Zina in Consensual Non-Monogamous Relationships: A Comparative Legal Analysis between Indonesian and Islamic Law

Sexual crime case against children’s in Indonesia are increasing rapidly from time to time. The more tragic fact is that most of the suspect origins from their own kin or around the neighborhood, such as family, school officer, and their playmates sphere. According to Indonesian Child Protection Commision (KPAI), there are 2,275 cases occurred on 2011, 887 amongs them are sexual crime case with violent against children. The protection law towards children vastly consist of criminal law aspect, legal law aspect, material-formal law aspect, state administration law aspect, and of course, the legal law aspect. Sexual abuse against children are criminal case which has been coded in criminal law in Indonesia and also viewed theoritically from Islamic criminal law. Therefore, this Thesis is researching about how are the criminal sex cases againts children viewed from criminal law in Indonesia and Islamic criminal law aspect? And also how is the analysis of Law No. 35/ 2014 (Undang-Undang Nomor 35 Tahun 2014) concerning chemichal castration sanction viewed from Islamic Criminal Law? This research categorized as normative law research which pointing to laws and criminal law principal in Indonesia and also Islamic criminal law. This research using comparative-analysis-descriptive method which describe systematically the fact about cases by comparing the research description. This research compare the Indonesian criminal laws principal and Islamic criminal law principal, criminal law formula and Islamic criminal law formula, and also the rules about the chemichal castration sanction to the convicted sex crime againts children in Indonesian criminal law and Islamic criminal law. This research also analize the law no. 33/2014 concerning the sanction specially on the implementation of the law in society. Exclusive study on the Islamic criminal law theory concerning the goverment step on applying the rule, are also executed. There are two points earn from this reearch; the first one is sex crime against children is special crime case. The sanction of the violation arranged in the law no.35/2014 about child protection. In Islamic criminal law (fiqh jinayah) the chemichal castration sanction againts children is in form of jarimah ta’zir. Secondly, in the law no. 35/ 2014 about child protection consist the criminal law aspect, the urgent application about the law is the penal policy which include the protection for the child as the sex crime victim, law enforcement, and justice. The solution for the victim by using Restorative Justice concern measure and the effect againts children as the sexual crime victim. In non penal policy by the role of the parents, family, society, goverment, and the country, on their obligation to protect the child. Chemichal castration sanction studied in Islamic criminal law to give contribution needed by Islamic Law and inline with the principal of Islamic criminal law, especially to preserve the heredity (hifzu- nasli).

This study presents a limited comparative analysis of Indonesian criminal law and Islamic law regarding the death penalty for acts of terrorism. The objective is to critically examine how the death penalty is regulated for individuals convicted of terrorism under both Indonesian criminal law and Islamic law, aiming to identify their similarities, differences, and implications for law enforcement. This normative legal research employs a comparative approach by analyzing legal texts, sources of fiqh and judicial interpretations, scholarly journals, and statutory laws related to the application of the death penalty. The findings reveal that, under Indonesian criminal law, the imposition of the death penalty for terrorism is governed by Law No. 5 of 2018 on the Eradication of Criminal Acts of Terrorism. In Islamic jurisprudence, terrorism is not explicitly discussed in traditional fiqh texts; however, it is often analogized to the concept of jarimah hirabah due to their similar characteristics. This analogy provides the legal and moral basis for imposing the death penalty on individuals convicted of terrorism. Both Islamic criminal law and Indonesia’s secular legal system categorize terrorism as an extraordinary crime that poses a serious threat to human safety, thereby justifying the potential use of the death penalty. Nevertheless, the two systems differ in their definitions of the crime’s legal elements. Islamic criminal law does not require that the consequences of the act be widespread, nor does it emphasize the perpetrator’s motive. In contrast, Indonesian criminal law stipulates that terrorism must involve widespread consequences to qualify under the statute. In addressing terrorism, the Indonesian government must carefully balance preventive measures with law enforcement actions. The death penalty should be regarded as a measure of last resort, applied with the utmost caution to ensure full compliance with human rights principles.

Although the application of Islamic criminal law still raises pros and cons due to the assumption that the sanctions tend to be sadistic. It does not mean Islamic criminal law is impossible to apply in Indonesia. Positive law in Indonesia results from thinking based on three components that substantially influence European, customary, and Islamic law. The problem related to the formation of positive law in Indonesia is the position of Islamic law, especially those still vague and unfamiliar to the public. So that the formulation of the problem in this study is: how are the dynamics of existence and the urgency of applying Islamic criminal law in Indonesia? This research used normative juridical methods or legal research. The study results show that the dynamics of Islamic criminal law in Indonesia began in the colonial period as a subsystem of customary law. As for the legalization process of Islamic law or criminal law in Indonesian law, it cannot be carried out easily due to the tendency of the influence of Western state law, which previously colonized Indonesia. Nowadys, Islamic criminal law has been applied to one of Indonesia’s regions, namely Nanggroe Aceh Darussalam. Another dynamic that Indonesia has to face in implementing Islamic criminal law is the existence of a stigma that punishment in Islamic criminal law seems sadistic and inhumane or violates human rights. The urgency of implementing Islamic criminal law in Indonesia is that Islamic criminal law contains more than all the goals commonly known in the world of criminal law, namely retribution, deterrence, and reformation.

The aim of this research is to know how the regulation of marital rape in Indonesian Criminal Law and Islamic Law. Marital rape or also known as rape in marriage still belong to such a debatable and taboo topic, but in fact it has happened a lot in society. In Indonesian Criminal Law, marital rape is not regulated in the Criminal Code. The Law on the Elimination of Domestic Violence regulates this as a complaint offense by calling the crime of sexual violence. In Islamic Law, marital rape is regulated in a good way by terms of husband and wife intercourse, among others in Surah An-Nisa Verse 19 which prohibits having to do with coercion. Refers to these results of the comparison, similarities are found in both Indonesian Criminal Law and Islamic Criminal Law that said marital rape is prohibited. The differentials in the form of complaint offense between these laws. Islamic Criminal Law does not explain clearly about the complaints offense as known on Indonesian Criminal Law. Yet this law comprehensibly prohibiting the marital rape itself. For the further regulations of criminal law policies, it should take the principles of discrimination into account and the good boundaries regarding marital rapes, criminal liability, criminal threats and formal criminal arrangements either.

Abstract: Islamic law was accepted and developed in Indonesian society long before the arrival of western law by foreign invaders who controlled Indonesia. Most Indonesian Muslim people place Islamic law into the Indonesian legal system, which consists of Western criminal law, customary law, and Islamic legal systems. This article analyses the comparison between Islamic criminal law and Indonesian criminal law in determining sanctions providing a deterrent effect for criminals. Based on empirical legal research methods, it is found that there are similarities between Islamic criminal law and Indonesian criminal law in the form of purposes and principles. The crime conditions in Islamic criminal law are also the same as the offence contained in the national criminal code. The differences between the two laws are in the sources of law, the sanctions attached to each different offence, and the historical evolution that shape the criminal law. This research intends not to compare which crime is better but to find the ideal of criminal law for its betterment in human life.

The purpose of this study is to determine the legality principle according to positive criminal law in Indonesia and Islamic criminal law and to find out the comparison between the legality principle according to positive criminal law and Islamic criminal law. This type of research used in this research is using library research or known as literature research. The principle of legality in Indonesia's positive criminal law is a very fundamental principle. Because the principle of legality in criminal law is important to determine whether a criminal law regulation can be treated against a criminal act that occurs. In Islamic criminal law, the legality principle has a great influence on the judge's power, because the judge's power is very broad compared to the judge in positive law where the judge does not have sufficient power to act against the crime maker in accordance with the public interest. Comparison of the principle of legality between Islamic law and positive law. Whereas the application of the legality principle to positive criminal law and Islamic criminal law has similarities and differences. The similarity is that both apply the principle of legality in the legal process while the difference is that positive criminal law is the same in its application to offenses, whereas in Islamic criminal law there is a distinction between Jarimah qishas diyat, hudud, which is applied strongly, while in Jarimah ta'zir it is relaxed so that the benefit of society is fulfilled. In addition to having the similarities and differences above, the legality principle also has advantages and disadvantages, among others, in Islamic law the criminal provisions cannot be changed (added / reduced) because it is a provision from Allah which is standard, while in positive law the criminal provisions may change at any time. according to the times.

This article intends to disseminate the Islamic criminal law in Indonesia in several ways: there are changing the constitution, changing the national legal system became the Islamic Law, Islamisation of national law, expanding Religious Court competencies, incorporating Islamic law elements of Jinayat in the National Law, and maximization of Regional regulation became Islamic law. Islamic Criminal Law (jinayat) is not developed by Indonesian jurists. This seems a logical consequence of miss application in the Islamic countries, like Saudi Arabia, Yaman, and Iran. Islamic criminal law has been replaced by the criminal law from the West, for example, British criminal law and Netherlands criminal law. Eventually, the obstacle of implementation of Islamic Criminal Law are the strong influence of the Dutch criminal law heritage, cultural obstacle, sosiological obstacle, and political obstacle.


 
 
 
 National Criminal Law is currently felt that it does not fulfil the value of justice, certainty and legal usefulness in people's lives because of the number of criminal acts. That has recently occurred makes the law no longer a social control but instead uses the law as an opportunity to take action. Criminal law, this can be due to the lack of a deterrent effect caused by the criminal law itself. Many attempts have been made to implement Islamic criminal law in Indonesia. Still, it is poorly considered by the community because it is understood that Islamic criminal law is only partially understood. Whereas the purpose of Islamic criminal law is to maintain religion, reason, soul, descent and property for the sake of achieving justice, certainty and actual legal benefits. The focus of the problems in writing this thesis are 1). What are the concepts of Jarimah Qishash, Hudud, and Ta'zir in Islamic Criminal Law? 2). How is the Transformation of Jarimah Qishash, Hudud, and Ta'zir in Islamic Criminal Law Against National Criminal Law in Indonesia? The purpose of this research is to describe the concept of Jarimah Qishash, Hudud, and Ta'zir regarding Islamic Criminal Law. As well as to explain the Transformation of Jarimah Qishash, Hudud, and Ta'zir Against National Criminal Law. To identify some of these problems, this study uses a comparative approach method by comparing Islamic criminal law to national criminal law. Looking for similarities and differences in the two directions. Then combine it with the concepts used, then connect and dialogue with other ideas and then make interpretations and conclusions as a reflection of the author so that in the end, the research conclusions will be obtained.
 
 
 

Abstract: Adherence to the teachings of Islamic law is obligatory for Muslims. The law is sacred and stems from revelation, whereas in a modern state system, the source of obligation comes from man-made law. This article will discuss Indonesian criminal law from the surah Al-Māidah verse 44 perspective and the potential seismic shift of Islamic criminal law becoming a positive law in Indonesia. This research is normative research, which examines law from written sources with a comparative approach. The results show that despite differences in several rules, Indonesian criminal law is in so far the philosophical perspective is in accordance with Islamic criminal law. The potential implications of this shift are significant, not only presenting a major change in the legal landscape of Indonesia but also opening up new avenues for legal research and discourse. Keywords: Islamic criminal law, Indonesian Criminal Code, Al-Māidah, Integration of Islamic law. Abstrak: Kepatuhan terhadap ajaran hukum Islam adalah kewajiban bagi umat Islam. Hukum itu suci dan berasal dari wahyu, sedangkan dalam sistem negara modern, sumber kewajiban berasal dari hukum buatan manusia. Artikel ini akan membahas hukum pidana Indonesia dari perspektif surah Al-Māidah ayat 44 dan potensi pergeseran seismik hukum pidana Islam menjadi hukum positif di Indonesia. Penelitian ini merupakan penelitian normatif, yang mengkaji hukum dari sumber tertulis dengan pendekatan komparatif. Hasil penelitian menunjukkan bahwa meskipun ada perbedaan dalam beberapa aturan, hukum pidana Indonesia sejauh ini dalam perspektif filosofis sesuai dengan hukum pidana Islam. Pergeseran potensial ini tidak hanya menghadirkan perubahan signifikan dalam lanskap hukum Indonesia, tetapi juga membuka jalan baru untuk penelitian dan wacana hukum. Kata kunci: Hukum Pidana Islam, KUHP Indonesia, Al-Māidah, Integrasi Hukum Islam.

However, the actual means of the formalization of the law in Indonesia is still, and will always be, debated regarding whether it should be made legally formal or simply applying Islamic values, by which more emphasis is put on the essence over the form. This study attempts to answer this polemic by discussing the transformation of thought about criminal law in Islam as well as the transformation form of thought about Islamic criminal law in Indonesian context. The objects of this study are thus the norms of Islamic criminal law in terms of offenses and chastisement. The research adopts the theory of mas}lah}ah, and objectification theory, namely the translation of Islamic criminal law into an objective article so that it can be accepted by all Indonesian societies. The transformation of Islamic criminal law is hereby understood as the changes in the enactment of law, regarding not only the crime (jari>mah) but also its chastisement based on their time periods and social contexts. The concepts of jari>mah and chastisement are in fact the interconnections of the core law (al-ah}ka>m al-as}liyyah) which contains prohibitions and complementary law (al-ah}ka>m al-muayyidah) which contains chastisements. The transformation form of Islamic criminal law in Indonesia has been largely manifested in the formulation of the law into objective stipulations that can be accepted by all Indonesians regardless their ethnicities, traditions, culture, and religions. The objectification of Islamic criminal law in Indonesia can therefore be used as the basis for the reformulation of national criminal law by proposing universal values of Islamic law so that it can conform to heterogeneous Indonesian societies notwithstanding its original source, Islam.

This study was conducted to find out the interpretations of Islamic criminal law verses and to see the polemics which occurred in the applications of Islamic criminal law in Indonesia alongside the harmonization of its applications in Indonesia. This study used a normative-descriptive approach in a way that explained in detail the laws and the verses’ interpretations as well as the polemics of Islamic criminal law in the Indonesia’s positive law. In the context of the development and application of national law in Indonesia, Islamic law is one of the sources adopted. Islamic law itself regulates the vertical relationship with Allah and the relationship with humans. These two relationships have a role in the formation of national law in Indonesia. In terms of applications, Islamic law can contribute to the development of positive law with the following three alternatives: 1) Islamic law which is a continuation of legal politics in the colonial period, either through transitional rules of the 1945 Constitution’s article 2 or by means of being stipulated in the further new legislation, 2) positive Islamic law which is sourced from Islamic values, and 3) the theory of legal leveling. This theory is applied to make Islamic law a source of national law in the future.

This article seeks to uncover criminal sanctions for intentional murder from the perspective of Criminal Law and Islamic Criminal Law. One form of murder that is very detrimental is intentional murder. This type of research is library research, using a normative-juridical approach and the nature of this article is descriptive-analytical-comparative. The research results show that the intentionality element can be seen in the tools used. If the murderer uses a tool or weapon to kill, it includes intentional murder. The purpose of punishment in Islamic law is not only to prevent criminal acts but following the objectives of maqasid as-syari'ah, namely hifz an-nafsi (body-body protection). In Islamic criminal law, the punishment for intentional murder is qişāş, diyat, or ta’zīr, depending on the judge's decision. Meanwhile, the purpose of punishment in criminal law in Indonesia is based on three basic principles of punishment, namely retributive, relative, and combined. In positive law, the punishment for intentional murder, according to Article 340, is the death penalty. This means that there are few similarities between the two Islamic and Positive criminal laws, which open up the possibility of the death penalty being imposed on murderers.

The evolution of criminal law in Indonesia reflects a complex interplay between indigenous legal traditions and external influences, including Islamic law. This article examines the contribution model of al-mas'ūliyyah al-jinā'iyyah (criminal liability in Islamic law) to formulating criminal liability in Indonesia’s New Criminal Code (KUHP Baru). The study adopts a qualitative research method, utilizing a comparative legal analysis framework to explore the dialectic between Islamic criminal law and the New Criminal Code. Data sources include classical legal texts, the book of Qur’anic exegesis and Hadith interpretations, legislative documents related to the New Criminal Code, academic literature, legal commentaries, and jurisprudential analyses. Through this method, the study identifies an elegant interplay between the principles of ḍarar (harm) and the fundamental criminal liability provisions in both systems. This study's findings reveal significant similarities and key differences, such as the role of intent, the typology of legal subjects, and the broader scope of liability for corporate crimes under the New Criminal Code (KUHP Baru). This article concludes that the contribution of al-mas'ūliyyah al-jinā'iyyah to the New Criminal Code lies primarily at the level of values while highlighting the potential for further alignment in specific areas.

The purposes of this study are, firstly, to find out how the regulation of the crime of murder in Islamic law and the Criminal Code, and secondly, to figure out the principle of non-imposing penalty for the crime of murder in Islamic law and Indonesian Criminal Law. This research uses normative legal analysis. The results of this study explain how the regulation of the crime of murder in Islamic law and Indonesian law, and how the principle of non-imposing penaltyfor the crime of murder in Islamic Criminal Law and Indonesian Criminal Law.

As the main source of law in Islam, the Qur'an has described various types of criminal offenses and their punishments, which are called Jarimah. This is relevant to the aim of enacting God's laws on this earth for the benefit and happiness of humans themselves. The provisions of sanctions that Allah gives to the perpetrator of the abuse are not intended to take revenge for what he has done, but rather to fulfill the rights of Allah and the rights of the persecuted family as a form of justice, providing a deterrent effect and protecting the public. As amukallaf, humans should obey and submit to the sharia rules that Allah has established in the Qur'an in order to be safe from sanctions both in this world and in the afterlife. The crime of theft is a violation of social norms, both state legal norms and religious norms. Any religion does not justify its followers stealing, because it will be detrimental to the victim and social order (Iqbal, 2021). In the Indonesian Criminal Code, the crime of theft is written in the Criminal Code (KUHP), Volume XXII II, Articles 362-367, Crime of Property, which has various types and sanctions for theft. (Lutfi, Kurniaty, Basri, & Krisnan, 2022). According to crime statistics published by BAPPENAS, the level of property crime or theft in Indonesia increased during 2012-2013, with 25,036 cases in 2012 and 25,593 in 2013. (Aeni, 2021). If we look at other countries, countries that follow the rules of Islamic law, namely Saudi Arabia, the application and provisions of this country's laws are derived from the rules of the Islamic religion, which uses the Koran and Hadith as sources of law. to take the law. According to the Arab Social Defense Organization, Saudi Arabia has much lower rates of property or theft than in Arab countries such as Syria, Sudan, Egypt, Iraq, Lebanon and Kuwait, which do not implement Islamic criminal law. The rate of property crime or theft in these six countries is much higher, namely 650 times higher than Saudi Arabia. (Fitrah, 2021). The problem is that ordinary people do not have a deep understanding of Islamic criminal law. People will only feel that Islamic criminal law fines are sadistic, inhumane and violate human rights. It is believed that any theft must be sanctioned, or the punishment is amputation, although certain conditions must be met in Islamic law for amputation to be punishable. (Muhammad Wahyu, 2018). The Indonesian Criminal Code and Criminal Code have different legal systems and sanctions for perpetrators of theftAbstracts consist of abstracts in English and abstracts in Indonesian. The abstract uses Garamond letters (10 pt) with a word count of 150 to 300 words. Abstracts must be concise, clear and complete. The abstract must contain the research objectives, methods, results (findings) and recommendations.