scholarly journals The Will for Heirs: A Juristic Analytical Study

2019 ◽  
Author(s):  
International Journal of Fiqh and Usul al-Fiqh Studies
Keyword(s):  
Analytical Methods ◽  
Analytical Study ◽  
Islamic Law ◽  
The Other ◽  
Majority Opinion ◽  
Other Hand ◽  
Islamic Jurisprudence ◽  
The Will ◽  
The Law ◽  
The Needy

This research aims to study the topic of “The Will for Heirs: A Juristic Analytical Study.” It deals with the definitions of will or testament and heirs from the perspective of Islamic jurisprudence. It discusses the views of jurists regarding the ruling of will for heirs by discussing proofs of jurists on this issue in the light of Islamic law of inheritance. This research discovers that the Muslim jurists differed on the law of will for heirs according to three schools of thought: according to Shī’ah Imāmiyyah and some supporters of Zaydiyyah, the will for heirs is permissible in one-third whether approved by the other heirs or not. This view differs from the majority of jurists who invalidate the will for heirs except by the permission of the other heirs because their permission is like a forfeiture of their right. Others, such as Ẓāhiriyyah, opposed the implementation of will for heirs. They argued that the will, will cause dissatisfaction in other heirs or inheritors. On the other hand, the will for heirs is useful and beneficial for some of the needy heirs. The researchers rely on the inductive and analytical methods. One of the important findings of this research is that, relying on the majority opinion of jurists, the law of will for heirs is valid only with the permission of the rest of the heirs after the death of the testator; this is the best opinion based on the strength of the evidence and their keenness on the unity of the heirs of the deceased.

scholarly journals ARABIC: تغيير الفتوى بمقتضيات الزمان والمكان

rahatulquloob ◽  
2021 ◽  
pp. 1-13
Author(s):  
Dr. Abdul Wadood Abed ◽  
Dr. Hedayatullah Modaqiq
Keyword(s):  
Islamic Law ◽  
The Other ◽  
Scientific Development ◽  
Spatial Factors ◽  
Other Hand ◽  
Islamic Jurisprudence ◽  
Temporal And Spatial ◽  
The One

Islamic law, by having features in its principles that are fixed and variable, expresses its authority in any situation and time. Of course, this feature reflects the unique legislative miracle of Islam itself. The source of Islamic law is divine and heavenly, so it has always descended directly through the revelation of Allah Almighty, the Lord of the worlds, and has been arranged according to His wisdom and providence and has been considered in the context of time and place according to their nature and needs. Changing of a fatwa is the change of one rule in a specific issue to another one along with a Sharia cause that agrees with the aims and purposes of the Sharia. Therefore, there is no change in the prescribed rules and the fixed principles of Shari, but Ijtihad, Qiyas and expedient rules can be changed; Because there are many rulings that have been permitted for expediency, after the passage of time and the change of place have led to corruption, which again has become impermissible. The rule of fatwa changing has been valid in the Sharia; Because, on the one hand, the Companions and their followers have used it in their ijtihad fatwas, and on the other hand, Islamic jurisprudence is a developmental debate that progresses together with the caravan of life, no awareness of the demands of time, place and scientific development is synonymous with depriving the Islamic Ummah from virtues and facilities of life, so it is necessary that the change of the fatwa has to be compatible to the change of expediencies, otherwise it will lead to corruption and harm. Statement of the problem: The Islamic jurists have divided the Islamic rules into fixed and variable. This means that the prescribed laws, which are in harmony with meek nature, do not accept changes but the rules which are based on ijtihad can be changed. The discussion of changing the fatwa and its temporal and spatial factors is one of the important issues of jurisprudence that scholars have paid attention to and therefore the answer to these two questions is necessary for the researcher whether changing the fatwa is permissible? Are the requirements of time and place effective in its changing?

scholarly journals PERKAWINAN ANAK DI BAWAH UMUR (Sebuah Kajian Perspektif Hukum Islâm Vis-a-Vis Hukum Positif di Indonesia)

2013 ◽  
Vol 6 (2) ◽  
pp. 274-309
Author(s):  
Mohammad Mohammad
Keyword(s):  
Rule Of Law ◽  
Islamic Law ◽  
State Regulation ◽  
The Other ◽  
State Law ◽  
State Laws ◽  
Other Hand ◽  
Age Limit ◽  
The Law ◽  
Legal Security

Abstrak: Perkawinan merupakan suatu ikatan yang melahirkan keluarga sebagai salah satu unsur dalam kehidupan bermasyarakat dan bernegara, yang diatur oleh aturan hukum, baik hukum Islâm maupun hukum positif (negara). Untuk dapat mewujudkan tujuan perkawinan, hukum negara, yakni Undang-undang Nomor 1 Tahun 1974 menentukan batas umur minimal untuk melangsungkan perkawinan, yakni usia 19 tahun untuk pria dan usia 16 tahun bagi wanita. Sedangkan hukum Islâm tidak menentukan secara kongkrit batas minimal usia perkawinan. Meghadapi dualisme hukum ini, negara seharusnya mengambil langkah tegas. Jika negara sudah melarang perkawinan di bawah umur,  maka konsekuensinya segala hukum yang bertentangan dengannya harus ditiadakan, sehingga terjadi kepastian hukum.   Abstract: Marriage is the bond of family that becomes one of the elements of social and state life. It is regulated in both Islamic and state laws. To concretize the marriage purpose, state law apllies the constitution of Undang-undang Nomor 1 Tahun 1974 that decides minimal age limit of marriage---19 years old for male citizens and 16 years old for the female ones. On the other hand, the Islamic law do not explicitly declare this. State must take a firm action to face this dualism, it must forbid non-state regulation that is in contradiction against state law including the law that allows the marriage beyond the age limit. It is about to guarantee the legal security or rule of law.   Kata-kata Kunci: Hukum Islâm, perkawinan di bawah umur, hukum negara, dan negara.

scholarly journals Syariah Courts in Malaysia and the Development of Islamic Jurisprudence: The Study of Istihsan

2014 ◽  
Vol 1 (2) ◽  
pp. 1-12 ◽  
Author(s):  
Mohd Hafiz Jamaludin ◽  
Ahmad Hidayat Buang
Keyword(s):  
Islamic Law ◽  
The Other ◽  
Islamic Jurisprudence ◽  
The Law

Malaysia is among the countries, which have very close relations with Shafi'i madhhab in term of Islamic Law. This can be seen from the provisions of Syariah Law in Malaysia where the opinion of the Shafi'i madhhab is preferred than other madhhabs. However, the current situations and issues cause that the other opinions from the other madhhabs are also used and practiced in order to provide the best solutions. This is also true in respect on the use of sources of Islamic law, such as Istihsan, Istislah and Qawl Sahabi, which are rejected by the Shafi'i madhhab. Therefore, this study attempts to analyze the development of Islamic law, particularly in the application of the concept of Istihsan in the Syariah Courts in Malaysia. This study has examined a number of cases reported in the Jurnal Hukum issued by the Syariah Judiciary Department of Malaysia (JKSM). The result of this study found that in several cases, the judges have applied indirectly the concept of Istihsan in their judgment. It is also found that it is actually the provisions of the law that allows the Shariah judges to indirectly apply this concept.

scholarly journals The Urgency of the Maqāṣid Al-Syarī‘Ah in Reasoning Islamic Law

2019 ◽  
Vol 1 (2) ◽  
pp. 117-123
Author(s):  
Alimuddin
Keyword(s):  
Islamic Law ◽  
The Other ◽  
A Value ◽  
Other Hand ◽  
Human Need ◽  
Basic Concepts ◽  
The Law

This paper aims to present several theories about how important to understand maqāṣid al-syarī‘ah when someone wants to study a law in Islam, someone cannot be separated from that context. Maqāṣid al-syarī‘ah is a barometer or the main standard of consideration in the formulation of shari'ah with the aim of benefit the Ummah, and Islam consistently makes  maqāṣid al-syarī‘ah in all its rules. The thinking of Ibn ‘Āsyūr about maqāṣid is built on this principle, that it’s imperative to accept the concept of ta‘līl. The theory of maqāṣid rests on three basic concepts; (a). Maqāṣids are sometimes qath‘ī and ḍannī (assumptive). (b). Maqāṣid ‘āmmah and khaṣṣhah (c). Al-maqām, al-istiqrā ’and distinguish between waṣilah and purpose in the application of fiqh law. Every phenomenon that has great potential for maslahah it can be stated to be included in the maqāṣid al-syarī‘ah. On the other hand the human need is not to know the maqāṣid al-syāri‘ itself, but to find a law for a new case that has no prescribed text. Ontology of maqāṣid al-syarī'at al-khāssah is also a value, because knowing the law for that case is complete with the text, now the needed for a new case, so the ontology of maqāṣid al-syarī'ah in this dimension is a transcendent value to refer when conducting tahqīqal-manāt.

scholarly journals REKONSTRUKSI HUKUM WARISAN DI INDONESIA PERSPEKTIF PLURALISME AGAMA

Al-Qadha ◽  
2020 ◽  
Vol 7 (1) ◽  
pp. 60-72
Author(s):  
Abdul Mufid
Keyword(s):  
Research Method ◽  
Islamic Law ◽  
The Other ◽  
Legal Certainty ◽  
Legal Research ◽  
Other Hand ◽  
The Will ◽  
Sense Of Justice ◽  
Religious Differences

Juridical, theological, and philosophical differences in religion are one of the challenges for someone to become an heir. On the other hand, empirically historical-sociological is not the case, because there are reasons (illat) or other related to different religions to get the inheritance of Muslims who inherit using welfare factors. This research uses the normative legal research method. The author uses Gustav Radburch's theory of legal objectives governing justice, expediency, and legal certainty. Based on the results of the research found in the compilation of Islamic law is not available to the heirs who have been given apostasy. Religious differences as a barrier to inherit are specifically intended for heirs. So it can be concluded that Muslim heirs can inherit the assets of non-Muslim heirs, but not vice versa. In this study, non-Muslim heirs cannot inherit wealth from Muslim heirs, in order to fulfill a sense of justice and respect, these non-Muslim experts still obtain inheritance through mandatory wills which are processed through court determination. The will is obliged to be determined as a way out of giving the inheritance to non-Muslim heirs because the heir has died, and there is no other way to be able to transfer the heir's assets to the non-Muslim heirs.

scholarly journals Interpretation of Wills - Does Endumeni Case Apply?

2021 ◽  
Vol 24 ◽  
pp. 1-30
Author(s):  
Fareed Moosa
Keyword(s):  
Pension Fund ◽  
Contextual Factors ◽  
The Other ◽  
Modern Trend ◽  
Written Text ◽  
Other Hand ◽  
The Will ◽  
The Law ◽  
Interpretive Process ◽  
Last Will And Testament

This article argues that the general approach to documentary interpretation articulated in Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 4 SA 593 (SCA) (Endumeni) applies also to the interpretation of wills, subject to adaptation for context. It is argued that interpretation of wills and the application of an interpretation to a particular factual setting are coequal tasks. Each case must be decided on its own facts. The cardinal rule is the ascertainment of a testator's intention and giving effect thereto, provided that this will not bring about a violation of the law. It is argued that a court must put itself in the armchair of the testator and, after determining where the probabilities lie, it must infer or presume what the testator had in mind at the time that the will was created. Although intention is subjective, the interpretive process to determine a testator's intention is objective in form. It is argued that a court must, in every instance, understand the purpose for which it seeks to determine a testator's intention. This is so that it can undertake the correct enquiry. If the aim is to determine the meaning of a testamentary provision, then a testator's intention must be ascertained as memorialised in the written text of the will read as a whole, taking into account also the purpose of the text and its context. If, on the other hand, the aim is to determine whether a document is a testator's intended last will and testament, as is the case when section 2(3) of the Wills Act 7 of 1953 is invoked, then a testator's intention must be ascertained with reference to the document's purpose, taking also into account all legally relevant and admissible internal and external contextual factors. It is argued that all this is, as confirmed in Endumeni, consistent with the modern trend favouring an objective, purposive, contextual cum teleological mode of documentary interpretation.

scholarly journals RIWAYAT-RIWAYAT ISRAILIYYAT DALAM TAFSĪR AL QUR’AN; ASAL-USUL DAN HUKUMNYA

2020 ◽  
Vol 14 (2) ◽  
pp. 221-238
Author(s):  
Muhammad Yasin Akhmad ◽  
Dr Suhandi M. Ag
Keyword(s):  
Islamic Law ◽  
The Other ◽  
Literature Study ◽  
Other Hand ◽  
Library Research ◽  
History Of ◽  
The Law ◽  
Qualitative Literature

AbstractThis research discusses the history of isra'iliyyat in the tafsir book and what is the law of narrating isra'iliyyat. While in the isra'iliyyat narration there is difference whether it is permissible or not and how the isra'iliyyat narration is contained in the tafsir books. The method used in this research is qualitative literature study (Library Research). The results show that the history of Isra'iliyyat is in accordance with Islamic syari'at, then the truth of Israiliyyat can be recognized and allowed to narrate it. Otherwise if it is contrary to Islamic law, it considered unthrue and may not be narrated, but this is allowed if the position has been explained in the interpretation. On the other hand, if there is no information in the Islamic Sharia regarding the content of israiliyyat, then the step that must be chosen is tawaquf, which is not punishing whether it is true or not.   AbstrakPenelitian ini membahas tentang riwayat isra’iliyyat dalam kitab tafsir serta bagaimana hukum meriwayatkan isra’iliyyat. Dimana dalam periwayatan isra’iliyyat terdapat perbedaan apakah boleh atau tidak serta bagaimana periwayatan isra’iliyyat yang terdapat dalam kitab-kitab tafsir. Metode yang digunakan dalam penelitian ini adalah penelitian kualitatif studi pustaka (Library Researh). Adapun hasil penelitian menunjukan bahwa riwayat Isra’iliyyat tersebut sesuai dengan syari’at Islam, maka dapat diakui kebenarannya dan diizinkan untuk meriwayatkannya, sedangkan jika bertentangan dengan syari’at Islam maka didustakan dan tidak boleh diriwayatkan, namun diperbolehkan jika dijelaskan kedudukannya. Adapun jika belum ada keterangan sesuai atau tidaknya dengan Syari’at Islam maka tawaquf di dalamnya, yaitu tidak menghukumi benar atau tidaknya.Kata Kunci: Riwayat Israiliyyat, Tafsir al-Qur’an, Asal usul dan Hukumnya.

scholarly journals NIKAH SIRRI; PRESPEKTIF HUKUM ISLAM DAN HUKUM PERKAWINAN NASIONAL

2013 ◽  
Vol 12 (1) ◽  
pp. 43
Author(s):  
Masturiyah Masturiyah
Keyword(s):  
Islamic Law ◽  
Civil Law ◽  
The Other ◽  
Marriage Law ◽  
Negative Effects ◽  
The Public ◽  
Other Hand ◽  
Marriage Record ◽  
Women And Children ◽  
The Law

In Indonesian society, marriage has legal dualism. Namely, marriage (which) should  be listed in the Religious Affairs Office (KUA) and the marriages were not recorded (Sirri marriage). In fact, if we examine more seriously, many Sirri marriages cause harm especially, on the part of women and children. And in fact, not the least negative effects caused by Sirri marriage. This paper discusses sirri marriage in the perspective of Islamic law and the National Marriage Law. Because sirri marriage not stated explicitly in both the Qur’an and hadith, hence, to determine the law (istinbat al-hukmi), jurists of Islamic law (in this case) do ijtihad whereby sirri marriage is categorized as al maslahat al murasalah, which refers to the maqasid al-shari’ah.  However, sirri marriage is actually problematic for several reasons. First, sirri marriage is not part of prophetic tradition. Because, the Prophet advocates and implements wedding party (walimah al-’Ursy) with aim to proclaim marriage to the public (i’lanun nikah). On the other hand, the recording of the marriage is the leader commands (Ulil Amri). Meanwhile, Allah and the Prophet ordered to obey the leader (Amri Ulil). Since the recording of the marriage will benefit Muslims (maslahah), then Muslims should stay away from harm (mudharat). Second, sirri marriage is not in accordance with the national law of marriage, because the point ‘marriage record’ does not exist in the concept of sirri marriage. Whereas, marriage registration set forth in Article 2, paragraph 2 of Law marriage, no. 1 of 1974 and article 2, paragraph 1, 2, 3 of Law no. 9 of 1975, the Code of Civil Law (KUHP) and the Compilation of Islamic Law (KHI).

scholarly journals Darurat Moderasi Beragama Di Tengah Pandemi Corona Virus Desease 2019 (Covid-19)

2020 ◽  
Vol 13 (1) ◽  
pp. 1-13
Author(s):  
Abdul Syatar Abdul Syatar ◽  
Muhammad Majdy Amiruddin ◽  
Arif Rahman ◽  
Islamul Haq
Keyword(s):  
Islamic Law ◽  
The Other ◽  
Personal Safety ◽  
Other Hand ◽  
Corona Virus ◽  
The People ◽  
The Social ◽  
The Will ◽  
A Priority

Abstract The purpose of this article is to elaborate on the essence of maintaining religious moderation amid the covid pandemic 19. The social-religious approach was conducted by observing the facts that occur in society. The result indicates that moderate priorities in religion during the covid pandemic 19 became a necessity. Consequently, maintaining personal safety and the wider community should become a priority due to the absence of alternative rather than forcing the will to carry out worship in the mosque or in certain places. Islamic law provides rukhsah when the ummah is not in proper conditions to do such rituals like praying in the mosque. On the other hand, people are required to better understand fiqh in the pandemic of Covid 19 by not leaving conventional fiqh. Adapting the religious moderation during or after the covid pandemic 19 becomes a necessity, especially relations between humans by avoiding and blocking the transmission of the virus in various ways. Acceptance of the new habit caused by covid 19 from various aspects, especially the worship habits of the people should be considered. The principle of avoiding harm is more important than carrying out benefits is one of the ways in Islam to maintain religious moderation. Keywords: Religious Moderation; Pandemic; Corona Virus; Covid 19  

scholarly journals Sistem Pemasaran Dropship dalam Perspektif Islam

2018 ◽  
Vol 1 (1) ◽  
pp. 24
Author(s):  
Iwan Fahri Cahyadi
Keyword(s):  
External Environment ◽  
Business Environment ◽  
The Other ◽  
Religious Leaders ◽  
Marketing System ◽  
Changing Environment ◽  
Other Hand ◽  
Islamic Jurisprudence ◽  
The Law ◽  
The Moment

<p><em>Companies that want to survive must be able to adapt and respond to changes in the business environment, whether it's internal and external environment. Companies that are not able to adapt to changing environment then it will fail in his efforts. One of the changes that are happening at the moment is the marketing system with a system of dropship. On the other hand being debated dropship marketing system for the leaders of religion in Indonesia. There are some religious leaders denounce as there are elements of gharar and partly justifies. Islam is the perfect religion. Most of the religious leaders gave an answer that is clearly selling dropship allowed in Islam with a record must meet the Islamic jurisprudence. The solution is through the Covenant of samirah, wakalah and salam. Thus the law of selling dropship system is allowed, as long as there are no prohibited items.</em></p>

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