scholarly journals A CONDUCIVE ENVIRONMENT FOR THE IMPLEMENTATION OF THE ISLAMIC CRIMINAL LAW FROM THE PERSPECTIVE OF FIQH – A STUDY IN MALAYSIA

2017 ◽  
Vol 5 (4) ◽  
pp. 92-104
Author(s):  
Faisal Bin Husen Ismail ◽  
Jasni Bin Sulong
Keyword(s):  
Content Analysis ◽  
Criminal Law ◽  
Islamic Law ◽  
Local Culture ◽  
Drought Period ◽  
The Difference ◽  
The Relationship ◽  
Conducive Environment

A conducive environment is a comfortable situation, harmonious as well as friendly in the relationship between government and communities upon enforcement of law. Therefore, the administration and enforcement of law towards society have to take account public’s benefit, either from religion perspective, customary or local culture. The ignorance of those elements will bring regulation towards injustice and discrimination. For that reason, comfortable environment was taken into account during Caliph Omar al-Khattab who have procrastinated the enforcement of law (cutting hand for criminals) during drought period on the reason of unconducive period. It was a difficult phase of life which some communities living in needs and pitiable, and the situation is not appropriate to penalize them for stealing foods. However, scholars nowadays only discuss upon the matter in term of its influence to dismiss the application of Islamic law but not in term to comprehend the reality and concept of conducive environment in the application of Islamic criminal law. Therefore, the polemic of conducive environment took place without any yard stick of the situation that well elaborated. Hence, in order to overcome the conflict, this paper is at aim to clarify the notion as well as features of conducive environment from the perspective of shariah law. The paper will lay out the situation to become as a mechanism in measuring the readiness and ability in applying the fair law. The methodology of the study is in a qualitative means by reviewing historical notes by using content analysis upon the Prophets Era as well as the period of Khulafa’ al-Rashidin. The data will be compared to contemporary epoch in understanding the similarity as well as the difference. The finding of the study is very significant to justify the appropriateness in the application of Islamic criminal law nowadays, whether its meet the need of shariah (maqasid al-shariah) or vice versa.

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.

Studi Komparasi Kesaksian Wanita dalam Hukum Pidana Islam dan Hukum Perdata Islam

2020 ◽  
Vol 1 (1) ◽  
pp. 16-27
Author(s):  
Abdul Rahim ◽  
Kasman Bakry
Keyword(s):  
Problem Solving ◽  
Criminal Law ◽  
Islamic Law ◽  
Civil Law ◽  
Legal Studies ◽  
Similarities And Differences ◽  
The Difference

This study explains that in the view of Islamic law on women's testimony in Islamic criminal law is that in Jarimah ḥudūd, kisas and takzir there are two conditions that could have occurred. Therefore, the two legal studies have similarities and differences, the location of the similarities can be seen from their position as well as their role as witnesses, namely in terms of their position as one of the evidences in the process of problem solving and in terms of their roles equally contributing to provide true information in accordance with what women see, hear and / or feel / experience it yourself. Whereas the difference in general is that in Islamic criminal law, jumhur ulama are of the opinion that a woman's testimony is rejected, meaning that a minority is accepted, and even then in a very urgent situation, while in Islamic civil law all ulama are of the opinion that a woman's testimony is accepted meaning that there is not a single ulama who reject it and there are even some cases that prioritize women's testimonies over men's testimonies namely issues that are specifically in the area of women.

Secularizing Islam: The Colonial Encounter and the Making of a British Islamic Criminal Law in Northern Nigeria, 1903–58

2019 ◽  
Vol 38 (2) ◽  
pp. 459-493 ◽  
Author(s):  
Rabiat Akande
Keyword(s):  
Criminal Law ◽  
Islamic Law ◽  
Northern Nigeria ◽  
Colonial State ◽  
Religious Difference ◽  
British Colonial ◽  
Colonial Encounter ◽  
The Relationship

Emerging critiques of mainstream accounts of secularism reveal the imbrication of the sacred and the secular in ‘secular’ states. In the context of colonial Northern Nigeria, this sacred-secular entanglement, which took the form of the co-option of Islam for the colonial ‘secular’ enterprise, did not leave Islam unchanged. Co-opting Islam for the colonial project necessitated the making of an Islamic Law amenable to the colonial state. With a focus on criminal law, this article narrates the making of a British Colonial Islamic law in Northern Nigeria through the unprecedented expansion of siyasa. Departing from orthodox accounts of Islamic law's reification in colonial Northern Nigeria and heterodox assertions of its erosion by the colonial state, this article argues that neither the reification nor the erosion accounts illuminates the relationship between the colonial state and Islamic law. To show how the colonial state could assert secularism while co-opting Islam, this article presents a narrative of reform that foregrounds the following questions: Who had (and exercised) the power to decide what Islamic law was? How was the exercise of this power justified? How did the exercise of this power fit with the broader colonial project of governing religious difference? What were the consequences of these processes for Islamic law, institutions and colonial subjects?

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 Pengaruh Perbedaan Keterangan Saksi Jarimah Zina (Perpektif Hukum Positif dan Hukum Pidana Islam)

2020 ◽  
Vol 5 (1) ◽  
pp. 1-14
Author(s):  
Islamu Haq
Keyword(s):  
Content Analysis ◽  
Criminal Law ◽  
Research Library ◽  
Comparative Approach ◽  
Witness Testimony ◽  
Positive Law ◽  
Library Research ◽  
Differences Of Opinion ◽  
The Difference ◽  
Witness Statements

This study aims to examine the influence of witnesses' different opinion in adultery jarimah verification on suspect determination between positive law and Islamic criminal law perspectives.This research adapts library research (library research) conducted through reading, understanding books, theses,  dissertations, websites and other literature related to problems by content analysis and the comparative approach between positive law and Islamic criminal law. The results of this study indicates that in a positive law, different witness testimonies can release a suspect from a guilty charge especially if the crime of adultery is lone standing criminal  (Zelfstanding Delict). In the case of act of continuing (voortgezette handeling), differences in the testimony of witnesses does not make witness statements denied as long as the difference in witness testimony does not exceed the set limits. In Islamic Criminal Law, If there are differences in the statements of the four witnesses, all witnesses' opinions cannot be accepted unless the differences of opinion regarding time and place are not far apart. Penelitian ini bertujuan untuk mengetahui bagaimana pengaruh perbedaan pendapat saksi dalam pembuktian jarimah zina terhadap penetapan tersangka persfektif hukum positif dan hukum pidana Islam.  Penelitian ini merupakan penelitian kepustakaan (library research), yaitu metode yang menggunakan riset kepustakaan baik melalui membaca, memahami buku-buku, tesis, disertasi, website maupun literatur lainnya yang sifatnya pustaka terkait dengan permasalahan dalam rangka memperoleh data, menggunakan analisis kontent (content analyzis ) dan metode komparasi antara hukum positif dan hukum pidana Islam. Hasil penelitian ini menunjukkan bahwa dalam hukum positif perbedaan keterangan saksi  dapat membebaskan tersangka dari tuntutan bersalah, khususnya jika tindak pidana zina tersebut merupakan tindak pidana yang berdiri sendiri (Zelfstanding Delict). Berbeda jika tindak pidana zina merupakan perbuatan berlanjut (voortgezette handeling) perbedaan keterangan saksi tidak menjadikan keterangan saksi ditolak sepanjang perbedaan keterangan saksi tidak melewati batas yang telah ditetapkan. Dalam Hukum Pidana Islam Jika terjadi perbedaan keterangan pada keempat saksi, maka semua pendapat saksi tidak dapat diterima kecuali jika perbedaan pendapat mengenai waktu dan tempat tidak berjauhan.

scholarly journals PENGANIAYAAN BERAT SEBAGAI ALASAN PENGHALANG MEWARISI DALAM KOMPILASI HUKUM ISLAM PASAL 173 HURUF A

2020 ◽  
Vol 1 (2) ◽  
pp. 97-110
Author(s):  
Riyan Ramdani ◽  
M. Najib Karim
Keyword(s):  
Content Analysis ◽  
Islamic Law ◽  
Not Given ◽  
Interesting Topic ◽  
New Form ◽  
The One ◽  
The Relationship

The purpose of this study was to explore severe persecution as the reason the barrier inherits in a compilation of Islamic law section 173 the letter A. the topic of “Severe Persecution” isan interesting topic both academic and general quarters about it can be highlighted in both the book and the legacy. Nextaya persecution heavy is the new form of inherited law Indonesia included in a compilation of Islamic law under section 173 of the lette A the view of cleric 4 of madzhab category of severe persecution is not through research. Using the yuridis normative and yuridis empiris method in the form of content analysis. After heavy mayhem is categorized as the reason for the obstacle inheriting acquired knowledge and understanding the data is then analyzed comprehensive to find the basis of his KHI’s law makes the persecution tough as an excuse for inheritable rule, the istinbath of KHI chapter 173 of the relationship between section 173 and the opinions of Indonesian scholars. The study found a result in a compilation of Islam law not given a clear, concrete understanding of what constitutes severe persecution. The priest hanafi argued that murder was not entitled to an inheritance by the one whom he killed whether intentionally or imbued, and then in this context the combination of Islamic law used the three methods of ushul fiqh in determining the renewal of the barrier, first, maslahah mursalah, second, sad dzariah, third, qiyas. And interrelated to the scholars’ opinion that a grouping of heiress in KHI chapter 173 is a legal renewal of heiress according to the code “law can change accourding to the circumstances.Penelitian ini bertujuan untuk mengeksplorasi penganiayaan berat sebagai alasan penghalang mewarisi dalam Kompilasi Hukum Islam pasal 173 huruf A. Topik mengenai “penganiayaan berat” merupakan topik menarik dikalangan akademik maupun dikalangan umum. Diskursus mengenai hal tersebut dapat disorot dari aspek hukum maupun kewarisan. Selanjutnya penganiayaan berat merupakan bentuk pembaharuan hukum kewarisan di Indonesia yang termaktub dalam Kompilasi Hukum Islam Pasal 173 huruf A sedangkan dalam pandangan Ulama 4 madzhab kategori penganiayaan berat tidak termasuk dalam pandangan para Ulama. Data penelitian ini diperoleh melalui penelitian yang menggunakan metode yuridis normatif dan yuridis empiris dengan bentuk content analysis. Setelah konsep penganiayaan berat yang dikategorikan sebagai alasan penghalang mewarisi dipelajari dan di fahami, data kemudian dianalisa secara komprehensif untuk menemukan dasar hukum KHI menjadikan penganiayaan berat sebagai alasan penghalang mewarisi, proses istinbath hukum KHI pasal 173 dan Hubungan antara pasal 173 dengan pendapat para Ulama Indonesia. Penelitian ini menemukan sebuah hasil Dalam Kompilasi Hukum Islam tidak diberikan pengertian yang jelas dan konkret tentang apa yang dimaksud dengan penganiayaan berat. Imam Hanafi berpendapat bahwasanya pembunuhan tidak berhak mendapatkan warisan dari seseorag yang ia bunuh baik dibunuh secara sengaja atau tidak sengaja, kemudian Dalam konteks ini Kompilasi Hukum Islam menggunakan tiga metode ushul fiqh dalam menentukan pembaharuan penghalang kewarisan, pertama, maslahah mursalah, kedua, sad dzariah, ketiga, qiyas. Dan Hubungan antar pasal dengan pendapat para ulama bahwasa­nya pengelompokkan penghalang waris dalam KHI pasal 173 adalah pembaharuan hukum waris sesuai dari sebuah kaidah “Hukum bisa berubah sesuai dengan keadaan tempat dan waktu”

scholarly journals Criminal law measures and criminal liability: scientific discussion and search for solutions

2020 ◽  
Vol 14 (4) ◽  
pp. 542-551
Author(s):  
Yurii E. Pudovochkin
Keyword(s):  
Criminal Law ◽  
Criminal Liability ◽  
Scientific Discussion ◽  
Administrative Supervision ◽  
Legal Nature ◽  
Real Phenomenon ◽  
The Common ◽  
The Difference ◽  
The Relationship ◽  
Official Recognition

The paper analyzes the content of scientific discourse on the relationship between criminal liability and criminal law measures and proves that the corresponding concepts are not subordinate and interchangeable. Criminal law measures are defined as legal means and normative structures established by law, which the state uses to respond to a crime. Criminal liability is defined as a real phenomenon, a special combination of criminal law measures implemented on the basis of a court sentence. The common feature of criminal liability and criminal law measures is that they can only be applied in case of commission of a crime. In this regard, measures imposed on persons who have committed a socially dangerous act before reaching the age of criminal liability or in a state of insanity should be excluded from the list of measures of a criminal legal nature. The difference between liability and criminal law measures is that liability requires official recognition of a person guilty of committing a crime, while criminal law measures can also be applied in the absence of a decision on guilt, when a person is exempt from criminal liability. Based on this, all criminal law measures are divided into two groups: a) measures applied outside the scope of liability, and b) measures that are part of liability. We give the nomenclature of each of them and identify promising opportunities for their expansion. In particular, the list of criminal law measures may be supplemented with community service, limited paid work, and administrative supervision. Keywords: criminal liability; measures of a criminal-legal nature; criminal punishment; conditional conviction; criminal record; administrative supervision; criminal-legal attitude.

scholarly journals Various Models Of Islamic Economic Fatwa: Critical Analysis Of The Islamic Economic Facing Statement Model In Indonesia, Malaysia, Middle East

2020 ◽  
Vol 7 ◽  
Author(s):  
Abd. Hadi
Keyword(s):  
Economic Development ◽  
Content Analysis ◽  
Middle East ◽  
Critical Analysis ◽  
Islamic Law ◽  
The West ◽  
Economic Law ◽  
The Difference ◽  
Islamic Economic

Until now there are many fatwas circulating among Islamic scholars of diverse Islamic law and seem to contradict, especially when comparing between Indonesia, Malaysia and the Middle East. The methodology used in this research is phenomenology that is used to explain the phenomenon that occurs related to the difference of Islamic economic law determination. Then using content analysis to parse and synthesize as well as provide criticism over the various phenomena of various models of determining the fatwa of Islamic economic law. The results of this study, in the context of Islamic economic development, until now there are at least three models of fatwa determination of sharia economic law that has been developed by Islamic economists: (1) Ushl Fiqh Approach (Ushul al-Fiqh as the Basic Determination of Sharia Economic Law) ) Pluralism (Acceptance of the Truth of the West and Islam as the Basis for the Establishment of Sharia Economic Law), (3) Islamization of Conventional Economies (Reducing Non-Syar'i Factors of Conventional Economy as the Basis for the Establishment of Sharia Economic Law). This research will enrich the treasury of Islamic Economics knowledge that is particularly useful for the study of Islamic economic law.

scholarly journals The Game of Skittles on the Northern Route of the Camino de Santiago

2020 ◽  
Vol 11 ◽  
Author(s):  
José E. Rodríguez-Fernández ◽  
Mar Lorenzo-Moledo ◽  
Jesús García-Álvarez ◽  
Gabriela Míguez-Salina
Keyword(s):  
Content Analysis ◽  
Data Collection ◽  
Quantitative Study ◽  
Current Practice ◽  
Ad Hoc ◽  
Current Situation ◽  
Local Culture ◽  
Camino De Santiago ◽  
Wide Range ◽  
The Relationship

The main purpose of this study was to analyze the presence and current situation of the game of skittles throughout the northern route of the Camino de Santiago. Thus, we considered its current practice, modalities, where it is played, and its different manifestations as an informal and formal game (sport), comparing it with other traditional games on this pilgrimage route. To do this, a mixed qualitative-quantitative study was designed with 89 participants (municipal professionals, politicians, players, club managers, and teachers), constituting an informant for each municipality through which the Northern Way passes. An ad hoc questionnaire was used for the data collection, which was processed through content analysis by expert judges (qualitative section) and by using the IBM-SPSS statistical package (version 25). The results of the study show notable skittles activity on the Northern Camino (58.32% of the municipalities), reflected in the number of skittles alleys (n = 291), the number of clubs, associations, and peñas participating in federated leagues (n = 162), and the wide range of varieties of skittles currently active on the Camino (n = 20). The relationship between skittles and local culture, both symbols of identity in these northern Spanish regions, made it possible to preserve the traditional heritage in these places, keeping it alive today, despite the push toward new and more attractive leisure and sport trends.

Relationship between competitive SMEs’ orientation and “Catur Paramitha”

2019 ◽  
Vol 46 (7) ◽  
pp. 861-873
Author(s):  
I. Ketut Rahyuda ◽  
Ida Bagus Anom Purbawangsa ◽  
Ida Bagus Ketut Surya
Keyword(s):  
Competitive Advantage ◽  
Organizational Performance ◽  
Qualitative Approach ◽  
Local Culture ◽  
Content Type ◽  
Internal Resources ◽  
Successful Business ◽  
The Difference ◽  
Mixed Approach ◽  
The Relationship

Purpose The purpose of this paper is to identify dimensions and indicators of “Catur Paramitha” that improve the performance of SMEs in Sarbagita area. Design/methodology/approach The study used a quantitative and qualitative approach. Glaser and Strauss’s (1967) grounded theory, and Strauss and Corbin (1990) were the bases for the qualitative approach. It also employed a quantitative approach to analyze the difference between the SMEs. The setting comprised of three municipalities in Bali and Denpasar; altogether, these areas are known as “Sarbagita.” Bali is divided into 8 districts, 1 city, and 57 regions. Due to the large number of SMEs in Bali, there is no institution that has been able to identify the exact number of SMEs in “Sarbagita.” Findings There is a significant and positive relationship between “Catur Paramitha” and the performance of SMEs in both East Java and Bali. The finding also describes the performance of the SMEs that apply the principles of “Catur Paramitha” and those that do not. “Catur Paramitha” that consists of “metria,” “karuna,” “upeksa” and “mudita” is a pivotal concept to apply for SME owners/management in order to prevent money from being the only basis for capitalist competition. Local wisdom can control cannibalism, turning it into humanism and friendship-based partnership or cooperation. Originality/value The originality of this research is its methodology, and the fact that the local culture becomes the basis for a successful business venture and organizational performance as the key for a successful business venture. Improved organizational performance is the result of more developed internal resources and competitive advantage. Local culture is a very important element to develop a competitive advantage (Barney and Clark, 2007). Local culture is local wisdom. Studies focusing on the local wisdom theory (Clayton and Birren, 1980; Robinson, 1990; Sternberg, 2000) use qualitative methods. Quantitative method is the approach used to explain the relationship between humanistic values and the performance of the SMEs (competitive advantage) based on statistical analysis. Therefore, the originality of this study is a mixed approach between quantitative and qualitative with interpretive-based approaches.

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