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.

Vaterschaftstests zwischen religiösem Recht und Medizintechnik: Abstammungsklagen im algerischen Familienrecht

2018 ◽  
Vol 58 (2) ◽  
pp. 173-205
Author(s):  
Melanie Guénon
Keyword(s):  
Supreme Court ◽  
Dna Analysis ◽  
Islamic Law ◽  
Family Law ◽  
Genetic Technology ◽  
Legal Practice ◽  
The Supreme Court ◽  
Family Code ◽  
Code Reform ◽  
Court Practice

This article examines the 2005 Algerian family law regulations concerning paternity and the use of DNA tests in Algerian paternity disputes. Specifically, it analyzes the relation between the methods of establishing and negating paternity recognized in Islamic law and the available genetic technology.
On the basis of three judgments of the Supreme Court, the present legislation as well as legal practice in Algeria is scrutinized. The article concludes that the Algerian legislator hesitates to dissolve the conflict between genetic technology and the recognized types of evidence of Islamic law. For now, court practice remains ‘traditional’ since judges might feel too much responsibility facing unclear regulations regarding paternity. Nevertheless, the Algerian family code reform offers the opportunity to use DNA-tests to establish nasab for both legitimate and illegitimate children. Due to unclear regulations it also paved the way to use DNA-analysis for paternity negation.*


scholarly journals إشكالية انتهاء كفالة الطفل في قانون الأسرة والقضاء الجزائري

2021 ◽  
Vol 9 (1) ◽  
pp. 153-167
Author(s):  
Halima Mechouet ◽  
Asma Akli Soualhi
Keyword(s):  
Child Support ◽  
Islamic Law ◽  
Family Law ◽  
Difficult Situation ◽  
Judicial Decisions ◽  
The Supreme Court ◽  
The Family ◽  
The Subject ◽  
Family Code ◽  
Child Sponsorship

Abstract in English: In the article 46, the Algerian Family Code stipulates the following: "Adoption is prohibited by both the Sharia and Law". Therefore, it is clearly understood that the interdiction of adoption doesn’t contradict the Islamic law (Sharia). But due - on one hand - to the confusion in Algerian society with regard to the conception of adoption with all its consequences, and on the other hand the difficult situation of many abandoned children and the suffering of many families who are not blessed with the fertility or the capacity of reproduction, the Algerian legislature has been forced to find solutions to such difficult cases. Therefore, a child support legislation (guardianship or sponsorship) has been established under the following Articles 116 and 125 of the Family Code. The study was based on the Algerian laws on the issue of the termination of child sponsorship and applied by the Algerian judiciary. The problem of the study is to know the cases of termination of child sponsorship in the Algerian family law, and the position of the Algerian judiciary on this issue. This study aims to mention the cases in which the sponsorship of the child ends in the Algerian family law, and to discuss some of the Algerian judicial decisions issued by the Supreme Court, related to the subject of the study in question. The study relied on the analytical method, in order to analyze legal texts and discuss judicial decisions. The study concluded that the Algerian family law stipulated some cases in which the sponsorship of the child ends, and neglected to mention other cases.   Abstract in Arabic: لقد نص المشرع الجزائري في المادة 46 من قانون  الأسرة على  ما يلي: "يمنع التبني شرعا وقانونا".يتضح من تحليل هذه المادة أن المشرع منع الآخذ بنظام التبني تماشياً مع أحكام الشريعة الإسلامية. لكنه، ونظرا للمشاكل المترتبة على قضية التبني في المجتمع الجزائري من أخذ وردو كذلك بالنسبة للوضعية الصعبة لبعض الأطفال المهملين، وكذا معاناة بعض الأسر التي لا تنعم بالإنجاب، التجأ المشرع الجزائري إلى حل يتجلى في الكفالة، فنظم أحكامها في المواد من 116 إلى 125 من قانون الأسرة. استندت الدراسة إلى القوانين الجزائرية الخاصة بموضوع انتهاء كفالة الطفل والمطبقة  من طرف القضاء الجزائري. تتمثل إشكالية الدراسة في معرفة حالات انتهاء كفالة الطفل في قانون الأسرة الجزائري، وموقف القضاء الجزائري من هذه المسألة. تهدف هذه الدراسة إلى ذكر الحالات التي تنتهي بها كفالة الطفل في قانون الأسرة الجزائري،ومناقشة بعض القرارات القضائية الجزائرية الصادرة عن المحكمة العليا،والمتعلقة بموضوع الدراسة محل البحث. لقد اعتمدت الدراسة على المنهج التحليلي، وذلك من أجل  تحليل النصوص القانونية ومناقشة القرارات القضائية. لقد توصلت الدراسة إلى أن  قانون الأسرة الجزائري نص على بعض الحالات التي تنتهي بها كفالة الطفل،وأغفل عن ذكر الحالات الأخرى

scholarly journals The Maqāṣid Analysis on the Nafkah Iddah of Divorce Lawsuit in the Compilation of Islamic Law (KHI) Article 149 (b) and the Supreme Court Verdict Number 137/K/AG/2007

2020 ◽  
Vol 1 (1) ◽  
pp. 91
Author(s):  
Julia Julia
Keyword(s):  
Supreme Court ◽  
Islamic Law ◽  
Legal Basis ◽  
Additional Finding ◽  
The Supreme Court

This article examines the nafkah iddah of divorce lawsuit in the Islamic Law Compilation (KHI) Article 149 (b) and the verdict issued by the Supreme Court Number 137/K/AG/2007. It also analyses their legal basis based on the Jasser Auda’s maqāṣid al-sharī’ah approach concerning the preservation of life and treasure. The primariy objective of this article is to find the main differences between the KHI and the Verdict in determining the nafkah iddah of divorce suit. Although some scholars have concerned about the case of nafkah iddah, the Jasser Auda’s maqāṣid al-sharī’ah approach seems to be rare to be dealt with the case. Accordingly, the maqāṣidi approach will be mainly utilised in order to consider the effectiveness of both the KHI and the Verdict. This article finds that the KHI states that a wife who applies for a divorce is considered disloyal. As a consequence, she is undeserving of receiving nafkah iddah. The additional finding is that the Verdict decides that in the case of the divorce filled by the ex-wife, it brings a responsibility for the former husband to pay the nafkah iddah. From the perspective of maqāṣid al-sharī’ah, this article argues that the implementation of the Verdict gains better benefit rather than the KHI, because the legal basis evolved for the nafkah iddah of divorce suit is in line with the maqāṣid principles of the preservation of life and property. In the particular case, the principles tend to protect the ex-wife’s safety and welfare after the divorce.

scholarly journals Islamic Law Perspective on Settlement of Inheritance Disputes

2021 ◽  
Vol 3 (1) ◽  
pp. 15-27
Author(s):  
Arsyam Arsyam ◽  
Siti Musyahidah ◽  
Malkan Malkan
Keyword(s):  
Supreme Court ◽  
Dispute Resolution ◽  
Islamic Law ◽  
Analysis Method ◽  
High Court ◽  
Normative Approach ◽  
The Supreme Court ◽  
The Family ◽  
Review Study ◽  
Religious Courts

This study discusses the process of inheritance dispute resolution in the Religious Court of Palu City.  This study is a literature review study. While the approach used in this study is a normative approach, which is based on the texts of the Qur'an, Al-Hadith and a juridical approach, which is based on the compilation of Islamic law and the Law of Religion Court authority. This research data analysis method uses an inductive pattern, which is an analysis that departs from concrete facts or events in the decisions of the Religious Courts even to the Supreme court then general conclusion was drawn. This research is descriptive-analytical in nature, namely research that seeks to describe the process of resolving inheritance disputes in the Palu city religious court . Then in the analysis, the researcher tried to find the Islamic law perspective on the settlement of inheritance disputes.  The results showed that the process of inheritance dispute resolution is the same as other litigation processes through the stage of registration entered into the head of the court then the head of the court determines 3 judges in handling the case of inheritance dispute. The distribution of inheritance at the Palu Religious Court  carried out through a consensus by going through several stages in the trial channel. In that stage, it included the Palu Religious Court, then appealed to the high court until the end of the case of inheritance reached the Supreme Court. This is done in order to maintain the mutual benefit of the family suing each other.

scholarly journals Antara Hukum Islam dan Adat; Sistem Baru Pembagian Harta Warisan

2020 ◽  
Vol 5 (2) ◽  
pp. 166-180
Author(s):  
Fatahuddin Aziz Siregar
Keyword(s):  
Supreme Court ◽  
Islamic Law ◽  
Field Research ◽  
Customary Law ◽  
Total Change ◽  
Positive Law ◽  
The Supreme Court ◽  
The Status ◽  
Using Data ◽  
Adat Law

The South Tapanuli community adopts a patrilineal kinship system so that women do not get inheritance, even if there is acquisition of property, women receive it not in their capacity as heirs but in the form of holong ni ate as confirmed in the Supreme Court Jurisprudence number 506K / Sip / 1968 dated January 22, 1969 However, on the other hand the Tapsel community underwent a process of Islamization that was quite deep, so that the customary law of South Tapanuli was also influenced by positive law including Jurisprudence which gave heir to girls later issued by the Supreme Court number 528K / Sip / 1972 dated 17 January 1973. This rule makes the practice of distributing the assets of Tapsel's community inheritance also shifts no longer according to the full provisions of adat law.This paper focuses on answering the factors that cause the shift in Batak customary inheritance in Tapsel, how the form of Batak adat inheritance shifts in Tapsel, and how the role of Islamic law in the shifting Batak customary inheritance in Tapsel. To answer this, use descriptive-analytical field research using data collection techniques in the form of observations and interviews with traditional leaders, religious leaders, judges and the community who carry out the distribution of inheritance.From this search, the authors found that the practice of inheritance in Tapsel society has shifted from adat inheritance caused by two factors, namely, First, the factor of Islamic law because Tapsel people have understood Islam well and run it in various fields of life including in the distribution of inheritance. Given that there are dozens of Islamic education institutions in Tapsel according to the author has given a pretty good understanding of Islamic law. So in general it can be said, that this change is a consequence of the Islamization process experienced by the Tapsel people. Second, is the factor of higher power or positive law because until now the community still believes that only the Religious Courts as a place to solve the problem of inheritance to obtain legal certainty.The shift to adat inheritance occurs in several patterns. The first pattern is a total change from customary form to division according to faraid, this pattern occurs in areas that are fairly Islamic, namely the Mandailing Natal region, although of course there are some people who divide in a way that is not consistent in carrying out Islamic law. The second pattern is to carry out adat law, namely in communities that are relatively strict with adat, namely in the Padang Lawas and Sipirok regions, in this area many cases seem to have carried out faraid formally but the substance still reflects the spirit of adat law. The third pattern, namely the way of division which is a combination of Islamic law and customary law, which is a fairly moderate community in the Angkola region.Islamic law has contributed by shifting the implementation of customary law to Islamic law. People who according to customary law do not receive inheritance become heirs who receive a certain portion. At first the mother did not count as an heir, then given a part 1/3 or 1/6. Istdri initially did not get any portion of the inheritance then received 1/4 or 1/8. Girls initially only have the status of olong ate, then receive a relatively large portion, which is 1/2 or 2/3.

scholarly journals Hak Bantuan Hukum Prodeo dalam Hukum Islam dan Hukum Nasional

2020 ◽  
Vol 22 (1) ◽  
pp. 179-196
Author(s):  
Muhammad Salda ◽  
Sanusi Bintang ◽  
Teuku Muttaqin Mansur
Keyword(s):  
Supreme Court ◽  
Research Methods ◽  
Islamic Law ◽  
Legal Assistance ◽  
Legal Counsel ◽  
Legal Aid ◽  
The Supreme Court

Penelitian ini bertujuan untuk menganalisis perbedaan hak bantuan hukum dalam konsep hukum Islam dan hukum nasional. Bantuan hukum dalam hukum nasional ditujukan bagi mereka yang tidak mampu membayar penasihat hukum. Penelitian ini menggunakan metode penelitian yuridis empiris. Berdasarkan hasil penelitian ditemukan bahwa pemberian hak bantuan hukum prodeo dalam hukum Islam dan hukum nasional mempunyai tujuan yang sama yaitu mewujudkan keadilan. Terdapat perbedaan pada sumber hukumnya. Hukum Islam bersumber pada al-Quran, Hadits, dan ijtihad. Sumber hukum nasional adalah UUD 1945, Undang-Undang Nomor 16 Tahun 2011 tentang Bantuan Hukum. Sumber dana bantuan hukum dalam hukum Islam dari baital mal. Sedangkan dalam hukum Nasional bersumber dari anggaran Mahkamah Agung dan APBA. Letak perbedaan pada sumber hukum keduanya, sumber pembiayaan dari pemenuhan hak bantuan hukum prodeo dan dalam hal kategori orang-orang yang menerima bantuan hukum prodeo, namun mempunyai tujuan yang sama yaitu perwujudan keadilan. Prodeo Legal Aid in Islamic Law and National Law This study aims to analyze the differences between the legal aid rights in the concept of Islamic law and national law. Legal aid in national law is aimed at those who cannot afford legal counsel. This research uses empirical juridical research methods. The study found that the granting of prodeo legal aid in Islamic law and national law had the same goal of realizing justice. There is a difference in the legal source. Islamic law is based on the Al-qur’an, Hadith and ijtihad. However, national legal sources are the 1945 Constitution and Law Number 16/2011 concerning Legal Aid. The source of funding for legal aid in Islamic law comes from Baital Mall. Whereas in National law sourced from the budget of the Supreme Court and APBA. Although there are differences in legal sources, sources of financing and differences in the categories of people who receive prodeo legal assistance, both have the same goal of realizing justice.

22. A Revolution by Due Process of Law?

2021 ◽  
pp. 613-648
Author(s):  
Ian Loveland
Keyword(s):  
European Union ◽  
Supreme Court ◽  
Due Process ◽  
Final Part ◽  
Court Decisions ◽  
The European Union ◽  
Legal Basis ◽  
High Court ◽  
The Supreme Court ◽  
Due Process Of Law

This chapter analyses the conduct and constitutional implications of the United Kingdom’s proposed withdrawal from the European Union. The chapter begins by examining the legal basis, conduct, and result of the withdrawal referendum. The chapter then assesses the High Court and Supreme Court decisions in the first of the two Miller judgments. It continues with a discussion on the extreme positions of ‘hard brexit’ and ‘soft brexit’ and the assesses the significance of the results of the unexpected 2017 general election. The chapter goes on to examine the European Union (Withdrawal) Act 2018 and the subsequent fall of the May government and its replacement by an administration led by Boris Johnson. In the final part of the chapter the Miller (No 2) and Cherry litigation and its political aftermath are discussed in full, with a particular focus laid on the controversial way in which the Supreme Court deployed the notion of ‘justiciability’ in its judgment in Miller (No 2).

The South Confronts the Court: The Southern Manifesto of 1956

2008 ◽  
Vol 20 (1) ◽  
pp. 126-142 ◽  
Author(s):  
Anthony Badger
Keyword(s):  
North Carolina ◽  
South Carolina ◽  
Supreme Court ◽  
Use Of Force ◽  
Judicial Power ◽  
Legal Basis ◽  
The South ◽  
The Supreme Court

On Monday, March 12, Georgia's senior senator, Walter George, rose in the Senate to read a manifesto blasting the Supreme Court. The Manifesto condemned the “unwarranted decision” of the Court in Brown as a “clear abuse of judicial power” in which the Court “with no legal basis for such action, undertook to exercise their naked judicial power and substituted their personal political and social ideas for the established law of the land.” The signers pledged themselves “to use all lawful means to bring about a reversal of this decision which is contrary to the Constitution and to prevent the use of force in its implementation.” It was signed by nineteen of the twenty-two southern senators, by every member of the congressional delegations from Alabama, Arkansas, Louisiana, Mississippi, South Carolina, and Virginia, by all but one of the representatives from Florida, all but one from Tennessee, all but three from North Carolina, and half of the Texas delegation.

scholarly journals Nils Eberhard Svedelius, 1873-1960

1961 ◽  
Vol 7 ◽  
pp. 294-312
Keyword(s):  
Supreme Court ◽  
16Th Century ◽  
Small Scale ◽  
Government Officials ◽  
Supreme Court Justice ◽  
Army Officers ◽  
The Supreme Court ◽  
The Family ◽  
Old Swedish ◽  
High Government

Nils Svedelius came of old Swedish stock. His first known ancestor was one Nils Andersson, a farmer in the parish of Leksand in Dalecarlia, who lived in the middle of the 16th century. In the early 17th century one of his grandsons entered holy orders and became vicar of Rattvik parish. In those days, small-scale farming was an important side activity for country parsons. During his tenure, a good piece of land belonging to the parsonage and known as Sveden was brought under the plough, and from this place his grandchildren took the family name Svedelius. From them all the bearers of the name are descended, among them many prominent citizens, high government officials, army officers, merchants and teachers, the most widely known being the historian Vilhelm Erik Svedelius (1816-1889), still something of a legendary figure in the academic annals of Uppsala. But as far as is known to the present writer, none of them ever took any special interest in natural history. Only one of them, the man whose life and work are the object of this article, became a man of science. Nils Eberhard Svedelius was born in Stockholm on 5 August 1873, the second son of Supreme Court Justice Carl Svedelius, L.L.D., and of his wife Ebba Katarina, who came of the old noble family Skytte af Satra. Nils’s elder brother studied law and, like his father, became a Justice of the Supreme Court of Sweden.

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