the “lot upon dispute” maxim, and exert due diligence in studying it and any subdivided contemporary issues.

scholarly journals Indonesian Jurisprudence: Islamic Law Transformation In Law System Of Indonesia

2020 ◽  
Vol 19 (2) ◽  
pp. 303-318
Author(s):  
Ahmad Edwar
Keyword(s):  
Content Analysis ◽  
Islamic Law ◽  
Analysis Method ◽  
Law System ◽  
The Third ◽  
Library Research ◽  
Content Analysis Method ◽  
The Law ◽  
Definition Of ◽  
Islamic Marriage

INDONESIAN JURISPRUDENCE: ISLAMIC LAW TRANSFORMATION IN LAW SYSTEM OF INDONESIA.: This study discusses about the idea of Islamic law renewal in Indonesia, as well as the figures, and it makes the term of Indonesian Jurisprudence and its formalization into the law system of Indonesia. The purpose of this study is to find the answer of these following points: Firstly, the interpretation or definition of Indonesian Jurisprudence concept; secondly, the figures who proposed Indonesian Jurisprudence and the result of their thoughts; and the third, the formalization of Jurisprudence concept with Indonesian nuance in the law system Indonesia. This study was a library research with a content analysis method. The results of this study are: (1) Indonesian Jurisprudence could be interpreted as a Jurisprudence concept that is more Indonesian local-based; (2) Hasbi As-Shiddiqi and Hazairin are two figures who proposed Indonesian Jurisprudence model, apart from other intellectuals. Hasbi is one of modernists who offered his ideas comprehensively, started from his “Indonesian Jurisprudence” concept until the law renewal including its principle and method. Meanwhile Hazairin offered the development of a new heritage system which interpreted and elaborated based on Al-Qur’an scriptural perception and Sunnah which is not a patrilineal system but bilateral (family model); and (3) formalization of Indonesian Jurisprudence concept produces some ordinance regulation products which are important formally and materially, such as Ordinance of Islamic Marriage Law, and also other rules under the Ordinance, such as Government Law, President Instruction, and Supreme Court Law, as well as Islamic Law Compilation and Sharia Economic Law Compilation

scholarly journals Analisa Hukum Islam dalam Meninggalkan Shalat Jum’at pada Masa Pandemi Corona Virus Disease 2019 (Covid-19)

2020 ◽  
Vol 3 (2) ◽  
pp. 200-2015
Author(s):  
Irdlon Sahil
Keyword(s):  
Legal Status ◽  
Islamic Law ◽  
Virus Disease ◽  
Secondary Level ◽  
Corona Virus ◽  
Life Threatening ◽  
The Law ◽  
Hot Weather ◽  
Friday Prayer ◽  
The Way

This study discusses the legal status of leaving Friday prayers during the Corana Virus pandemic. Based on the source of Islamic law; al-Qur'an, hadith and ijma' ulama. In this study there are four conclusions, first, the scholars agreed that the law of Friday prayer is mandatory for people who are affected by the law of taklif and are in a state of pain, fear of illness, fear of life and property, rain, very cold or very hot weather and the outbreak of a disease such as coronavirus. Second, it is permissible not to perform Friday prayers if there is udzur in the way. It's part of the waiver in the goal of setting the law at a secondary level of need that turns into a primary need because the spread of this virus has been life-threatening. Third, it is obligatory to obey the leader, as long as the policy is not contrary to Islamic law. To measure the conformity of the leader's policy with sharia by referring to a benefit. Fourth, as long as the udzur syar'i is still struck, leaving Friday prayers is no limit.

scholarly journals From Textuality to Universality: The Evolution of Ḥirābah Crimes in Islamic Jurisprudence

2021 ◽  
Vol 59 (1) ◽  
pp. 1-32
Author(s):  
Moh Khasan
Keyword(s):  
Islamic Law ◽  
Deterrent Effect ◽  
Systematic Change ◽  
Islamic Jurisprudence ◽  
Global Concern ◽  
Contemporary Perspective ◽  
Severe Punishment ◽  
Definition Of ◽  
Strong Deterrent

The issue of the escalation of crime, which is increasingly varied and is getting heavier, is becoming a global concern. The development and progress of the world seems to have contributed to changes in the type and quality of crime, not only in the form and method, but also in the damage it causes. Crime trends increasingly point to collective crimes, systematic crimes, and crimes with extensive and massive excess damage. This article intends to criticize the systematic change (evolution) that has occurred in the concept of ḥirābah crime in Islamic law from a classical to contemporary perspective. The qualitative analysis of this article is focused on three fundamental issues, namely; ḥirābah interpretation, ḥirābah liability, and ḥirābah punishment. The author reveals in the conclusion that; first, based on its elements and characteristics, the definition of ḥirābah can be expanded to include new types of crimes such as; terrorism, rape, and drug trafficking and smuggling. Second, it is necessary to reconstruct the ḥirābah responsibility theory into a formulation that considers the principle of legal certainty and the principle of equality before the law. The reconstruction model, among others, is the affirmation that all people who involve themselves in the crime are perpetrators of ḥirābah (with an ishtirāk approach). Likewise, reconstruction efforts are needed to enforce equality of accountability between male and female actors. Third, as a serious crime, ḥirābah deserves a severe punishment and has a strong deterrent effect, as offered by Islamic law. However, the opportunity to give dispensation to the punishment will always be open if the perpetrator can prove his seriousness in repenting.[Eskalasi kriminalitas yang semakin beragam dan berat telah menjadi perhatian global saat ini. Pembangunan dan kemajuan dunia berkontribusi pada perubahan pola dan tingkat kriminalitas, tidak hanya bentuk dan cara, tetapi juga akibat yang ditimbulkan. Trend kriminalitas bertambah mulai dari yang berkelompok, sistematis, hingga yang kerusakannya masif dan pengaruhnya panjang. Tulisan ini mengkritisi perubahan sistematis pada konsep kriminal (ḥirābah) dalam hukum Islam dari pendekatan klasik hingga kontemporer. Analisis kualitatif dalam tulisan ini fokus pada tiga hal mendasar yaitu penafsiran, arah kecenderungan dan hukuman. Kesimpulan pertama tulisan ini adalah definisi kriminal berdasarkan unsur dan karakternya yang dapat meluas maknanya termasuk terorisme, pemerkosaan, narkoba, dan penyelundupan. Kedua, perlu rekonstruksi baru teori kriminalitas yang mempertimbangkan kepastian hukum dan kesetaraan hak dimuka hukum. Ketiga, sebagai kejahatan serius, ḥirābah pantas mendapat hukuman berat dan mempunyai efek pencegahan yang kuat seperti halnya dalam hukum Islam. Meski demikian, ada peluang dispensasi hukuman jika pelaku dapat menunjukkan kesungguhan untuk bertobat.]

scholarly journals Procedure and conditions of life executing punishment

2021 ◽  
Vol 5 (S4) ◽  
Author(s):  
Viktor Konopelskyi ◽  
Valentyna Merkulova ◽  
Oksana Hrytenko ◽  
Kateryna Pogrebna ◽  
Harehyn Muradyan
Keyword(s):  
Legal Status ◽  
System Implementation ◽  
Special Significance ◽  
Life Imprisonment ◽  
Basic Principles ◽  
Legitimate Interests ◽  
The Law ◽  
Definition Of ◽  
Disciplinary System

The article is devoted to the consideration of essence and tendencies of reforming the criminal-executive legislation of Ukraine concerning the procedure and execution and serving life imprisonment conditions. Certain debatable provisions, both theoretical and legal, concerning procedure and conditions of life service executing punishment are considered. It is proved that clarity, completeness and system-legal balance will be facilitated by the formal reproduction in the law of classification of all criminal-executive norms of Chapter 22 of the Criminal Executive Code (hereinafter–CEC) (based on a certain criterion) into norms of general and special significance, which in turn should be divided into the following subtypes. General penitentiary provisions, which determine the initial legal status of persons sentenced to life imprisonment, provide a list and features of the rights, legitimate interests, responsibilities of convicts, ways (mechanism) to comply with safe conditions of detention, etc. General penitentiary provisions, which define the basic principles for implementation of changes in detention conditions during execution and serving a sentence (essence, tasks, forms, general requirements for material grounds for application, procedural issues of progressive system implementation, definition of disciplinary system).

POLEMIK DI SEPUTAR HUKUM ISBAT NIKAH DALAM SISTEM HUKUM PERKAWINAN INDONESIA

2017 ◽  
Vol 11 (2) ◽  
pp. 233-246
Author(s):  
Ramdani Wahyu Sururie
Keyword(s):  
Legal Status ◽  
Islamic Law ◽  
Legal Protection ◽  
Legal Order ◽  
Legal Certainty ◽  
Marriage Law ◽  
The Law ◽  
Religious Courts

"Isbat nikah" is the verification of a marriage. Juridically, marriage verification is regulated under the laws such as Law No. 1 of 1974 on Marriage, Law Number 7 of 1989 on Religious Courts, and Law No. 3 of 2006 and Law Number 50 of 2009 on Changes in the Religious Courts Act. The regulations stipulate that marriage verification is allowed for marriage performed before the Law Number 1 of 1974. In practice, marriage verification submitted to the Religious Court is done after the enactment of Law Number 1 of 1974. The acceptance of "marriage verification" by the Religious Court for the marriage taken place after the 1974 Marriage Law was based on the Compilation of Islamic Law (KHI), whereas KHI's legal status is not included in the Indonesian legal order. The essence of marriage verification is a legal determination. This means that a verified marriage remains valid because the marriage that is verified is merely on administrative reason. The position of marriage verification is a part of giving legal protection and legal certainty. The position of the KHI, which regulates in more detail the marriage verification, functions regulatively in the midst of a vacuum of religious judicial law. In addition, the judge may decide whether to grant or deny the application of marriage verification. Thus, it can be concluded that the nature of marriage verification is a part of legal discretion.

Polemik di Seputar Hukum Isbat Nikah dalam Sistem Hukum Perkawinan Indonesia

2017 ◽  
Vol 11 (2) ◽  
pp. 233-246
Author(s):  
Ramdani Wahyu Sururie
Keyword(s):  
Legal Status ◽  
Islamic Law ◽  
Legal Protection ◽  
Legal Order ◽  
Legal Certainty ◽  
Marriage Law ◽  
The Law ◽  
Religious Courts

"Isbat nikah" is the verification of a marriage. Juridically, marriage verification is regulated under the laws such as Law No. 1 of 1974 on Marriage, Law Number 7 of 1989 on Religious Courts, and Law No. 3 of 2006 and Law Number 50 of 2009 on Changes in the Religious Courts Act. The regulations stipulate that marriage verification is allowed for marriage performed before the Law Number 1 of 1974. In practice, marriage verification submitted to the Religious Court is done after the enactment of Law Number 1 of 1974. The acceptance of "marriage verification" by the Religious Court for the marriage taken place after the 1974 Marriage Law was based on the Compilation of Islamic Law (KHI), whereas KHI's legal status is not included in the Indonesian legal order. The essence of marriage verification is a legal determination. This means that a verified marriage remains valid because the marriage that is verified is merely on administrative reason. The position of marriage verification is a part of giving legal protection and legal certainty. The position of the KHI, which regulates in more detail the marriage verification, functions regulatively in the midst of a vacuum of religious judicial law. In addition, the judge may decide whether to grant or deny the application of marriage verification. Thus, it can be concluded that the nature of marriage verification is a part of legal discretion.

scholarly journals THE PRONOUNCED (LITERAL) MEANING OF THE LEGISLATIVE TEXT (AL-MANṬŪQ) IN SHAFII SCHOOL OF LAW

2019 ◽  
pp. 253-265
Author(s):  
Šukrija Ramić
Keyword(s):  
Legal Status ◽  
Islamic Law ◽  
Legal Reasoning ◽  
Literal Meaning ◽  
Legal Rules ◽  
The Difference ◽  
Definition Of ◽  
The Way

This paper explores the theoretical interpretations of the pronounced meaning of the legislative text (al-manṭūq) in the Shafii school of law and the consequences of such an interpretation for the rules that the Shafiis came to through their legal reasoning (ijtihād). At the beginning of the work, the discipline of linguistics is explained in the context of the Methodology of Islamic Law (Uṣūlu-l-fiqh) as well as its significance for ijtihad, followed by the difference between the Ḥanafis and the Shafiis in the classification of textual allusions (ad-dalalāt) of legislative texts, and the linguistic and terminological definition of the concept of al-manṭūq in the Shafii school of law. Also, the classification of al-manṭūq in the Shafii school of law is presented. Providing examples, the author clarifies the significance of al-manṭūq in the Shafii school of law and the way in which the Shafiis used al-manṭūq in their argumentation in support of legal rules. Furthermore, the author presents the classification of al-manṭūq and the restriction of its meaning with respect to the mafhūm al-muwāfeqa and mafhūm al-muhālefe. Finally, the value of al-manṭūq and its legal status as well as the indications in Shariah are clarified.

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