Application Of Islamic Law Research Articles

Muslim Family Law in Southern Thailand: A Historical Overview

Muslims have long a history of practicing Islamic law where Muslim communities are the minority. In Thailand, past governments have positively included Islamic law as a legitimate source of personal law for Muslims in the southern regions. Consequently, Muslims are governed by two different sets of laws in Thailand, one is Islamic law and the other is the secular law. However, only Islamic law is applicable for Muslims especially in settling their matrimonial disputes and inheritance. Islamic family law has a long history and has been preserved for the betterment and benefits of Muslim citizens especially in the four Muslim provinces of Thailand. This study aims to describe the development of Islamic law through the different periods of governments in southern Thailand. The development of Islamic family law and the application of Islamic law along with its judicial aspects under the administration of Thailand will also be discusssed.

A CONDUCIVE ENVIRONMENT FOR THE IMPLEMENTATION OF THE ISLAMIC CRIMINAL LAW FROM THE PERSPECTIVE OF FIQH – A STUDY IN MALAYSIA

A conducive environment is a comfortable situation, harmonious as well as friendly in the relationship between government and communities upon enforcement of law. Therefore, the administration and enforcement of law towards society have to take account public’s benefit, either from religion perspective, customary or local culture. The ignorance of those elements will bring regulation towards injustice and discrimination. For that reason, comfortable environment was taken into account during Caliph Omar al-Khattab who have procrastinated the enforcement of law (cutting hand for criminals) during drought period on the reason of unconducive period. It was a difficult phase of life which some communities living in needs and pitiable, and the situation is not appropriate to penalize them for stealing foods. However, scholars nowadays only discuss upon the matter in term of its influence to dismiss the application of Islamic law but not in term to comprehend the reality and concept of conducive environment in the application of Islamic criminal law. Therefore, the polemic of conducive environment took place without any yard stick of the situation that well elaborated. Hence, in order to overcome the conflict, this paper is at aim to clarify the notion as well as features of conducive environment from the perspective of shariah law. The paper will lay out the situation to become as a mechanism in measuring the readiness and ability in applying the fair law. The methodology of the study is in a qualitative means by reviewing historical notes by using content analysis upon the Prophets Era as well as the period of Khulafa’ al-Rashidin. The data will be compared to contemporary epoch in understanding the similarity as well as the difference. The finding of the study is very significant to justify the appropriateness in the application of Islamic criminal law nowadays, whether its meet the need of shariah (maqasid al-shariah) or vice versa.

JUDICIAL REMEDIES OF DARAR IN ISLAMIC FAMILY LAW: A CRITICAL STUDY OF THE LAW AND PRACTICE IN BAUCHI STATE OF NIGERIA

In both substantive and procedural rules, Islamic law enshrines a comprehensive legal framework that regulates the family system for the realisation of a sustainable justice for all parties to Islamic marriage institution. The basis of the philosophy of Islamic family law is that both husband and wife shall live together harmoniously, with mutual respect in order to produce an upright ummah, bearing rights and responsibilities towards one another. The husband, conferred with the privilege as head of the family and responsible for the wife, enjoys such favour within a limited sphere, to prevent ultra vires chances and abuses. The wife, ordained to bear the duty of followership and obedience towards the husband, is protected with judicial shield from darar which implies aggressive manners and ill treatment of irresponsible husbands. This paper critically examines these crucial issues pointing its sight on the classical texts, statutory provisions and the practical dispensation relating to the effect of darar on the wife and its judicial remedies with Bauchi state of Nigeria as case study. It is based on a qualitative research that employs both doctrinal and empirical research approach. The findings of the research reveal that the application of Islamic law in the Bauchi State Sharīʿah Courts has a number of challenges questioning the consistency of its practical aspect with the theoretical aspect; namely, the classical textual provisions. Keywords: Islamic law; procedure; darar; husband; wife; Bauchi state.

Resistensi Masyarakat Terhadap Perbankan Syari’ah di Kota Langsa

The People Resistance to Islamic Banking in Langsa The presence of Islamic Banking in Langsa since 2005 is in line with the aspirations of the Acehnese as an application of Islamic law. In this case the economic and finance tailored to the sharia is to establishe the people to be compete constructively in favor and the successful life such as happiness, glory, and the hereafter (falah). This things is to realized the shariah goal (maqashid sharia) especially in dharuriah five dimensions, such as: religion, life, thought, ancestry, and wealth. The Islamic banks has established in Langsa since 14 years ago, but the people in Langsa not yet fully trust the operational of Islamic banks. They think there is no difference between Islamic banks and conventional banks, beside using sharia label only. The people that become a conventional bank’s customer has a perception that either the Islamic banks or conventional banks still contains a riba. DOI: 10.15408/ess.v6i2.3571

Refuting Da’esh properly: a critical review of the “Open Letter to Baghdadi”

The emergence of the “Islamic State” or Da’esh in the Syrian war brought a whole new dimension to the war on terror. To counter the “Islamic State” ideology, Islamic scholars from all around the world issued a document titled “Open Letter to Baghdadi” containing refutations towards the “Islamic State”. There are a number of issues that this document may have clarified, such as the refutation towards the “Islamic State” claim of “global caliphate”. However, there are quite a number of problematic points which may be counterproductive to the purpose of this letter in the first place. It is the objective of this article to identify some of these problems which may include a lack of representation of prominent Islamic schools of thought, incorrect application of Islamic law, or lack of observation on actions conducted by the “Islamic State”.

The Testimony of Women in the Qurʾan

In recent years, as debates over Islamic legal interpretations have moved to the forefront, especially in places where the expanded application of Islamic law is on the agenda, the issue of women’s testimony has received particular attention. Most jurists arrived at the opinion that women were less trustworthy and less appropriate as legal witnesses than their male counterparts, and so have distinguished between male and female testimony in terms of sex. In this paper I will examine the relationship between ‘gender’ and ‘testimony’ with regard to this sex-based distinction, and as such I will explain why women are no less discerning than men as witnesses in some cases. My purpose is not, and cannot be, to engage in an original interpretation of the law or to sit in judgement on how others have understood the rules of their religion. Rather, I approach the topic of testimony, women, and gender as a student of the history of Islamic law. I argue that the Qurʾan deals with women in an egalitarian and non-discriminatory fashion in terms of testimony and legal affairs, through reference to certain verses, such as al-Nūr (Q 24:6) and al-Nisā’ (Q 4:15). While Ẓāhirisim, including Ibn Ḥazm, and Izzet Derveze follow this egalitarian approach, the four legal schools of the Ḥanafī, Shāfiʿī, Mālikī, and Ḥanbalī do not, and instead claim that women’s testimony cannot be accepted in some circumstances, such as cases of ḥadd, qadhf (slander), and qiṣāṣ (retaliation).

INTEGRATIVE CURRICULUM IN TEACHING SCIENCE IN THE ELEMENTARY SCHOOL

INTRODUCTION:Culture that developed in Acehnese society is rooted in the teachings of Islam embraced by the whole population of Aceh. First Islamic values were practiced and became customary tradition in the community, which is passed down from generation to generation through education in the family, in places recitation and Islamic boarding schools, and in society, in order to educate the Muslim personal morality. However, because of the influence of modernization, it now has been a shift in community values. These values are no longer living in the community and is not an important part in educational activities (Sulaiman, D 2005, dan Cut Morina, 2013). Disclosure of Aceh today, lead the people of Aceh suffered exposure to a variety of foreign cultures. Meanwhile, the condition of the natural environment in Aceh after the earthquake and tsunami, is very worrying and diamcam with disease outbreaks. Clean water sources used by the people already polluted sulfur and arsenic from the earthquake and tsunami that. The need for clean water with good quality into something that is expensive for the people of Aceh at the time because of all the water sources become severely damaged. Although in most areas people can still rely on well water, but the distribution of water to people's homes is not smooth due to limited transportation.In the implementation of Islamic law as well as in effort to stabilize and develop the Islamic education system being developed in Nanggroe Aceh Darussalam (NAD), the Islamic culture and tradition should be revived in Aceh. For that, the government has compiled Qanun NAD Education in the province which confirms that the NAD Provincial Education is education which is based on Al -Quran and al-Hadith, the state philosophy of Pancasila, the 1945 Constitution, and the culture in Aceh.Responding Qanun Education in the province of Nanggroe Aceh above, issued policies in education, one of which policies on curriculum development relevant to active learning, creative, effective, and fun and tailored to local needs, particularly in relation to the implementation of Islamic law. According to Cut Morina (2014) explains that one of the most important aspects of the implementation of the Aceh specialty bersendikan Islamic law is the education system that is capable of supporting the ideals gave birth to the human resources of superior quality and competitive in both quality of faith and piety as well as the quality of science and technology. However, Rusdi Sufi (2010) and Ibrahim (2015) explains that the Islamic atmosphere in the implementation of the education system in Aceh has not revealed a strong impression so it is not seen a significant difference between before and after the application of Islamic law. Many things seem not to support the structuring of the system, among other teaching materials are not well ordered and competency -based curriculum Aceh unfinished version (McNeil, J.D. 2000).Along with that, the character of curricula (Curriculum 13) stressed that one of the principles is the actual syllabus development and contextual. In addition, the learning is done emphasis on the characteristics, needs, and serving area. Learning is one of them is learning refers to the integrative curriculum, which is a curriculum that was developed to support the implementation of the curriculum of character and is in accordance with the interests of students. Integrative Curriculum implementation is done through the development and implementation of learning that integrates the values of water management and sanitation, local knowledge and cultural diversity Aceh (Ibrahim, 2014 and Bloom, B.S. & Eddy, M. 1981).The main target of this research is to implement the thematic curriculum integrative learning in primary schools is a learning activity can be done as follows.(a) Developing an integrative curriculum on science for science teaching and learning process with a scientific teaching materials and technology will. …

The Application of Islamic Law in Indonesia: Between Opportunities and Challenges

Essentially, the application of Islamic law in Indonesia has a huge opportunity. Undeniably, there remain challenges, both from within (Muslims) and from outside (other than Muslims). The great and tremendous challenges come from Muslims themselves. Muslims do not want Islamic law in Indonesia upright. The reason is the government is also unwilling because of the existing legal system and dissimilarity of attitude, understanding, practice of Muslims and Islamic leaders of Al-Quran and Al-Hadith, especially in relation to politics. It is likely to continue in line with the dynamics of Muslims in the state and nation. Pros and cons of Muslims against the application of Islamic law, including the unwillingness of groups against Islamic approach to structural (power) and Islamic cultural (culture), will raise the difficult and impossible application of Islamic law in Indonesia. Therefore, for most Muslims, the teachings should be reinterpreted beyond the textual meaning and application in real life.

POLITIK PEMBERLAKUAN SYARI`AT ISLAM DI ACEH DAN KELANTAN (1993-2014)

The application of Islamic rules in Aceh and Kelantan is also related to the political power. There is a significant difference about political treatment on the application of Islamic law in Aceh and Kelantan. In Aceh, the central government (Indonesia) thinks that it is needed to apply jinâyah law in Aceh as a strategy to solve conflicts. This political rule has been applied in the republic of Indonesia since the leadership of Habibie, Abdurrahman Wahid, Megawati Soekarno Putri to Susilo Bambang Yudhoyono. The main factor that influences the Indonesian political government rule is the central conflict with the Acehnese in the leadership of Soeharto presidential to the Helsinski Agreement 2005. Some vertical conflicts happened between the central government and the Acehnese were solved by giving special autonomy in applying the Islamic rules. Not only family law and economic law which are given autonomy to be applied in Aceh, but also the autonomy to apply jinâyah Law. In Kelantan, Federal government (Malaysia) did not have political wish to apply Jinayah Law in Kelantan since the leadership of Mahathir Muhammad, Abdullah Badawi to Najib Razak. Moreover the federal government made the issue of the application of jinâyah law as the political commodity to get the political sympathy from the people, who are the partner of non Moslem voters in the national ranks and some Moslem voters who are not affiliated with PAS. This political needs factor is kept by the Federal Government to respond the Kelantan’s government wish to apply Islamic rules.Copyright (c) 2015 by Al-Ihkam. All right reserved DOI : 10.19105/al-ihkam.v10i1.588

POLITIK PEMBERLAKUAN SYARI`AT ISLAM DI ACEH DAN KELANTAN (1993-2014)

The application of Islamic rules in Aceh and Kelantan is also related to the political power. There is a significant difference about political treatment on the application of Islamic law in Aceh and Kelantan. In Aceh, the central government (Indonesia) thinks that it is needed to apply j inâyah law in Aceh as a strategy to solve conflicts. This political rule has been applied in the republic of Indonesia since the leadership of Habibie, Abdurrahman Wahid, Megawati Soekarno Putri to Susilo Bambang Yudhoyono. The main factor that influences the Indonesian political government rule is the central conflict with the Acehnese in the leadership of Soeharto presidential to the Helsinski Agreement 2005. Some vertical conflicts happened between the central government and the Acehnese were solved by giving special autonomy in applying the Islamic rules. Not only family law and economic law which are given autonomy to be applied in Aceh, but also the autonomy to apply j inâyah Law. In Kelantan, Federal government (Malaysia) did not have political wish to apply Jinayah Law in Kelantan since the leadership of Mahathir Muhammad, Abdullah Badawi to Najib Razak. Moreover the federal government made the issue of the application of j inâyah law as the political commodity to get the political sympathy from the people, who are the partner of non Moslem voters in the national ranks and some Moslem voters who are not affiliated with PAS. This political needs factor is kept by the Federal Government to respond the Kelantan’s government wish to apply Islamic rules. Copyright (c) 2015 by Al-Ihkam. All right reserved DOI : 10.19105/al-ihkam.v10i1.588

POLITIK HUKUM DAN UPAYA POSITIVISASI HUKUM ISLAM DI INDONESIA: STUDI TENTANG KONFLIK HUKUM DALAM UNDANG-UNDANG PERKAWINAN DAN UNDANG-UNDANG PERADILAN AGAMA

Abstract: The politics of law that ignore the aspirations of society has led to inconsistency in the application of the law because of the differences between the will of the people with the legislation. This study specifically examines the political law in terms of the application of Islamic law in Indonesia which is envisaged in Law No. 1/1974 on Marmage and the Law 7/1989 on Religious Courts (and its amendment Law No. 3/2006). The political situation that characterizes the formation of the Marriage Law and the Law on Religious Courts clearly show trends and policy direction of the state law. It can be seen from the political aspects of the legal establishment, the political aspects of the content of the law (principles and the rule of law), and political aspects of law enforcement. These three aspects have made Islamic law practiced by the Indonesian Muslim community (the living laws) in conflict with formal legal rules defined by the state. The conclusion from this study is that the legal provisions in the Mariage Law that conflict, namely: Article 2 paragraph (1), Article 7 (1), Article 31 paragraph (3) and Article 34 paragraph (1) and (2), as well as Article 42 and 43 paragraph (1). While the legal provisions in the Law on Religious Courts where a conflict is Article 50 of Law No. 7/1989 and Article 50 paragraph (1) and (2) of Law No. 3/2006 (amendment of the same article of the Law No. 7/1989)
 Keywords: Politics, Law, Conflict of Laws, Islamic Law, Marriage Law, the Law on Religious Courts

A written consent form dating back to 1524 in Bursa Şer’iye (Sharia Court) records and a proposal of a new start date for consent forms

BACKGROUND AND OBJECTIVESQadi registers are important documents for Ottoman medical history research. “Sharia Court Records (Ser’iyye Sicilleri)” are notebooks that include the records that qadis kept with regard to their decisions and deeds. These registers are the only authentic sources from which to acquire information on rural life, away from the center of the town, and to understand the daily practices of the Ottoman society. The objective of this study is to provide evidence for the fact that the concept of informed consent on medical interventions, and hence the written consent documents arranged between patients and physicians, dates back to older times in our history when compared to the Western world.DESIGN AND SETTINGA large number of Ser’iyye (Sharia Court) record originals have been surveyed. The consent form registered as A-40. 221a in Ser’iyye (Sharia Court) Records found in Bursa has been presented here as the earliest consent document found by the authors. Transcription of the original document has been performed and analyzed. The aforementioned consent form dates back to 26/Dhu al-Qi’dah/933 (August 24, 1524).METHODSThe original version of the referenced consent document is the earliest consent document presented so far to the best of the authors’ knowledge; it was found in Bursa Ser’iyye Records and evaluated accordingly.RESULTSBased on the document, it is argued that the history of consent forms dates back about 500 years.CONCLUSIONObtaining consent in scientific research from human beings was considered to have originated from the Nuremberg Code (1949). However, with this study, it has been shown that the concept of informed consent was already present in the Ottoman Period, during the 16th century, and that the original consent document dates back to 1524, pertaining to a surgical intervention.

Islamic Law in the Modern World

The essay provides a general account of some of the main changes that Islamic law has undergone since the late 19th century: the transformation of Islamic law from a jurists’ law to a statutory law; the displacement of the ʿulamāʾ as the exclusive interpreters of Islamic law; and the secularization and nationalization of Islamic law through the judicial practice of the Constitutional Court and civil courts in Egypt. Other issues include the impact of the West on Islamic law; the reduction of Islamic law in Turkey to the sta-tus of custom; the collapse of traditional family law and the waqf institution; the Isla-mization of custom in tribal societies; and the application of Islamic law in a non-Muslim state. In the conclusion, I assess the chances of reinstating Islamic law and Islamizing the statutory legal corpus based on the experience of Iran, the Sudan and Egypt.

Aceh Shariah Court in The Unitary State of the Republic of Indonesia and Human Rights Context

Birth of Special Region Nanggroe Aceh Darussalam based on Law No. 18/2001 on Special Autonomy for Aceh as Nanggroe Aceh Darussalam that changed through Law No. 11 of 2006 on the Governing of Aceh is an attempt to realize a democratic government and prosperous (welfare state). The implication of the birth of NAD is the application of Islamic law as a tool of law and governance NAD, which also puts the Shariah Court as the main pillar of Islamic sharia enforcement in NAD. The existence of the Shariah Court as an instrument of law enforcement in NAD institutionally and functionally problematic. The first, related to the position of the Shariah Court that institutionally a part of the religious court, but has a broader scope of authority. Second, related to aspects of Islamic sharia holding capacity is possible to be imposed on non-Muslims, were both these problems can ultimately hurt the Unitary Republic of Indonesia principles and protection of human rights. How To Cite: Phahlevy, R. (2014). Aceh Shariah Court in The Unitary State of the Republic of Indonesia and Human Rights Context. Rechtsidee, 1(1), 71-84. doi:http://dx.doi.org/10.21070/jihr.v1i1.103

Islamic Law and Human Rights in Malaysia

This article deals with the Islamic law and human rights principles which constitute the two important elements of the Malaysian legal system. Human rights, despite being a basic tenet of Islam, have frequently and widely been misunderstood by many Muslims. Indeed, the protection of human rights is consistent with the very objective of the coming of Islam i.e. as a mercy to the whole universe and for safeguarding the sacred values of humanity. As such, it is not an exaggeration to consider that Islam is a strong proponent of human rights and violations of human rights may be tantamount to disregarding Islamic principles. Nevertheless, due to constitutional constraints, the protection of human rights in Malaysian law may not necessarily be based on Islamic law. This is because the Federal Constitution of Malaysia limits the jurisdictions of Islamic law to selected matters such as matrimonial issues and other limited criminal jurisdictions. Despite Article 3 of the Constitution that clearly names Islam as the religion of the Federation, this provision, does not provide for the full application of Islamic law in Malaysia. Thus, the protection of human rights in Malaysia is selectively covered based on Islamic law, whereas the major scope of protections is covered by Federal-based civil law, in accordance with the specification of jurisdiction vested by the Constitution.

An Examination of Causes of Delay in the Distribution of Estates in Ilorin and its Environs

In the last two decades or thereabout, Area Courts and indeed other courts with jurisdiction to hear and determine muslim matters in Ilorin have been inundated with cases involving distribution of estate of deceased Muslims who have died long time without having such estates distributed on time. Some of these cases dragged for a long time resulting into protracted litigation. The curiosity of the author to find out the cause(s) of these delays is the driving force for embarking on this research work. This paper is therefore, an indepth examination of the causes of delay in the distribution of estates of deceased Muslims of Ilorin specifically and the Muslims of Kwara State in general. Delay breeds litigation which most often becomes protracted. This paper is meant to serve as a clarion call to revert to application of pristine Islamic Law of Inheritance after identifying delay as a serious problem in the sphere of application of Islamic Law of Inheritance in the area under reference.

DINAMIKA PAS (MALAYSIA) DAN PKS (INDONESIA) DALAM PERJUANGAN MEWUJUDKAN NEGARA ISLAM, 1998-2008

The formation of an Islamic state was initially an ultimate aim for Muslim political parties in Malaysia and Indonesia in 1950s. However, recently there has been a change of ideology shown by the Islamic political parties due to the change in situation and the political environment. In Malaysia, Parti Islam Se-Malaysia (PAS) has consistently championed the establishment of an Islamic state since its founding. However, the PAS has changed its political manifesto, from the struggle for an Islamic state to establishment of a welfare state. This came after the party received an overwhelming support among the non-Muslims in the 2008 General Election. The change in ideology indicates the change in approach and political strategy; from a rigid and conservative approach to a more pragmatic, rational and realistic strategy. In Indonesia, the change of approach was evident in Partai Keadilan Sejahtera (PKS). The party moved from strictly championing Islam to a more open party in 2008. The change in strategy means that both parties are no longer uses issues and ideals that have become synonymous with their mission such as the implementation of hudud and the application of Islamic law. In contrast, PAS and PKS are now highlighting an inclusive political stance by focusing on issues and party programs that had been given less attention formerly.

Arabs Want Redistribution, So Why Don't They Vote Left? Theory and Evidence from Egypt

Though Egyptian voters clearly evince a desire for Islamic law (however defined), public opinion research shows that they also want robust welfare states and significant redistribution. Though the application of Islamic law is the special province of Islamist parties, it is left-leaning, labor-based parties who are the primary champions of the economic policies that Egyptians seem to desire. Why, then, do Egyptian voters select the former over the latter? This article argues that the answer lies not in the political unsophistication of voters, the subordination of economic interests to spiritual ones, or the bureaucratic and organizational shortcomings of leftist parties, but in the ways in which the social landscape shapes the opportunities of parties in newly democratized systems to reach potential voters. Dense networks of religious solidary organizations, in which Islamist activists are often embedded, and which encompass large numbers of voters, provide Islamist parties with opportunities for linkage that are unavailable to leftists, who are embedded in much more limited networks of labor activism. As a result, despite the fact that Islamist attitudes toward redistribution and the state's role in providing welfare are more ambiguous than those of leftists, Islamist candidates have far greater opportunities to convince voters that they in fact share their economic views. The theory is tested with a combination of aggregate and individual evidence from Egypt after the Arab Spring.

Revitalisasi Penerapan Hukum Syariat di Aceh (Kajian terhadap UU No.11 Tahun 2006)

The process of Islamic law legalization in Aceh since 1999 has not been reflecting the goals of the Islamic law application itself. This can be shown by the existing various crimes and violations against Islamic values, such as crime and other immoral conducts. This paper covers at least there elements of revitalization process which according to Soekanto from Friedman can be used as the measurement of law application effectiveness. That is to say, the enforcement of law requires the execution of all interrelated elements namely rules of law, law enforcement, and culture of law. Accordingly, there are three basic points needed to revitalize this Islamic law. First is reforming the rule of acts, second is empowering awareness of public towards law, and last is to perform law in better condition in term of justice and prestige. This research uses literature approach by collecting many secondary sources regarding to the topic of this study. Finally, it concludes that the application of Islamic law in Aceh truly needs comprehensive and simultaneous revitalization and reform, so the application will actualize values of justice, prosperity and peace for Aceh. However, so far, the enforcement of law has not been optimized due to the conducts of people and law enforcement board which lack reflecting Shari’a values and orders.

RANCANGAN UNDANG‐UNDANG KESETARAAN DAN KEADILAN GENDER (RUU KKG) DALAM TINJAUAN MAQASHID ASY‐SYARI’AH

Maqashid Asy-Syari’ah is an extraordinary method to view and develop Islamic ideas and spirit in many circumstances. It is often used as an analytical knife to solve problems and the application of Islamic law. This Article will attempt to read and analyze the Draft Law on Gender Equality through this method. The existence of this yet unsanctioned law has raised controversy. But such controversies should instead be used as materials to revise and perfect the draft law instead of a reason to reject it outright. The result of the analysis of the draft law shows that it generally contains the values of Islamic law. However, it is undeniable that there are several mistakes and errors which must be discussed to be perfected. The decision whether to issue the law should depend on a costbenefit analysis.