Konparasi  Syarat Keabsahan “Sebab Yang Halal” Dalam Perjanjian Konvensional Dan Perjanjian Syariah

As social beings, social relations are fundamental and inseparable. Social interaction that has many differences requires the existence of a specific guidance or law adopted by the community. The law is for the sake of realizing a sense of security and assured in establishing community relations, as well as to realize a good social relationship, harmonious and without having to harm others. A specific form of guidance in society is the agreement. Indonesia has three sub-systems of law that are broadly divided into namely western law, customary law, and Islamic law. The procurement of agreements in order to increase security and certainty is already inevitable in the modern era, which is rapidly growing as it is today. Therefore, before entering into an agreement, it is necessary to comply with all conditions of the validity of the agreement in order for the agreement to become valid as a law so that the purpose of the agreement can be reached. One of the terms of the validity of the treaty that is "lawful cause" is an important thing to be studied deeply by the parties who make the contract because of the difference of the legal system in its environment (Indonesia) is mainly the conventional agreement system which is used as the standard of legislation in Indonesia and the system Islamic agreement or sharia that is used as the guidance of the majority of Indonesian people who are Muslims, so that there are no things that do not want inflicted in the future

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PEWARISAN BERDASARKAN HUKUM WARIS ADAT TERKAIT SISTEM KEKERABATAN DI INDONESIA

Jurnal Aktual Justice ◽

10.47329/aktualjustice.v5i1.520 ◽

2020 ◽

Vol 5 (1) ◽

pp. 56-70

Author(s):

Subekti Subekti ◽

Suyono Yoyok Ucuk

Keyword(s):

Islamic Law ◽

Customary Law ◽

Natural Background ◽

Conceptual Approach ◽

Inheritance Law ◽

Is Research ◽

Kinship System ◽

Inheritance System ◽

The Difference ◽

Western Law

There are three kinds of inheritance law in Indonesia, namely Islamic inheritance, Customary inheritance and BW inheritance. The scope of this writing is limited to customary inheritance law. The parts of customary law have a big influence on customary inheritance law and vice versa. Customary inheritance law has its own characteristics and characteristics that are unique to Indonesia, which is different from Islamic law and western law (BW). Because the difference lies in the natural background of the Indonesian people who have the philosophy of Pancasila with a society that is Bhinneka Tunggal Ika. The inheritance law that exists and applies in Indonesia to date is still not in the form of legal unification. The purpose of this study is to analyze the inheritance system according to the customary inheritance law related to the kinship system in Indonesia.The type of research used in this research is normative juridical research, namely research on legal systematic is research conducted on primary and secondary legal materials, the terms of reference used are the basic definitions contained in the legal system. The approach used is a conceptual approach, a statute approach and a case approach. Types of Legal Materials are primary legal materials and secondary legal materialsThe results of this study indicate that the inheritance system according to the Adat Inheritance Law does not refer to the kinship system of the customary law community. Customary law communities whose system of collective inheritance can occur are parental kinship systems. Heritage assets related to inheritance must be distinguished from the origin of the assets, because they are related to the kinship system that exists in the local customary law community, whether parental, patrilineal or matrilineal, because not all inheritance can be divided individually.

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Ambiguities of Colonial Law: the Case of Muhammadu Aminu, Former Political Agent and Chief Alkali of Kano

History in Africa ◽

10.1353/hia.2010.0002 ◽

2009 ◽

Vol 36 ◽

pp. 17-52

Author(s):

Philip Atsu Afeadie

Keyword(s):

Rule Of Law ◽

Islamic Law ◽

Customary Law ◽

Religious Leader ◽

Political Agent ◽

Judicial Administration ◽

Western Law ◽

Political Agents ◽

Productive Systems ◽

Colonial Government

Colonial law in Africa involved European moral and legal codes representing some rules of western law, as well as elements of African customary law. However, the colonial situation embodying political and economic domination necessarily negated the ideal practice of the rule of law. Nevertheless, the need arose to introduce some aspects of western law and codes of administration, including salary and benefits schemes for African employees of the colonial government, and legal entitlements such as court trials for accused government employees. These considerations were deemed necessary, if at least to propitiate metropolitan critics of the colonial establishment. Also some rule of law was required for the organization of the colonial economy, including regulation of productive systems and commercial relations. As well, the need for indigenous support necessitated dabbling in indigenous customary conventions. In Muslim polities such as Kano in northern Nigeria, customary conventions included Islamic law.On the establishment of colonial rule in Kano, judicial administration was organized on three principal institutions, involving the resident's provincial court, the judicial council (emir's court), and the chief alkali's court in Kano City with corresponding district alkali courts. The resident's provincial court had jurisdiction over colonial civil servants, including African employees such as soldiers, police constables, clerks and political agents. Also, the provincial court was responsible for enforcing the abolition of the slave trade in the region. The judicial council, classified as “Grade A” court, was composed of the emir, thewaziri(chief legal counselor), the chiefalkaliof Kano (chief judge), theimam(the religious leader of Kano mosque), thema'aji(treasurer), and general assistants including some notable scholars of Kano city. The council adopted thesha'ria(Muslim law) and local Hausa custom, and its jurisdiction extended over “matters of violence, questions of taxation and administration, and cases involving property rights, whether over land, livestock, trade goods, or slaves.” On the issue of capital sentencing, the judicial council required the approval of the resident. The council was also prohibited from authorizing punishments involving torture, mutilation, or decapitation.

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POLEMIK PEMBERIAN HARTA WARIS MELALUI WASIAT KEPADA ANAK ANGKAT

Asy-Syari ah ◽

10.15575/as.v16i2.632 ◽

2014 ◽

Vol 16 (2) ◽

Author(s):

Habiburrahman Habiburrahman

Keyword(s):

Islamic Law ◽

Customary Law ◽

Foster Child ◽

The Law ◽

Western Law ◽

Paper Author ◽

Laws And Regulations

This paper describes the polemic of the distribution of waris for foster child in the study of Islamic law and the laws and regulations in Indonesia. The distribution of estate to foster child was regulated in article 209 in the Compilation of Islamic Law (KHI). Thus, this is a signal that the influence of customary law and Western law had entered in KHI . Therefore, by this paper, Author would like to emphasize that the distribution of waris to the foster child by using the concept of wasiat wajibah in KHI is wrong. It is not based on the shari'ah (qath‘iy al-dilâlah), but rather based on logic of the law and humanitarian considerations, and it is zhanniy al-dilâlah. Thus, author sure that the distribution of waris by one third (1/3) of estate to the foster child by using the concept of wasiat wajibah is an erroneous ijtihad, cotradiction with the texts, and could be detrimental to the main heirs.

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EKSISTENSI HUKUM WARIS DI INDONESIA: ANTARA ADAT DAN SYARIAT

Asy-Syari ah ◽

10.15575/as.v18i1.656 ◽

2015 ◽

Vol 18 (1) ◽

Author(s):

Komari Komari

Keyword(s):

Islamic Law ◽

East Asian ◽

Colonial Period ◽

Customary Law ◽

The Political ◽

Inheritance Law ◽

Muslim Society ◽

Western Law ◽

The Government ◽

Asian People

This paper explains about the application of inheritance law in Indonesia which is strongly influenced by three law systems such as Islamic law, customary law, and Western law. At the beginning of Islam in Indonesia, Islamic law is very dominant in the implementation of Islamic inheritance law which is intergrated with culture and tradition among Muslim society. In Colonial period, the government of Dutch East Hindia started to establish Western law for European and East Asian people. But for the Muslim citizens in Indonesia was implementting the combination of Islamic law and customary law. In the independence period, the political of law has been changed through unification and codification of Islamic law into the Indonesia rules formally, including in the application of Islamic inheritance law. As long as this policy, Islamic inheritance law in Indonesia has a characteristic of the combination between Islamic law and customary law.

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STRUGGLING TO SURVIVE IN COMPLEX AND MODERN ERA

ALQALAM ◽

10.32678/alqalam.v34i1.1797 ◽

2017 ◽

Vol 34 (1) ◽

pp. 39

Author(s):

Chuzaemah Batubara ◽

Fatimah Fatimah

Keyword(s):

Case Studies ◽

Islamic Law ◽

Legal Culture ◽

Customary Law ◽

State Courts ◽

New Order ◽

Legal Cases ◽

Destructive Conflict ◽

Customary Court ◽

Modern Era

The holistic implementation of Islamic law in the life of Acehnese community has brought “big changes,” one which is force the majority Acehnese involved in conflicts or disputes bringing their cases solved to Mahkamah Syari’ah as a formal legal instituon which mostly leads disputants to expensive costs, long consumed and waste time as well as exhausting, even unjust feeling. However, the implementation has revitalized the existence of customary court which almost gave up in New Order regimes. The paper argues that the Acehnese legal culture embodied in Peradilan Gampông as customary Law is living law that would resolve destructive conflict and reduce the intention and huge suggestion of some people to resolve their cases through formal legal solution in State Courts (Mahkamah Syariah). With a socio-legal approach the research is focused on case studies on resolving dispute in Aceh customary courts (Peradilan Adat Gampông) at several Gompông in Aceh. The study found that peace, equilibrium, societal hood and justice as dominant principles in the life of Acehnese people at gampôngs and cities have brought customary law revived and as socities’ primary choices in resolving their legal cases.

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Social Relationship Between Kampong Gendong Residents and Gated/Non-Gated Community in Sendangmulyo Village Tembalang District, Semarang

Jurnal Tataloka ◽

10.14710/tataloka.22.2.261-270 ◽

2020 ◽

Vol 22 (2) ◽

pp. 261-270

Author(s):

Retno Susanti ◽

Retno Widjajanti ◽

Grandy Loranessa Wungo ◽

Intan Budiarti

Keyword(s):

Population Growth ◽

Social Relations ◽

Social Relationship ◽

Gated Community ◽

Physical Separation ◽

Sense Of Security ◽

The Social ◽

Exclusive Property ◽

Housing Typology ◽

The City

Population growth in the city of Semarang increases the need for residential land, shifting individuals from the center to the suburbs. Tembalang is a sub-district with a population growth of 3.69%. The trend in population growth is used to build gated homes, for middle and upper class individuals who need more comfortable, secure, quiet housing. However, the existence of a gated community makes a physical separation between community settlements. Privatization of public spaces in gated housing potentially leads to social inequality and lack of interaction with the surrounding community. The purpose of this study was to examine the social relations between the villagers around housing and residents of the gated community. The study uses questionnaires and open interviews interviews with 93 respondents from Kampong Gendong and a hierarchical analysis to examine social relations. The results show that there are social relations between gated housing residents and villagers based on residence, and they carry out several activities together. Also, housing typology influences the strength of the interaction between villagers and residents of the gated homes. In general, gated housing appear as a form of exclusive property with separate environmental facilities, which might be used by villagers to strengthen social interaction. The relations with the surrounding community play n important role in increasing the sense of security for residents of gated housing, unlike the use of perimeter fence or the guards.

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States and Women's Rights

American Journal of Islam and Society ◽

10.35632/ajis.v19i4.1902 ◽

2002 ◽

Vol 19 (4) ◽

pp. 125-128

Author(s):

Safoi Babana-Hampton

Keyword(s):

Social Relations ◽

Islamic Law ◽

Customary Law ◽

Political Organization ◽

Analytical Models ◽

The Subject ◽

Historical Relationship ◽

Historical Periods

In her preface, Mounira Charrad traces the genesis of her study to her concerns as a sociologist regarding the inadequate analytical models used to account for the origin of political organization in the "predominantly classbased and capitalist societies" Maghribi societies. Charrad proposes "kinship" and tribal ties as more appropriate sociological categories for acquiring a good understanding of the foundations of social relations in Tunisia, Algeria, and Morocco. She focuses on three distinct historical periods: precolonial, colonial, and post-independence. Her investigation centers on documenting the historical relationship between the process of nationbuilding and state-formation, and the codification and articulation of a unified family law that replaced numerous (and sometimes conflicting) forms of customary law competing with Islamic law. The book combines historical, sociological, and geographical data and analytical concepts in order to frame the investigation's main subject. The subject is covered in three main parts divided into nine chapters, in addition to an introduction and a conclusion. The text is supplemented with tables and maps documenting linguistic and geographic features of the Maghrebi states under study. The book concludes with a useful glossary of transliterated Arabic words, chapter notes, a selected bibliography organized conveniently under five main headings, an author index, and a subject index ...

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Legislasi Hukum Islam dalam Sistem Hukum Nasional

Istidlal: Jurnal Ekonomi dan Hukum Islam ◽

10.35316/istidlal.v4i2.267 ◽

2020 ◽

Vol 4 (2) ◽

pp. 116-126

Author(s):

Ainun Najib

Keyword(s):

Legal System ◽

Islamic Law ◽

Customary Law ◽

The Political ◽

Legal Development ◽

Positive Law ◽

Religious Law ◽

National Legal System ◽

Western Law ◽

Islamic Values

Constitutionally, Indonesia is neither a religious state nor a secular state, but a state based on Pancasila. The ideology of this nation also influences the development of law in it, which is not based on religion nor adheres to the secular legal system. Based on the Pancasila philosophy, Indonesia's national legal system recognizes religious law, customary law and Western law as a source of material law in the formation of national law. The existence of Islamic law in the national legal system experienced ups and downs, due to the influence of the political power of each era of government. Transforming Islamic law into national law requires negotiation and dialectics through a friendly approach and does not trigger national disintegration. So that the process of transformation into the resulting national law can be divided into two forms, first, Islamic law is adapted into positive law in the form of organic law. Second, accommodation in the form of absorption of Islamic values into national law, by not using Islamic / Islamic labels. The transformation of Islamic law into national law is a manifestation of responsive and accommodative legal development.

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Arrangement and Dynamication of Family Law Updating in Indonesia

Al-'Adl ◽

10.31332/aladl.v13i2.1879 ◽

2020 ◽

Vol 13 (2) ◽

pp. 285

Author(s):

Ike Yulisa ◽

Muhamad Yusuf ◽

Doli Witro ◽

Luqyana Azmiya Putri ◽

Mhd. Rasidin ◽

...

Keyword(s):

Islamic Law ◽

Family Law ◽

Customary Law ◽

Law Reform ◽

Government Regulations ◽

Analysis Techniques ◽

Structure And Dynamics ◽

Divorce Rates ◽

Islamic Family Law ◽

Western Law

In Indonesia, family law is well regulated in law or government regulations. In this case, with the increasingly complex family law issues supported by divorce rates, which reached 398,245 in 2015, then in 2017, it increased to 415,898, and with the development of science and technology, so many problems arise both in terms of muamalah or family law itself. For this reason, structuring is needed through legal reform that makes it follow what is needed by the wider community. Starting from this, this paper will discuss the arrangement of Islamic family law and the dynamics of family law reform in Indonesia. This study aims to provide an overview of the arrangement of Islamic families and Islamic family law reform in Indonesia. This paper uses qualitative research methods that are library researching. The data in this article was obtained from books, journals, articles, magazines related to the structure and dynamics of family law reforms in Indonesia. After the data is collected, the writer analyzes with data analysis techniques, namely data reduction, data presentation, and concluding. The results of the study show that the structure and dynamics of family law in Indonesia, when viewed in the context of Islamic law reform, reveal a unique and problematic portrait of reform. It is said so because Indonesia applies three legal systems, namely customary law, Islamic law, and Western law.

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Tradition of Hileyiya: The Interaction Between Religion and Traditions in Gorontalo in Sociology of Islamic Law Perspective

Analisa Journal of Social Science and Religion ◽

10.18784/analisa.v22i1.141 ◽

2015 ◽

Vol 22 (1) ◽

pp. 57

Author(s):

Rizal Darwis

Keyword(s):

Qualitative Research ◽

Islamic Law ◽

Customary Law ◽

Religious Law ◽

Review Finding ◽

The Dead ◽

Western Law ◽

Document Review ◽

Funeral Ceremony ◽

Descriptive Qualitative

Interaction between tradition and religion in Indonesia cannot be denied. Historically, the development of national law was based on three difference laws: customary law, western law (particularly Dutch law), and Islamic law. This affects on the acceptance of the tradition that does not contradict with the religious law. This paper examines the tradition of hileyiya or funeral ceremony which is prominent among Gorontalo’s society from the sociology of Islamic law perspective. It is a descriptive qualitative research and the data was collected using observation, interviews, and document review. Finding of this study revealed that tradition of hileyiya consisting of the reciting of the Qur’an, tahlil, tahmid, shalawat and dzikir has become a legacy for Gorontalo’s society. In the sociology of Islamic law perspective, this practice provides various benefits to the dead family and the visitors. For instance, the benefits of reciting the Qur’an believed can be passed on to the dead, serve to tranquil the dead family, and remind people about the death. It can be regarded as al-urf-shahih (and it was legitimized by the basis of Islamic law as al-adat al-muhakkamah (customs can be law).

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