Classical Jurisprudence Research Articles

Kyai and Nyai’s Views on the Right to Ijbar in the Jombang Islamic Boarding School Community: A Legal Philosophy Perspective

In legal philosophy there are principles of morality, justice and human rights for each individual in regulating human ethics with in-depth reflection regarding the laws that exist in society. This means that women also need to pay attention to their role in choosing their life partner. However, the practice of ijbar rights in marriage is currently still found in the Islamic boarding madzhab community in Jombang, so the voice of the Kyai and Nyai is needed to express their opinion because they are figures who play an important role and are embraced by the Islamic boarding madzhab community. The research carried out to answer the above questions, the author used a qualitative field research method consisting of main data, namely legal philosophy and interviews with several Kyai and Islamic boarding madzhab caregivers in Jombang. While secondary data is classical jurisprudence books, journal articles and others. The results of the research are (1) according to the views of the Kyai and jiai, the right of ijbar or mujbir guardian may be carried out on girls provided that there is a benefit between the child and the parents (guardian), but it is better not to carry out ijbar. (2) In legal philosophy with the views of Kyai and Nyai regarding the right to ijbar, there is a binding relevance where the views of Kyai and Nyai, although guided by fiqh law, still provide principles of legal philosophy including the right of women to choose their partners.

FISABILILLAH ERA KONTEMPORER DALAM PERSPEKTIF RASYID RIDHA

This research discusses Muhammad Rasyid Ridho's views on fisabilillah in the contemporary era, where in classical jurisprudence studies and tafsir asnaf fisabilillah is interpreted as a person who strives or fights to defend the religion of Allah, apart from that his zakat funds may only be intended for these people (asnab eight) and may not be allocated to others. This research is a library research type using qualitative methods. In his book Tafsir Al-manar volume 10, Rasyid Ridho explains that fisabilillah is for the benefit of Muslims, through which all sharia and daulah activities run, not for individual interests. In this way, everything related to the benefit of the Muslims can be used from this stock, if there is no such asnab, then it may be allocated to another asnab. What is the basis of his views in this case is based on the situation of Muslims which is increasingly sad at the moment, both in terms of religion, society and educational backwardness.

Legal Studies of Marriage Registration and the Problems of Isbat Nikah Polyandry and Its Legal Consequences for Children

One of the important issues in marriage law in Indonesia is the registration of marriages and divorces in the Religious Courts. This happens because some of the rules in these regulations are considered relatively new because they have not been mentioned in the classical jurisprudence books which are used by the Indonesian people, especially the ulama. In statutory regulations as contained in Article 2 paragraph (2) of Law Number 1 of 1974 concerning Marriage jo. Article 5 of the Compilation of Islamic Law states that every marriage must be recorded. This research discusses; What is the form of registration of polyandrous marriages and what are the problems with the legal status of polyandrous marriages and the legal consequences for children. This type of research is doctrinal research or normative legal research. Meanwhile, the approach used is a statutory approach, a conceptual approach and a comparative approach and the legal analysis uses descriptive qualitative analysis, namely by formulating and explaining significantly several legal issues that are the object of study in this research.

Donationem non facit? Donations to people in potestate of the donor in Roman law

Summary The paper focuses on the phenomenon of donation to people in potestate of the donor. Even though this kind of donation was an old practice in Roman society, classical jurisprudence considered it void due to the lack of legal capacity of the people alieni iuris. However, we can see that beginning from the Severian age, the jurists and then the imperial chancery gradually stated the validity of these acts of liberality, contingent upon certain conditions primarily based on the donor’s voluntas. The analysis of responsa and rescripta related to this subject highlights how this concessio worked under a juridical point of view, along with its progression. Finally, it is highlighted how this interpretatio was part of a broader phenomenon occurring in the 3rd century a.d. and aimed to value the donor’s voluntas.

Kedudukan Harta Gono-Gini dalam Pembagian Harta Waris Menurut Hukum Islam

Marriage is a universal rule that applies to all creatures, including humans, animals and plants, as a way to reproduce and maintain life. In Islam, marriage means a contract between a man and a woman's guardian which makes sexual relations halal. A marriage can end due to death, divorce, or court settlement. Divorce is seen as the final step if the relationship cannot be repaired, and in the Qur'an and Hadith, there are no detailed provisions regarding the divorce process, so the law can be adjusted to the situation. One of the consequences of marriage is the existence of, Common Property Treasure acquired during the marriage, and must be managed responsibly by husband and wife. This concept is regulated in Indonesian laws and regulations, such as the Marriage Law, Civil Code, and the Compilation of Islamic Law., Common Property Treasure includes wealth acquired during marriage and belongs jointly to husband and wife, while inherited property is wealth owned before marriage. The issue of, Common Property Treasure has not been widely discussed in classical jurisprudence studies, but in the modern context, this has become important to ensure justice in Division of assets in case of divorce. Islamic law allows the distribution of assets through deliberation or court decisions if necessary. The concept of community property supports the fair distribution of wealth between husband and wife, in accordance with the principles of justice in Islam.

Menelaah Konsep Li’an Suami Sebagai Cara Mencegah Sanksi Menuduh Zina dari Kaca Mata Medis dan HAM Dalam Konteks Kekinian

Background. Li’an is used as an alternative to free a husband from qozhaf sanctions (accusing him of adultery), with the condition that the husband cannot present 4 bayyinah (witnesses) as witnesses to his wife's unfaithful actions. One of the legal consequences of li'an is that it confirms the lineage of a child with its father. Aim. Analyzing the husband's Li’an as a way to prevent sanctions for accusing him of adultery from a medical and human rights perspective Methods. This library research uses a descriptive-qualitative approach. Literature comes from authoritative data, such as classical jurisprudence books, tafsir, articles and books. The data was analyzed qualitatively and presented in descriptive form. Results. DNA test results can be used as evidence of Qorinah (signs), in the category of evidence in the form of allegations. It’s can clarify the child's lineage status, whether it is a child from the mother's husband or from another man, and can also clarify the punishment that will be received by a husband who accuses his wife of infidelity, whether he will be subject to had qozhaf or not. The concept of li’an from a human rights perspective is appropriate, because in li’an there are human rights that must be fought for, namely children's human rights. The state is expected to pay attention to the human rights of li’an children, through regulations that regulate scientific evidence through DNA testing to clarify the status and rights of children.

AKAD MURABAHAH AND IJARAH AND THEIR APPLICATION IN ISLAMIC FINANCIAL INSTITUTIONS

The increase in people's needs is hampered by busyness and inability to meet their needs so that people need alternatives to help them fulfill their needs. Sharia Financial Institutions (LKS) have emerged as an alternative for people to meet their needs. The main product that LKS offers to the public is murabahah because there is little risk in its application. However, the murabahah application has caused a lot of criticism among the public. Islamic banks are often referred to as "murabahah banks" because murabahah and ijarah dominate and modifications to the murabahah and ijarah applications are considered the same as transactions at conventional banks. This study is a literature review with deductive analysis, namely the author analyzes from general to specific so that conclusions can be drawn. The results of this research conclude that the murabahah application in sharia banking makes sharia banks as fund providers, not sellers. The murabahah and ijarah contracts in classical jurisprudence have also undergone many modifications. These modifications to the murabahah and ijarah contracts have given rise to criticism among the public. Modifications to the murabahah contract include the murabahah contract which binds the customer before the bank has the goods the customer wants, giving rise to bai' ma'dum, murabahah lil amri bi al-syira' which is considered haram by some scholars because it is a loophole for usury, and murabahah bil wakalah which is legally permissible.

Dirasah Muqaranah ‘an Hukm al-Zawaj Bayna Rudha’a Alban Bunuk al-Laban Fi Manzhur Fuqaha al-Aqdamin wa al-Mu’ashirin

The issue of Breast Milk Bank is a contemporary fiqh issue, and its ruling is not found in classical fiqh. However, classical Moslem scholars have studied the issue of radha in an unusual way known as al-major (breast milk put into the baby's mouth), al-south (breast milk put through the nose), and or putting breast milk into the baby's mouth using bottles and cups. Therefore, the fuqaha differed on the prohibition of marriage because of radha' unusually or indirectly such as radha' from a breast milk bank. After conducting a comparative analysis, the author concludes that the majority of classical scholars from the Hanafi, Maliki, Shafi'i and Hambali madhhabs, and most contemporary fiqh scholars, think that indirect radha', such as radha' from a breast milk bank, makes marriage prohibited. They reason that indirect radha' has the same effect as direct radha' regarding the growth of the baby's flesh and bones. Meanwhile, the Zhahiri school of classical jurisprudence and some contemporary jurisprudence scholars such as Yusuf al-Qardhawi think that indirect radha' such as radha' from a breast milk bank is not called radha'. According to them, radha' is only if the baby suckles directly on the mother's nipple. Hence, they think that radha' from a breast milk bank does not lead to the prohibition of marriage.

Penerapan Hifdzul Bi’ah Dalam Fatwa Kupi Tentang Haramnya Kerusakan Lingkungan

Environmental damage is becoming an actual problem along with the increasing rate of population growth. The occurrence of environmental damage cannot be separated from human intervention. This is very contrary to the Al-Qur’an because Allah has prohibited humans from doing damage to the earth. This encouraged the initiators of environmental jurisprudence to add hifdzul bi'ah as a goal in maqashid syari'ah. This article will discuss the postulates and concept of hifdzul bi'ah in preserving the environment; history of the founding of KUPI; and how important hifdzul bi'ah is based on the KUPI fatwa regarding preserving the environment. This research is the result of a literature study using a descriptive-analytic approach. Currently, there is a lot of environmental damage caused by humans. The environment should be our collective responsibility. One of the initiators of environmental jurisprudence is KUPI. KUPI is a forum for Indonesian female ulama, who are concerned with contemporary issues using a gender perspective as one of their thinking methods. One of the KUPI fatwas is that it is haram to cause environmental damage. Hifdzul bi'ah becomes important if we are guided by the KUPI fatwa, for several reasons, namely: first, the environmental crisis is getting worse; second, Muslims need a comprehensive legal framework/guidelines regarding environmental issues; Third, classical jurisprudence does not accommodate environmental issues as a separate scientific discipline within the realm of Islamic studies. In formulating this fatwa, the KUPI team used the mubadalah (mutuality) method.

Ikhtiar Cegah Stunting Melalui Kontekstualisasi Fikih Parenting

In fact, parenting jurisprudence does not only target children physically until they are mumayyiz (able to choose and choose good actions) as is found in many classical jurisprudence books, but also their psychology, including their mental and economic readiness for marriage. Until now, the main trigger for many cases of stunting is still caused by early marriage. Early marriage occurs because child care is only oriented towards meeting the child's physical needs, while spiritual needs still do not receive significant attention. Efforts in this direction can be made by contextualizing parenting jurisprudence that parenting is not only about the child's physical aspects but also spiritual aspects and economic readiness. This is reflected in the history of the Prophet's life as a child, receiving maximum nurturing education both regarding his physical and psychological well-being, as well as economic readiness, with the Prophet being included in every trade mission with his uncle. The implications of this contextualization of parenting jurisprudence are at least a new orientation of parenting jurisprudence in efforts to minimize stunting. Apart from that, it also serves as a legal standing for child care activities to comprehensively pay attention to children's physical, psychological and economic readiness.

Pemikiran Siti Musdah Mulia dan Yusuf Qardhawi tentang Konsep Adil dalam Poligami

Polygamy is a topic that is still being debated, especially among ulama, including between Siti Musdah Mulia and Yusuf Qardhawi. Both of them have different thoughts regarding the concept of justice in polygamy. This article aims to find out the Islamic legal analysis of the thoughts of these two figures and their comparisons. The type of research used is library research using documentation techniques in extracting data as well as descriptive analysis and comparative studies as analysis techniques. The research results show that Siti Musdah Mulia's thoughts are more in line with contemporary Islamic jurisprudence scholars because they both state that justice in polygamy is not only in the material aspect but also the immaterial. This is different from Yusuf Qardhawi's thoughts, which are more in line with classical jurisprudence scholars because they both state that justice in polygamy is only in the material aspect. The similarity of thought between the two lies in the basic istinbath used, namely surah Al-Nisā' verses 3 and 129 and the hadith narrated by Abu Hurairah. The difference lies in the type of justice that must be fulfilled in polygamy. Siti Musdah Mulia stated that justice is not only material but also immaterial which is impossible for humans to realize so this is the basis for prohibiting polygamy. In contrast to Yusuf Qardhawi who stated that justice is only material because immaterial justice is beyond the limits of human capabilities so it is not mandatory to fulfill it.

Nusyuz and Domestic Violence in Indonesia: Reinterpreting Punishment Using the Ma'nâ al-Haml Method

Tafsir and classical jurisprudence provide three stages of solutions for a nusyûz wife. Stages of advising, separating beds, and hitting. This interpretation of nusyûz and the solution to hitting is not appropriate to the current context, so it is necessary to expand the meaning with a ma'nâ al-haml approach. Ma'nâ al-haml is used by bringing the meaning of a pronunciation to a more relevant meaning in terms of conditions, time, and space. This research uses a qualitative approach in analyzing, explaining, describing, and revealing research results. Research conducted in libraries is the method utilized to gather data. This study looks at how nusyûz solutions are interpreted in traditional tafsir and fiqh literature. It then reinterprets them using the ma'nâ al-haml approach by considering the views of modern ulama.These interpretations are then analyzed for their relevance to the laws in force in Indonesia as conditions, space, and time for understanding the pronunciation of the text using the ma'nâ al-haml approach. This research concludes that nusyûz is not caused by the wife's disobedience but rather by her bad morals or the bad morals of her partner. Nusyuz can not only occur from the wife's side but can also occur from the husband's side. Therefore, with the ma'nâ al-haml approach, you need to introspect yourself when dealing with nusyûz issues before giving signals to your partner. The solution to a nusyûz partner is not by hitting them but by discussing and negotiating to find the best solution.

PENGGADAIAN SAWAH DAN LADANG DI KECAMATAN CIPANAS KABUPATEN LEBAK DALAM PERSPEKTIF SYARIAH

This research aims to reveal analytically the sharia mortgage system in Cipanas District, Lebak Banten Regency. This study uses a qualitative descriptive analysis method with a historical juridical approach. The data collection technique in this research is based on a case study in the form of a sharia system mortgage which refers to classical jurisprudence books in Cipanas sub-district, Lebak Banten Regency. Next, analyze the texts that are references for the local community in sharia pawning. From this research it was found that the sharia mortgage system in Cipanas sub-district, Lebak Regency does not fully follow the sharia system contained in the classical fiqh book which they consider as a reference.

The search for new methodological approaches in legal research in the context of modern challenges

The subject of this article is theoretical concepts and explanatory models used in legal science to identify the essence of law and legal phenomena, as well as issues of the evolution of methodological knowledge in jurisprudence in modern conditions. Due to the lack of adequate tools in classical jurisprudence for describing and researching the nature of new phenomena of legal reality, as well as in connection with overcoming politically and socially determined methodological limitations, legal science is faced with the need to search and disseminate new methodological approaches. New methodological approaches in the social sciences in general and in jurisprudence in particular do not pretend to establish the absolute truth, their advantage lies in the integration of traditional approaches. When considering the problems of the methodology of modern legal research, the author points out the need to apply new postclassical approaches, including the communicative theory of law. The novelty of the research consists in substantiating the impossibility of the transition of legal science to a qualitatively new level of knowledge of law and legal phenomena, provided that it uses the classical (and to a certain extent outdated) methodological optics. Since legal science develops in the context of the development of scientific knowledge in general and goes through the same stages in its development, at the present stage its development may be associated with the application of integrative concepts of legal understanding. One of the most interesting integrative concepts of legal understanding is the communicative approach, which allows us to give a more complete picture of the law, of all legal institutions, as it introduces legal dogmatics into the context of social communication. The communicative approach offers legal science new tools for understanding law and legal phenomena in their social dimension, which is the basis for using it as a methodological basis for current research in the field of lawmaking and law enforcement.

Harmonization of Islamic Legal Institutions and Customary Law in Marriage Dispensation Cases at The Panyabungan Religious Court

Harmonization between customary law and Islamic law (fiqh) has long occurred in our homeland. This study aims to illustrate the harmonization between Islamic legal institutions and customary institutions. This research is an empirical legal research, empirical legal research is research whose object of research is the practice of legal events or occurrences. The approach used in this study is a socio-legal approach, that used to analyze the social interactions between the Panyabungan Religious Court and customary institutions in implementing age dispensation. The results of this study show that this harmonization had run well between Islamic legal institutions and customary institutions. There is harmonization of existing norms or rules that apply in society. In substance making Islam more widespread in society and the state, from the understanding of classical jurisprudence to other legal products namely qadla, Islamic Law in substance continued to develop and acquire all regulations towards the rule of Islamic law as a whole. The similarity of certain functions within the customary law system, the Islamic legal system, and the national legal system according to the scope of their duties determines the extent to which harmonization occurs. The method of harmonization between Islamic law and customary law can be achieved in three ways, namely first; Harmonization of understanding, Second; Harmonization is carried out actively,Third; Passive harmonization.

Konstuksi Filosofis Akad Mudharabah Dan Relevansinya Dengan Praktik Perbankan Syariah

The mudharabah contract has been known since the Arab era of ignorance, until it was used as an alternative to overcome economic problems at the beginning of the hijrah. Therefore, this contract must be understood comprehensively, not only from a definitive perspective, but also from a historical and philosophical perspective. Because this is the basis for the mudharabah contract being legalized in Islamic muamalah practice. At a practical level in the distribution of funds in sharia banking, mudharabah contracts are always less popular than murabahah contracts and other contracts, even though in terms of the radius of economic benefit mudharabah contracts are higher. Therefore, the philosophical construction of a muamalah contract must be explained so that its relevance can be found with the practice carried out. This research uses qualitative methods with the type of library research (literature review). Data sources were obtained from various literary sources, in the form of books, textbooks and other supporting literature using descriptive analysis methods to explain the problem being studied and its relationship with the phenomenon being analyzed. Sharia banking must comply with the profit and loss philosophy inherent in it. This becomes a juridical dilemma for Islamic banking because in practice it is less relevant to its philosophical construction. Transforming the muamalah contract from classical jurisprudence concepts to banking practice cannot be separated from two fundamental problems. First, problems of a philosophical-conceptual-paradigmatic nature. Second, implementation-operational-empirical problems. Prioritizing philosophical-paradigmatic aspects without any implementation efforts will make Islamic banking a mere utopia. On the other hand, prioritizing the empirical-implementation aspect without first building a philosophical-paradigmatic foundation will actually make Islamic banks lose direction as an economic business building that stands on the rubble of uncertainty. So these two aspects need to be harmonized on an ongoing basis to achieve the fundamental goals of muamalah in Islam.

The Study on the Effectiveness of Arbitration Clauses in International Commercial Arbitration – From the Perspective of Contract Non-Formation

This study belongs to a more specific project, aiming at exploring the issue of the validity of arbitration clauses in international commercial arbitration when the main contract is not established, and addressing the issue of determining the validity of arbitration clauses in transnational commercial disputes to provide commercial operators, arbitrators or judges with guidelines and references for their ideas. This study is based on the classical jurisprudence of private international law, common law, and international commercial arbitration. Furthermore, based on the customs of international commercial transactions and the contents of the cases, it conducts legal doctrinal analysis, comparative analysis, and case analysis. From different perspectives, these legal norms and issues reflect that the arbitration clause has considerable independence and can typically be established independently of the main contract. The validity of an arbitration clause is based on sufficient formal and substantive elements. The study points out that the determination of the validity of the arbitration clause has its logic of the decision, and it should also apply the process of conclusion of the contract, which includes the conditions of the voluntary agreement of the parties, the process of invitation and negotiation, and the true intention of the parties. Keywords: Autonomy of Will, Independence, Arbitration Clause, Contract

Egalitarianisme Muslim Dan Nonmuslim Dalam Kitab Al-Musāwah Al-Insāniyyah Karya ‘Ali Jum’ah

The relationship between non-Muslims and their status in the Muslim community, according to Islamic law, it is a topic that has been discussed for a long time. The development of human civilization brought about the ideas of Muslim and non-Muslim egalitarianism. However, in the classical jurisprudence literature, non-Muslims have always been positioned as second-class people in Muslim societies. One of the modern ulama who contributed to this discourse is 'Ali Jum'ah. His capacity as someone who has served as Grand Mufti in Egypt makes his thoughts urgent to study. For this reason, this study aims to analyze the thoughts of 'Ali Jum about Muslim and non-Muslim egalitarianism in his book Al-Musāwāh Al-Insāniyyah Fī Al-Islām Bayna An-Na ariyyah wa At-Taṭbīq. To achieve these objectives, the method used in this research is content analysis, which is classified as a qualitative method that uses descriptive analytics. As a result, 'Ali Jum'ah's thoughts on Muslim and non-Muslim egalitarianism in that book have an aqliy and naqliy basis, and contain four main principles; justice (al-‘adālah), tolerance (at-tasāmuḥ), brotherhood (al-ukhuwwah), and freedom (al-ḥurriyah). Meanwhile, its scope covers only the rights and obligations of a human nature. In the book, 'Ali Jum’ also provides several forms of contextualization of Muslim and non-Muslim egalitarianism. Some of the ideas of 'Ali Jum'ah in the book also confront the fiqh theories written by the majority of Shafi’i madhab fuqahā.’ Thus, some of his ideas contradict these theorie.

The Bounds of Law

The article is dedicated to the reasoning of the bounds of law. The specificity of the chosen approach expresses itself as the attempt to clarify, what gives us a possibility to consider this or that entity as “Law.” It’s worth to remark, that any scientist, never mind on his/her scientific specificity, tends to hypertrophy the meaning of scientific subject. For example, a mathematician imagines the Universe as a sequence of numbers, (whereas) a chemist tries to represent it as the unity of chemical elements that are disposed in various relations to each other. However, a biologist considers the environment as a totality of living creatures, and a sociologist, in its turn, intents to put a human measure on everything in order to represent world through the human relations. Thus, even despite the mentioned tendency, legal science hypertrophies its relevance in a very extraordinary way. The absoluteness of law doesn’t recognize any measures. In accordance with the point of view of classical jurisprudence, law as the world of the Ought penetrates all the space andtime, law is relevant to every circumstances and doesn’t leave any gaps. That is to say, similar to religion, law turns itself into the eye of providence, which observes on the any human deeds and connects to them its legal consequences. So, the logical conclusion of the similar view is that the any humanrelation, which has ever existed in the history, is already ordered by law, whether natural, positive or common law. If we try to express this statement by the language of classical jurisprudence, it’s possible to say, that we can apply the legal form on all the human relations improperly, nonethelesson the specificity of its content. At the same time, such events as wars, revolutions, catastrophes clearly indicate that in the similar circumstances law loses its validity. Similarly, family relationship, relations between friends, colleagues, rivals in the sport competitions cannot be ordered properly by the means of law. Thus, the academic novelty of the author’s approach lies in the attempt to clarify the conditions of the possibility of the reasoning the Being of law. So, we can come to conclusion that it’s necessary to reconsider law as the language of law, which is embodied in the living bodily co-presentation of the Other and gives us a possibility to conceptualize the bounds of law adequately.

Menyoal Landasan Hukum Konsep Kafaah

One of the diversity of the interpretation results of a Qur’anic verses is the concept of kafaah in marriage. The verses about the concept of kafaah that are used as the basis of the law by most classical Jurisprudence groups are appertain explicit. Therefore, the concept of kafaah has become one of the problems debate among Jurisprudence since long time ago until now. Of course, this concept of kafaah will be very interesting if it is understood through the approach of qur'an and Tafsir science. This article seeks to re-read the meaning of the verses that are used as arguments for the concept of kafaah in marriage through the approach of Wahbah al-Zuhayli>ythought.The writing of this article is a qualitative research, namely research that makes library materials the main source (data). In data collection techniques, this article uses the thematic model technique “mawd}u>‘i” with a focus on the verses on which the concept of kafaah is based.In this article, revealed that there are verses that alleged to be the basis for the concept of classical Jurisprudence. That seven verses are not all properly said to be the basis of the kafaah law. According to the author, there are three verses that properly used as the basis of kafaah, even from the aspect of al-di>nin the sense of al-diyanah, which means al-taqwa or al-s}alah can also be called praiseworthy morals (spiritual morals): First, surah al-Nu>r [24]: 3. Second, surah al-al-Nu>r [24]: 26. and Third, one verse as a support or reinforcement of the legal basis of kafaah from the aspect of al-di>nnamely surah al-Sajadah [32]: 18.