scholarly journals STUDI ANALISIS PUTUSAN PENGADILAN AGAMA JAKARTA SELATAN NO. 1751/P/1989 TENTANG PERKAWINAN MELALUI TELEPON

Al-Qadha ◽  
2019 ◽  
Vol 5 (1) ◽  
pp. 9-19
Author(s):  
Muhajir Muhajir
Keyword(s):  
Islamic Law ◽  
Legal Basis ◽  
Marriage Law ◽  
The People ◽  
Islamic Jurisprudence

The legal basis of marriage law in Indonesia Constitution No. 1 of 1974 concerning Marriage and Compilation of Islamic law which is a reduction of Islamic rules regarding marriage, divorce, representation and inheritance originating from classical Islamic jurisprudence literature from various schools which are summarized and adapted to the needs of the people of Indonesia. The two legal bases regarding the marriage are expected to be a legal basis for the Indonesian people who will carry out the marriage. But in the practice of implementing marriage in the community, many new things appear that are ijtihad because there are no rules specifically set out to regulate such matters such as marriage through telephone. 

scholarly journals Konsep Khilafah Menurut Sayyid Quthb dan Taqiyuddin Al-Nabhani dalam Perspektif Syiasyah Syar’iyyah

PALAPA ◽  
2020 ◽  
Vol 8 (2) ◽  
pp. 244-284
Author(s):  
Nurhadi Nurhadi ◽  
Mawardi Dalimunthe
Keyword(s):  
Islamic Law ◽  
Descriptive Analysis ◽  
Data Sources ◽  
Primary Data ◽  
Legal Basis ◽  
Islamic World ◽  
The People ◽  
Qualitative Descriptive ◽  
The One ◽  
The Right

The purpose of this study is to find out the concept of khilafah according to Sayyid Quthub and Taqiyuddin al-Nabhani, differences and legal basis. This study is a library model, with primary data sources, the Zhilalal-Qur'anic Tafseer and Nizham Al-Hukmi Fi Al-Islam and qualitative descriptive analysis methods. The result is the thought of the concept of khilafah according to sayyid Quthub: 1). The concept of the ruler / caliph, that who becomes the ruler of the choice of the Muslims, acts in absolute freedom, but that person gets the authority because he constantly applies the law of Allah Almighty. 2). The Islamic government system, the Supra Nasional government (the unity of the entire Islamic world). 3). The pillars of his Islamic government: a). Justice of the ruler; b). People's obedience; c). Consultation between the people and the authorities. Thought of the concept of the Caliphate according to Taqiyuddin Al-Nabhani: 1). The concept of the ruler / caliph is a person who represents the Ummah in government affairs and power and in applying syara 'laws. 2). The system of government is khilafah. 3). The pillars of his Islamic government: a). Sovereignty in the hands of syara '; b). Power of the people; c). To appoint a legal Caliph fardlu for all Muslims; d). Only Khailfah has the right to carry out tabanni (adoption) against syara 'laws; e) The Caliph has the right to make constitutions and all other laws. The differences in the concept of khilafah are both: 1). According to Sayyid Quthub, if the ruler fails, then the ruler can be dismissed if the Muslims are no longer satisfied with him. This statement gives a signal that the people get rid of the rulers who no longer fulfill their functions (zhalim rulers). It is different from the opinion of Taqiyuddin al-Nabhani. An Amir al-mu'minin (Khalifah), even though he is responsible before the people and his representatives, but the people and their representatives are not entitled to dismiss him. Nor will the Caliph be dismissed, except when deviating from Shara law. The one who determined the dismissal was only the Mazhalim court. 2). The system of Islamic government according to Sayyid Quthub does not question any system of government in accordance with the system of conditions of society, but this government is characterized by respect for the supremacy of Islamic law (shari'ah). Whereas According to Taqiyuddin Al-Nabhani that the system of Islamic government is khilafah. 3). The pillars of Islamic government according to Sayyid Quthub and Taqiyyuddin al-Nabhani, points three parts a and b at the above conclusions are: 1). Sayyid Quthub: a). Justice of the ruler; b). People's obedience; c). Consultation between the people and the authorities. 2). Taqiyyuddin al-Nabhani: a). Sovereignty in the hands of syara; b). Power of the people; c). To appoint a legal Caliph fardlu for all Muslims; d). Only Khailfah has the right to do tabanni (adoption) against the laws of shara; e). The Caliph has the right to make constitutions and all other laws. The legal bases for determining the Caliphate according to both: 1). The legal basis for the establishment of the Caliphate according to Sayyid Quthub: 1). Ruler, Qur'an Surah (2) al-Baqarah verse 30; 2). Islamic Government System, Qur'an Surah (24) an-Nur verse 55; 3). Pillars of Islamic Government, Qur'an Surah (4) an-Nisa 'verse 58. 2). The legal basis for the establishment of the Caliphate according to Taqiyyuddin al-Nabhani: 1). Ruler, hadith of Muslim history from Abu Said Al khudri, Hadith no. 1853 and Muslims from Abdullah Bin Amru Bin Ash, Hadith no. 1844; 2). Islamic Government System, Al-Qur'an surah an-Nisa '(4) verse 59, an-Nisa' (4) verse 65. Muslim, saheeh Muslim, volumes, 3 pp., 1459 and 1480; 3). Islamic Pillars of Government al-Qur'an surah An-Nisa (3) verse 65, and Surah An-Nisa (3) verses': 5.

scholarly journals DASAR WAJIB MEMATUHI UNDANG-UNDANG PERKAWINAN (UUP): STUDI PEMIKIRAN MUHAMMAD ‘ABDUH

2019 ◽  
Vol 1 (1) ◽  
pp. 1-16
Author(s):  
Khoiruddin Nasution
Keyword(s):  
Islamic Law ◽  
The State ◽  
Marriage Law ◽  
The Third ◽  
The People ◽  
The Status ◽  
Legal Thinking ◽  
The Government

One reason why the Marriage Law (UUP) is not obeyed is related to the status of compliance. According to the majority of Muslims, the status of obeying the contents of the UUP is related to and is a matter of the State, not related to the legality of religion, not related to the validity of marriage. Instead Muhammad 'Abduh is a thinker who believes that obeying the UUP is part of an obedient obligation to the government (uli al-amr), the same status as being obliged to obey Allah and His messengers, as required in al-Nisa' (4): 59 and 83. Thus, obeying the UUP is part of implementing compliance with the government. So obeying UUP is an obligation for every Muslim. Likewise, the UUP as a decision of people's representatives is an expression of the agreement of all the people. The people are represented by people who are elected by the people (people's representatives), because to gather all the people, at present, is impossible. So the decision of the people's representatives is positioned as the decision of all the people. The decision of the people's representatives for now becomes ijmâ ‘, the third source of Islamic law after the Qur'an and the Sunnah of the Prophet Muhammad SAW. The final basis stipulates the obligation to obey the Marriage Law, compared to fiqh, fatwa, interpretation, and jurisprudence, as a product of Islamic legal thinking, the UUP occupies the most authoritative and comprehensive position, because the UUP is the result of the minds of many scholars and expertise. This paper tries to explain the concept of ‘Abduh.

scholarly journals Khol’â (the dislocation): An Analytical View of the Supreme Court’s Judges Compared to Islamic Jurisprudence

2021 ◽  
pp. 1-17
Author(s):  
Samir Chihani ◽  
◽  
Kaci Si Youcef ◽  
Keyword(s):  
Supreme Court ◽  
Islamic Law ◽  
Comparative Method ◽  
Legal Basis ◽  
Analytical Methodology ◽  
The Supreme Court ◽  
The Family ◽  
Islamic Jurisprudence ◽  
Family Code ◽  
Marital Union

The Algerian legislator has developed several ways and methods to release the marital union. One of these is the Khol’â or the dislocation whereby the woman requests divorce from her husband in exchange for money that she offers to him. If the husband accepts both Khol’â or the dislocation and the offer, then there is no problem. In case he accepted the dislocation and rejected the offer, the judge would have to determine the allowance on the basis of the dowry of similar cases. Before the amendment of the family code in 2005 and due to the lack of clarity in the text, the judges’ opinions differed if the husband refused dislocation altogether. A woman may request Khol’â before completing the physical marriage procedures, that is, before consummation, and here we face the problem of the judges ’response to her request. This research paper aims to clarify the truth of what judges in general, and Supreme Court justices in particular, have said, regarding whether Khol’â is considered a pure right for women or men had a share in it. And, whether it is really not valid to divorce before consummation because it violates either the law or the provisions of Islamic law. In our research, we have used the descriptive and analytical methodology, in addition to the comparative method. At the end we have deduced that the judges used to stipulate the husband’s consent for the Khol’â. But now they have established that it is a pure right for women, especially after amending Article 54 of the family law. They are also almost unanimous in the non-permissibility of Khol’â before consummation, while the Supreme Court is settled on that. We have come to the conclusion that this does not have a legal basis, that means there is no text that prohibits it not even in Sharia, as the jurists of the four schools are all agreed upon its validity.

scholarly journals A Research Review of the Takfir of Muslim States in the Light of Sharia

2020 ◽  
Vol 38 (- 2) ◽  
Author(s):  
Muhammad Saeed ◽  
Syed Abd ul Ghaffar Bukhari
Keyword(s):  
Islamic Law ◽  
Research Area ◽  
Research Review ◽  
Islamic State ◽  
Individual Person ◽  
Knowledge Based ◽  
The People ◽  
Islamic Jurisprudence ◽  
The Subject ◽  
High Level

The issue of 'Performing Takfir' has become a hot research area during present times, It's a very sensitive topic. The Islamic Sharia has ordained one to be very cautious on declaring Takfir upon a nominated individual, only the people who are firmly established in knowledge can declare takfir on a nominated person, which will be based on the principles of Islam. When Islam emphasis this much high level of caution in performing Tafir upon an individual person, then how critical will it be to declare takfir on state's, leaders and the communities.This is the reason one can find chapters written in the Islamic jurisprudence books (fiqhi books)on the subject of Dar-ul-Islam (land of Islam) and Dar-ul-Kufr (land of disbelief). In this article the topic of takfir has been discussed thoroughly and the position has been made clear about when a islamic state or a community turns in to a Dar-ul-Kufr (land of disbelief).In the following  knowledge based article the topic has been fully explained in detail by using the works and opinions of Islamic Jurists (experts in islamic law)  and the most predominant view of this issue has been covered.

Usia Ideal Menikah Prespektif UU Pernikahan Dan Hukum Islam “Analisis Penetapan Pengadilan Agama Lamongan No: 70/Pdt.P/PA.Lmg. Tentang Kemampuan Memberi Nafkah Sebagai Alasan Dispensasi Kawin”

AKADEMIKA ◽  
2015 ◽  
Vol 9 (1) ◽  
pp. 53-68
Author(s):  
M. Zainuddin Alanshori
Keyword(s):  
Data Collection ◽  
Islamic Law ◽  
Court Decision ◽  
Marriage Law ◽  
Islamic Jurisprudence ◽  
Injured Party

This study aims to answer the question about what considerations taken by Lamongan Religious Court judges against the decision of marriage dispensation on the grounds of being capable of providing nafkah (livelihood support) and how the analysis of the Marriage Law and Islamic Law in Indonesia towards the decision of Lamongan Islamic Court judges on marriage dispensations on the grounds of being capable of providing nafkah.To answer the above question, the writer uses data collection techniques through both documentation and interview. Documentation in the form of Lamongan Islamic Court decision and library reviews are then analyzed by using analytical and descriptive methods with a deductive mindset.This study concludes that the judges set marriage dispensations on the grounds of being capable of providing nafkah and is based on the grounds that all the requirements to perform marriages are met except the age requirement for prospective bridegroom that has not attained the age of 19 years, as referred to in the Compilation of Islamic Law Article 15 Paragraph 1: (1) "For the benefit of families and households, marriage should only be carried out by prospective brides who have attained the age specified in Article 7 of Law Number 1/1974 the husband candidates at least 19 years old and prospective wives at least16 years old." All this is also in conformity with some written evidence and witnesses. Lamongan Religious Court decision in determining the marriage dispensation is very relevant to Islamic Law and Law No. 1, 1974, though in their legal considerations, the judges are less concerned about the capability of prospective husband. Thus, the decision does not imply the validity of marriage, as in the case of Islamic jurisprudence (fiqh) it is allowed as long as there is no necessary element of fraud or injured party due to the marriage.

Menikah untuk Diceraikan: Menyorot Hak-Hak Perempuan pada Isbat Nikah untuk Cerai di Pengadilan Agama Medan Tahun 2015-2017

2019 ◽  
Vol 13 (1) ◽  
pp. 99-110
Author(s):  
Imam Yazid
Keyword(s):  
Islamic Law ◽  
Married Couple ◽  
The State ◽  
Legal Basis ◽  
Legal Certainty ◽  
Legal Research ◽  
Severance Pay ◽  
The People ◽  
Legal Uncertainty ◽  
Religious Courts

The validity of marriage in Indonesia is regulated through Islamic law and regulations in Indonesia. In fact, many marriages occur that do not meet the regulations in Indonesia, resulting in legal uncertainty of the people involved in the marriage. This research is empirical legal research. The purpose of this study is to find out how the policies of the Religious Courts in Medan settles cases of iṡbat nikah (seeking a formal, legalized marriage certificate) that aims to divorce in 2015-2017, how are legal considerations in giving a decision to isbat nikah that aims to divorce, and how is legal certainty after divorce through isbat nikah. This research found that: firstly, isbat nikah is a solution to the problem of a married couple who are not recorded by an official appointed by the state and then the marriage certificate is to establish a divorce permit; secondly, religious court judges in Medan have a legal basis in giving a decision of isbat nikah cases to divorce, so the decision can be normatively accounted for; thirdly, the court’s decision gives rise to the benefits desired by the Shari'a, namely legal certainty after the isbat nikah, namely, among others, the provision of appropriate mut’ah (severance pay) to ex-wives, provision of living expenses for children who are not yet 21 years old, and formal registration of children from marriages that are not recorded by officers appointed by the state when the previous marriage occurred.

YASIN DUTTON, The Origins of Islamic Law: The Qur⊃an, the Muwatta⊃and Madinian⊂Amal (London: Curzon Press, 1999). $80.00 cloth.

2000 ◽  
Vol 32 (4) ◽  
pp. 531-532
Author(s):  
Khaled Abou El Fadl
Keyword(s):  
Significant Contribution ◽  
Islamic Law ◽  
Muslim Community ◽  
General Sense ◽  
The People ◽  
Early Islam ◽  
Islamic Jurisprudence ◽  
Western Scholarship ◽  
Early Islamic

Yasin Dutton makes a significant contribution to our understanding of the juristic activity in early Islam. His book produces a systematic and thorough study of the methodologies and legal techniques of Malik's Muwatta⊃, and in so doing, it sheds important light on the origins of Islamic law. Dutton carefully documents Malik's reliance on the Qur⊃an and the ⊂amal (practice) of the people of Medina in formulating early Islamic legal doctrines. In this context, Dutton challenges much of Western scholarship, which tended to minimize the role of the Qur⊃an and the Prophetic sunna in the development of early Islamic jurisprudence. The Qur⊃an, sunna, and ⊂amal, Dutton argues, formed integral components of early Medinian juristic discourses. Importantly, Dutton calls for a more sophisticated understanding of the concept of ⊂amal. He distinguishes between sunna and ⊂amal and between sunna and hadith. Sunna, Dutton contends, consists of the collective inherited precedent of the Prophet. In many ways, it is the Qur⊃anic precedent as well as the interpretations and ijtih―ad of the Prophet as remembered, in a general sense, by the early Muslim community. ⊂Amal, on the other hand, is the Qur⊃an and sunna in action as well as the interpretations and ijtih―ad of the companions, successors, and successors of the successors. Therefore, in a sense, Dutton argues that all ⊂amal includes the sunna, but not all sunna includes ⊂amal.

scholarly journals POLITIK HUKUM DAN UPAYA POSITIVISASI HUKUM ISLAM DI INDONESIA: STUDI TENTANG KONFLIK HUKUM DALAM UNDANG-UNDANG PERKAWINAN DAN UNDANG-UNDANG PERADILAN AGAMA

2015 ◽  
Vol 16 (1) ◽  
pp. 29-49
Author(s):  
Bani Syarif Maula
Keyword(s):  
Islamic Law ◽  
The State ◽  
The Political ◽  
Marriage Law ◽  
Legal Provisions ◽  
The People ◽  
The Law ◽  
Policy Direction ◽  
Article 50 ◽  
Religious Courts

Abstract: The politics of law that ignore the aspirations of society has led to inconsistency in the application of the law because of the differences between the will of the people with the legislation. This study specifically examines the political law in terms of the application of Islamic law in Indonesia which is envisaged in Law No. 1/1974 on Marmage and the Law 7/1989 on Religious Courts (and its amendment Law No. 3/2006). The political situation that characterizes the formation of the Marriage Law and the Law on Religious Courts clearly show trends and policy direction of the state law. It can be seen from the political aspects of the legal establishment, the political aspects of the content of the law (principles and the rule of law), and political aspects of law enforcement. These three aspects have made Islamic law practiced by the Indonesian Muslim community (the living laws) in conflict with formal legal rules defined by the state. The conclusion from this study is that the legal provisions in the Mariage Law that conflict, namely: Article 2 paragraph (1), Article 7 (1), Article 31 paragraph (3) and Article 34 paragraph (1) and (2), as well as Article 42 and 43 paragraph (1). While the legal provisions in the Law on Religious Courts where a conflict is Article 50 of Law No. 7/1989 and Article 50 paragraph (1) and (2) of Law No. 3/2006 (amendment of the same article of the Law No. 7/1989) Keywords: Politics, Law, Conflict of Laws, Islamic Law, Marriage Law, the Law on Religious Courts

scholarly journals The Legality of Mandatory Testaments for an Adopted Child in the Perspective of 'Urf Principle

2019 ◽  
Vol 11 (2) ◽  
pp. 76-89
Author(s):  
Munadi Usman
Keyword(s):  
Islamic Law ◽  
Customary Law ◽  
Adopted Children ◽  
Legal Basis ◽  
Adopted Child ◽  
Normative Study ◽  
Islamic Jurisprudence

Islamic Law Compilation (ILC) in article 209 contains provisions on the mandatory testaments of adopted children. Some legal experts in Indonesia have denied these provisions as they have no clear legal basis in Syariah or Islamic jurisprudence. This research aims to review the provision of mandatory testaments using the 'urf principle. This research is a legal normative study using conceptual and statute approaches. The result of this study shows that the tradition (‘urf) in the form of giving assets to children applies in Indonesian society, even though practically there are still differences between one region to another according to their respective customary law systems. The 'urf can be taken into consideration to institutionalize the mandatory testaments for adopted children providing that it can be proven to be a valid 'urf.Kompilasi Hukum Islam (KHI) dalam pasal 209 berisi ketentuan tentang wasiat wajib anak adopsi. Beberapa ahli hukum di Indonesia telah menolak ketentuan ini karena mereka tidak memiliki dasar hukum yang jelas dalam yurisprudensi Syariah atau Islam. Penelitian ini bertujuan untuk meninjau ketentuan perjanjian wajib menggunakan prinsip ‘urf. Penelitian ini merupakan penelitian normatif hukum dengan menggunakan pendekatan konseptual dan statuta. Hasil penelitian ini menunjukkan bahwa tradisi (‘urf) dalam bentuk memberikan aset kepada anak-anak berlaku di masyarakat Indonesia, meskipun secara praktis masih ada perbedaan antara satu daerah dengan daerah lain sesuai dengan sistem hukum adat mereka masing-masing. ‘Urf dapat dipertimbangkan untuk melembagakan wasiat wajib untuk anak-anak adopsi asalkan itu dapat dibuktikan sebagai ‘urf yang shahih.Keywords: mandatory testaments; adopted child; ‘urf.

scholarly journals Konsep Dasar Ijmak sebagai Sumber Hukum Islam

2020 ◽  
Vol 1 (1) ◽  
pp. 28-43
Author(s):  
Ahmad Syaripudin ◽  
M. Kasim
Keyword(s):  
Basic Concept ◽  
Islamic Law ◽  
Stock Exchanges ◽  
Human Organ ◽  
Library Research ◽  
The People ◽  
Islamic Jurisprudence ◽  
Qualitative Descriptive ◽  
Descriptive Approach ◽  
Definition Of

This study aimed to describe the basic concept of consensus as source of Islamic law. The description of basic concept of consensus consists of: 1) definition of consensus; 2) status of consensus as a fundament of Islamic knowledge and law; 3) types of consensus; 4) examples of consensus in terms of classical and contemporary Islamic jurisprudence; and 5) law of refutation against consensus. The research applied a qualitative-descriptive approach with library research methods combined with content analysis of a number of books and related articles. The results show that: 1) consensus is an agreement of scholars of mujtahid among the people of Prophet Muhammad saw. on an shari issue that is not obviously found in the Koran and hadis in the period after the Prophet which has specific pillars and conditions; 2) of consensus in its position as a source of knowledge and Islamic law is in the third row after the Koran and hadis; 3) types of consensus include ṣarīh consensus and sukūtī consensus, and some divides it into qat’i consensus and dzanni consensus; 4) some examples of consensus: a) forms of classical Islamic jurisprudence consensus: the agreement of the scholars regarding the prohibition of marrying grandmother and granddaughter, that grandson and son are in one position in terms of inheritance division, that inheritance portion for grandmother is one sixth if there is no mother, and consensus of the companions to codify the Koran owing to benefits that appeared during the caliphate of Abu Bakr al-Shiddiq ra. b) Forms of contemporary Islamic jurisprudence: validity of human organ transplants, brain death, animal and human cloning, joint-stock companies, stock exchanges, globalization, and compliance with international institutions, regulations and laws such as world education organizations and world trade organizations; and 5) law of those who refute consensus in absolute manner (totality) are considered disbelievers.

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