scholarly journals Research Handbook on Islamic Law and Society

2019 ◽  
Vol 36 (4) ◽  
pp. 121-124
Author(s):  
Ossama Abdelgawwad

The premise of the adaptability, flexibility, and compatibility of Islamic normative teachings (sharīʿa) to new social contexts is already documented by many scholars, including John Bowen’s On British Islam: Religion, Law, and Everyday Practice in Shari‘a Councils and Michael G. Peletz’s Islamic Modern: Religious Courts and Cultural Politics in Malaysia. Unlike those works, this textbook is organized by theme which provides a unique contribution to our understanding of the overall function of contemporary Islamic law. Such an approach shows that the ‘right’ answer in one country is not necessarily the ‘right’ solution in another Muslim community, which explains the diverse application of Islamic law. The book challenges Wael Hallaq’s observation that the modern codification of Islamic law resulted in the absence of hermeneutical possibilities or led to a single mode of judicial application. Perhaps Hallaq’s proposition is accurate if we examine the function of Islamic law in a specific country. Nevertheless, the book provides concrete examples of the administrative and interpretive techniques of ‘neo-ijtihād’ today. To download full review, click on PDF.

2019 ◽  
Vol 36 (4) ◽  
pp. 121-124
Author(s):  
Ossama Abdelgawwad

The premise of the adaptability, flexibility, and compatibility of Islamic normative teachings (sharīʿa) to new social contexts is already documented by many scholars, including John Bowen’s On British Islam: Religion, Law, and Everyday Practice in Shari‘a Councils and Michael G. Peletz’s Islamic Modern: Religious Courts and Cultural Politics in Malaysia. Unlike those works, this textbook is organized by theme which provides a unique contribution to our understanding of the overall function of contemporary Islamic law. Such an approach shows that the ‘right’ answer in one country is not necessarily the ‘right’ solution in another Muslim community, which explains the diverse application of Islamic law. The book challenges Wael Hallaq’s observation that the modern codification of Islamic law resulted in the absence of hermeneutical possibilities or led to a single mode of judicial application. Perhaps Hallaq’s proposition is accurate if we examine the function of Islamic law in a specific country. Nevertheless, the book provides concrete examples of the administrative and interpretive techniques of ‘neo-ijtihād’ today. To download full review, click on PDF.


2019 ◽  
Vol 1 (1) ◽  
pp. 13-24
Author(s):  
Nizmah Nizmah

The noble Qur'an has explained the laws of inheritance, the conditions of each heir with a sufficient explanation, where no one among humans escapes the inheritance or inheritance. Because the Qur'an is the backing in establishing the law and the extent of its parts. And very few are determined based on Sunnah or ijma. there is no position of nonMuslim children on inheritance in compilation of Islamic law. While the Religious Court is a court that has the authority to examine and try inheritance disputes for people who are Muslim. Thus, if there is a dispute over inheritance issues between children of Muslims and non-Muslims, it must be resolved through the Religious Courts. Formulation of the problem in this study is how the position of non-Muslim children on the inheritance of Islamic heirs is reviewed from the Compilation of Islamic Law. with literature analysis it means that the author takes data based on existing literature. Based on the results of the study, according to the Compilation of Islamic Law dividing inheritance to the entitled heirs is the obligation of heirs to the heir to be implemented after the heirs have carried out other obligations as contained in. The position of nonMuslim children on the inheritance of Islamic heirs based on Islamic law does not obtain inheritance from the inheritance of their parents. According to the Compilation of Islamic Law as in the case of the Religious Court, it shows that the position of non-Islamic children on inheritance from the inheritance of the property of their parents does not receive the right inheritance, but based on the Religious High Court, get a section called "Wasiah Wajibah".


2019 ◽  
Vol 1 (1) ◽  
pp. 13-24
Author(s):  
Nizmah Nizmah

The noble Qur'an has explained the laws of inheritance, the conditions of each heir with a sufficient explanation, where no one among humans escapes the inheritance or inheritance. Because the Qur'an is the backing in establishing the law and the extent of its parts. And very few are determined based on Sunnah or ijma. there is no position of nonMuslim children on inheritance in compilation of Islamic law. While the Religious Court is a court that has the authority to examine and try inheritance disputes for people who are Muslim. Thus, if there is a dispute over inheritance issues between children of Muslims and non-Muslims, it must be resolved through the Religious Courts. Formulation of the problem in this study is how the position of non-Muslim children on the inheritance of Islamic heirs is reviewed from the Compilation of Islamic Law. with literature analysis it means that the author takes data based on existing literature. Based on the results of the study, according to the Compilation of Islamic Law dividing inheritance to the entitled heirs is the obligation of heirs to the heir to be implemented after the heirs have carried out other obligations as contained in. The position of nonMuslim children on the inheritance of Islamic heirs based on Islamic law does not obtain inheritance from the inheritance of their parents. According to the Compilation of Islamic Law as in the case of the Religious Court, it shows that the position of non-Islamic children on inheritance from the inheritance of the property of their parents does not receive the right inheritance, but based on the Religious High Court, get a section called "Wasiah Wajibah".


AL- ADALAH ◽  
2021 ◽  
Vol 17 (2) ◽  
pp. 317-334
Author(s):  
Andi Sukmawati Assad ◽  
Baso Hasyim

This study analyzes the results of ijtihad among the judges of the Religious Courts, particularly in the Palopo, Masamba, and Makassar Religious Courts in resolving cases of disputes over the inheritance rights of boys and girls in the Muslim community. Its main purpose is to analyze their method of ijtihad including the legal basis they apply in checking legal facts. This study uses a descriptive-analytic method supported by sociological, normative, and religious approaches. The results of the study concluded that the judges at the Palopo, Makassar, and Masamba Religious Courts have reconstructed the provisions of inheritance law in the Qur’an and the Islamic Law Compilation through their ijtihad. This is indicated by their decision in many cases, among others, to give all inheritance assets to daughters, whereas in the Qur’an and the Islamic Law Compilation the inheritance rights for girls have been determined as ½ a portion. Likewise their decision regarding the ratio of inheritance rights between boys and girls, which in the Qur’an, Hadith, and the Compilation of Islamic Law is determined to be 2: 1, reconstructed to be 1: 1; the decision to give 1/3 of the inheritance property to the adopted child through a grant or a wasiyat wajibah (will) mechanism, as well as inheritance rights to grandchildren as a substitute for the position of the father or mother.              


2021 ◽  
Vol 21 (1) ◽  
pp. 89-112
Author(s):  
Siti Muniroh ◽  
Khoiruddin Nasution

Islam is a religion that regulates everything in the life of Muslims. No exception in the case of adoption, the jurisdiction of the court up to the adoption of a minor. in the case of child adoption. Today, Islam applies limitations in some matters, such as the prohibition of lineage, the establishment of non-mahram relationships to the issue of inheritance and guardianship. In addition to that field, there is the authority of the judge in the Religious Court to be ijtihad to determine the best decision for the child of the findings as the extent of its authority is based on Law No. 3 of 2006 on Religious Justice. The purpose of this study is to analyze how the legal impact on the adoption status of the findings based on the rationale maqasidus syar'i and its relevance to the development of Islamic law. Research methods use the study of literature through its sources of reference through primary law, both derived from religious sources and from positive legal sources that apply in Indonesia. In addition, the researcher used jurisprudence from the relevant judicial decisions used.The results of this research are (1) through the approach of maqasid al shari'ah doruriyah that children (including children of discovery) must be protected their rights, both their right to life (an nafs) and their intellect (al aql), the right of lineage, religion, as well as paying attention to his rights, including his right to obtain the obligatory will/right of inheritance from the parents who raised him (al maal), (2) The legal impact is, the child is found as a person, he is an orphan so the religious treatment is the same as an orphan. While the adopted child then the legal status can be assessed through recognition by the adoptive parents such as the child of guardianship, then the adopted child has the right to be guarded by his adoptive parents due to the absence of a lineage guardian. (3) While the relevance to the development of Islamic law is that in maintenance (other than the issue of lineage and inheritance), then the child has the same protection and education status of both adoptive parents. There is a need for efforts from various related parties to prioritize the benefits to protect from unwanted things and save the lives of children.


2018 ◽  
Vol 2 (1) ◽  
pp. 1
Author(s):  
Nita Triana

This study aims to describe and analyze the Judge Progressiveness in the case of a �divorce �related �to domestic violence. The principle of law governing civil judges is passive, in reality this principle creates difficulties for women (wives) victims of domestic violence to achieve justice. The research method used is �non-doctrinal tradition with a socio-legal approach, and qualitative descriptive analysis. The results of the study illustrate. Religious Courts Judges as one of the law enforcers are very potential to seek justice for victims of domestic violence, the majority of whom are women, because many cases of domestic violence ended in divorce cases in the Religious Courts. But the consideration of the religious Court Judge in deciding the case of a divorce petition �is not yet progressive, the Judge still adheres to the principle of law, that the Civil Judge is passive. So that when the Plaintiff (Wife) does not demand income and compensation from her husband. The Plaintiff (Wife) as a victim of domestic violence will not get a living idah, mut'ah, maskan, kiswah and any compensation from the Defendant (Husband). Religious Court Judges have not yet explored other relevant legislation, including progressive religious texts that favor women as victims of domestic violence to strengthen the building of their arguments. Whereas in the case of divorce by talak, the Judge views the law in book in his legal considerations �by giving protection to the wife, namely by giving the wife the right to earn a living Idah, Mutah (a living for one year to entertain the wife divorced by her husband), maskan and kiswah, according with what is stipulated in the Marriage Law and the Compilation of Islamic Law. The paradigm of the operation of the Judge in a country with a pluralistic culture such as Indonesia, it's time to change to a more progressive direction, Judge is no longer limited to the existence of a mouth that sounds the sentence of the law ( le judge est uniquenment la bouche qui pronance le most de lois) Judge also not tools designed to be logical and work mechanically, but whole people who have sensitivity to humanitarian and social concerns. Progressive judges learn and are good at making interpretations that are not literal (connotative), and have a high sense of empathy to be able to catch social norms that contextually support each prescription of the Act. The holistic understanding of the judges has the potential to provide justice for women victims of domestic violence.


2021 ◽  
Vol 24 (2) ◽  
pp. 156-192
Author(s):  
Mus'ab Yusoff ◽  
Nur Sarah Tajul Urus ◽  
'Umair Yusoff ◽  
Mohamad Fauzi Md Thahir ◽  
Siti Nurul Husna Othman ◽  
...  

The issue of sustainability of ijtihad and fatwas to elaborate on polemics of indirect contributions in matrimonial property claims has become an important issue today. The selection of the right ijtihad and fatwa will ensure that critical discussions in this matter can be photographed to a knowledgeable society. There are many findings of jurisprudence writing that stated the main methods in ijtihad and fatwas used by fuqahak of the past and contemporary to draw interesting discussions on this issue, but in the context of indirect contributions in matrimonial property claims, there is still much to be clarified. The main objective of this study is to find out the method of ijtihad and fatwa in the book of fiqh applied by the jurists in this issue. This study is qualitative in which a total of 20 books of turath have been researched and understood descriptively. The main collection methods used were in-depth reading and analysis and narrative evaluation was used to analyze the findings obtained. The results of the analysis prove that the indirect contribution related to housework and outdoor work, can be done Akad al-Ijarah for the wife is eligible to take a certain wage according to the jumhur view. It relates to the limited amount that is still pending payment and is included in the matrimonial property. The study also found that indirect contributions related to outdoor work as well, can be done Akad Syarikat al-Abdan according to the view of the school of al-Hanafiyyah and can be associated with the amount of profits that grow and put into matrimonial property. In addition, the Islamic Family Law Enactment also does not specify in detail the conditions of property ownership as determined by Islamic law. This study suggests that a guideline can be translated into the minds of the Muslim community in Malaysia continuously to ensure that this polemic can be clarified and the benefits to be fought for can be maintained. Abstrak Isu kelestarian ijtihad dan fatwa untuk merungkai polemik dan menyantuni permasalahan sumbangan tidak langsung dalam tuntutan harta sepencarian telah menjadi isu penting pada hari ini. Pemilihan ijtihad dan fatwa yang tepat akan memastikan perbincangan secara kritis dalam hal ini dapat dipotretkan kepada masyarakat yang cakna ilmu. Terdapat banyak dapatan penulisan ilmu fiqah yang menyatakan kaedah utama dalam ijtihad dan fatwa yang digunakan fuqahak zaman silam dan kontemporari untuk melakar perbincangan yang menarik dalam isu yang diketengahkan ini, namun begitu dalam konteks sumbangan tidak langsung dalam tuntutan harta sepencarian, masih banyak yang perlu diperjelaskan. Objektif utama kajian ini ialah untuk mengetahui kaedah ijtihad dan fatwa di dalam kitab fiqah yang diaplikasikan oleh para fuqahak dalam isu ini. Kajian ini berbentuk kualitatif di mana sejumlah 20 buah kitab turath telah diteliti dan difahami secara deskriptif. Kaedah pengumpulan utama yang digunakan ialah pembacaan dan analisis mendalam dan penilaian naratif telah digunakan untuk menganalisis dapatan yang diperoleh. Hasil analisis membuktikan bahawa sumbangan tak langsung yang berkait dengan hal ehwal rumah dan diluarnya, boleh dilakukan Akad al-Ijarah untuk si isteri layak mengambil upah tertentu mengikut pandangan jumhur. Ia berkaitan dengan jumlah terhad yang masih tertangguh pembayarannya dan dimasukkan ke dalam harta sepencarian. Kajian juga mendapati bahawa sumbangan tak langsung yang berkait dengan kerja luar rumah juga, boleh dilakukan Akad Syarikat al-Abdan mengikut pandangan mazhab al-Hanafiyyah dan boleh dikaitkan dengan jumlah keuntungan yang berkembang dan dimasukkan ke dalam harta sepencarian. Selain itu, Enakman Undang-Undang Keluarga Islam juga tidak mengkhususkan secara terperinci syarat-syarat pemilikan harta yang ditentukan oleh hukum syarak. Kajian ini mencadangkan supaya satu garis panduan dapat diterjemahkan dalam minda masyarakat Islam di Malaysia secara berterusan untuk memastikan polemik yang berkecamuk ini dapat diperjelaskan dan terjaga kemaslahatan yang ingin diperjuangkan.  


Al-'Adl ◽  
2021 ◽  
Vol 14 (1) ◽  
pp. 44
Author(s):  
Rosdalina Bukido ◽  
Fitriani Lundeto ◽  
Yasin Yasin

Relaas call is one of the most important instruments in court proceedings. Without a call, the presence of the parties in the Court has no legal basis. Relaas Summons in the Civil Procedure Code is categorized as authentic deeds. Relaas did not convey to the parties in the litigation. The Respondent did not know about the trial schedule and the claim him, which resulted in the Respondent or Defendant losing the right to answer or defend himself against the plaintiffs' demands or the applicants. This study examines the Relaas summons' effectiveness through the Kelurahan in divorce cases at the Bitung Religious Court. Through field research with a qualitative descriptive approach using data mining techniques, observation, interviews, and documentation. The results prove that the Relaas concept in Islamic Law is contained in KHI Article 131, Articles 138 s.d. Article 140. Likewise, the Relaas image in positive Law is included in the Herzien Indlandsch Reglement or abbreviated as HIR and Rechtsreglement Voor de Buitengewesten, which are Civil Procedural Laws for areas outside Java and Madura. or abbreviated as RBg. The implementation of Relaas summons through the kelurahan was not effective in four cases, namely Case Number 55 / Pdt.G / 2018 / PA Bitg, Case Number 91 / Pdt.G / 2019 / PA Bitg, Case Number 0061 / Pdt.G / 2017 / PA Bitg and Case Number 0150 / Pdt.G / 2017 / PA. However, official and proper elements have subsequently been fulfilled.


2020 ◽  
Vol 17 (1) ◽  
pp. 56-69
Author(s):  
Aishath Muneeza ◽  
Zakariya Mustapha

Limitations of action designate extent of time after an event, as set by statutes of limitations, within which legal action can be initiated by a party to a transaction. No event is actionable outside the designated time as same is rendered statute-barred. This study aims to provide an insight into application and significance of Limitations Act 1950 and Limitation Ordinance 1952 to Islamic banking matters in Malaysia as well as Shariah viewpoint on the issue of limitation of action. In conducting the study, a qualitative research methodology is employed where reported Islamic banking cases from 1983 to 2018 in Malaysia were reviewed and analysed to ascertain the application of those statutes of limitations to Islamic banking. Likewise, relevant provisions of the statutes as invoked in the cases were examined to determine possible legislative conflicts between the provisions and the rule of Islamic law in governing the right and limitation of action in Islamic banking cases under the law. The reviewed cases show the extent to which statutes of limitations were invoked in Malaysian courts in determining validity of Islamic banking matters. The limitation provisions so referred to are largely sections 6(1)(a) and 21(1) Limitations Act 1953 and section 19 Limitation Ordinance 1953, which do not conflict with Shariah viewpoint on the matter. This study will prove invaluable to financial institutions and their customers alike in promoting knowledge and creating awareness over actionable event in the course of their transactions.


2018 ◽  
Vol 13 (1) ◽  
pp. 70-88
Author(s):  
Mohd Faez Mohd Shah ◽  
Norhidayah Pauzi

In the discipline of Islamic law research, strong proofing and clear Istinbat method are key pillars in the construction of Islamic law based on the application of the science of usul al-fiqh and maqasid al-shari'ah. However, what happens at the state of Johor’s fatwa institution is the opposite. The fatwa research methods applied by the Fatwa Committee of Johor in resolving current fatwa issues is not based on the right and true discipline of Islamic law research. In fact, current inputs related to fatwa issues are not explicitly stated in the method of determining the law either in the form of reality or scientifically verified. Therefore, this paper will discuss the fatwa procedures undertaken by the Fatwa Committee of Johor based on the methods applied in resolving current issues. The research methodology adopted is library and interview methods. This study shows that fatwa management and production in the state of Johor is placed under the jurisdiction of the Mufti of Johor’s Department. The methods adopted by the Fatwa Committee of Johor covers two methods, namely: internal research methods including literature review through the application of original source and proofs based on syarak. Second: field research method that includes an external review or going to the location of study such as conducting observation, questionnaires and interviews including referrals to specialists of different fields. Maslahah and mafsdah consideration are also implemented by the Fatwa Committee in every fatwa decision based on the standard that meets the interests of maqasid al-shari'ah. Keywords: Metode, fatwa, istinbat, usul al-fiqh, maqasid al-shari’ah ABSTRAK Dalam disiplin penyelidikan hukum Islam, kekuatan pendalilan dan kaedah istinbat yang jelas merupakan tunggak utama dalam pembinaan hukum Islam berasaskan kepada aplikasi ilmu usul al-fiqh dan maqasid al-shari’ah. Namun begitu, apa yang berlaku di institusi fatwa negeri Johor adalah sebaliknya. Kaedah penyelidikan fatwa yang diaplikasi oleh Jawatankuasa Fatwa Negeri Johor dalam menyelesaikan isu fatwa semasa tidak berasaskan kepada disiplin penyelidikan hukum Islam yang tepat dan sebenar. Malahan input-input semasa yang berkaitan dengan isu fatwa juga tidak dinyatakan secara jelas dalam kaedah penentuan hukum sama ada dalam bentuk realiti yang berlaku atau pembuktian secara saintifik. Justeru, kertas kerja ini akan membincangkan prosedur fatwa Jawatankuasa Fatwa Negeri Johor berdasarkan metode-metode yang diaplikasi dalam menyelesaikan isu-isu yang bersifat semasa. Metodologi kajian yang digunakan dalam kajian ini adalah melalui metode perpustakaan dan metode lapangan. Hasil kajian menunjukkan bahawa pengurusan dan pengeluaran fatwa di negeri Johor hanya terletak di bawah bidang kuasa Jabatan Mufti Johor. Metode fatwa yang diamalkan oleh Jawatankuasa Fatwa Negeri Johor merangkumi dua metode iaitu pertama, kaedah penyelidikan dalaman yang merangkumi kajian kepustakaan menerusi pengaplikasian dari sumber asas dan dalil-dalil syarak. Kedua, kaedah penyelidikan lapangan yang meliputi kajian luaran atau turun ke lokasi kajian seperti observasi, soal selidik dan temubual dan rujukan kepada pakar dalam bidang yang berlainan. Pertimbangan maslahah dan mafsdah juga dimplementasikan oleh Jawatankuasa Fatwa dalam setiap keputusan fatwanya berasaskan standard yang menepati kepentingan maqasid al-shari’ah. Kata kunci: Metode, fatwa, istinbat, usul al-fiqh, maqasid al-shari’ah


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