The Relevance of the Theory of Legal Change According to Ibnu Qayyim Al-Jauziyyah in Legal Products by Fatwa DSN-MUI Indonesia

ABSTRACTThe study described the relevance of the theory of legal change according to Ibnu Qayyim al-Jauziyyah to the legal product of the fatwa DSN-MUI (Fatwa National Sharia Board-Indonesian Council of Ulama) in Indonesia. It used a qualitative research method with a literary approach. The conclusions showed that the relevance of the theory of legal change proposed by Ibn Qayyim al-Jauziyyah has been applied explicitly in every legal product of the fatwa DSN-MUI in Indonesia. That seen in every legal product, always give the way for future changes following the needs and problems faced. Changes to Islamic legislation products have significant differences. On laws and regulations and judges' decisions, new legal products will cancel or revoke the previous legal. And, for the legal product of a fatwa from the National Syari'ah Board (DSN-MUI), the newly legal product will complete the previous one. However, legal changes will always occur in the context of providing legal certainty, accompanied by the level of benefit for people's lives.Keywords: Legal Changes, Ibn Qayyim, Products of Islamic Law.ABSTRAKPenelitian ini menjelaskan tentang relevansi teori perubahan hukum menurut Ibnu Qayyim al-Jauziyyah terhadap produk hukum fatwa DSN-MUI di Indonesia. Artikel ini menggunakan metode penelitian kualitatif yang bersifat kepustakaan. Hasil penelitian menunjukkan bahwa relevansi teori perubahan hukum yang digaungkan oleh Ibnu Qayyim al-Jauziyyah sudah diberlakukan secara eksplisit dalam setiap produk hukum fatwa DSN-MUI di Indonesia. Hal itu dapat dilihat dalam setiap batang tubuh produk hukum yang selalu membuka jalan untuk adanya perubahan dikemudian hari sesuai dengan kebutuhan dan problematika yang dihadapi. Perubahan terhadap produk hukum Islam memiliki perbedaan yang signifikan. Bagi peraturan perundang-undangan dan putusan hakim, ketentuan hukum baru akan membatalkan/mencabut ketentuan hukum sebelumnya. Sedangkan terhadap ketentuan hukum berupa fatwa Dewan Syari’ah Nasional (DSN-MUI), ketentuan hukum baru akan menyempurnakan ketentuan hukum sebelumnya. Namun sejatinya perubahan hukum akan selalu terjadi dalam rangka menciptakan produk hukum yang dapat memberikan kepastian hukum disertai pencapaian tingkat kemaslahatan bagi kehidupan masyarakat.Kata Kunci: Perubahan Hukum, Ibnu Qayyim, Produk Hukum Islam.

How to Represent the Silent Environment? An Update on Germany’s Struggle to Implement Article 9 (3) of the Aarhus Convention

With Germany’s signature to the Aarhus Convention in 1998, the country committed to strengthening the legal position of environmental Non-Governmental Organisations (eNGOs). Since, traditionally, in Germany, “public interest litigation” was legally impossible, the country had to consider fundamental changes to its system of judicial review. More than 20 years later, the German implementation of Article 9(3) of the Aarhus Convention (ac) has seen several amendments, but is still cause for controversy. Despite Germany’s prolonged efforts to adapt its legislation, there are, currently, two admitted complaints concerning Germany’s system of legal standing of eNGOs waiting for a (final) decision by the ac Compliance Committee, while several cjeu judgments have clarified the much-needed interpretation of Article 9(3) ac particularly also in view of the notion of effective judicial protection. These developments, together with scholarly criticism, indicate a need for further legal change in the German approach.

PROBLEM OPSTANKA BRAKA NAKON PRAVNE PROMENE POLA JEDNOG OD SUPRUŽNIKA

By its decision in case Goodwin v. United Kingdom (2002), The European Court of Human Rights has established positive obligation of states parties to find appropriate means of achieving legal recognition of one’s gender reassignment in the context of the right to protection of private life. Under the direct influence of the mentioned judgement, Constitutional Court of Serbia was deciding on constitutional complaint of a transsexual in 2012 and made the decision that administrative authorithies dealing with civil status registry have subject-matter jurisdiction to enter gender reassignment data in birth records. After, The Law on Civil Records was amended in 2018 enabling adoption of by-law act that esentially involves substantial requirements for legal recognition of preferred gender in birth records. Hence, it is possible for a transsexual to have his/her preferred gender legally recognized during the marriage. Since domestic law still does not allow same-sex marriages, the issue of such marriage survival may arise when both spouse accept legal gender reassignment deciding not to break up their marriage bond. The problem of marriage survival after legal gender reassignment in states that have enabled same-sex marriage is part of legal history. However, for legislations that insist on the heterosexual idea of marriage, these cases give rise to legal difficulties. The historical-legal and comparative-legal approach indicate that after the legal change of gender during the marriage, the values of marriage and the right to gender identity are viewed as opposites. In this regard, a transgender person is required to sacrifice marriage or to renounce his or her right to gender identity. However, the law of Serbia on this issue is, to put it mildly, indefinite. Thus, on the one hand, the Serbian Constitution supports the heterosexual view of marriage, while on the other hand it guarantees the freedom of divorce and the inviolability of human dignity. At the same time, the existing rules on the conditions for legal gender reassignment do not regulate the question of the fate of such a marriage. At the same time, within the framework of the domestic legal order, there is no direct legal means by which the mentioned same-sex marriage would end against the will of the spouses. Ultimately, there is a dilemma as to whether the preservation of the institution of marriage can be insisted on at the expense of the will of the spouses as individuals. According to domestic law, a legal change of gender in the birth records occurs on the basis of a constitutive administrative act of the municipal or city administration responsible for keeping the civil records. The mentioned administrative act determines the gender reassignment on the basis of the certificate of the appropriate health institution. The effect of gender reassignment is tied to the date of the decision of the administrative body and is valid for the future. Thus, a legal change of gender does not affect the parental relationship that may have been previously established between the person who legally changed the gender and the child. Therefore, imposing the termination of a marriage after a legal reassignment of gender of one of the spouses cannot be acceptable. However, as marital status is only one segment of the legal status of transgender persons, it is necessary to enact a special law that would regulate their legal status and eliminate problems that may arise in practice. In the case of a possible procedure for assessing constitutionality and legality, the decision of the Constitutional Court of Germany from 2008 should serve as a guide for the Constitutional Court of Serbia. According to this decision, the marriage would remain valid even after the legal change of gender of one of the spouse until the special legislation that would determine the manner of exercising the right to gender identity is adopted in cases when spouses do not want divorce.

Sources of Law

Oddly enough, very scant reference—if any—is made to the sources of law as a genuinely jurisprudential topic in contemporary legal philosophy. Yet, the jurisprudential import of the concept of ‘sources of law’ seems substantial: sources of law are what makes of something ‘a law’—a law is what is produced by, or derives from, a source of law. Sources epitomize the very ‘positivity’ of positive law, an aspect of law which is central to legal positivism of course, but whose importance not even a natural lawyer or an anti-positivist would ever deny. This essay highlights several jurisprudential questions that surround the sources of law, and tries to show they relate to–and contribute to illuminate–many long-debated jurisprudential topics such as the concept of legal validity, the notion and the conditions of existence of a legal system, the problem of legal change, and the scope of legal disagreements.

Marriage and Silences

This chapter assesses Fawwaz’s writings on marriage, divorce, and family life, 1892‒1900. In stand-alone essays and a long-running debate with a customs official, published in the journal Fursat al-awqat, Fawwaz addressed the exploitation of late versions of Islamic fiqh (jurisprudence) and its hadith sources, and the fiction of the Islamic basis of extreme seclusion, as patriarchal mechanisms to keep women subordinate and unhappy in marriage. It assesses the reformist views of Muhammad ‘Abduh while arguing that Fawwaz focused less on legal change and more on the prevalence of misogynistic views in the marital relationship that maintained the hegemony of patriarchal social organization. In her debate with Husayn Fawzi, Fawwaz used logic, arguments from history, and knowledge of Islamic sources to reject his understanding of gender, based on his reading of the creation story, Qur’an, and hadith, and medieval marriage manuals. This debate centred on marriage but went beyond it to explore Islamic understandings of gender difference.