THE APPLICATION OF ISLAMIC LAW AT THE COLONIAL AGE AND IT'S IMPLICATION FOR THE INDONESIAN RELIGIOUS JUSTICE SYSTEM

2019 ◽  
Vol 1 (2) ◽  
Author(s):  
Muhamad Mas’ud
Keyword(s):  
Indigenous People ◽  
Islamic Law ◽  
Family Law ◽  
Customary Law ◽  
Legal Norms ◽  
East Indies ◽  
Historical Figure ◽  
Dutch East Indies ◽  
Islamic Family Law ◽  
Religious Courts

The enactment of Islamic law during colonialism was marked by the thought of Sayyid Usman, a historical figure who had a great interest in the study of Islamic law in Indonesia during the Dutch East Indies colonization. As a scholar, he has special attention to the continuity of Islamic law in Indonesia, especially regarding Islamic family law, which at that time had been widely practiced by people to replace customary law. In addition, he also contributed a lot of thoughts in the context of enforcing Islamic law by organizing religious justice institutions and compiling Islamic family law. Formally the institutions of religious justice, especially in Java and Madura, were only formed by the Dutch East Indies government in 1882, through the Staatsblad 1882 No. 152. This formation is at once a measure of the reorganization of religious justice institutions, namely by establishing new religious courts in addition to each landraad (the same court) with the same legal area, on average as large as the district. It's just that if before the religious court was independent, then with this reorganization the power to carry out the verdict was handed over to landraad. K.F. Holle, L.W.C. Van den Berg, and Snouck Hurgronje, these three Dutch people were very influential in the birth of the theory of the enactment of Islamic law in Indonesia, L.W.C. Van den Berg is one of the initiators of the theory of receptio in complexu, which states that "for Muslims full Islamic law applies because he has embraced Islam even though there are still deviations in its implementation. Next to L.W.C. Van den Berg carries the theory of receptio in complexu, and Snouck Hurgronje as the originator of receptie theory, which states that for indigenous people basically customary law applies, and Islamic law applies to indigenous people if Islamic legal norms have been accepted by society as customary law.

scholarly journals SEJARAH PERKEMBANGAN HUKUM WARIS DI INDONESIA

Nuansa ◽  
2018 ◽  
Vol 11 (2) ◽  
Author(s):  
Iim Fahimah
Keyword(s):  
Indigenous People ◽  
Islamic Law ◽  
Colonial Period ◽  
Customary Law ◽  
Legal Authority ◽  
European Law ◽  
Inheritance Law ◽  
East Indies ◽  
Religious Law ◽  
Dutch East Indies

In this discussion the development of inheritance law was stated, from the time before  colonialism until  the time of independence. In the development of inheritance law before  the colonial period, the empire and  the sultanate applied inheritance law as a living law in the  community as well as a culture of Indonesian law in its time.  When  the Dutch East Indies government arrived, Indonesia had  implemented Islamic religious law, which  then continued and recognized its legal authority, Van den Berg conceptualized Staatsblat 1882 Number 152 which contained provisions for indigenous people or colonized people, religious laws must be applied in his environment. Snouck Hoergronje, advisor to the  Dutch East Indies Government, initiated the  receptie theory of Islamic issues  and  domestic children who pro- posed “Islam  can apply if it has been perceived by customary law”, so adat  is what determines the existence or absence of Islamic law. Furthermore, at the  time  of independence Indonesian Islamic law experts tried  to make  Islamic law a national law, with the effort of national seminars in the formation of law, Islamic law was made as one of the sources in addition to European law and Customary law

scholarly journals War of Ngali Toward Dutch Colonialism in Bima

2018 ◽  
Vol 5 (4) ◽  
pp. 128
Author(s):  
Sukarddin Sukarddin ◽  
Akhamad Ari Musaded ◽  
Suryo Ediyono
Keyword(s):  
Islamic Law ◽  
Customary Law ◽  
Dutch Government ◽  
East Indies ◽  
The People ◽  
Dutch East Indies ◽  
The Government ◽  
Dutch Colonial ◽  
Dutch Colonialism

Sultanate of Bima has been bound by government of Dutch colonial with Lange Contract agreement (long contract), occurred in 1908-1909 That the Sultanate of Bima is a very strategic area. These conditions caused the VOC and the government of Dutch to seek intervention through the Lange Contract agreement (long contract) which has led to the entry of the Sultanate of Bima in the Pax Neerlandica neighborhood. War of Ngali occurred for several reasons namely 1) Feelings of dissatisfaction with the actions of the Dutch government which impose various tax rules in the Sultanate of Bima. 2) The Sultanate of Bima as part of the Dutch East Indies sovereignty was seized by a Lange Contract agreement in 1908. 3) Customary law and Islamic law were replaced by Dutch law. 4) The head or belasting duty system is denied and punished for taxing the unbelievers. The conclusion in this study is that people of Ngali against the government of Dutch colonial because they wanted to control the entire Milky, the resistance made by people Ngalisolely to maintain the customs, religions, and independence owned by the people of Bima.

scholarly journals LEGISLASI HUKUM KELUARGA ISLAM BERDASARKAN KOMPILASI HUKUM ISLAM

EKSPOSE ◽  
2019 ◽  
Vol 16 (2) ◽  
pp. 361
Author(s):  
Ismail Keri
Keyword(s):  
Law Enforcement ◽  
Rule Of Law ◽  
Islamic Law ◽  
Family Law ◽  
State Constitution ◽  
History Of ◽  
National Life ◽  
Islamic Family Law ◽  
Basic Ideas ◽  
Religious Courts

Islamic Family Law consists of fundamental nationalities that always live and develop along with the development of society in the life of the nation. The configuration of national life interests is an instrument contested by the nation's components in these interests in the path of the state constitution, thus gaining a place of legitimacy in the process of constructing a national legal order. The history of national legal legislation has included the Compilation of Islamic Law as one of the country's alignments with the process of Islamic family law into National law. At the same time, the recovery of the development of Islamic Family Law is increasingly lively as the process of finding answers to Islamic problems in the archipelago's insight, how: Compilation of Islamic Law accommodates changes in the application of Islamic family law in Indonesia?The description that can be obtained in this study shows that based on the history of beginning, the Compilation of Islamic Law is present as meeting the needs of the Islamic community as well as filling in the gaps that occur in the Religious Courts whose authority is regulated in Law No. 7 of 1989. However, in its journey, a number of studies and studies explained that the Compilation of Islamic Law contained a variety of potential criticisms, in which the Compilation of Islamic Law was deemed to be no longer sufficient in resolving various complex complexity problems. Therefore it is necessary to reconstruct the Compilation of Islamic Law by paying attention to the principles of equality (al-muswah), brotherhood (al-ikhâ`), and justice (al-`adl), as well as basic ideas for the formation of civil society, such as pluralism, gender equality , Human rights, democracy, and egalitarianism, so that the needs of Islamic family law can be fulfilled in several such as Constitutional aspects, Content aspects (Material / Content and Ideas), Aspects of Islamic Law Enforcement (rule of law) in the Indonesianness frame.

scholarly journals Arrangement and Dynamication of Family Law Updating in Indonesia

Al-'Adl ◽  
2020 ◽  
Vol 13 (2) ◽  
pp. 285
Author(s):  
Ike Yulisa ◽  
Muhamad Yusuf ◽  
Doli Witro ◽  
Luqyana Azmiya Putri ◽  
Mhd. Rasidin ◽  
...  
Keyword(s):  
Islamic Law ◽  
Family Law ◽  
Customary Law ◽  
Law Reform ◽  
Government Regulations ◽  
Analysis Techniques ◽  
Structure And Dynamics ◽  
Divorce Rates ◽  
Islamic Family Law ◽  
Western Law

In Indonesia, family law is well regulated in law or government regulations. In this case, with the increasingly complex family law issues supported by divorce rates, which reached 398,245 in 2015, then in 2017, it increased to 415,898, and with the development of science and technology, so many problems arise both in terms of muamalah or family law itself. For this reason, structuring is needed through legal reform that makes it follow what is needed by the wider community. Starting from this, this paper will discuss the arrangement of Islamic family law and the dynamics of family law reform in Indonesia. This study aims to provide an overview of the arrangement of Islamic families and Islamic family law reform in Indonesia. This paper uses qualitative research methods that are library researching. The data in this article was obtained from books, journals, articles, magazines related to the structure and dynamics of family law reforms in Indonesia. After the data is collected, the writer analyzes with data analysis techniques, namely data reduction, data presentation, and concluding. The results of the study show that the structure and dynamics of family law in Indonesia, when viewed in the context of Islamic law reform, reveal a unique and problematic portrait of reform. It is said so because Indonesia applies three legal systems, namely customary law, Islamic law, and Western law.

Islamic Law and Paradox of Domination and Resistance

2016 ◽  
Vol 44 (1-2) ◽  
pp. 78-103
Author(s):  
Mohamad Abdun Nasir
Keyword(s):  
Islamic Law ◽  
Family Law ◽  
Customary Law ◽  
Cultural Contexts ◽  
Male Domination ◽  
Local Practices ◽  
Islamic Jurisprudence ◽  
Contemporary Practice ◽  
Religious Courts ◽  
Muslim Family

Judicial divorce symbolises women’s resistance to the domination of local interpretations and practices of Muslim family law in Lombok, such as male arbitrary repudiation and polygamy. In this pattern, husbands hold the privilege to terminate marital unions unilaterally and remarry without their wives’ consent. These practices find their grounds in classical-medieval Islamic jurisprudence (fiqh), which is endorsed by the custom of patriarchal society. It is by turning to the court that women attempt to subvert such hegemonic discourses. By examining divorce cases from the religious courts, and looking at their broader socio-religious and cultural contexts, this study attempts to propose an analysis of judicial divorce as a locus of women’s resistance against male domination endorsed by local practices of Islamic law, customary law and state law, and examines an important dimension of contemporary practice of Islamic family law, which reveals patterns of domination and resistance.

scholarly journals The Discourse and Practice of Islamic Family Law in Indonesia

2021 ◽  
Vol 58 (1) ◽  
pp. 5201-5212
Author(s):  
Nurrohman Syarif
Keyword(s):  
Islamic Law ◽  
Family Law ◽  
Court System ◽  
Islamic History ◽  
Law System ◽  
Muslim Countries ◽  
Changing Times ◽  
The Impact ◽  
Civil Law System ◽  
Religious Courts

Family law is the most powerful law practiced in Islamic history, but this does not mean that it avoids the demands of changing times. Today, there are no less than thirteen problems related to family law that have arisen in the Muslim world. This problem arises not only because of demands for changing times, but also because of efforts to unify, codify and legislate Islamic law in a number of Muslim countries. This problem requires not only solutions but also reforms. This study aims to examine the model of understanding, practicing, reforming and transforming Islamic law in Indonesia and its impact on the position of standard classical fiqh books and the independence of judges in the Religious Courts. This research is a non-doctrinal normative qualitative research type. This study found a variety of models in the exploration, practice and reform of family law in Indonesia. The impact of the reform and transformation of family law in Indonesia is that classical fiqh books are no longer used as the main reference and the Religious Court System is closer to the civil law system. However, the reform and transformation of family law in Indonesia did not reduce the independence of religious judges in exploring and discovering more contextual Islamic law.

scholarly journals THE PRINCIPLE OF SELF SUBMISSION IN DIVORCES CASES FROM THE PERSPECTIVE OF LEGAL CERTAINTY

2020 ◽  
Vol 2 (1) ◽  
pp. 63-78
Author(s):  
Haqqiyah Uthlufah
Keyword(s):  
Islamic Law ◽  
Family Law ◽  
Analytical Tool ◽  
Legal Interpretation ◽  
Legal Certainty ◽  
Marriage Law ◽  
Legal Research ◽  
Divorce Law ◽  
Islamic Family Law ◽  
Materials Used

The problem of the principle of submission in the divorce law in the Religious Court by a non-Muslim couple occurs because the couple's marriage is based on Islamic law. What cannot be separated from Islamic law is Islamic family law because it is related to the faith of a Muslim. Islamic family law can only apply to Muslims and cannot apply to non-Muslims. The problem of the principle of submission to the divorce law was incomplete (incomplete norm) or the existence of a legal vacuum (vacuum of norm) in marriage law in Indonesia. This research is a legal research and is normative in nature. The approach used is statutory, case, and conceptual. The legal materials used are primary, secondary and tertiary. The method of collecting legal materials is first to qualify the facts and then to qualify the law. The analytical tool used is legal interpretation in the form of principal, systematic and grammatical interpretation.

scholarly journals AN APPRAISAL OF THE APPLICATION OF FIQH AL-HANAFI UNDER ISLAMIC FAMILY LAW (FEDERAL TERRITORIES) ACT 1984

2019 ◽  
Vol 27 (2) ◽  
pp. 317-336
Author(s):  
Azizah binti Mohd
Keyword(s):  
Qualitative Method ◽  
Islamic Law ◽  
Family Law ◽  
The State ◽  
Muslim Country ◽  
Kuala Lumpur ◽  
Library Research ◽  
Identification Card ◽  
Islamic Family Law

Malaysia is a Muslim country consisting of thirteen States and Federal Territories (Kuala Lumpur, Labuan and Putrajaya). In principal, the official madhhab that is practised  in Malaysia is Shafi’i Madhhab and this becomes common to all Malaysians even though it is not officially registered in the identification card of a Malaysian. Accordingly, in many religious affairs and practices, the society is based upon the principles or fiqh al-Shafi’i. Nevertheless, views of other Sunni madhhab is freely practiced by all Malaysians. Furthermore, the codification on Islamic law in the State Enactments in all States in Malaysia is based upon four Sunni schools of law. It follows that the Islamic law in Malaysia is not purely based on the Shafi’i madhhab and in many occasions adopted the view of Hanafi school depending on the adaptability of the opinion to the society. This article deals with the application of fiqh al-Hanafi under the Islamic Family Law (Federal Territories) Act 1984. Analysis will extend to the practices in the Malaysian Syariah Court when dealing with cases involving Muslims and the most appropriate view of the madhhab that is to be adopted by the Syariah Court in order to solve a particular issue. The study employs the qualitative method of study where it only involves library research. It is believed that this research will be beneficial to all who seek knowledge and useful to all researchers, academicians, legal practitioners, students and scholars.

scholarly journals Status dan Hak Anak Tak Sah Islam dalam Undang-Undang di Malaysia

2018 ◽  
Vol 10 (3-4) ◽  
Author(s):  
Zanariah Noor
Keyword(s):  
Islamic Law ◽  
Family Law ◽  
Civil Law ◽  
Birth Certificate ◽  
Biological Father ◽  
Self Identity ◽  
Illegitimate Child ◽  
Content Analysis Method ◽  
The Status ◽  
Islamic Family Law

Illegitimate child refers to a child conceived during sexual intercourse outside of wedlock. The jurists have different views regarding the gestation period of pregnancy that affects the legitimacy status of the child. The objective of this article is to analyze the different views of the jurists regarding the status as well as rights of the illegitimate child in Islam and current religious ruling implemented in Malaysia. This article also analyzes the rights of the illegitimate child towards a personal identity that involved lineage that effects on how his/her name and surname will be stated on birth certificate according to the Islamic and civil law in Malaysia. Issues on custody, maintenance, marriage guardianship of the illegitimate child and his/her relation with biological father that married to his / her mother will also be discussed according to the opinions of the jurists as well as Islamic family law in Malaysia. This study utilized content analysis method on discussions put forward by the jurists in authoritative jurisprudence books as well as contemporary jurisprudence books and law provisions that are provided in Islamic and civil law implemented in Malaysia to date. The findings show that Islamic family law protects rights of the illegitimate child in terms of self-identity (lineage), custody, maintenance and marriage guardianship. However, the issue regarding the surname of the illegitimate child was raised in Civil Court, arguing that he/she should be allowed to be named to his/her biological father who had married the mother. This issue needs to be scrutinized. The amendment should be carried out so that matters related to the Muslims' personal laws are implemented according to the Islamic law.

scholarly journals Reformasi hukum keluarga di dunia Muslim

2014 ◽  
Vol 14 (1) ◽  
pp. 1
Author(s):  
Ahmad Bunyan Wahib
Keyword(s):  
Twentieth Century ◽  
Islamic Law ◽  
Family Law ◽  
Social Economy ◽  
Muslim World ◽  
Law Reform ◽  
The Reformation ◽  
Islamic Family Law ◽  
Politics And Law

This article discusses about the history and the development of family law reform in Muslim countries.This work has taken a lot benefits from Anderson’s works on Islamic law in the Muslim world for bothdata and perspective. Islamic family law reform started from the second decade of twentieth century(1915) with the issuance of two Ottoman Caliph decrees on wife rights to ask religious court to divorcethem from their husband. This reform was followed by Sudan (starting from 1916), Egypt (1920),Jordan (1951), Syria (1953), Tunisia (1956/1959), Morocco (1958), Iraq (1959), Pakistan (1961) and Iran(1967). The reformation aims to administrate the members of community in the filed of social,economy, politics, and law. From the perspective of modernization, Islamic family law reform inMuslim countries has shown the process of modernization from above.

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