WAKAF TUNAI

Waqf as the way to worship Allah is also as a great potential asset for moslem. This great potential is empowered by various management innovation. Cash Wakaf that has been developed in several countries, in fact, be able to strengthen the economics of Moslem society. In the perspective of Moslem scholars”, not all of them agree with cash waqf. Although there is a different opinion about cash waqf, the majority of them legalized it. Either Hanafi or Maliki legalized cash waqf. Furthermore Hambali Moslem scholar also accept cash waqf and the other is not, while mazhab Syafi’iyah generally does not allow the practice of cash waqf. In the context of Indonesian Law. Law number 41, 2004 legalizes cash waqf, or valuable letter. This article discusses and analyzes cash waqf management at PPPA (The program for children who learn Quran by heart) with the analysis from the perspective of Islamic law and positive law No. 41, 2004. Based on the result of the research, it can be stated that cash money management at PPPA has been relevant with both of the approach of the law, and those developed cash waqf programs included educational institution, health, religion, and society needs services, that recently can reach hundreds of billions.

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PEMBANGUNAN EKONOMI DALAM TINJAUAN MAQASHID SYARI’AH

Dialog ◽

10.47655/dialog.v36i1.76 ◽

2013 ◽

Vol 36 (1) ◽

pp. 31-46

Author(s):

Ali Rama ◽

Makhlan Makhlan

Keyword(s):

Islamic Law ◽

Educational Institution ◽

The Other ◽

Money Management ◽

Management Innovation ◽

Positive Law ◽

The Law ◽

The Way

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REKONSTRUKSI IJTIHĀD DALAM ILMU UṢŪL AL-FIQH

Al-Ahkam ◽

10.21580/ahkam.2012.22.2.9 ◽

2012 ◽

Vol 22 (2) ◽

pp. 161

Author(s):

Rokhmadi Rokhmadi

Keyword(s):

Islamic Law ◽

The Other ◽

Basic Principles ◽

The Law ◽

The Way

Al-Qur’an and Sunnah, needs of understanding and extracting optimally, so that the contents of law can be applied for the benefit of people. The way- to understand and to extract the contents in these two sources- called ijtihād. Thus, ijtihād is needed on istinbāṭ of law from many arguments of the texts (naṣ), eventhough it is qaṭ’ī in which the uṣūliyyūn have agreed that it is not the area for re-extracting to the law (ijtihādiyyah). The problem in this case is that even a qaṭ’ī argument according to the most of uṣūliyyūn has not been qaṭ’ī argument in the other uṣūliyyūn opinion. Reconstruction of ijtihād becomes an alternative, with some considerations: First, weight and tightening the requirements to become a mujtahid, which is almost impossible controlled by someone at the present time; Second, the increasing complexity of the problems faced by the ummat which is very urgent to get the solution; Third, let the period without ijtihād (vacuum of mujtahid) is contrary to the basic principles of Islamic law are always sāliḥ li kulli zamān wa makān. This paper present to discuss further about the urgency of the reconstruction of ijtihād in the challenge of modernity.***Al-Qur<ins cite="mailto:hasan" datetime="2015-02-17T11:11">’</ins>an maupun <ins cite="mailto:hasan" datetime="2015-02-17T11:11">s</ins>unnah sangat membutuhkan pemahaman dan penggalian secara optimal agar isi kandungan hukumnya dapat diterapkan bagi kemaslahatan umat. Cara untuk menggali dan mengeluarkan isi kandungan yang ada dalam kedua sumber tersebut dinamakan ijtihād. Ijtihād sangat dibutuhkan pada setiap isti<ins cite="mailto:muthohar" datetime="2015-01-29T05:30">n</ins><del cite="mailto:muthohar" datetime="2015-01-29T05:30"></del>bāṭ hukum dari dalil naṣ, sekalipun dalil naṣ tersebut bersifat qaṭ'ī yang oleh para uṣūliyyūn sudah disepakati tidak menjadi wilayah untuk dijitihadi lagi. Permasalahannya adalah bahwa sesuatu dalil naṣ yang sudah bersifat qaṭ'ī sekalipun oleh sebagian besar uṣūliyyūn, belum tentu dipandang qaṭ'ī oleh sebagian uṣūliyyūn yang lain. Rekonstruksi ijtihād menjadi sebuah alternatif, dengan beberapa pertimbangan: Pertama, berat dan ketatnya persyaratan-persyaratan menjadi seorang mujtahid, yang hampir tidak mungkin dikuasai oleh seseorang pada masa sekarang; Kedua, semakin kompleksnya permasalahan yang dihadapi oleh ummat yang sangat mendesak untuk mendapatkan solusi; Ketiga, membiarkan satu periode tanpa ijtihād (kevakuman mujtahid) adalah bertentangan dengan prinsip dasar hukum Islam yang selalu sāliḥ li kulli zamān wa makān. Tulisan ini hadir untuk mendiskusikan lebih jauh tentang urgensi rekonstruksi ijtihād dalam menghadapi tantangan modernitas.***Keywords: ijtihād, qaṭ'ī, ẓannī, uṣūl al-fiqh

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فلسفة العقوبة في الشريعة الإسلامية والقانون الوضعي عرض وموازنة Exposition and Comparison of the Philosophy of Punishment in Islamic and Positive Laws

Journal of Islam in Asia (E-ISSN: 2289-8077) ◽

10.31436/jia.v9i1.330 ◽

2012 ◽

Vol 9 (1) ◽

Author(s):

عبد المجيد قاسم عبد المجيد (Qasim Abdulmajid) ◽

محمد ليبا (Liba)

Keyword(s):

Islamic Law ◽

The Other ◽

Penal System ◽

Human Beings ◽

New School ◽

Positive Law ◽

Other Hand ◽

Philosophy Of Punishment ◽

Emerging Issues

تناولت هذه الورقة فلسفة العقوبة في الشريعة الإسلامية، وفلسفتها في القانون الوضعي، وتمت الموازنة بين الفلسفتين، وخلص العرض والموازنة إلى نتائج ملخصها أن مسألة عصمة الشريعة وسموها تعد علامة فارقة بين الشريعة الإسلامية والقانون الوضعي، هذه العلامة نتج عنها فروق كثيرة أولها أن العقوبة في التشريع الوضعي تكون تابعةً للهدف، فالهدف يوضع أولاً ثم تصاغ على ضوئه العقوبة، ولذلك كلما ظهرت مدرسةٌ جديدةٌ تؤسس لفكرٍ جديدٍ ظهر اختلافٌ في التشريع العقابي. بينما النظام العقابي الإسلامي ثابتٌ ومعصوم، وقد وُجدت الحاجة إلى معرفة أهدافه وفلسفته ليتسنى السير على مقتضاها فيما يستجد من وقائع، وأن سمو فلسفة العقوبة في الشريعة الإسلامية ينبع من سمو مصدرها، فواضع هذه العقوبات هو خالق البشر. بينما العقوبة في القانون الوضعي تعتمد في فلسفتها على خبرة واضعيها، وهي خبرة محدودة وأحكامها نسبية، لذا كان تطبيق العقوبات الشرعية أجدر حتى وإن لم يُدرَك كنه هذه العقوبات وفلسفتها. الكلمات الرئيسية: فلسفة العقوبة، القانون الإسلامي، القانون الوضعي، التشريع العقابي.******************************In this paper light is shed on the philosophy of punishment in Islamic and positive laws and a comparison between them is accomplished. In brief, the conclusion of the exposition and comparison is that issue of infallibility of SharÊ‘ah and its nobleness are the distinguishing marks between Islamic and positive laws. This led to further differences. The first difference is that the punishment in positive laws is in accordance with the stipulated goal, that is, the goal is set first and then the punishment is formulated in that light. That is why whenever any new school of thought appears based on some ideology, differences emerge in punitive legislation. Islamic penal system is, however, immutable and infallible. There is a need to know its objectives and wisdom so as to in order to tackle new emerging issues. The nobility of the philosophy of punishment in Islamic law stems from the nobility of its source and that is no one but the Creator of human beings. The punishment in the positive law, on the other hand, relies on the philosophy that is based on the experiences of the authors of these laws. And these experiences are limited and their rulings are relativistic. Applying Islamic legal punishments are, therefore, more legitimate, even though their essence and philosophy are not fully grasped.Key words: Philosophy of Punishment, Islamic Law, Positive Law, Punitive Legislation.

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Voices of Spectators and Audience Power

Pólemos ◽

10.1515/pol-2015-0017 ◽

2015 ◽

Vol 9 (2) ◽

Author(s):

Christian Biet

Keyword(s):

Social Relationship ◽

The Other ◽

Long Period ◽

The Social ◽

The Common ◽

Dramatic Action ◽

The Law ◽

The Voice ◽

The Way

AbstractTheatre and law are not so different. Generally, researchers work on the art of theatre, the rhetoric of the actors, or the dramaturgy built from law cases or from the questions that the law does not completely resolve. Trials, tragedies, even comedies are close: everybody can see the interpenetration of them on stage and in the courts. We know that, and we know that the dramas are made with/from/of law, we know that the art the actors are developing is not so far from the art of the lawyers, and conversely. In this paper, I would like to have a look at the action of the audience, at the session itself and at the way the spectators are here to evaluate and judge not only the dramatic action, not only the art of the actors, not only the text of the author, but also the other spectators, and themselves too. In particular, I will focus on the “common judgment” of the audience and on its judicial, aesthetic and social relationship. The spectators have been undisciplined, noisy, unruled, during such a long period that theatre still retains some prints of this behaviour, even if nowadays, the social and aesthetic rule is to be silent. But uncertainty, inattention, distraction, contradiction, heterogeneity are the notions which characterise the session, and the judgments of the spectators still depend on them. So, what was and what is the voice of the audience? And with what sort of voice do spectators give their judgments?

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

Britain International of Humanities and Social Sciences (BIoHS) Journal ◽

10.33258/biohs.v3i1.395 ◽

2021 ◽

Vol 3 (1) ◽

pp. 224-231

Author(s):

Yasir Nasution ◽

Alyasa’ Abubakar ◽

Kafrawi

Keyword(s):

Data Collection ◽

Islamic Law ◽

Legal Research ◽

Government Regulations ◽

Theoretical Concepts ◽

Positive Law ◽

Islamic Jurisprudence ◽

The Law ◽

Research Show

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

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The Science of Comparative Law

The Cambridge Law Journal ◽

10.1017/s0008197300127618 ◽

1939 ◽

Vol 7 (1) ◽

pp. 94-110 ◽

Cited By ~ 7

Author(s):

M. Schmitthoff

Keyword(s):

Comparative Method ◽

Comparative Law ◽

The Other ◽

Definite Function ◽

Special Study ◽

Legal Systems ◽

Legal Problem ◽

Positive Law ◽

Legal Science ◽

The Law

In the course of the recent revival of the study of Comparative Law, repeated attempts have been made to define the nature and province of this branch of the law. Some writers maintain that Comparative Law represents a method of study rather than a department of legal science. They point to the fact that the technique of comparing different legal systems can be employed in almost every branch of the law and that Comparative Law, unlike the branches of positive law, does not fulfil a definite function in the life of society. In particular, writers on jurisprudence and history such as J. Bryce, Holland and Professor Jenks are inclined to subscribe to this view. Among the jurists who have made a special study of Comparative Law, Professor Gutteridge and Professor Kaden are strongly in favour of this view. Professor Gutteridge says: ‘The comparative method lends itself to the study of any branch of legal learning.’ According to Professor Kaden, it is the province of Comparative Law to disclose the points of agreement and difference in the solution which is provided by several legal systems for the same legal problem. The learned writer denies, however, that it is the function of Comparative Law to found a system of legal abstractions on the results of factual comparison. On the other hand, a number of students of Comparative Law consider their subject as a special branch of the science of law. Professor Saleilles, Professor Lambert and Professor Rabel support this view.

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KEBIJAKAN REHABILITASI TERHADAP PENYALAH GUNA NARKOTIKA PADA UNDANG – UNDANG NOMOR 35 TAHUN 2009 TENTANG NARKOTIKA

Jurnal Magister Hukum Udayana (Udayana Master Law Journal) ◽

10.24843/jmhu.2013.v02.i01.p10 ◽

2013 ◽

Vol 2 (1) ◽

Author(s):

IDA BAGUS PUTU SWADHARMA DIPUTRA

Keyword(s):

Drug Abuse ◽

Drug Users ◽

Theoretical Foundation ◽

Journal Writing ◽

Secondary Data ◽

Drug Addicts ◽

Legal Research ◽

Positive Law ◽

The Law ◽

The Way

Positive law states, drug users are criminals because it has met the qualifications in the law of narcotics, narcotic offenses such as drug abuse in the study of criminology can be classified as a crime without a victim or a victimless crime. This is because they will become dependent on illicit goods (narcotics), the way it deems appropriate to cure the addiction is to rehabilitate the victims of drug abuse For law journal writing, the writer uses normative legal research with one character is using secondary data, where the data consists of primary legal materials, legal materials and secondary legal materials tertiary. And the theoretical foundation that is used is the law, norms and theories appropriate to the problem The results reveal the writing on the rehabilitation policy on Narcotics has been strictly regulated in Chapter IX legislation, policies were aimed at drug addicts and victims of drug abuse, arguing that victims of drug abuse is a victim of crime narcotics and therefore the appropriate sanctions to be meted out to him is the rehabilitation of the victims will be able to return to society and become useful

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Some Legal Aspects of Non-judicial Foreclosure in Case of Default on Credit Contract in Vietnam

Asian Social Science ◽

10.5539/ass.v12n6p34 ◽

2016 ◽

Vol 12 (6) ◽

pp. 34

Author(s):

Thuy Thi Thu Le ◽

Tuan Minh Do

Keyword(s):

Legal Aspects ◽

Positive Law ◽

Self Help ◽

The Law ◽

Credit Contract ◽

The Way

This paper aims to present the authors’ examination of some aspects of Vietnam’s positive law regarding non-judicial foreclosure. Upon default, a bank as a secured creditor may enforce his security right over the collateral that is understood as foreclosure. Foreclosure includes judicial foreclosure and non-judicial foreclosure. In the way of non-judicial foreclosure, a secured creditor can take possession and dispose the secured property without a court’s involvement. So, it may save the secured creditor time and cost. The law governing the non-judicial foreclosure should not only provide the efficient mechanics of self-help repossession but also protections to a grantor. It should be examined whether Vietnamese law meets this requirement. By this study, some drawbacks and shortages of Vietnamese law in relation to non-judicial foreclosure are exposed and then some recommendations for improvement of positive law of Vietnam governing the exercise of the non-judicial foreclosure are presented.

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Human rights in Muslim law: current issues

Legal horizons ◽

10.21272/legalhorizons.2021.i26.p12 ◽

2021 ◽

pp. 12-16

Author(s):

I.I. Maryniv ◽

K.R. Malik

Keyword(s):

Human Rights ◽

Legal System ◽

Skin Color ◽

Islamic Law ◽

Social Background ◽

Positive Law ◽

Muslim Countries ◽

General Principles Of Law ◽

The Law ◽

Islamic Society

The article is devoted to the study of the peculiarities of the legal system of Muslim countries. The author analyzes the essence of the concept of human rights and freedoms in Muslim law, as well as comparative characteristics with the Western legal system. The general principles of law in the Muslim system, due to the peculiarities of its historical formation, establish the criteria of conformity of positive law to the values of a particular society, limiting the action of a law to generally accepted moral criteria. It is noted that certain aspects of Sharia have different meanings for followers of Islam and those who do not adhere to this faith. In a ratio religious and secular rules of conduct operate differently. The author points out that in the theory of Muslim law, all people are equal regardless of their social background, skin color or language. It also speaks of the equality of all before the law and the court, but in practice a completely different situation arises. The article analyzes the disrespect for women's rights and the fact that women are essentially unprotected in Islam. It is noted that human rights, which should be universal in nature, were neglected by delegates to the 1993 UN Human Rights Conference in Vienna. In view of this, Islamic society is faced with the question: either Islam and Sharia, or democracy and human rights. At the same time, no explanation was given as to why one should be chosen over the other. The author proposes to gradually incorporate Muslim law into the law of Western countries, but only with respect for the national and cultural peculiarities of the East. It also highlights the importance of developing categories of human rights in the Muslim legal system, taking into account the standards of the Western concept of human rights and conducting a detailed study of Islamic law, rather than simply adding Western notions of natural human rights to Muslim law.

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Identifying ‘Illat through Munasabah in Islamic Law: A Perspective of Imam Al-Ghazali

SAMARAH Jurnal Hukum Keluarga dan Hukum Islam ◽

10.22373/sjhk.v5i2.10914 ◽

2021 ◽

Vol 5 (2) ◽

pp. 598

Author(s):

Khairuddin Hasballah ◽

Andi Darna ◽

Wardana Said ◽

Hajarul Akbar ◽

Ihdi Karim Makinara ◽

...

Keyword(s):

Legal History ◽

Islamic Law ◽

Analytical Tool ◽

The Other ◽

Legal Research ◽

Other Hand ◽

History Approach ◽

The Way

This study discusses the way in determining ‘illat through the munasabah method proposed by Imam al-Ghazali in the perspective of Islamic law. The study focuses on two main problems: the identification of ‘illat through munasabah and the legal formulation to utilize hikmat to obtain ‘illat according to al-Ghazali. This normative legal research used a legal history approach as an analytical tool to examine the Islamic scholars’ thoughts on concepts, theories and ways of doing istinbath. The study concluded that according to al-Ghazali there are three kinds of munasabah in determining ‘illat, consisting of munasib mu’atstsir, munasab mula’im, and munasib gharib. In munasib mu’atstsir, there is no issue found in seeking ‘illat because the ‘illat is understood directly from the nash or ijma’. Therefore, munasabah is no longer needed in the determining ‘illat. Here, the munasabah method focuses on munasib mula’im and munasib gharib in identifying ‘illat. Munasib mula’im seeks for the genus ‘illat, an ‘illat drawn from every event that has been predetermined by the nash, by examining the same hikmah in each of the events. Such hikmah is then used as the genus ‘illat which will later be applied as qiyas for other events that have been legally stipulated by the nash. On the other hand, munasib gharib seeks for the species ‘illat, an ‘illat obtained from an event that has been predetermined by the nash, with no comparison found in other events. ‘Illat determined from munasib gharib is also hikmah, having no concrete nature. In the perspective of legal history, this method of seeking ‘illat is inseparable from kalam and philosophy as was the development of the Islamic sciences at the time. As such, this had also affected al-Ghazali’s mastery in Islamic law as well as in other Islamic disciplines.

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