Islamic and Customary Law in Aceh Darussalam Constitution

2016 ◽  
Vol 2 (2) ◽  
pp. 146-164
Author(s):  
Gunawan Adnan
Keyword(s):  
Islamic Law ◽  
Customary Law ◽  
Legal Systems ◽  
Canonical Texts ◽  
The Relationship

It is confessed that the relationship between Islamic taw and customary law in Aceh is very tight and hardly distinguished. This phenomenon hold also true and could be traced through the canonical texts of Aceh Darussalam kingdom. This articIe is aimed at examining this indication through a brief study on the manuscript of the so-called three laws of Aceh, especially pertaining to siyasah (politics) and the forms of relationship between the two legal systems. Furthermore, it will also discuss the substance of the text compared with al-Mawardi's thought in al-Ahkam al-Sulthaniyyah. The study safely comes to the conclusion that the majority of siyasah concept of Islamic law has been absorbed into the structure of canonical texts of Aceh Darussalam Kingdom. Last but not least, it is also found two forms of absorption, namely, total and selective absorptions.

Comparative Law

2019 ◽  
Author(s):  
Uwe Kischel
Keyword(s):  
Islamic Law ◽  
Comparative Law ◽  
Customary Law ◽  
Jewish Law ◽  
Legal Systems ◽  
European Union Law ◽  
Legal Scholarship ◽  
Lex Mercatoria ◽  
Legal Contexts ◽  
General Aspects

This translation of Rechtsvergleichung offers a critical introduction to the central tenets of comparative legal scholarship. The first part of the book is dedicated to general aspects of comparative law. The controversial question of methods, in particular, is addressed by explaining and discussing different approaches, and by developing a contextual approach that seeks to engage with real-world issues and give a practitioner’s angle on contemporary comparative legal scholarship. The second part of the book offers a detailed treatment of the major legal contexts across the globe, including common law, civil law systems (based on Germany and France as well as case studies of Eastern Europe, Scandinavia, and Latin America, among others), the African context (with an emphasis on customary law), Asian jurisdictions, Islamic law and law in Islamic countries (plus a brief treatment of Jewish law and canon law), and transnational contexts (public international law, European Union law, and lex mercatoria). The book offers a coherent treatment of global legal systems that aims not only to describe their varying norms and legal institutions but to propose a better way of seeking to understand how the overall context of legal systems influences legal thinking and legal practice.

scholarly journals The Contact Point of Customary Law and Islamic Law (Legal History Perspective)

2018 ◽  
Vol 5 (2) ◽  
pp. 51-59
Author(s):  
Rachmi Sulistyarini ◽  
A. Rachmad Budiono ◽  
Bambang Winarno ◽  
Imam Koeswahyono
Keyword(s):  
Islamic Law ◽  
Contact Point ◽  
Seventh Century ◽  
Customary Law ◽  
Inheritance Law ◽  
Legal Traditions ◽  
The People ◽  
Special Character ◽  
Religious Law ◽  
The Relationship

The period before various legal traditions encounter to Indonesia, the people living in these islands has owned rules that contain the value of values as the original law. The term of original law is also known as the name of "chthonic" law, and is used as the customary law of the community of Indonesia, or the archipelago known at that time. The customary law tradition is very different from other legal traditions; this system has a special character that is very different from the character of other legal traditions. Furthermore, around the seventh century of AD, the influence of religion encounter as well; the first is Hinduism, then the religion of Islam brought by traders from Arabia and India. The term known as custom, with its unwritten form and religious element as the definition proposed by Soepomo (1996), is indeed identical with the term given by experts in the colonial period such as: “Godsdientige Wetten, Volks instelingen En Gebruiken" (Regulation of Religious Ordinance, People's Institution and Customs), "Godsdientige Wetten, Instelingen En Gebruiken (Religious Regulations, Institutions, and Customs), Met Hunne Godsdiensten en Gewoonten Samenhangen de Rechts Regelen" (Rules of law relating to Religion and religion customs habits), in addition there are also called the Islamic Law or Mohameden Law. It shows that at that time Customary Law is equalized as religious law. The point of contact  between the two can also be identified from the theories that develop at that time as in the theory of Receptio in Complexu (Salmon Keyzer and van Den Berg); Receptie Theory (Scouck Hurgronye); Theory of Receptio a Contrario (Ha zairin). The relationship between customary law and Islamic law is widely found in the field of family law that is the issue of marriage law and inheritance law. After Independence, legislation products related to Islamic law include Law no 1 of 1974, Law no 50 of 2009, Law no 21 of 2008 regarding Islamic Banking.Int. J. Soc. Sc. Manage. Vol. 5, Issue-2: 51-59

Legal Systems and Variance in the Design of Commitments to the International Court of Justice

2009 ◽  
Vol 26 (2) ◽  
pp. 164-190 ◽  
Author(s):  
Sara McLaughlin Mitchell ◽  
Emilia Justyna Powell
Keyword(s):  
International Law ◽  
Islamic Law ◽  
Common Law ◽  
Civil Law ◽  
Legal Systems ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
Bilateral Treaties ◽  
The Relationship

This paper explores the relationship between domestic legal systems and the design of commitments to the International Court of Justice (ICJ). Empirical analyses demonstrate that civil law states are more willing to recognize the compulsory and compromissory jurisdiction of the World Court than common law or Islamic law states. Common law states place the highest number of reservations on their optional clause declarations, with the majority of those restrictions relating to specific areas of international law. Civil law states typically embed compromissory clauses in multilateral treaties, while common and Islamic law states prefer recognition of the ICJ's jurisdiction through bilateral treaties.

scholarly journals EKSISTENSI HUKUM ISLAM DAN HUKUM ADAT DALAM SISTEM HUKUM NASIONAL

2017 ◽  
Vol 14 (2) ◽  
Author(s):  
Abdurrahman Konoras
Keyword(s):  
Legal System ◽  
Islamic Law ◽  
Customary Law ◽  
Legal Systems ◽  
Left Behind ◽  
National Legal System

Islamic Law and Customary Law is part of the national legal system in addition to some other legal systems that also give meaning and role. But as a system and legal system, Islamic Law and Customary Law show a clear separation.Thus, both are standing alone and independent. The continuing development of both shows which of them can continue to exist and which of them is increasingly left behind or even reduced in terms of role.

scholarly journals TEORI BELAH BAMBU SYAHRIZAL ABBAS : ANTARA TEORI RECEPTION IN COMPLEXU, TEORI RECEPTIE DAN TEORI RECEPTIO A CONTRARIO

2017 ◽  
Vol 2 (2) ◽  
Author(s):  
Irmawati
Keyword(s):  
Islamic Law ◽  
Customary Law ◽  
Legal Process ◽  
Law System ◽  
The Relationship ◽  
Two Sides

Teori belah bambu (translated as Bamboo split theory) is a commonly heard theory in politics. Professor of UIN Ar-Raniry Syahrizal Abbas placed this theory in the development of the customary law and Islamic law in Indonesia. He revealed this theory was established by Snouck Hurgronje when the staff of the Dutch Indie adopted the receptie theory in the 18th and 19th centuries of Dutch occupation. Syahrizal Abbas argued that this receptie theory upheld the customary law by suppressing Islamic law, like the Bamboo split theory. Whereas he said that the relationship between the customary and Islamic law is like two sides of a coin, they are inseparable. Both have equal roles, complement each other without losing their identities. The customary law accepts Islamic law as the highest and most perfect level of the customary law system, while the Islamic law also accepts customary law in its legal process. Abstrak: Teori belah bambu suatu teori yang sering kita dengar di dalam perpolitikan. Guru besar UIN Ar-Raniry Syahrizal Abbas menempatkan teori ini dalam perkembangan hukum adat dan hukum Islam di Indonesia. Teori belah bambu ini beliau ungkapkan ketikA pemberlakuan teori receptie oleh staf penAsehat hindian Belanda pada abad  peralihan 18 dan 19 masa penjajahan Belanda. Christian Snouck Hurgronje siapa yang tak kenal namanya yang mencetus teori receptie ini. Menurut Syahrizal Abbas, teori receptie ini berupaya mengangkat hukum adat dengan menekan hukum Islam sebagaimana mana teori belah bambu itu sendiri. Padahal menurutnya hubungan hukum adat dengan hukum Islam bagaikan sekeping mata uang yang masing-masing sisinya tak dapat di pisahkan. Keduanya memiliki peran yang sejajar dan sama, saling melengkapi dengan tanpa kehilangan identitas masing-masing. Hukum adat menerima hukum Islam sebagai tingkat tertinggi dan kesempurnaan dari sistem hukum adat, sedangkan hukum Islam juga menerima hukum adat dalam proses legislasinya. Kata kunci: teori belah bambu, hukum Islam, hukum adat

scholarly journals The relationship between the Islamic legal system Sharia and European continental law

2020 ◽  
Vol 68 (1) ◽  
Author(s):  
Adrián Csajka-Vándor
Keyword(s):  
Legal System ◽  
Islamic Law ◽  
Judicial System ◽  
Legal Systems ◽  
The Relationship

The study examines the essential differences between European legal systems and the Islamic legal system, the Sharia. It points out the differences between secular and religious legal systems, the differences of evaluating and judging crimes and punishments, the judicial system of Islamic law and the sanctions it offers.

scholarly journals The History and Origin of Fraud as a Defect in Consent in Contractual Relationships

2021 ◽  
Vol 8 (1) ◽  
pp. 15-35
Author(s):  
Egzonis Hajdari
Keyword(s):  
Islamic Law ◽  
Legal Framework ◽  
Customary Law ◽  
Advanced Treatment ◽  
Human Society ◽  
Legal Systems ◽  
Ancient Greek ◽  
Contractual Relationship ◽  
Contractual Relationships

Fraud is a specific type of defect in consent that manifests the purpose of one of the parties to establish a contractual relationship through deceptive actions. As such, fraud is an unlawful and unethical action that emerged beginning with some of the earliest agreements in human society. Moreover, the practical treatment of fraud is likely to have occurred since the genesis of its appearance. More appropriate and advanced treatment of fraud can be seen after the implementation of the first legal systems, which focused on contractual relationships. Fraud in contractual relationships will be examined starting with Babylonian, Ancient Greek, Roman, and Islamic law and will continue with a focus on Albanian customary law and modern laws implemented in Kosovo. Furthermore, in this article, we will show how the treatment of fraud has evolved in the legal framework in Kosovo.

scholarly journals Legal Pluralism in Settling Inheritance Disputes in Besemah, South Sumatera

2013 ◽  
Vol 13 (1) ◽  
Author(s):  
Dewi Sukarti
Keyword(s):  
Ethnic Group ◽  
Islamic Law ◽  
Legal Pluralism ◽  
The State ◽  
Customary Law ◽  
State Court ◽  
Legal Systems ◽  
Great Tradition ◽  
Death Of Parent

Abstrak: Pluralisme Hukum dalam Penyelesaian Sengketa Waris di Besemah, Sumatera Selatan. Persoalan warisan hadir dalam setiap tradisi, mulai dari tradisi-tradisi besar hingga tradisi-tradisi kecil karena sebagaimana pendapat Vinogradoff bahwa warisan diberikan setelah kematian orang tua agar anak-anaknya mampu menjalani hidupnya setelah orang tua mereka meninggal. Karena itu, hukum Islam sebagai tradisi besar dan hukum adat Besemah sebagai tradisi kecil menetapkan aturan tentang warisan. Kedua sistem hukum ini dipraktikkan di Sumatera Selatan, khususnya di kelompok etnik Besemah. Tradisi warisan Besemah dipraktikkan secara luas di masyarakat Besemah. Namun, ketika ada perselisihan tentang warisan yang diajukan ke pengadilan, terdapat dua pengadilan yang berwenang untuk menyelesaikan perselisihan tersebut. Pengadilan Negeri mengadili unsur adat dari warisan (budel) dan kemungkinan unsur pidana dalam perselisihan waris tersebut. Namun ketika perselisihan diajukan ke Pengadilan Agama, hakim akan mengacu pada hukum Islam. Dengan begitu, negara mengakui pluralisme hukum waris.Kata Kunci: budel, jurai, warisan, Pengadilan Agama, Pengadilan NegeriAbstract: Legal Pluralism in Settling Inheritance Disputes in Besemah, South Sumatera. Inheritance issue is present in almost every tradition, ranging from great traditions to little ones because as Vinogradoff view that inheritance is given after the death of parent(s) in order that his/her children are able to lead his/her life after the his/her parents passed away. Therefore, Islamic law as great tradition, and Besemah’s customary law as little tradition lay rules on inheritance. The two legal systems are practiced in South Sumatera, especially in Besemah ethnic group. Besemah’s inheritance tradition is practiced widely in the society of Besemah, but when there is a dispute on inheritance adjudicated to court, there are two courts authorized to settle the dispute. State court tries the traditional element of inheritance (budel) and the assumed criminal element in the dispute. But when the dispute is booked to religious court, judges would refer to Islamic law. Here the state acknowledges pluralism of law of inheritance.Keywords: budel, jurai, inheritance, religious court, state court

International Law, Islamic Law, and Islamic Law States

2019 ◽  
pp. 25-85
Author(s):  
Emilia Justyna Powell
Keyword(s):  
Conflict Management ◽  
International Law ◽  
International Conflict ◽  
Islamic Law ◽  
Legal Systems ◽  
Clear Cut ◽  
Religious Law ◽  
Islamic Jurisprudence ◽  
The Relationship ◽  
Internal Variation

This chapter explains concepts fundamental to this book: international law, Islamic law, Islamic international law, sharia, and the category of Islamic law states (ILS). The ILS category offers an efficient and clear-cut conceptual vehicle for mapping out the balance between religious law and secular law, and how this balance translates into ILS’ preferences with respect to international conflict management venues. The chapter explains how the ILS category differs from other seemingly parallel concepts or definitions present in the scholarship, such as “Islamic states,” or “Muslim states.” It discusses the characteristics and internal variation within the ILS category across different countries and different schools of Islamic jurisprudence. This chapter also presents an analysis of ILS’ domestic legal systems, elaborating on Islamic constitutionalism, and the relationship between religious norms and secular norms in constitutions and sub-constitutional legal systems. Some features analyzed include holy oath, supremacy clause, and sharia education.

scholarly journals BATAS-BATAS KONSTITUSIONAL HUKUM ISLAM DALAM HUKUM NASIONAL

2020 ◽  
Vol 8 (1) ◽  
pp. 12-22
Author(s):  
Muhamadun Muhamadun
Keyword(s):  
Legal System ◽  
Islamic Law ◽  
Legal Framework ◽  
Customary Law ◽  
Collective Agreement ◽  
Legal Systems ◽  
Value System ◽  
Basic Principles ◽  
Law System

Indonesia is known as a country with a mixed legal system. The legal system currently in effect is dominated by three major legal systems, namely the Western legal system, the customary law system and the Islamic legal system. The basic rules that serve as guidelines and guidelines for citizens are extracted from the value system. This value system is expressed in the form of "collective agreement". This form of collective agreement is translated into the five basic principles of having a state, namely Pancasila. Within these limitations, there are gaps in applying Islamic teachings, which are limited to their substantive value. This study wants to explain why Islamic law cannot be used as the basis of the constitution and the extent to which the limitations are allowed in applying Islamic teachings as the teachings of the majority of Indonesian citizens. In responding to the issues surrounding the application of Islamic law in Indonesia, the discussion will focus on the concept of the constitution, sources of national law, and the form of the Muslim community's strategy in an effort to apply Islamic law within the national legal framework. 

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