Pub Date : 2022-08-16DOI: 10.14421/al-mazaahib.v10i1.2495
Afifah Syawie
This study discusses the comparative study of positive law and Islamic law on hybrid contracts in Islamic banks. The main problem is reviewing Positive and Islamic Laws on Hybrid Contracts in Islamic Banks. This article is a research library (Library Research). The data source for this article comes from the journals and books relevant to this discussion. The results of the research of this article indicate that a Multi contract or joint contract, or Hybrid Contract (al-'Uqud al-Murakkabah) is the application of two or more contracts in one transaction as a single transaction that is inseparable from each other. Sharia Bank is a Bank based on Islamic law, based on the Qur'an and Hadith. All products and services offered must not conflict with the contents of the Qur'an and Hadith. Hybrid contracts originate from a contract and develop and change. As a development, the hybrid contract has fulfilled the requirements for forming a contract with the elements and pillars of a hybrid contract similar to the elements and pillars of a Sharia contract. The hybrid contract element in Islamic banking follows the principles of contract and the provisions of Islamic law and is allowed in Islamic banking.
{"title":"Studi Komparatif Hukum Positif dan Hukum Islam Terhadap Hybrid Contract Pada Bank Syariah","authors":"Afifah Syawie","doi":"10.14421/al-mazaahib.v10i1.2495","DOIUrl":"https://doi.org/10.14421/al-mazaahib.v10i1.2495","url":null,"abstract":"This study discusses the comparative study of positive law and Islamic law on hybrid contracts in Islamic banks. The main problem is reviewing Positive and Islamic Laws on Hybrid Contracts in Islamic Banks. This article is a research library (Library Research). The data source for this article comes from the journals and books relevant to this discussion. The results of the research of this article indicate that a Multi contract or joint contract, or Hybrid Contract (al-'Uqud al-Murakkabah) is the application of two or more contracts in one transaction as a single transaction that is inseparable from each other. Sharia Bank is a Bank based on Islamic law, based on the Qur'an and Hadith. All products and services offered must not conflict with the contents of the Qur'an and Hadith. Hybrid contracts originate from a contract and develop and change. As a development, the hybrid contract has fulfilled the requirements for forming a contract with the elements and pillars of a hybrid contract similar to the elements and pillars of a Sharia contract. The hybrid contract element in Islamic banking follows the principles of contract and the provisions of Islamic law and is allowed in Islamic banking.","PeriodicalId":375931,"journal":{"name":"Al-Mazaahib: Jurnal Perbandingan Hukum","volume":"29 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-08-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124112271","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-05-07DOI: 10.14421/al-mazaahib.v10i1.2483
A. Gafur
This article attempts to answer two questions regarding the concept of wasiat wajibah: first, what is the background of KHI Article 209 concerning wasiat wajibah and the reason of Supreme Court extends the concept of wasiat wajibah to non-Muslim relatives and stepchildren; second, how are the similarities and differences between wasiat wajibah in the KHI and the Supreme Court's decision. This article is a qualitative research using data sourced from the literature. The data obtained then analyzed using a descriptive-comparative approach. The results of the discussion shows that wasiat wajibah in the KHI is motivated by Islamic law, customary law and in order to provide legal certainty and bridging legal differences between Islamic law and customary law related to adoption law. As for the wasiat wajibah in the Supreme Court Decision, which is given to non-muslim relatives to fill a legal vacuum, on the basis that judges may not reject cases that have no law or are unclear. The difference between wasiat wajibah in the KHI and the Supreme Court's decision is in terms of the recipient of wasiat wajibah. According to KHI, it is intended for adopted children and adoptive parents with a maximum of 1/3 of the inheritance. Meanwhile, the Supreme Court's decision can be applied to non-muslim relatives and stepchildren. They get a share of muslim heirs based on wasiat wajibah as much as the share of muslim heirs on an equal footing, a maximum of one third or a maximum of 1/3 of the inheritance.
{"title":"Analisis Konsep Wasiat Wajibah dalam KHI dan Putusan MA","authors":"A. Gafur","doi":"10.14421/al-mazaahib.v10i1.2483","DOIUrl":"https://doi.org/10.14421/al-mazaahib.v10i1.2483","url":null,"abstract":"This article attempts to answer two questions regarding the concept of wasiat wajibah: first, what is the background of KHI Article 209 concerning wasiat wajibah and the reason of Supreme Court extends the concept of wasiat wajibah to non-Muslim relatives and stepchildren; second, how are the similarities and differences between wasiat wajibah in the KHI and the Supreme Court's decision. This article is a qualitative research using data sourced from the literature. The data obtained then analyzed using a descriptive-comparative approach. The results of the discussion shows that wasiat wajibah in the KHI is motivated by Islamic law, customary law and in order to provide legal certainty and bridging legal differences between Islamic law and customary law related to adoption law. As for the wasiat wajibah in the Supreme Court Decision, which is given to non-muslim relatives to fill a legal vacuum, on the basis that judges may not reject cases that have no law or are unclear. The difference between wasiat wajibah in the KHI and the Supreme Court's decision is in terms of the recipient of wasiat wajibah. According to KHI, it is intended for adopted children and adoptive parents with a maximum of 1/3 of the inheritance. Meanwhile, the Supreme Court's decision can be applied to non-muslim relatives and stepchildren. They get a share of muslim heirs based on wasiat wajibah as much as the share of muslim heirs on an equal footing, a maximum of one third or a maximum of 1/3 of the inheritance.","PeriodicalId":375931,"journal":{"name":"Al-Mazaahib: Jurnal Perbandingan Hukum","volume":"127 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-05-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127085507","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-01-13DOI: 10.14421/al-mazaahib.v9i2.2420
Ajeng Risnawati Sasmita
Restorative justice in conflict resolution is an effort to resolve between criminals and victims of crime in criminal cases directly. More specifically, restorative justice seeks a way out by considering the good for all parties, be it for the perpetrator, the victim, or the victim's family. This article defines the basic concept of applying the Restorative Justice Policy as the settlement of criminal cases in the Electronic Information and Transaction Law. This article is a qualitative research using a conceptual normative approach. Data were collected through literature study, then analyzed using a data reduction process, data presentation and conclusion drawing. The application of Restorative Justice as a settlement of criminal cases as regulated in the legislation concerning Electronic Information and Transactions (UU ITE) is deemed appropriate considering that in the settlement of criminal cases, investigators must have the principle of prioritizing restorative justice in case settlement, and criminal law is the last resort that can be used. carried out as an effort to enforce the law (ultimum remidium), as stated in the Circular Letter Number: SE/2/11/2021 and the Chief of Police's Telegram Letter No. ST/339/II/RES.1.1.1./2021. With the process of returning to its original state (peace between the two parties), then criminal cases can be resolved and there is no need to continue the process in the judicial process.
{"title":"Restorative Justice Policy as Criminal Settlement in The Law of Information and Electronic Transaction (ITE)","authors":"Ajeng Risnawati Sasmita","doi":"10.14421/al-mazaahib.v9i2.2420","DOIUrl":"https://doi.org/10.14421/al-mazaahib.v9i2.2420","url":null,"abstract":"Restorative justice in conflict resolution is an effort to resolve between criminals and victims of crime in criminal cases directly. More specifically, restorative justice seeks a way out by considering the good for all parties, be it for the perpetrator, the victim, or the victim's family. This article defines the basic concept of applying the Restorative Justice Policy as the settlement of criminal cases in the Electronic Information and Transaction Law. This article is a qualitative research using a conceptual normative approach. Data were collected through literature study, then analyzed using a data reduction process, data presentation and conclusion drawing. The application of Restorative Justice as a settlement of criminal cases as regulated in the legislation concerning Electronic Information and Transactions (UU ITE) is deemed appropriate considering that in the settlement of criminal cases, investigators must have the principle of prioritizing restorative justice in case settlement, and criminal law is the last resort that can be used. carried out as an effort to enforce the law (ultimum remidium), as stated in the Circular Letter Number: SE/2/11/2021 and the Chief of Police's Telegram Letter No. ST/339/II/RES.1.1.1./2021. With the process of returning to its original state (peace between the two parties), then criminal cases can be resolved and there is no need to continue the process in the judicial process.","PeriodicalId":375931,"journal":{"name":"Al-Mazaahib: Jurnal Perbandingan Hukum","volume":"30 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-01-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133756035","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-12-18DOI: 10.14421/al-mazaahib.v9i2.2388
Mohammad Ghaffar Amrullah, Malik Ibrahim
This article explains the concept of establishment of the sakinah family according to the perspective of Hamka and Quraish Shihab. This is a qualitative research which utilizes data sourced from literature. This article shows that according to Hamka, modern Sufism can be used as a solution to achieve a happy family in this world and the hereafter, regardless of the stigma that marriage is only to have children. Sufism does not only mean zuhud which is lonely, away from the world normally, but must actively work. As for the meaning of zuhud according to Hamka, is ready to be poor, rich, and to not have any penny, and on the other hand, being willing to become a millionaire, but wealth does not the cause of forgetting God, and neglecting the obligations. This is in line with the concept that taught by Islam, that Islam advocates the spirit to fight, the spirit of sacrifice and work not to be lazy. According to Quraish Shihab, The presence of sakinah does not just come, but there is a condition for its presence, the heart must be prepared with patience and piety.
{"title":"Sakinah Family Establishment in The Modern Era from The Perspectives of Hamka and Quraish Shihab","authors":"Mohammad Ghaffar Amrullah, Malik Ibrahim","doi":"10.14421/al-mazaahib.v9i2.2388","DOIUrl":"https://doi.org/10.14421/al-mazaahib.v9i2.2388","url":null,"abstract":"This article explains the concept of establishment of the sakinah family according to the perspective of Hamka and Quraish Shihab. This is a qualitative research which utilizes data sourced from literature. This article shows that according to Hamka, modern Sufism can be used as a solution to achieve a happy family in this world and the hereafter, regardless of the stigma that marriage is only to have children. Sufism does not only mean zuhud which is lonely, away from the world normally, but must actively work. As for the meaning of zuhud according to Hamka, is ready to be poor, rich, and to not have any penny, and on the other hand, being willing to become a millionaire, but wealth does not the cause of forgetting God, and neglecting the obligations. This is in line with the concept that taught by Islam, that Islam advocates the spirit to fight, the spirit of sacrifice and work not to be lazy. According to Quraish Shihab, The presence of sakinah does not just come, but there is a condition for its presence, the heart must be prepared with patience and piety.","PeriodicalId":375931,"journal":{"name":"Al-Mazaahib: Jurnal Perbandingan Hukum","volume":"62 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-12-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125193781","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-12-18DOI: 10.14421/al-mazaahib.v9i2.2414
Muhammad Hudan Dardiri
This article discusses the controversies emerged as a result of the the MUI Fatwa on Gafatar. The data of this article is gathered through series of literature review, and is analysed using descriptive analysis method. The aim of this study is, to examine the MUI fatwa from the perspectives of Farid Esack’s hermeneutic liberation and Derrida’s concept of deconstruction. The comparative between liberation hermeneutic and deconstruction on dissecting Gafatar heretical fatwa which is issued by the Indonesian Council of ‘ulama (MUI) are purposed to see how different views can just happen among the society. As one of the citizen of the big heterogeneous nation (Indonesia), it is important to understand well those differences among people in order to have the wise respond toward those differencences. This study shows that Gafatar does not expect the liberation of discrimination, but, Gafatar actually destructs the teaching of Islam; Gafatar’s teachings opposed Esack’s hermeneutical keys;Gafatar is a mere organization that wants to interpret Islam in a different way of interpretation which purposed to fulfill the willingness of freedom from God’s commands; from the perspective of Derrida’s deconstruction theory, MUI gain a domination of truth in interpretation of al-Qur’an which close other’s interpretation.
{"title":"The Fatwa of MUI on Gafatar from The Perspectives of Farid Esack and Jacques Derrida","authors":"Muhammad Hudan Dardiri","doi":"10.14421/al-mazaahib.v9i2.2414","DOIUrl":"https://doi.org/10.14421/al-mazaahib.v9i2.2414","url":null,"abstract":"This article discusses the controversies emerged as a result of the the MUI Fatwa on Gafatar. The data of this article is gathered through series of literature review, and is analysed using descriptive analysis method. The aim of this study is, to examine the MUI fatwa from the perspectives of Farid Esack’s hermeneutic liberation and Derrida’s concept of deconstruction. The comparative between liberation hermeneutic and deconstruction on dissecting Gafatar heretical fatwa which is issued by the Indonesian Council of ‘ulama (MUI) are purposed to see how different views can just happen among the society. As one of the citizen of the big heterogeneous nation (Indonesia), it is important to understand well those differences among people in order to have the wise respond toward those differencences. This study shows that Gafatar does not expect the liberation of discrimination, but, Gafatar actually destructs the teaching of Islam; Gafatar’s teachings opposed Esack’s hermeneutical keys;Gafatar is a mere organization that wants to interpret Islam in a different way of interpretation which purposed to fulfill the willingness of freedom from God’s commands; from the perspective of Derrida’s deconstruction theory, MUI gain a domination of truth in interpretation of al-Qur’an which close other’s interpretation.","PeriodicalId":375931,"journal":{"name":"Al-Mazaahib: Jurnal Perbandingan Hukum","volume":"96 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-12-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127157686","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-12-16DOI: 10.14421/al-mazaahib.v9i2.2387
M. Akmaluddin
Understanding the hadith with different methods may have either the same result or different results, especially between ra’yu and hadith experts. The struggle for authority on understanding hadith makes this study more interesting because it involves understanding hadith itself, differences in schools of thought and which method is more authoritative in practicing a hadith. This paper discusses how Ibn al-Labbād criticized the hadith authority of as-Shafi’ī and the struggle for hadith authority and meaning. This paper uses a qualitative approach with literature review, and content analysis. The object of research in this paper is the work of Ibn al-Labbād (d. 333/944) along with his work in ar-Radd ‘alā as-Shāfi’ī. There are four categories of criticism by Ibn al-Labbād, they are: criticism of definitions, the causes of the appearance of hadith (asbāb al-wurūd), hadiths that are not fit with the verses of the Qur’an and laws that are not found in the hadith. Ibn al-Labbād’s critique of the interpretation of as-Shafi’ī is a proof that hadith text is not limited only to the understanding of the Shafi’ī school. Likewise, what was done by as-Shafi’ī also a proof so that the understanding of hadith is not only dominated and controlled by Malik.
{"title":"Otoritas Pemahaman Hadis Sebagai Sumber Hukum Islam: Kritik Ibn al-Labbād al-Mālikī Kepada asy-Syāfi’ī","authors":"M. Akmaluddin","doi":"10.14421/al-mazaahib.v9i2.2387","DOIUrl":"https://doi.org/10.14421/al-mazaahib.v9i2.2387","url":null,"abstract":"Understanding the hadith with different methods may have either the same result or different results, especially between ra’yu and hadith experts. The struggle for authority on understanding hadith makes this study more interesting because it involves understanding hadith itself, differences in schools of thought and which method is more authoritative in practicing a hadith. This paper discusses how Ibn al-Labbād criticized the hadith authority of as-Shafi’ī and the struggle for hadith authority and meaning. This paper uses a qualitative approach with literature review, and content analysis. The object of research in this paper is the work of Ibn al-Labbād (d. 333/944) along with his work in ar-Radd ‘alā as-Shāfi’ī. There are four categories of criticism by Ibn al-Labbād, they are: criticism of definitions, the causes of the appearance of hadith (asbāb al-wurūd), hadiths that are not fit with the verses of the Qur’an and laws that are not found in the hadith. Ibn al-Labbād’s critique of the interpretation of as-Shafi’ī is a proof that hadith text is not limited only to the understanding of the Shafi’ī school. Likewise, what was done by as-Shafi’ī also a proof so that the understanding of hadith is not only dominated and controlled by Malik.","PeriodicalId":375931,"journal":{"name":"Al-Mazaahib: Jurnal Perbandingan Hukum","volume":"12 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-12-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116891392","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-12-14DOI: 10.14421/al-mazaahib.v9i2.2369
Nail Fadhel Matien
This article defines the difference of ijtihad method used by Yusuf Al-Qaradawi and Wahbah Az-Zuhaili in the legal status of the permission of zakat fitrah payment with money. This article is a qualitative research using data sourced from literature. The data obtained are analyzed using a descriptive-comparative approach. This article shows, that according to Wahbah Az-Zuhaili, based on the jumhur opinion, zakat fitrah must be paid in accordance to the existing text. Meanwhile, Yusuf Al-Qaradawi argues that the payment must be flexible by considering aspects of the benefits that will be received by the poor. Methodologically, Wahbah Az-Zuhaili used qiyās as used in the asy-Syafi'i school. Meanwhile, Yusuf Al-Qaradawi, used the method of Intiqā'i and Insyā'i. This method is used to compare the opinions of scholars, then rated by the aspect of al-muqāranah wa al-muwāzanah. One of the reasons for the determination of staple foods, is, that in ancient times, the use of money as a transaction tool was not popular as it is today. The ever-changing currency value will certainly makes Islamic law (zakat al-fiṭr) not adaptive. However, the value of the benefits of money at this time, can be equated with the benefits of foods in ancient times.
本文界定了优素福·卡拉达维和瓦赫巴·阿兹-祖海利所使用的伊吉提哈德方法在允许用金钱支付天课费的法律地位上的区别。本文采用文献资料进行定性研究。所获得的数据使用描述-比较方法进行分析。这篇文章表明，根据Wahbah Az-Zuhaili根据jumhur的意见，天课费特拉必须按照现有案文支付。与此同时，优素福·卡拉达维(Yusuf Al-Qaradawi)认为，通过考虑穷人将获得的福利的各个方面，支付必须灵活。在方法上，Wahbah Az-Zuhaili使用了与asy-Syafi'i学校相同的qiyās。与此同时，优素福·卡拉达维(Yusuf Al-Qaradawi)使用了intiqi和insyya 'i的方法。这种方法是用来比较学者的意见，然后通过al-muqāranah wa al-muwāzanah方面进行评分。确定主食的原因之一是，在古代，使用货币作为交易工具并不像今天这样流行。不断变化的货币价值肯定会使伊斯兰教法(zakat al-fiṭr)不适应。然而，此时金钱的价值效益，可以等同于古代食物的价值效益。
{"title":"Analisis Ijtihad Hukum Membayar Zakat Fitrah dengan Uang Menurut Yusuf Al-Qaradawi dan Wahbah Az-Zuhaili","authors":"Nail Fadhel Matien","doi":"10.14421/al-mazaahib.v9i2.2369","DOIUrl":"https://doi.org/10.14421/al-mazaahib.v9i2.2369","url":null,"abstract":"This article defines the difference of ijtihad method used by Yusuf Al-Qaradawi and Wahbah Az-Zuhaili in the legal status of the permission of zakat fitrah payment with money. This article is a qualitative research using data sourced from literature. The data obtained are analyzed using a descriptive-comparative approach. This article shows, that according to Wahbah Az-Zuhaili, based on the jumhur opinion, zakat fitrah must be paid in accordance to the existing text. Meanwhile, Yusuf Al-Qaradawi argues that the payment must be flexible by considering aspects of the benefits that will be received by the poor. Methodologically, Wahbah Az-Zuhaili used qiyās as used in the asy-Syafi'i school. Meanwhile, Yusuf Al-Qaradawi, used the method of Intiqā'i and Insyā'i. This method is used to compare the opinions of scholars, then rated by the aspect of al-muqāranah wa al-muwāzanah. One of the reasons for the determination of staple foods, is, that in ancient times, the use of money as a transaction tool was not popular as it is today. The ever-changing currency value will certainly makes Islamic law (zakat al-fiṭr) not adaptive. However, the value of the benefits of money at this time, can be equated with the benefits of foods in ancient times.","PeriodicalId":375931,"journal":{"name":"Al-Mazaahib: Jurnal Perbandingan Hukum","volume":"98 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-12-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133417701","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-11-27DOI: 10.14421/al-mazaahib.v9i1.2367
M. Miski
This article seeks to reveal the differences in the understanding, elements, and criminal sanctions of terrorism between Islamic criminal law and positive law that applies in Indonesia. This article is a qualitative research by utilizing literature as a source. The approach used is normative juridical to analyze data sourced from sources of Islamic law and Indonesian positive law. After being analyzed, the two sources are compared to find similarities and differences regarding criminal acts of terrorism from both perspectives. This article reveals that, in the discourse of Islamic criminal law, terrorism is equated with the concept of jarimah hirabah or acts of violence using weapons, creating fear in the victim, and resulting in the loss of other people's lives. Whereas in positive law, the element of criminal acts of terrorism is the use of violence that creates an atmosphere of terror and fear en masse. Criminal sanctions in Islamic criminal law are: killed and crucified, killed, cut off legs and arms crosswise and imprisoned. Whereas in positive law, the sanction is the death penalty, or imprisonment for a specified period of time.
{"title":"Tindak Pidana Terorisme Dalam Perspektif Hukum Pidana Islam Dan Hukum Positif","authors":"M. Miski","doi":"10.14421/al-mazaahib.v9i1.2367","DOIUrl":"https://doi.org/10.14421/al-mazaahib.v9i1.2367","url":null,"abstract":"This article seeks to reveal the differences in the understanding, elements, and criminal sanctions of terrorism between Islamic criminal law and positive law that applies in Indonesia. This article is a qualitative research by utilizing literature as a source. The approach used is normative juridical to analyze data sourced from sources of Islamic law and Indonesian positive law. After being analyzed, the two sources are compared to find similarities and differences regarding criminal acts of terrorism from both perspectives. This article reveals that, in the discourse of Islamic criminal law, terrorism is equated with the concept of jarimah hirabah or acts of violence using weapons, creating fear in the victim, and resulting in the loss of other people's lives. Whereas in positive law, the element of criminal acts of terrorism is the use of violence that creates an atmosphere of terror and fear en masse. Criminal sanctions in Islamic criminal law are: killed and crucified, killed, cut off legs and arms crosswise and imprisoned. Whereas in positive law, the sanction is the death penalty, or imprisonment for a specified period of time.","PeriodicalId":375931,"journal":{"name":"Al-Mazaahib: Jurnal Perbandingan Hukum","volume":"45 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-11-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121181047","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-09-12DOI: 10.14421/al-mazaahib.v9i1.2292
Lutfiana Dwi Mayasari, Akmal Adi Cahya, Ulfa Wulan Agustina
Indonesia has formulated the regulation of polygamy. Those regulations did not provide a contextual justice, especially towards women, at least if it viewed from some perspective. This research tries to measure the justice on those regulations on Asghar Ali engineer’s perspective of justice. This article is library research which use a normative and qualitative approach along with triangulation as collecting data method. Based on this article discussion, we find a conclusion that Indonesia provides the women/wife a chance to participate in the session process. Indonesia arranged that the wife’s agreement is one of requirement for husband to demand polygamy before the court. Therefore, in the view of Asghar, marriage law of Indonesia respect towards women if it regulation obeyed by the judge. In his view, justice for weak-side is the basis and fundamental teachings of Islam. The justice referred to him, is substantive justice, not just justice in the text.
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Pub Date : 2021-09-12DOI: 10.14421/al-mazaahib.v9i1.2304
Mughni Labib Ilhamuddin Is Ashidiqie
The guardian is one of the pillars that must be fulfilled in marriage contract. In its practice, it is deemed necessary for reconstruction due to the provisions of marriage guardian stipulated in Article 20 Paragraph (1) in Islamic Law Compilation reflect provisions that are gender biased and irrelevant to conventions ratified by the Indonesia government, because only men’s right to be marriage guardian. This article is intended to critically examine the provisions of the guardian of marriage of the Compilation of Islamic Law. This article is a literature study using descriptive-analytical research methods. The subject of this research is women's rights in the concept of marriage guardian. The approach used in the effort to critique and reconstruct women's rights as marriage guardians is the principle of gender justice. This article considers that reconstructing the idea concerning one’s right to become a marriage guardian is not something that is impossible to do. This is because the point by which only men have the right to become marriage guardian was stated by scholars, Syafi'i mazhab, was determined based on the socio-cultural conditions of the community. Back then, women were considered as lesser than men in many terms, and this was of course different from the condition of women today. That is, the parameter in determining the right of a person to be a marriage guardian is the ability to act perfectly. If so, then adult women today can become marriage guardian, as they are currently able to act perfectly (kāmil al-Ahliyyah).
{"title":"Kritik Atas Peraturan Wali Nikah Dalam KHI dan Fikih Perspektif Gender","authors":"Mughni Labib Ilhamuddin Is Ashidiqie","doi":"10.14421/al-mazaahib.v9i1.2304","DOIUrl":"https://doi.org/10.14421/al-mazaahib.v9i1.2304","url":null,"abstract":"The guardian is one of the pillars that must be fulfilled in marriage contract. In its practice, it is deemed necessary for reconstruction due to the provisions of marriage guardian stipulated in Article 20 Paragraph (1) in Islamic Law Compilation reflect provisions that are gender biased and irrelevant to conventions ratified by the Indonesia government, because only men’s right to be marriage guardian. This article is intended to critically examine the provisions of the guardian of marriage of the Compilation of Islamic Law. This article is a literature study using descriptive-analytical research methods. The subject of this research is women's rights in the concept of marriage guardian. The approach used in the effort to critique and reconstruct women's rights as marriage guardians is the principle of gender justice. This article considers that reconstructing the idea concerning one’s right to become a marriage guardian is not something that is impossible to do. This is because the point by which only men have the right to become marriage guardian was stated by scholars, Syafi'i mazhab, was determined based on the socio-cultural conditions of the community. Back then, women were considered as lesser than men in many terms, and this was of course different from the condition of women today. That is, the parameter in determining the right of a person to be a marriage guardian is the ability to act perfectly. If so, then adult women today can become marriage guardian, as they are currently able to act perfectly (kāmil al-Ahliyyah).","PeriodicalId":375931,"journal":{"name":"Al-Mazaahib: Jurnal Perbandingan Hukum","volume":"6 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-09-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131825721","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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