scholarly journals Konsep dan Sumber Hukum: Analisis Perbandingan Sistem Hukum Islam dan Sistem Hukum Positif

2021 ◽  
Vol 5 (2) ◽  
pp. 87-98
Author(s):  
M. Taufiq
Keyword(s):  
Comparative Analysis ◽  
Islamic Law ◽  
Inductive Method ◽  
Community Members ◽  
Positive Law ◽  
Definition Of ◽  
The Relationship ◽  
Made In ◽  
Legal Entities

The definition of positive law was law in the form of laws that regulate the relationship between humans and humans, or with legal entities, while the understanding of Islamic law was a system of 'obligations' and 'prohibitions' rather than specific laws. Islamic law was broadly defined by rules which were the result of understanding and deduction from the provisions revealed by Allah SWT to the Prophet Muhammad SAW. Therefore, the main sources of Islamic law were the Qur'an and Hadith. source of pure positive law from society. This was due to the retrieval or discovery of positive law using the inductive method. That was by observing the actions and attitudes of community members. From these observations, general regulations that bind the whole community were made. In this article, the author tried to explain further the analysis of the concepts and sources of the two laws, and their comparative analysis

scholarly journals Performance Of Islamic Law In Indonesia In The Fields Of Civil, Private Law, Public Law And Ethics

2021 ◽  
Vol 21 (1) ◽  
pp. 45
Author(s):  
Zarul Arifin
Keyword(s):  
Religious Experience ◽  
Constitutional Law ◽  
Islamic Law ◽  
Public Law ◽  
The State ◽  
Private Law ◽  
Positive Law ◽  
Law And Ethics ◽  
The Relationship

Abstrak.Wacana tentang hubungan Islam dan negara masih menjadi pembahasan yang menarik. Masalahnya, Indonesia negara yang mayoritas warganya beragama Islam tidak menjadikan hukum Islam sebagai dasar konstitusinya, namun Indonesia juga bukan negara sekuler. Indonesia dapat dikatakan sebagai negara yang moderat, dimana hukum ketatanegaraan tidak bertentangan dengan hukum Islam Hukum Islam di tengah masyarakat Indonesia mempunyai kedudukan yang lebih penting dari pada dua ciri hukum lainnya yaitu hukum positif dan hukum hukum, tetapi tentunya tidak secara normatif atau ideologis. rasa ordogmatis, lebih secara tekstual tetapi secara kultural. Islam sebagai agama yang dianut oleh mayoritas penduduk Indonesia tentunya sangat mempengaruhi gaya hidup bangsa Indonesia. Dalam pandangan masyarakat Indonesia, hukum Islam merupakan bagian penting dari ajaran agama dan Islam merupakan ruang utama ekspresi pengalaman beragama dan menentukan keberlangsungan serta identitas sejarahnya.Kata kunci. Kinerja, Hukum Islam, Indonesia.Abstract. The discourse on the relationship between Islam and the state is still being discussedwhich are interesting. The problem is that Indonesia is a country with a majority of its citizensbeing Muslim does not make Islamic law the basis of its constitution.However, Indonesia is also not a secular country. Indonesia cansaid to be a moderate country, where the constitutional law does not contradict Islamic lawIslamic law in the midst of Indonesian society has a positionwhich is more important than the two other legal features, positive law and lawadat, but certainly not in a normative or ideological sense ordogmatic, more so textually but culturally. Islam, as the religion embraced by the majority of Indonesia's population, certainly greatly influences the lifestyle of the Indonesian nation. In the view of Indonesian society, Islamic law is an important part of religious teachings and Islam is a space for the main expression of religious experience and determines its continuity and historical identity.Keyword. Performance,  Islamic Law, Indonesia.

Prophetic Clarity: A Comparative Approach to al-Ṭabarī's Theory of Qur'anic Language, Rhetoric, and Composition

2020 ◽  
Vol 22 (1) ◽  
pp. 216-268
Author(s):  
Ulrika Mårtensson
Keyword(s):  
Comparative Analysis ◽  
Comparative Study ◽  
Rhetoric And Composition ◽  
Comparative Approach ◽  
Arabic Rhetoric ◽  
Definition Of ◽  
The Relationship ◽  
Opening Up

The article is a comparative study of Muḥammad b. Jarīr al-Ṭabarī's (d. 310/923) concepts of Qur'anic language, rhetoric, and composition. Al-Ṭabarī identified the Qur'an semantically and generically with the Biblical scriptures, as prophecy, and with Arabic rhetoric ( balāgha and khaṭāba). At the same time, he claimed that the Qur'an superseded them all in terms of how its forms convey God's intended message about Covenant, through its clarity of distinctions between universals and particulars, its persuasive proof, and innovative composition. Based on a comparative analysis of al-Ṭabarī's concepts, I conclude that he theorised Qur'anic language, rhetoric, and composition in ways that offer new insights into their relationship to the Biblical scriptures and Arabic rhetoric. His theory confirms and adds to parts of current research, opening up new paths for further research, also of a comparative theoretical kind. The study consists of four parts. Part 1 surveys recent research into theories of language and rhetoric in the Qur'an, as a necessary background to al-Ṭabarī. The survey will also show the relevance of Greek paradigms for the Qur'an. Developing the outcomes of this survey, Part 2 describes theories of language and rhetoric in Plato, Aristotle, the Biblical scriptures, and the Qur'an, and models the relationship between language, rhetoric, and scripture with reference to covenant and the concept of ‘belief’. Part 3 applies the model to al-Ṭabarī's theory of Qur'anic language, rhetoric, and composition. In Part 4, I develop al-Ṭabarī's definition of al-Fātiḥa (Q. 1) as a paradigm of covenantal terms that suffuses the entire Qur'anic canon, into a framework for analysing composition as the level of sura structure and genre, intertextual references and concepts, and overarching meaning.

METHODOLOGICAL PARADIGM OF MODERN LEGAL SCIENCE IN UKRAINE

2020 ◽  
Vol 10 (4) ◽  
pp. 12-20
Author(s):  
Vladimir Yashchenko ◽  
◽  
Olha Balynska ◽  
Keyword(s):  
Law Enforcement ◽  
General Theory ◽  
Social Relations ◽  
Positive Law ◽  
Legal Science ◽  
The Will ◽  
Definition Of ◽  
The Individual ◽  
The Relationship ◽  
Interacting Components

The leading idea of the article is the application of the most appropriate methodology for disclosing the essence and content of law, its origin, evolution, contradictions and their coordination in the context of the relationship between natural and positive law, social and individual paradigms, in particular, in the context of nationalizing the individual, and, on the contrary, individualizing the collective in a wide humanistic plane. This aspect synthesizes approaches to the disclosure of individual and collective through the categories of �self�, where dialectical, phenomenological, existential and other approaches are qualified as communicative and dialogic paradigm, which today finds its practical embodiment in lawmaking and law enforcement. Feeling the controversy of these views, the authors emphasize the deepening of the humanistic content of the legal regulator of social relations. Domestic modern legal science in its development should focus on deepening the humanistic content of the normative regulation of social relations. This actualizes the need to solve such scientific problems as the methodology of research and functioning of law, achieving a harmonious relationship between individual and collective in law, the connection of its natural and positive aspects, etc. A fundamentally new definition of the essence of law is proposed, not as the will of a certain class or majority, but as the will to self-existence, which is expressed in the phenomenon of self as a harmonious synthesis of individual and social. In this context, to investigate the legal phenomena dialectics can be effectively used not as a materialistic or idealistic methodology, but as the most general theory and way of ascending to the truth. After all, opposites in law are not necessarily antipodes, but can act as interacting components of legal reality

An Exploration of the Juristic Consensus (ijm??) on Compulsion in the Marriages of Minors

2011 ◽  
Vol 5 (1) ◽  
pp. 33-92
Author(s):  
Carolyn Baugh
Keyword(s):  
Sexual Activity ◽  
Islamic Law ◽  
Sexual Experience ◽  
Female Child ◽  
Child Marriage ◽  
Common Denominator ◽  
Legal Texts ◽  
Marriage Contract ◽  
Definition Of ◽  
The Relationship

In the Hanbal? fiqh manual the Mughn?, Ibn Qud?mah (d. 620/1223) claims consensus (ijm?’) of the scholars of Islamic Law regarding a father’s ability to compel his prepubescent daughter to marry against her will, provided it is to a suitable match. This paper explores Ibn Qud?mah’s claim by investigating the contours of consensus- writing on child marriage. It looks first to the primary transmitter of early consensus (Ibn al-Mundhir, d. 318/930)—who is cited as a source of consensus throughout al-Mughn?—then at three other writers who focused on Ijm?’ (al-Marwaz? (294/906), al-?a??w? (321/933), and Ibn ‘Abd al-Barr (463/1070). This discussion explores the relationship between early claims of consensus and the proof texts upon which they relied. The paper highlights the influence on this topic of al-Sh?fi’?, whose arguments in support of compulsion of female minors in the Umm changed the discussion irrevocably. Finally, it illustrates how, unlike the Sh?fi‘?s, early M?lik? and ?anaf? texts did not rely upon the unit tradition regarding ‘?’ishah’s marriage to the Prophet. When jurists began relying upon the report of ‘?’ishah as a proof text for this issue, its veracity itself became a topic of consensus. In the hands of Ibn ?azm (465/1072), and with that report as his basis, child marriage shifted from an issue applying equally to both children to an issue pertaining only to girls. The larger juristic culture seems to have followed his lead, as child marriage for boys became radically under-discussed in the later legal texts, including the famed manual al-Mughn?. Above all, this paper exposes the concept of Ijm?’ as a “lowest common denominator” of agreement on this topic. Extracting an ijm?’ic claim from its context of debate and discussion deprives the inquiring scholar of any sense of the ripples of conflict and controversy emanating from it. In these early texts, we find there was no consensus with regard to what grants agency to females (pubescence or sexual experience); no consensus on the meaning of “suitability” in marriage (a condition for the permissibility of a father’s force); no consensus on at what point a female child can tolerate sexual activity; and, of extreme importance from the legal standpoint, there was no consensus with regard to how the prepubescent is to be maintained if she is not yet able to tolerate sexual activity. Because the marriage contract predicates maintenance upon sexual availability, this point causes a crisis in the jurists’ definition of marriage.

scholarly journals Perlindungan Hukum Anak Dalam Keluarga Poligami Ditinjau dari Hukum Islam dan Hukum Positif

2020 ◽  
Vol 8 (02) ◽  
pp. 180
Author(s):  
Warsono Warsono
Keyword(s):  
Islamic Law ◽  
Legal Protection ◽  
Children's Rights ◽  
Children’S Rights ◽  
Positive Law ◽  
Children And Parents ◽  
The Family ◽  
Family Harmony ◽  
To Receive ◽  
The Relationship

This study aims to analyze the implementation of legal protection for children in polygamous families in terms of Islamic and positive law in Metro City, the inhibiting factors and efforts to overcome the obstacles that occur in polygamous families in terms of Islamic law and positive law in Metro City. This research is descriptive qualitative. Data collection was done by means of interviews and documentation. Data were analyzed by means of data reduction, data presentation and drawing conclusions. Based on the results of the analysis, the implementation of legal protection for children in a polygamous family in terms of Islamic law and positive, that is, legally positive has not been carried out well, but there is one family that is carried out, this is due to several factors, namely raising and caring for children, meeting all the necessities of life. and maintaining honor, responsibility, guiding and educating, as well as maintaining the health and welfare of children. Meanwhile, from Islamic law, there is something that is well implemented and also unlike the child's right to live, namely, children's rights in the clarity of their lines, children's rights in giving a good name, children's rights to obtain breast milk, children's rights to receive care, children's rights in property ownership. objects, children's rights in obtaining education and teaching. The factors that inhibit the needs of polygamous children, the educational factor of children in polygamous families, the factors of the relationship between children from polygamous families, and the factors of the relationship between children and parents. As well as efforts to overcome obstacles that occur in a polygamous family, namely upholding the husband's leadership in the family, the objectivity and neutrality of the husband, husband's justice, the husband acts wisely, the husband's love, the husband dares to give in for the sake of family harmony, the husband can maintain a balance of rights and obligations.

scholarly journals Interpretations of Verses about Islamic Criminal Law and its Polemics in Indonesia’s Positive Law

2021 ◽  
Vol 6 (1) ◽  
pp. 79
Author(s):  
Hasep Saputra ◽  
Nurma Yunita ◽  
Ainal Mardhiaturrahman ◽  
Wina Purnamasari
Keyword(s):  
Criminal Law ◽  
Islamic Law ◽  
Colonial Period ◽  
Positive Law ◽  
The Future ◽  
Vertical Relationship ◽  
Descriptive Approach ◽  
The Relationship ◽  
Islamic Values

This study was conducted to find out the interpretations of Islamic criminal law verses and to see the polemics which occurred in the applications of Islamic criminal law in Indonesia alongside the harmonization of its applications in Indonesia. This study used a normative-descriptive approach in a way that explained in detail the laws and the verses’ interpretations as well as the polemics of Islamic criminal law in the Indonesia’s positive law. In the context of the development and application of national law in Indonesia, Islamic law is one of the sources adopted. Islamic law itself regulates the vertical relationship with Allah and the relationship with humans. These two relationships have a role in the formation of national law in Indonesia. In terms of applications, Islamic law can contribute to the development of positive law with the following three alternatives: 1) Islamic law which is a continuation of legal politics in the colonial period, either through transitional rules of the 1945 Constitution’s article 2 or by means of being stipulated in the further new legislation, 2) positive Islamic law which is sourced from Islamic values, and 3) the theory of legal leveling.  This theory is applied to make Islamic law a source of national law in the future.

scholarly journals The Phenomenon of Regional Euphemisms and the Work of City Managers (the Analysis of Euphemisms in the Internet-Based Discourse)

2021 ◽  
Vol 3 (4) ◽  
pp. 21-32
Author(s):  
N. А. Krasovskaya ◽  
Y. I. Kuzina
Keyword(s):  
Geographical Area ◽  
Well Being ◽  
Social Attitudes ◽  
Russian Language ◽  
City Managers ◽  
Local Residents ◽  
Definition Of ◽  
The Relationship ◽  
Empirical Material ◽  
Made In

This article discusses the issue of the relationship between euphemisms and regional phenomena. The author dwells on the definition of euphemisms and the indication of their main features, emphasizing that the main aspect in understanding euphemisms is replacing a rude or undesirable word with a softer and more appropriate one. According to the author, understanding euphemisms that are found in the speech of residents of a certain geographical area is very important for heads of administrations at various levels, employees of departments, working with the local residents, i.e. for managers who ensure the well-being of city dwellers. The notion of euphemisms is closely related to culture and social attitudes that are developed in society. It is the link between euphemisms and culture, certain stereotypes, traditions of society, systems of values, etc. that makes the existence of regional euphemisms possible. In this study, a hypothesis is put forward about the presence of euphemistic substitutions, characteristic of a certain region. As part of the research, an attempt was made to identify euphemisms characteristic of the Tula region (Russia). Examples of direct discussion of Russian-language publications made in the “Overheard in Tula” community of the VKontakte social network serve as the empirical material for the study. As a result of the analysis, it was proved that in most cases, participants in communication use euphemisms when discussing the shortcomings and problems of their region. Understanding such use of euphemisms can help city managers in their work. The research reveals which regional events most often induce the residents of the Tula region to use euphemistic substitutions. Based on the comparison of selected discourse samples and data from lexicographic sources, it is determined whether the used substitutions can be considered euphemisms. The authors come to the conclusion that it is possible to speak about the existence of the very phenomenon of regional euphemisms and that its further study is much needed as it can improve the efficiency of city managers.  

scholarly journals Item in dependability: definition and content of the concept

Dependability ◽  
2019 ◽  
Vol 19 (4) ◽  
pp. 3-7 ◽  
Author(s):  
V. A. Netes
Keyword(s):  
Comparative Analysis ◽  
International Standards ◽  
The Past ◽  
Different Types ◽  
The Subject ◽  
Federal Laws ◽  
Basic Concepts ◽  
Definition Of ◽  
Correct Understanding ◽  
The Relationship

Aim. The paper continues the series of publications that investigate and discuss the essence and definitions of the basic concepts of the dependability theory. It analyzes the basic concept, which is the subject of consideration in dependability, for which the term “item” is usually used. The concept of “dependability” is defined for it, and in general all the terminology of dependability applies to it. The following issues are considered: how to name and define this subject of consideration, what it can be, what can be its constituents. In particular, the relationship between the concepts of “item” and “product” is discussed.Methods. The evolution of definitions of this concept in the Russian and international terminological standards in dependability over the past 30 years is traced. A comparative analysis of other standards and federal laws relating to items of different types is carried out. The viability of two main ways of getting an idea of a concept is considered: illustrative (based on examples) and definitional (by means of sequential definition of some concepts through others).Findings and conclusions. The definition and correct understanding of the concept of “item” is of great importance, as it affects the scope of dependability standards. It is explained why it is necessary to accept that the definitions of the basic concepts cannot be rigorously formalized and are in fact only explanations. It is shown that the definitions of the item in the existing Russian and international standards (GOST 27.002–2015 and IEC 60050-192:2015) have inaccuracies. To eliminate them, improved notes to the definition of an item are proposed. The first note lists the possible types of items: products (parts, assembly units, complexes) and their components; buildings and structures; systems consisting of jointly functioning products and structures and their subsystems. The second note indicates the relationship between the main constituents of the item: hardware, software and people (personnel), and their possible combinations. The paper provides reasons for considering virtual items that play an important role in today’s information and telecommunication technologies and are logically isolated subsystems within the systems that they are part of. Besides that, it points out the deficiencies in the definitions of various items in GOST 18322–2016.

Religious Identity, Citizenship, and Welfare

1993 ◽  
Vol 10 (2) ◽  
pp. 217-233
Author(s):  
Waqar I. Ahmad
Keyword(s):  
Religious Identity ◽  
Social Rights ◽  
Nation State ◽  
Salient Points ◽  
Definition Of ◽  
Muslim Communities ◽  
The Individual ◽  
The Relationship ◽  
Made In ◽  
Critical Aspects

In addressing the situation of Muslim communities in Britain, it isapparent that one of the major frameworks for understanding their situationhas been the notion of "Citizenship," for citizenship is a means ofidentifying critical aspects of the relationship between the individual andthe state. Following Bottomore (1992), we may make a useful distinctionbetween "formal" and "substantive" citizenship: the former being Simplydefined as "membemhip in a nation state" and the latter as "an array ofcivil, political, and especially social rights, involving also some kind ofparticipation in the business of government'' (ibid.).There are a number of salient points that should be made in relationto examining the implications of this distinction. First, we may note thatthe legal definition of citizenship is always informed by the cultural andethnic agendas historically rooted in the foundation myths of each nationstate.Thus in France, for example, just as the revolutionary iconographyof the Tricolor, Marianne, and Liberty, Equality, and Fratemity continueto serve contemporary national sentiments (Hobsbawm 1983), so todayFrench legal framing of formal citizenship is infused with its revolutionaryroots:La tradition centraliste francaise interdit la reconnaissance dansl'espace public des 'communautes', au sens oii elles existent auWtats-Unis. (Schnapper 1990).Consequently, in France neither ethnicity nor religion are formally relevantin determining access to citizenship ...

scholarly journals PERKAWINAN SIRI DALAM REFORMULASI HUKUM PERKAWINAN ISLAM DI INDONESIA SEBAGAI UPAYA PREVENTIF TERHADAP DISHARMONI SOSIAL DALAM MASYARAKAT (PERSPEKTIF GENDER DAN HAK ASASI MANUSIA)

2015 ◽  
Vol 4 (1) ◽  
Author(s):  
Zeni Lutfiyah ◽  
Agus Rianto ◽  
M. Rasyid Ridlo
Keyword(s):  
Human Rights ◽  
Science Studies ◽  
Islamic Law ◽  
Methodological Approach ◽  
Criminal Sanctions ◽  
Positive Law ◽  
Women And Children ◽  
Marriage Laws ◽  
The Impact ◽  
The Relationship

<div class="WordSection1"><p align="center"><strong><em>Abstract</em></strong></p><p><em>This research investigates the reality of marriage laws in Indonesia, especially related to nikah siri or unregistered marriage.The study used a gender perspective and human rights, in particular the rules contained in the Act No. 1 of 1974 and the Compilation of Islamic Law. It is based on the assumption that the number of rules indicates gender bias and poor protective of humanity   and justicevalues. Even so this study will measure the chances of the Preliminary Draft of Material Law of Islamic Court/Rancangan Undang-Undang Hukum Materiil Peradilan Agama (RUUHMPA) as a model of reformulation Indonesian marriage law to accommodate and be a legal solution for the types of gender inequality and human rights, especially with regard to the prevention of lameness and imbalance values  of justice and humanity. This type of research is classified in the normative legal research for reviewing the articles of a rule of positive law by using normative methodological approach, which analyzes the legal formulations and alignment between the article and is mainly used to analyze the validity of the conceptual formulation of the law before the benchmarks used assessment gender and human rights in the realm of social science studies. This study concluded that in the articles of the Act.No. 1 1974 and Compilation of Islamic Law there are still many weaknesses, especially with regard to gender issues and human rights, which include the impact on the rampant cases of unregistered marriage or nikah siri which is one form of harassment against the institution of marriage, it is also due to the lack of provision of criminal sanctions in this legislation. While the Draft of Material Islamic Courts (RUU HMPA) is a model that is offered and expected as breaking the deadlock the relationship between religion and culture. In particular to provide protection for women and children are quite vulnerable to acts of discrimination. Nevertheless the draft still needs to be examined and refined to be more able to give justice to every citizen of Indonesia.</em></p><p><strong>Keywords: </strong><em>Reformulation, Marriage, Gender, Human Rights.</em></p><p align="center"><strong>Abstrak</strong></p><p>Penelitian ini berusaha melihat realitas peraturan tentang perkawinan di Indonesia   terutama yang berkaitan dengan perkawinan siri atau perkawinan bawah tangan.Kajian ini menggunakan perspektif gender dan Hak Asasi Manusia, khususnya peraturan yang terdapat dalam Undang-Undang No. 1 Tahun 1974 dan Kompilasi Hukum Islam. Hal ini didasarkan pada asumsi banyaknya peraturan yang bias gender dan kurang melindungi nilai kemanusiaan dan keadilan. Demikan juga penelitian ini akan mengukur peluang Rancangan Undang-Undang Hukum Materiil Pengadilan Agama (RUU HMPA) sebagai model reformulasi hukum perkawinan Indonesia dalam mengakomodir dan menjadi solusi hukum atas bentuk- bentuk ketidak setaraan gender dan  Hak Asasi Manusia terutama berkaitan dengan pencegahan dari ketimpangan nilai-nilai keadilan dan kemanusiaan.Jenis Penelitian ini termasuk dalam penelitian hukum normatif karena mengkaji pasal-pasal sebuah aturan hukum positif dengan menggunakan pendekatan normatif metodologis, yaitu menganalisis rumusan-rumusan hukum dan keselarasan antarpasal dan terutama digunakan untuk menganalisis validitas konseptual rumusan hukum tersebut di hadapan tolok ukur yang digunakan kajian gender dan HAM yang masuk dalam ranah kajian ilmu sosial. Dari penelitian inidisimpulkan bahwa di dalam pasal-pasal UU. No. 1 tahun 1974 dan Kompilasi hukum Islam masih terdapat banyak kelemahan terutama yang berkaitan dengan isu Gender dan HAM, yang diantaranya berdampak pada maraknya kasus perkawinan siri atau perkawinan bawah tangan yang merupakan salah satu bentuk pelecehan terhadap lembaga perkawinan, hal ini juga dikarenakan belum adanya ketentuan sanksi pidanadalam perundang-undangan ini.Sedangkan Rancangan Undang-Undang Hukum Materii Peradilan Agama (RUU HMPA) merupakan model yang ditawarkan dan diharapkan sebagai pemecah kebuntuan hubungan antara agama dan kebudayaan.Khususnya untuk memberikan perlindungan bagi perempuan dan anak yang cukup rentan terhadap tindak diskriminasi.Meski demikian Rancangan Undang- Undang ini masih perlu dicermati dan di sempurnakan supaya lebih dapat memenuhi rasa keadilan bagi setiap warga negara Indonesia.</p></div><p><strong>Kata Kunci: </strong>Reformulasi, Perkawinan, Gender, Hak Asasi Manusia.</p>

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