scholarly journals PERALIHAN AGAMA DAN AKIBAT HUKUMNYA DALAM KONTEKS PERKAWINAN DITINJAU DARI PERSPEKTIF HUKUM POSITIF DI INDONESIA

2018 ◽  
Vol 5 (1) ◽  
Author(s):  
Etika Rahmawati
Keyword(s):  
Research Method ◽  
Islamic Law ◽  
Comparative Law ◽  
Comparative Approach ◽  
Legal Basis ◽  
Legal Form ◽  
Positive Law ◽  
The Republic ◽  
Research Show

ABSTRAK            Pluralitas di bidang agama terwujud dalam banyaknya agama yang diakui sah di Indonesia, selain Islam ada agama Hindu, Budha, Kristen, Katolik, dan lain-lain. Salah satu bentuk pola hubungan tersebut tercermin dalam hukum keluarga di Indonesia khususnya dalam bidang perkawinan sejak diundangkannya Undang-Undang Perkawinan Nomor 1 tahun 1974 dan disahkannya Kompilasi Hukum Islam di Indonesia melalui Instruksi Presiden Republik Indonesia Nomor 1 Tahun 1991 tanggal 10 Juni 1991. Landasan hukum agama dalam melaksanakan sebuah perkawinan merupakan hal yang sangat penting dalam UUP, sehingga penentuan boleh tidaknya perkawinan tergantung pada ketentuan agama. Hal ini berarti juga bahwa hukum agama menyatakan perkawinan tidak boleh, maka tidak boleh pula menurut hukum negara.Metode penelitian yang Penulis gunakan adalah Metode Penelitian Yuridis Normatif dengan pendekatan perbandingan hukum (Comparative Approach) yaitu dengan membandingkan berbagai perspektif hukum dibidang perkawinan, bukan hanya hukum Islam tetapi juga Hukum positif di Indonesia. Teori yang digunakan yaitu teori Penaatan Hukum dalam Hukum Islam dan Asas Personalitas Keislaman.Dari hasil penelitian ini menunjukkan bahwa peralihan agama di Indonesia bukan hanya menjadi pembahasan dan permasalahan dalam hukum agama saja tetapi juga diatur oleh negara dalam bentuk hukum positif Indonesia yaitu dengan diberlakukannya UUP dan KHI yang sampai saat ini menjadi dasar hukum bagi mereka yang melakukan perbuatan hukum berupa perkawinan khususnya bagi pasangan yang beralih agama. Sehingga pasangan tersebut yang melakukan perbuatan hukum berupa perkawinan meskipun dikemudian hari terjadi suatu sengketa perkawinan, maka dasar hukum yang dapat digunakan bagi mereka adalah peraturan perundang-undangan di Indonesia yaitu hukum Islam, KHI dan UUP. Kata Kunci : Peralihan Agama, Asas Personalitas Keislaman, Perkawinan.  Abstract            Plurality in the field of religion embodied in the multiplicity of religions recognized legal in Indonesian, besides Islam there are Hinduism, Buddhism, Christianity, Catholicism, and others. One form of such relations are reflected in patterns of family law in Indonesia, especially in the field of marriage since the promulgation of law Number 1 year 1974 Marriage and legalization of compilation of Islamic law in Indonesian through Instruction The President of the Republic Indonesian number 1 year 1991, June, 10th, 1991. Legal basis of religion in the exercise of a marriage is a very important thing in the UUP, so that the determination of whether a marriage may depend on the provisions of the religion. This means also that religious laws stating marriage should not be, then it should not be according to state of law.The Authors use research method is a method of Normative Juridical approach to Study comparative law (Comparative Approach) is to compare different legal perspectives in the field of marriage, not just Islamic law but also Positive law in Indonesian. The theory being used i.e. the theory of Obedient law in Islamic law and Islamic Personality Principle.The results of this research show that the transition of religion in Indonesian is not only being a discussion and legal problems in religion but is also regulated by the State in the form of positive law with the enactment of Indonesia UUP and KHI until recently became the legal basis for those doing legal form of marriage, especially for couples who change religion. So the couple that did the deed in the form of law the marriage despite later going on a dispute over the marriage, then the legal basis which can be used for them is legislation in Indonesia that is Islamic law, KHI and UUP. Keywords : Changing Religion, Islamic Personality  Principle, Marriage.

scholarly journals ISLAMIC FAMILY AND CHILD PROTECTION LAW’S PERSPECTIVE ON VIOLENCE AGAINST CHILDREN

2020 ◽  
Vol 7 (2) ◽  
pp. 127
Author(s):  
Beni Chandra ◽  
Toha Andiko
Keyword(s):  
Child Protection ◽  
Research Method ◽  
Islamic Law ◽  
Family Law ◽  
Comparative Approach ◽  
Psychological Violence ◽  
Violence Against Children ◽  
Positive Law ◽  
Library Research ◽  
Physical And Psychological Violence

The Indonesian Government guarantees the rights and protection of children by Act 35 of 2014 concerning Child Protection. The law provides absolute protection for children against physical and psychological violence that they may receive, but on the other hand there is an interest in Moslem’s families to educate their children according to Islamic law (fiqh), so that there is a contradiction both of them. This research was conducted to determine the view of Islamic family and positive law on the problem of handling and protecting children and the limits of violence against children. The researchers used a comparative approach and library research method. Based on the research conducted, it is found that Islamic family and positive law go in line to provide protection for children. The differences are in the perspective of “children”, violence against children, the application of physical and psychological punishment, and actions against perpetrators of violence. In addition, there are limits to acts of both physical and psychological violence as a preventive and repressive measure against children, according to the provisions of Islamic family law

scholarly journals The Position of Women's Heritage Rights in the Context of Islamic Heritage in Indigenous Mandailing in Sipirok District, Tapanuli Selatan Regency

2020 ◽  
Vol 3 (1) ◽  
pp. 531-539
Author(s):  
Muhammad Yusuf Siregar ◽  
Risdalina Risdalina ◽  
Sriono Sriono
Keyword(s):  
Islamic Law ◽  
Legal Aspects ◽  
Customary Law ◽  
Legal Basis ◽  
Inheritance Law ◽  
The Republic ◽  
The Right ◽  
To Receive ◽  
Inheritance Laws

This study aims to analyze the legal aspects of the Position of Inheritance Rights of Girls in the Context of Islamic Inheritance in Indigenous Mandailing in Sipirok District, South Tapanuli Regency. This research is empirical normative namely research by looking at existing conditions in the field by linking the source of Islamic Law and the legal source of Regulations in force in the Republic of Indonesia. The benefits to be received from the results of this study are to determine the Position of Inheritance of Girls in the Context of Islamic Law and Regulations in Indonesia and the Position of Inheritance of Girls in the Context of Islamic Inheritance in Mandailing Customs in Sipirok District, South Tapanuli Regency, the results of the study stated that In Islamic Inheritance Law strongly recognizes the position of the daughter in receiving inheritance with a strong legal basis in accordance with the al-Qur’an. In Islamic Inheritance Laws, a daughter has a position as Nasabiyah's heir so that she has the right to receive inheritance. In the Mandailing customary inheritance law in Sipirok Mandailing Natal, the position of a daughter is considered as an heir when a male heir is found, but if the girl is a mere woman, the woman is not entitled to inheritance from her parents. The distribution of inheritance in the Mandailing Inheritance law in Sipirok Mandailing Natal uses local customary law, as a basis for the distribution of inheritance which is still being realized in the Community.

scholarly journals Analysis of Wakaf and Maqashid Syari'ah Law on the Development of Wakaf Property in Lhokseumawe City

2021 ◽  
Vol 3 (1) ◽  
pp. 224-231
Author(s):  
Yasir Nasution ◽  
Alyasa’ Abubakar ◽  
Kafrawi
Keyword(s):  
Data Collection ◽  
Islamic Law ◽  
Legal Research ◽  
Government Regulations ◽  
Theoretical Concepts ◽  
Positive Law ◽  
Islamic Jurisprudence ◽  
The Law ◽  
Research Show

The development of waqf assets in the form of adding the function of waqf is a new phenomenon in the problems of Islamic law jurisprudence even in positive law in Indonesia. In national law (positive), Indonesia has regulated this issue with the existence of laws and government regulations regarding waqf both movable and immovable waqf assets, even in its development every property in waqf must have an Deed and / or certificate. Whereas in Islamic jurisprudence, the development of waqf assets in the form of additional functions is one of the problems that can be said to be new, it needs legal conclusions and even has to be seen from various theoretical concepts such as maqashidu sharia. Therefore this research will examine the issue of developing waqf assets based on the Waqf Law and maqashid syari'ah. This research is an empirical legal research using a sociological legal approach, with data collection through documentation and interviews. The results of the research show that the development of waqf assets is permitted according to the law, but with the stipulated conditions, besides that the development of waqf assets is also permissible in Islamic jurisprudence as long as it is solely for reasons in accordance with the concept of maqasidu syari'ah and the point is to seek maslahat.  

scholarly journals Konstruksi Nalar Rechtvinding Hakim dalam Pemberian Izin Poligami yang Berkeadilan Gender dalam Putusan Pengadilan Agama Jombang No. 0899/Pdt.G/2016/PA.Jbg

AL-HUKAMA ◽  
2019 ◽  
Vol 9 (2) ◽  
pp. 496-517
Author(s):  
Abdullah Taufik ◽  
Ilham Tohari
Keyword(s):  
Content Analysis ◽  
Research Method ◽  
Islamic Law ◽  
Gender Justice ◽  
Legal Research ◽  
Analysis Techniques ◽  
Positive Law ◽  
The One ◽  
Legal Discovery ◽  
Religious Courts

The practice of polygamy in Indonesia until now has drawn criticism from some feminists who did not agree. But on the one hand, both Islamic law and positive law permit various conditions. In this case, the Religious Court (PA) becomes the last fence which becomes the determining point for a man to be able to polygamy. For this reason, researchers conducted a study of PA decisions on polygamy, namely Jombang PA Decision No. No. 0899 / Pdt.G / 2018 / PA.Jbg . The focus of the problem is (1) the value of gender justice in the decision and (2) reasoning rechtvinding(legal discovery) judge. The method used in this study is a normative-qualitative legal research method with content analysis techniques from Charles Purse. The results showed that the practice of polygamy licensing in the Religious Courts had actually gone through processes that reflected gender justice. This is reflected in the obligation of the Religious Court to summon the longest wife of the applicant for polygamy to be asked for willingness and information. The results of subsequent studies show that PA Jombang judges used hermeneutic techniques in making legal discovery efforts. Because, they not only focus on aspects of legality, but also consider the contextualization.

scholarly journals The Position of Constitutional Complaint in the Constitutional Court of the Republic of Indonesia

2021 ◽  
Vol 2 (1) ◽  
pp. 61-78
Author(s):  
Agsel Awanisa ◽  
Yusdianto Yusdianto ◽  
Siti Khoiriah
Keyword(s):  
South Africa ◽  
South Korea ◽  
Judicial Review ◽  
Research Method ◽  
Comparative Approach ◽  
Constitutional Court ◽  
Legal Research ◽  
Conceptual Approach ◽  
The Republic ◽  
Case Number

The purpose of this research is to determine the constitutional complaint mechanism based on comparisons in other countries, practices, and adaptation of constitutional complaints under the authority of the Constitutional Court of the Republic of Indonesia. Many cases with constitutional complaint substance have been submitted to the Constitutional Court of the Republic of Indonesia even though they don’t have this authority. This research uses a normative legal research method using a statutory approach, a conceptual approach, a comparative approach, and a case approach. This research indicates that the constitutional complaint mechanism in Germany, South Korea, and South Africa has been well implemented. In practice, cases with constitutional complaint substance are filed to the Constitutional Court of the Republic of Indonesia by changing the form by using the legal means of a judicial review, such as case number 16/PUU-VI/ 2008, case number 140/PUU-XIII/2015 and case number 102/PUU-VII/2009. Due to the consideration of the structure, substance, and culture of law, adaptation of constitutional complaint within the authority of the Constitutional Court of the Republic of Indonesia needs to be carried out by amending Law Number 24 of 2003 jo. Law Number 7 of 2020 concerning the Constitutional Court.

scholarly journals Legal Certainty on The Implementation of Death Criminal Decisions that have Permanent Law Power in Indonesia(A Review of the Death Criminal Decision on Narcotics in 2014-2018)

2021 ◽  
Vol 07 (11) ◽  
Author(s):  
ALI JOHARDI WIROGIOTO ◽  
Keyword(s):  
Human Rights ◽  
Death Penalty ◽  
Research Method ◽  
First Principle ◽  
Legal Certainty ◽  
Positive Law ◽  
Religious Law ◽  
The Republic ◽  
International Conventions ◽  
Principle Of Legality

The principle of legal certainty applied to the principle of extra ordinary crime is contrary to the respect for humanity as the most fundamental human rights principle and the principle of legality is associated with positive law and international conventions. The results of this study are intended to seek or find arguments for the certainty of the execution of the death penalty for the community, family, convicts and the state, so that the research on death penalty decisions in narcotics cases that occurred from 2014 to 2018. This research method is included in normative juridical law research. The conclusion is, sentencing with the threat of the death penalty can still be applied in Indonesia in narcotics crime cases is appropriate. Therefore, the death penalty, of course, state law does not conflict with religious law/teachings, in other words, the death penalty does not conflict with the first precepts because the first principle of Pancasila is Belief in One God, which means based on the beliefs/religions of each person who in carrying out/believes His religion is also guaranteed in the 1945 Constitution of the Republic of Indonesia, which is contained in Article 28 E paragraph (1) and paragraph (2) and Article 29 paragraph (2).

scholarly journals MEDIATION SYSTEM IN DISPUTES OF OWNERSHIP PERSFECTIVE ACADEMIC ISLĀḤ (A Research in Aceh Besar)

2020 ◽  
Vol 10 (2) ◽  
pp. 208
Author(s):  
Riadhus Sholihin ◽  
Oktavi Maulizar
Keyword(s):  
Research Method ◽  
Islamic Law ◽  
Descriptive Analysis ◽  
Document Analysis ◽  
Third Party ◽  
Peace Agreement ◽  
Positive Law ◽  
Field Notes ◽  
Mediation System ◽  
The Village

This article will explain how the authority of village officials in resolving disputes over ownership of aid houses is mediated? To answer the problem above, the writer uses the descriptive analysis research method, where the data obtained is sourced from observations, interviews, photoshoots, document analysis, and field notes compiled by the writer at the research location which is not set forth in the form of figures. From the results of the study it can be seen that based on Aceh Qanun Number 9 of 2008 concerning the Development of Customary Life and Customs where village officials have the authority to reconcile disputes that occur within the community by deliberation / mediation and one of the village apparatuses that mediates the parties who disputes to end their disputes peacefully. The consequence of the mediation decision is the termination of the dispute that occurred and the parties agreed to make peace by making a peace agreement and carrying out the agreement accordingly. The concept of mediation in positive law is no different from the concept of iṣlāḥ in Islamic law which involves a third party to reconcile the disputing parties. The content of the agreement of the mediation that has been carried out by the parties, is allowed in Islamic law because the purpose of iṣlāḥ or mediation is to end the dispute.

scholarly journals KOMERSIALISASI NIKAH SIRI DI DESA PEKOREN KECAMATAN REMBANG PASURUAN JAWA TIMUR

AL-HUKAMA ◽  
2018 ◽  
Vol 8 (1) ◽  
pp. 169-193
Author(s):  
Salman Alfarisi
Keyword(s):  
Qualitative Research ◽  
Research Method ◽  
Islamic Law ◽  
Religious Leaders ◽  
Operational Cost ◽  
Qualitative Research Method ◽  
Positive Law ◽  
Doing Business ◽  
Operational Costs ◽  
Legal Marriage

This article is a study of the commercialization practice of secret marriage in Pekoren Village, Rembang Subdistrict, Pasuruan Regency, East Java Province. Secret marriage is carried out by the community using a broker service. In carrying out its duties, the broker asks for payment in the form of dowry money for operational costs and paying for the services of the Kyai who marry off. This case was analyzed using the eyes of Islamic law and juridical law. While the method used is a descriptive qualitative research method by collecting data through reading or reviewing the expressions and behaviors observed from the speakers in the field. From the field it is described, that the commercialization of secret marriage in Pekoren Village is a fixation of the price of dowry as an operational cost that uses the services of kyai and brokers to find the type of women wanted by interested person. In Islamic law, secret marriage is a legal marriage with the fulfillment of requirements and pillars of marriage. Brokers in this case can be categorized as buying and selling because of doing business, but it is still not suggested in Islam. In Positive Law, unregistered marriage is not valid because one element is not fulfilled, namely marriage recording. In line with these conclusions, the holders of the marriage registration policy must emphasize the regulation of marriage registration. For religious leaders, should not facilitate the  secret marriage ceremonies which are patterned as pleasure.

scholarly journals PIDANA PENGAWASAN TERHADAP ANAK YANG BERHADAPAN DENGAN HUKUM DALAM SISTEM PEMIDANAAN DI INDONESIA

2013 ◽  
Vol 2 (3) ◽  
Author(s):  
I Putu Suwarsa
Keyword(s):  
Criminal Law ◽  
Analytical Approach ◽  
Criminal Policy ◽  
Legal Protection ◽  
Comparative Approach ◽  
Legal Concept ◽  
Normative Approach ◽  
Positive Law ◽  
The Law

ABSTRACTThis research was conducted with the normative approach legislation. Factualapproach, analytical approach to the legal concept of a comparative approach in thecriminal judicial oversight of Children in Conflict with the Law in the criminal sistem inIndonesia.In formulating criminal law criminal policy oversight of Children in Conflict withthe Law in the guidance sistem of positive law in Indonesia, consists of 3 major topics:First, the substance of Children in Conflict with the Law into law in Indonesia, Second,Determination of sanctions / penalties against Children in Conflict with the Law inIndonesia's criminal law policy, Third, criminal oversight of Children in Conflict with theLaw and its relevance to the theory of punishment in modern criminal law in Indonesia.Criminal oversight of Children in Conflict with the Law as the integrative goals ofpunishment in accordance with the ideas and correctional sistem discussed 3 subjectsnamely: First, criminal oversight of anal naughty review of aspects of the integrativetheory of punishment, Second, Criminal oversight of Children in Conflict with the Lawreview of aspects of correctional sistem, Third, Criminal oversight of Children in Conflictwith the Law in terms of aspects of legal protection and benefit of the criminal lawrequirement for social welfare (children). And its application by all law enforcementcomponents and related institutions involved in handling cases of children in conflict withthe law in coaching children in prison.

scholarly journals TINJAUAN YURIDIS SANKSI ADAT KAILI RAI TERHADAP PELAKU PELECEHAN SEKSUAL

2020 ◽  
Vol 1 (1) ◽  
pp. 37-51
Author(s):  
Moh. Ansar ◽  
Suhri Hanafi ◽  
Sitti Nurkhaerah ◽  
Wahyuni Wahyuni ◽  
Taufan B.
Keyword(s):  
Child Protection ◽  
Research Method ◽  
Islamic Law ◽  
Research Data ◽  
Research Approach ◽  
Sexual Crimes ◽  
Violence Against Children ◽  
Analysis Techniques ◽  
Positive Law ◽  
Second Amendment

The problem of how castration sanctions for perpetrators of crimes of sexual violence against children in the perspective of positive law in Indonesia and how Islamic criminal law views castration as a sanction are the focus of the problem in this study. The research method consists of the type of research, data and data sources, data collection techniques and data analysis techniques using a qualitative research approach. Then, as a result of the research, there are differences in Islamic law among scholars regarding the punishment of castration Law Number 17 of 2016 Regarding the stipulation of PERPU Number 1 of 2016 Second Amendment to Law Number 23 Year 2002 Concerning Child Protection Becomes Law against perpetrators of sexual crimes against children, and Islamic law has stipulated penalties for perpetrators of sexual crimes in detail of the facts of their actions, so they cannot (haram) carry out the type of castration punishment in accordance with the argument, namely the hadith of the Prophet Muhammad saw., which prohibits his companions from being castrated.

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