scholarly journals LEGAL STANDING KUASA ISTIMEWA UNTUK MEWAKILI MENGUCAPKAN IKRAR TALAK DALAM PERKARA CERAI TALAK

Mahakim ◽  
2019 ◽  
Vol 3 (1) ◽  
Author(s):  
Muhammad Fajar Sidiq Widodo
Keyword(s):  
Legal System ◽  
Islamic Law ◽  
Power Of Attorney ◽  
Positive Law ◽  
Legal Standing ◽  
Special Power

Talak is a marriage breaker pledge that is charged to a husband who wants to divorce his wife. Talak must be pronounced in a religious court. after permission by the Religious Court, a husband can declare his talak. However, what if a husband cannot pronounce his talak, then the best way is to represent it. The concept represents saying talak, both of which are equally permissible in Islamic law and in positive law. this paper will discuss how Legal Standing or the authority to act as a power of attorney to represent declaring talak. The purpose of this study is to explore and find concepts of special power that are not contrary to the Indonesian legal system. This research is normative research, because it examines the norms related to the granting and receiving the power of representation as part of a legal system. Then in this study using the Statute Approach and the Concept Approach to solve core problems.

scholarly journals Human rights in Muslim law: current issues

2021 ◽  
pp. 12-16
Author(s):  
I.I. Maryniv ◽  
K.R. Malik
Keyword(s):  
Human Rights ◽  
Legal System ◽  
Skin Color ◽  
Islamic Law ◽  
Social Background ◽  
Positive Law ◽  
Muslim Countries ◽  
General Principles Of Law ◽  
The Law ◽  
Islamic Society

The article is devoted to the study of the peculiarities of the legal system of Muslim countries. The author analyzes the essence of the concept of human rights and freedoms in Muslim law, as well as comparative characteristics with the Western legal system. The general principles of law in the Muslim system, due to the peculiarities of its historical formation, establish the criteria of conformity of positive law to the values of a particular society, limiting the action of a law to generally accepted moral criteria. It is noted that certain aspects of Sharia have different meanings for followers of Islam and those who do not adhere to this faith. In a ratio religious and secular rules of conduct operate differently. The author points out that in the theory of Muslim law, all people are equal regardless of their social background, skin color or language. It also speaks of the equality of all before the law and the court, but in practice a completely different situation arises. The article analyzes the disrespect for women's rights and the fact that women are essentially unprotected in Islam. It is noted that human rights, which should be universal in nature, were neglected by delegates to the 1993 UN Human Rights Conference in Vienna. In view of this, Islamic society is faced with the question: either Islam and Sharia, or democracy and human rights. At the same time, no explanation was given as to why one should be chosen over the other. The author proposes to gradually incorporate Muslim law into the law of Western countries, but only with respect for the national and cultural peculiarities of the East. It also highlights the importance of developing categories of human rights in the Muslim legal system, taking into account the standards of the Western concept of human rights and conducting a detailed study of Islamic law, rather than simply adding Western notions of natural human rights to Muslim law.

scholarly journals Positivisasi Syariah di Indonesia, Legalisasi atau Birokratisasi?

2018 ◽  
Vol 15 (3) ◽  
pp. 592
Author(s):  
Pepen Irpan Fauzan ◽  
Ahmad Khoirul Fata
Keyword(s):  
Legal System ◽  
Islamic Law ◽  
The Body ◽  
Positive Law ◽  
National Legal System ◽  
The Law ◽  
Islamic Society ◽  
The Ideal

Tulisan ini mengkaji pemberlakuan hukum syariah sebagai bagian dari hukum nasional Indonesia. Ada dua permasalahan pokok yang dibahas: pertama, bagaimanakah posisi hukum Islam dalam tubuh hukum nasional? Kedua, apakah legalisasi syariah telah mencerminkan idealitas hukum syariah bagi masyarakat Islam Indonesia? Untuk membahas dua permasalahan ini, penulis memfokuskan pada UU tentang Zakat, wakaf dan haji. Dari kajian yang penulis lakukan, dapat disimpulkan beberapa hal: pertama, keberadaan UU terkait zakat, wakaf dan haji merupakan perwujudan penerimaan sistem hukum Indonesia terhadap pemberlakuan hukum Islam sebagai bagian integral dari hukum nasional. Kedua, meski telah masuk dalam sistem hukum nasional, namun UU tentang zakat, wakaf dan haji mempunyai kekuatan dan kelemahan. Kekuatannya terletak bahwa hukum Islam telah menjadi hukum positif, sehingga pemberlakuannya menjadi mutlak di tengah masyarakat. Kelemahannya, UU itu lebih menitikberatkan pada persoalan administratif, dari pada mandatory. Konsekuensinya, UU tersebut tidak lebih dari sekedar birokratisasi-syari’ah.This paper examines the implementation of sharia as part of Indonesian national law. There are two main issues that are discussed: first, what is the position of Islamic law in the body of national law? Second, does the legalization of sharia reflect the ideal of shariah for Indonesian Islamic society? To discuss the two issues, the authors focus on the Law on Zakat, wakaf and hajj. From the writer's study, it can be concluded: First, the existence of the zakat, wakaf and hajj laws is the embodiment of acceptance of Indonesian legal system towards the implementation of Islamic law as an integral part of national law. Second, although it has been included in the national legal system, the Law of zakat, wakaf and hajj has strengths and weaknesses. Its strength lies in that Islamic law which has become a positive law, so its enforcement becomes absolute in society. The weakness is that the Law focuses on administrative matters rather than mandatory. Consequently, the law is nothing more than a shari'ah-bureaucratization.

PELUANG HUKUM PIDANA ISLAM DALAM PEMBENTUKAN HUKUM PIDANA NASIONAL DI INDONESIA

2018 ◽  
Vol 1 (4) ◽  
Author(s):  
Fitri Wahyuni
Keyword(s):  
Criminal Law ◽  
Legal System ◽  
Islamic Law ◽  
Civil Law ◽  
Legal Environment ◽  
Positive Law ◽  
National Legal System ◽  
The Future ◽  
Civil Laws ◽  
Islamic Civilization

Islamic law is prescribed by Allah SWT with the aim of realizing and realizing and protecting the benefit of humanity, both for the benefit of individuals, society or both. But Islamic criminal law is not understood correctly and deeply by society, even by the Islamic community itself. in the meantime, the position of Islamic law in the field of civilization has been broadly established in positive law, whether it is an element of influence, or as a modification of religious norms, which are formulated in civil laws and regulations, or which are covered by a substantial legal environment. Law No. 7 of 1989 concerning religious justice. Whereas Islamic criminal law has not yet gotten a place like the positive law of Islamic civilization. Whereas Islamic criminal law has the same opportunities as civil law in the national legal system based on three factors, namely philosophy, sociology and juridical. In addition to the three factors above, there are opportunities described in this study so that Islamic criminal law has the opportunity to establish national criminal law in the future  

Expanding a Formal Role for Islamic Law in the Indonesian Legal System: The Case of Mu’Amalat

2007 ◽  
Vol 23 (1) ◽  
pp. 249-270
Author(s):  
Alfitri
Keyword(s):  
Legal System ◽  
Islamic Law ◽  
Islamic State ◽  
Specific Question ◽  
Legal Code ◽  
Positive Law ◽  
Islamic Jurisprudence ◽  
Personal Law ◽  
Religious Courts

Contemporary conflicts over efforts to expand the role of Islamic law in the national legal system of Indonesia are so intense that they undermine reasoned public debate about this question. They are part of a long-standing polemic, not only about the role of Shariah in Indonesia generally but about the specific question of whether the Jakarta Charter, which references obligations to obey Islamic law, should be restored as part of the Constitution. This article is an attempt to revive the neglected academic discourse on the role of Islamic jurisprudence in Indonesian law, and to move beyond the confused polemics to a thoughtful consideration of where Islamic law fits in a non-Islamic state such as Indonesia. Because Indonesia is a secular state, the Shariah as a whole is not enforced by the state, but the Shariah has a significant meaning for Muslims in Indonesia because it provides the norms distinguishing the obligatory and recommended from those actions which are neutral, disapproved and prohibited in Muslims' lives. Moreover, some elements of Islamic jurisprudence in personal law have been absorbed into positive law in Indonesia through the decisions of religious courts, which have existed since the Dutch colonialism,3 as currently regulated by Law No. 7/1989. The Compilation of Islamic Law No. 1/1991 essentially functions as the legal code for all Muslims who must resort to the religious courts for the adjudication of disputes involving marriage, divorce, inheritance and waqf. Thus, consideration of the propriety of attempts to extend Islamic law to matters of property and of contract is appropriate at this time.

scholarly journals The Existence of President Instruction of The Republic of Indonesia Number 1 The Year 1991 on The Wide Spread of Compilation of Islamic Law in Indonesian Legal System

2018 ◽  
Vol 13 (2) ◽  
pp. 291-309
Author(s):  
Fajar Sugianto ◽  
Slamet Suhartono
Keyword(s):  
Supreme Court ◽  
Legal System ◽  
Islamic Law ◽  
Legal Issue ◽  
Regulation System ◽  
Reform Era ◽  
Positive Law ◽  
The Republic ◽  
The Government ◽  
Constitutional System

President Instruction Number 1 Year 1991 is a legal instrument that became Indonesia’s positive law regulating the Compilation of Islamic Law (KHI). However, the constitutional system and regulation system in Indonesia have undergone significant changes since the reform era. It raised another legal issue in the application and implementation of the Compilation of Islamic Law since it is not categorized as the source of law in Indonesia’s legal system. It cannot be applied to the government directly because of lack of legal binding. Nevertheless, the existence of the President Instruction still provides recognition through join decision with the Ministry of Religion and the Supreme Court. Thus, the Compilation of Islamic Law can be institutionally applied in the Religious Court which positioned under the Indonesia’s Supreme Court. Since then Judges easily apply the Compilation of Islamic Law as the legal source in resolving disputes in Muslim society. (Inpres 1/1991 merupakan instrumen hukum yang menjadikan hukum Islam sebagai hukum positif di Indonesia, akan tetapi perkembangan sistem ketatanegaraan dan sistem perundang-undangan di Indonesia telah mengalami perubahan yang sangat pesat sejak era reformasi. Hal ini menimbulkan problem hukum baru dalam pemberlakuan Kompilasi Hukum Islam (KHI) mengingat kedudukan Inpres 1/1991 dalam sistem perundang-undangan tidak dikenal sebagai peraturan perundang-undangan. Dalam aspek kekuatan mengikat, Inpres tersebut tidak dapat diberlakukan untuk umum karena tidak mempunyai kekuatan mengikat umum dan hanya bersifat mengikat ke dalam terhadap pejabat yang berkedudukan lebih rendah pada 1 (satu) institusi. Kendatipun demikian eksistensi Inpres 1/1991 hingga hari ini masih diakui keberadaannya mengingat substansinya dibentuk melalui keputusan bersama antara Menteri Agama dengan Ketua Mahkamah Agung. Sehingga, Kompilasi Hukum Islam mengikat hakim-hakim peradilan agama yang berada di bawah lingkungan Mahkamah Agung. Para hakim dapat menggunakan Kompilasi Hukum Islam sebagai dasar hukum untuk menyelesaikan sengketa yang terjadi diantara masyarakat yang beragama Islam)

scholarly journals Legal Positivism, Positive Law, and the Positivisation of Islamic Law In Indonesia

ULUMUNA ◽  
2018 ◽  
Vol 22 (1) ◽  
pp. 77-95
Author(s):  
Muslihun Muslihun
Keyword(s):  
Legal System ◽  
Islamic Law ◽  
The State ◽  
Legal Positivism ◽  
Considerable Degree ◽  
Discursive Practice ◽  
Legal Philosophy ◽  
State Law ◽  
Positive Law ◽  
Hans Kelsen

This study elucidates the legal positivism and critically compares it with other schools of philosophy of law. Debates on the legislation of Islamic law in Indonesian can be traced back to the discursive practice of legal philosophy such as legal positivism. Indonesia as a law-based state (rechtsaat) adopts to a considerable degree legal positivism. However, it cannot be said that pure legal positivism, as it is promoted by its thinkers such as John Austin and Hans Kelsen, is applied because the Indonesian legal system accept morality such as religious and customary norms as the ground of legislation. By examining the postivisation of Islamic law, that is the legislation of Islamic law into the state legal system, this study argues that morale, ethics or norms derived from religion and customs are accepted to the state law. They can be used as the source of justice while justice in the positivists’ view refers to the code and statute endorsed by those who are in authority or power to do that. It thus denies the view of legal positivists who reject ethics or norms beyond the state law as non-law.

scholarly journals Legal Standing of Coastal Reclamation: Islamic and Positive Law Perspectives

2016 ◽  
Vol 1 (2) ◽  
pp. 258
Author(s):  
Supriadi Supriadi
Keyword(s):  
Natural Resources ◽  
Local Governments ◽  
Islamic Law ◽  
Local Authorities ◽  
Local Revenue ◽  
Positive Law ◽  
Legal Standing ◽  
Coastal Reclamation ◽  
The Government ◽  
The Universe

In several regions, the implementation of reclamation in Indonesia caused much conflict. At least, it caused by three interests; the interest of the government, employers, and society (fishermen). The interests of the Government and local authorities to give permission to reclaiming for the pursuit of local revenue, the interests of employers to reclaiming the coastal, because they wanted to add company’s revenues, while the interests of society (fishermen) to defend coastal areas so it not diminish their livelihood. Reclamation in Indonesia has been governed by legislation, but it has not been able to resolve the coastal reclamation. This is due to the legislation governing coastal reclamation, and local governments are ignorant of the rules concerned. In addition, the central and local governments are often tends to interest of employers rather than the fishing communities, so it triggering conflict in reclamation. Positive law as a law made by the government and legislative assembly and the local government with local legislative, a rule that was born as result of an agreement between them, and neglecting the Islamic law that was created by God to organize all the things in this world, including in the management of the universe (coastal). God as the creator of this universe, allowing to manage and utilize natural, if for the benefit of humanity as a whole, and not for those of a human. Therefore, in the implementation of reclamation, the Government and local authorities need to synergize Islamic law into positive law in resolving the problems of social and natural resources.

scholarly journals Legislasi Hukum Islam dalam Sistem Hukum Nasional

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.

scholarly journals Prospek Hukum Islam dalam Sistem Hukum Indonesia

AL- ADALAH ◽  
2018 ◽  
Vol 14 (2) ◽  
pp. 461
Author(s):  
Saifuddin Saifuddin
Keyword(s):  
Legal System ◽  
Islamic Law ◽  
Regional Autonomy ◽  
Positive Law ◽  
Legislative Body ◽  
National Legal System ◽  
Islamic Values ◽  
Legal Product

Although the majority of Indonesian citizens are Muslims, Islamic law cannot automatically apply in this country. This is because Indonesia is not a religious state and does not make religion as the state's ideology. This article analyzes the prospects of tranformation of Islamic law into the national legal system. The aim is to find a format that is in accordance with the character of the Indonesian state and does not deviate from state idiology of Pancasila . This study concludes that there are only a few ways to enforce Islamic law in Indonesia without changing the existing state order. First: through a constitution amendment. Islamic law can be transformed into positive law insofar as it is accepted by the legislative body through democratic ways. Second: through the transformation of legal material. This method is carried out by changing the material law based on secular values into a legal product based on Islamic values. Third: through regional autonomy. such as in Aceh, Banten, Madura, and Gorontalo.

scholarly journals Legal Standing of Coastal Reclamation: Islamic and Positive Law Perspectives

2016 ◽  
Vol 1 (2) ◽  
pp. 258
Author(s):  
Supriadi Supriadi
Keyword(s):  
Natural Resources ◽  
Local Governments ◽  
Islamic Law ◽  
Local Authorities ◽  
Local Revenue ◽  
Positive Law ◽  
Legal Standing ◽  
Coastal Reclamation ◽  
The Government ◽  
The Universe

In several regions, the implementation of reclamation in Indonesia caused much conflict. At least, it caused by three interests; the interest of the government, employers, and society (fishermen). The interests of the Government and local authorities to give permission to reclaiming for the pursuit of local revenue, the interests of employers to reclaiming the coastal, because they wanted to add company’s revenues, while the interests of society (fishermen) to defend coastal areas so it not diminish their livelihood. Reclamation in Indonesia has been governed by legislation, but it has not been able to resolve the coastal reclamation. This is due to the legislation governing coastal reclamation, and local governments are ignorant of the rules concerned. In addition, the central and local governments are often tends to interest of employers rather than the fishing communities, so it triggering conflict in reclamation. Positive law as a law made by the government and legislative assembly and the local government with local legislative, a rule that was born as result of an agreement between them, and neglecting the Islamic law that was created by God to organize all the things in this world, including in the management of the universe (coastal). God as the creator of this universe, allowing to manage and utilize natural, if for the benefit of humanity as a whole, and not for those of a human. Therefore, in the implementation of reclamation, the Government and local authorities need to synergize Islamic law into positive law in resolving the problems of social and natural resources.

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