Inheritance Law Research Articles

INTEGRATING SHARIA BUSINESS CONTRACTS: Enhancing Inheritance Management Among the Simalungun Batak Tribe’s Muslim Community

This research was conducted to find sharia contracts that could be empowered in utilizing inherited assets in the Simalungun Batak Muslim community. This research was field research. The data collection techniques were through interviews and observations and utilizing literature using classical and contemporary fiqh books. The research method was a historical qualitative approach, while the analysis technique used a qualitative descriptive method. The results of the study show that various models of sharia contracts in the utilization of inherited assets can be carried out by the community, such as profit sharing (mudharabah), cooperation (musyarakah), leasing (ijarah), entrusted (wadiah) and waqf. These various sharia contracts can be carried out both between heirs and heirs with other parties. In order to strengthen the implementation of this sharia contract, it is necessary to implement a written contract to strengthen the contract realization process and assist the interests of all parties and for their benefit. The application of this contract can be implemented based on various principles: economic, maqashid, contract, and customary inheritance law principles.

Ibn Khaldun's Concept of Law and its Relevance in the Formation of Modern Legal Systems

This article discussed the concept of law in Ibn Khaldun’s thoughts and its relevance in forming modern legal systems. This research used qualitative research methods with data collection techniques through a literature review of Ibn Khaldun’s works and several other relevant sources. The main focus of the research analysis was the concepts of al-’adl law, inheritance law, and justice in law. The results showed that Ibn Khaldun’s thoughts on al-’adl law, inheritance law, and justice in law were highly relevant to forming modern legal systems. The concept of al-’adl law taught that law should be enforced fairly, while the concept of inheritance law provided the basis for developing family law. In addition, Ibn Khaldun’s concept of justice in law had significant implications for the fair and equal enforcement of the law. In conclusion, Ibn Khaldun’s thoughts on law can contribute to forming modern legal systems and new and alternative perspectives for the development of law today.
 Keywords: kwd

Instruments of Property Ownership in Islam: The Study of Inheritance Law

The current study investigated the role of Islamic inheritance law as a means to ensure the right to property ownership. The "humans and property" theme has garnered widespread interest among scholars and public. Discourse on this topic may be highlighted from economic and legal aspects. Humans, as living beings, cannot be separated from material needs, such as property. In Islam, property is considered one of the trusts granted to human beings as owners in a majāzi sense. Therefore, this study explored the issue of property ownership that originates from inheritance regulated by Islamic law. According to Abu Zahrah, ownership by inheritance is part of special ownership. In order to elaborate this subject, library research method was used along with the analysis of literature based on madhhab doctrines. The study concluded that inheritance is one way of ownership of property through a change of ownership based on ijbāri (God's provisions). Inheritance is a means of acquiring property, where ownership rights are transferred from a deceased person to his/her living relatives. The transfer of ownership is based on the ijbāri principle (Allah’s decree), rendering inheritance an instrument of property ownership that cannot be endeavored (ikhtiyārī) and determined by human beings. Furthermore, Islamic inheritance law encompasses the principles of bilateral and balanced justice which distinguishes the concept from other legal systems.

A Pedigree Investigation of H-antigen Deletion Caused by Mutation of 658 C to T in the FUT1 Gene.

H-antigen deletion is often caused by FUT1 gene mutation, which is a very rare blood group. In this case, the H-antigen phenotype, FUT1, FUT2 sequences, and family genetic investigation of a 26-year-old patient (proband) and her three family members were studied. The results showed that the proband and little her brother were H-deficient phenotype, their ABO genotype of both was A/O1, her father was A/B, and her mother was O1/O1. The proband and her little brother's FUT1 phenotype were both h3|h3, with a homozygous mutation 658C > T in their FUT1 gene, and the FUT1 phenotype of their parents' were H|h3, with a heterozygous mutation (658C > T) in their FUT1 gene. The result of whole gene sequencing showed that the father of the proband had a deletion of CHR19.49,255,178-49,257,177 in the FUT1 gene (hg19 was used as the reference). The results of the family investigation showed that the mutation of site 658 in the FUT1 gene between offspring and parents was consistent with Mendelian inheritance law.

The Struggle of Custom and Sharia: Classic Dilemma of Inheritance Settlement in Javanese and Minangkabau Ethnic Communities in Indonesia

This research aims at determining the reasons and causes for dividing inheritance before the death of the testator, as well as the implications of this inheritance division pattern on the heirs. The disagreement between custom (also known as adat) and Sharia creates an issue in the division of inheritance in Sungai Duo Village, South Solok Regency, Indonesia. In its principle, inheritance is divided after the testator dies. However, in Sungai Duo Village it applies differently, where inheritance is distributed before the testator passed away. This is empirical legal research using a qualitative legal approach, which was investigated through the Islamic inheritance law's perspectives. The data included primary data, which were obtained from interviews, and secondary data generated from document studies. Data were analyzed through several stages, including data reduction, data display, and verification. Based on the research findings, the reasons for dividing inheritance before the testator dies are: first, to avoid disputes between the heirs; second, lack of knowledge of the heirs concerning the Islamic inheritance system, resulting in inheritance division contradicts the provisions of Sharia; third, inheritance division pattern applied in society is dominated by customs that have been passed down for generations, and fourth, the diverse community of Minangkabau and Javanese ethnicity causes their inheritance division pattern to reflect their regional customs. The implication of this inheritance division pattern to the heirs is that there is peace for the heirs in terms of inheritance responsibility because they consider the heirs to have had the maturity and ability to manage the assets of their parents who are no longer able to manage these assets. So that it can improve their children's economies or serve as a support for those who are married. These findings also prove the existence of legal duality, namely Islamic inheritance law and customary inheritance law. However, it appears that customary inheritance law is more prevalent than Islamic inheritance law.

Accommodating Non-Muslim Rights: Legal Arguments and Legal Principles in the Islamic Jurisprudence of the Indonesian Supreme Court in the Post-New Order Era

Abstract Most Islamic legal literature describes non-Muslims as ‘second-class citizens’. They do not have equal rights to Muslims, particularly under Islamic inheritance law. This article attempts to re-evaluate this general assessment by presenting cases of Islamic inheritance involving non-Muslims in post-New Order Indonesia. Using five decisions of the Indonesian Supreme Court, we argue that whilst the judges’ legal arguments are relatively progressive and inclusive by accommodating non-Muslim rights, their analogical interpretation of the waṣiat wājibah (mandatory will) is still trapped in classical fiqh (Islamic jurisprudence) norms that position religious differences and apostasy as an obstacle to inheritance. Although their analogical interpretation has in some cases resulted in equal rights, the protection of non-Muslim rights has not been fully realized. The legal arguments and principles they adopt are made acceptable to the Muslim community because they maintain traditional fiqh in the context of a multicultural Indonesian society. This study has implications for equal rights among Indonesian citizens and the realization of the state’s ideals that uphold the right to freedom of religion.

Analysis of The Solution to The Division of Muslims' Small Estates by Consensus in Johor Bahru

Malaysians still underestimate the management of inheritance distribution. This can be seen every year in the newspapers about the issue of freeze inheritance which has now reached almost RM90 billion in unclaimed real estate value. Another critical problem is when there is a mandatory understanding or belief in the settlement of the faraid method among the heirs. There is nothing wrong if you want to stick to the faraid method, but if there are circumstances that limit the faraid solution, then the consensus mechanism needs to be organized as one of the alternative methods. The Muslim community needs to be cautious and aware in understanding Islamic inheritance law holistically to help shape and organize the best inheritance solution. Therefore, this article aims to discuss the extent to which the consensus method is applied in the Inheritance Division Unit of South Johor, Johor Bahru (UPPJS), and how the concept and factors of this consensus are formed. The research methodology is qualitative. The collection of research data resulted from the analysis of documents and interviews and then analyzed inductively and thematically. The results of the study found that the selection of this consensus resulted from the forms of property settlement agreed upon among the heirs and the majority of the forms by “hand over the share” became the highest primary choice compared to the choice of other forms. The implications of choosing a consensus method not only help resolve the division of property but also guarantee family harmony.

Construction of Modern Islamic Inheritance Law based on Ijtihad of the Judges at the Religious Court of Pontianak, West Kalimantan

This article is motivated by the asymmetry connection between the growing discourses and applications of Islamic inheritance law in the Pontianak society and religious court decisions. In contrast, the decision of the religious court (Peradilan Agama, the Indonesian term, abbreviated for PA) must be implemented. This is an empirical legal study employing a legal sociology methodology. In-depth interviews, analysis of PA decision documents, and Focus Group Discussions (FGD) with Pontianak PA judges were used to collect data. This study concludes that the construction of inheritance law by Pontianak PA judges employing the legal discovery method is more influential in terms of adhering to jurisprudence and evaluating inheritance provisions contained in fiqh texts. The judge's legal reasoning is based on socio-cultural reasoning, which examines the relationship between rights and family responsibilities in society. Among the inheritance provisions of the judge's ijtihad construction is 1) the restriction on substitute successors does not apply only to second-degree descendants, but to all descendants. 2) Daughters become the asabah in heritance even if they are not accompanied by males or sons. 3) Children of unrecorded marriages have the right to maintenance and obligatory wills from their fathers. The novel finding of this study is that, according to the sociology of law, local traditions in the application of inheritance law occupy a strategic position and contribute significantly to the manner in which judges construct law in court decisions, particularly Islamic inheritance.

The Typology of Hadith as the Bayān of the Qur’an and Its Implications for the Reform of Islamic Inheritance Law

This paper is a study of the typology of hadith that functions as the bayān (elucidation) of Qur’anic verses and its implications for the reform of Islamic inheritance law. The use of hadith as the bayān of the Qur’an is a common practice of ulema (Muslim scholars) in producing fiqh (Islamic jurisprudence) law. However, certain uses of hadith as the bayān of the Qur’an have also been criticized by scholars. This study is a literature review on hadith viewed as the bayān of the Qur’an, with the primary focus on Islamic inheritance law. Data were collected by means of examining certain hadith used as the bayān of the Qur’an by mufassir (exegete) and fuqaha (Islamic jurists) in carrying out legal istinbath (decision making), especially in cases of inheritance. This study concerns with the studies of the typologies of hadith functioning as the bayān of the Qur’an and their problems that have not been conducted optimally. These studies indicated that certain hadiths used as the bayān of the Qur’an still posed an issue from a methodological point of view. This present study seeks to address three important issues of concern. First, there are three typologies of hadith as the bayān of the Qur’an, namely 1) hadith stated directly by the Prophet as an explanation or a practice of certain verses, 2) hadith stated by the companions of the Prophet as the bayān of a verse, and 3) hadith with no instruction from the Prophet nor indication from the companions as explanations for certain verses, but used as the bayān of certain verses by Islamic jurists. Second, each typology has methodological problems in terms of the context, incompleteness, and hadith occurrence, and the methodological problem has worsened in the last typology. Third, the use of hadith in the third typology as the bayān of the Qur’an in legal istinbath has provided an opportunity for Islamic jurists to renew the Islamic law in the field of inheritance by taking into account the methodological aspect.

The Distribution of Children's Inheritance in the Islamic Law and Custom Law’s Perspective

The families who leave the world forever, especially the parents of children, will leave an inheritance, but inheritance becomes a problem of disputes between children which can cause a rift between blood relatives. This research aims to discuss in legal studies regarding the distribution of child inheritance, as well as discuss the parties entitled to inheritance. The research approach method is in the form of a normative approach to concepts, theory, and law, the research is descriptive analysis in nature, uses library research, and is analyzed using secondary legal materials in the form of books, journals, or laws. The results and conclusions of this study are that the provisions of Islamic inheritance law tend to divide inheritance among as many heirs as possible, by dividing a certain portion among several heirs, while the customary law of distribution is carried out on the principle of harmony on the will of the heirs in a friendly atmosphere.

Eksistensi Wasiat Wajibah sebagai Alternatif dalaEksistensi Wasiat Wajibah sebagai Alternatif dalam Pembagian Waris yang Ahli Warisnya Beragama Non - Muslim di Indonesiam Pembagian Waris yang Ahli Warisnya Beragama Non - Muslim di Indonesia

The cause of interfaith marriages in Indonesia is the existence of the Marriage Law (UUP) No. 1 of 1974 which does not accommodate the issue of interfaith marriages, because the mixed marriage referred to in Article 57 of the UUP is a marriage between two people who in Indonesia are subject to different laws, because of differences in nationality, not because of differences in religion. Meanwhile, the existence of Article 2 paragraph (1) UUP which contains marriage is legal if it is carried out according to the laws of each religion and belief, considered to close the opportunity for interfaith marriages to occur in Indonesia. It zis zdifferent zfrom zwhat zis zstated zin zPresidential zDecree zNo. 1 zof z1991 zconcerning zCompilation zof zIslamic zLaw z(KHI), zthat zin zBook zI zof zKHI zArticle z40 zletter z(c) zconfirms zthat za zwoman zwho zis znot zMuslim zis zprohibited zfrom zmarrying za zMuslim zman. The zdivision zor ztransfer zof zinheritance zrights zis zgiven zto zthe zheirs zor zif zthe zheirs zare zprevented zfrom zgetting zthe zinheritance, zthen za zwill zcan zbe zused. A zwill zis za zgift zfrom zone zperson zto zanother, zwhether zin zthe zform zof zobjects, zreceivables, zor zbenefits zto zbe zowned zby zthe zbeneficiary zas za zgift zthat ztakes zeffect zafter zthe zdeath zof zthe zperson zmaking zthe zwill. The zterm zobligatory zwill zwas zfirst zrecognized zin zthe zEgyptian zInheritance zLaw zwhich zis zused zto zhelp zmale zgrandsons zwho zare zhindered zfrom zobtaining zinheritance zdue zto zbeing zveiled zby zsons zfor zgranddaughters, zthus zwith zthe zobligatory zwill zit zallows zsomeone zwho zis zhindered zby zthe zright zto zobtain zinheritance zrights. possible zto zinherit. The zarrangement zof zobligatory zwills zin zthe zEgyptian zInheritance zLaw zand zthe zCompilation zof zIslamic zLaw zhas za zfundamental zdifference zthat zthe zheirs zgiven zin zthe zCompilation zof zIslamic zLaw zare zmore zintended zfor zother zpeople, znamely zadopted zchildren zor zadoptive zparents. The position of non-Muslim children to the inheritance of Muslim heirs is not as heirs where in Islamic Inheritance Law does not recognize heirs to people of different religions (non-Muslims), because the purpose of inheritance itself is according to the concept of maqashid al-syariah (the purpose of inheritance Islamic law) operationally is to maintain property and offspring.

Entrepreneurial aspects of the EU Succession Regulation

This article investigates entrepreneurial aspects of succession law under the EU Succession Regulation. The subject area of entrepreneurial succession takes on a new dimension in a cross-border context. It is now the rule that there is at least one foreign connection within an entrepreneurial family: this may be the case due to a foreign nationality, a foreign habitual residence of the entrepreneur or the existence of company assets abroad, etc. Consequently, the entire process of business succession is strongly influenced by rules of private international law and must be viewed from a new – namely international – standpoint. Each EU Member State has its own conflict of law rules with regard to succession law, which provides an answer to the question of which law should be applied when there is an interference with other legal systems. For the territory of the EU, there has been an EU-wide inheritance law since August 2015 that answers this question – the so – called EU Succession Regulation, which also applies to entrepreneurs in their legal status as natural persons. Despite the fact that company law is explicitly excluded from the scope of application of the EU Succession Regulation, its interfaces with company law are of great practical relevance for the succession of the deceased entrepreneur. The aim of this article is to highlight the various legal aspects of the business succession under the EU Succession Regulation and distinguish them from the rules of private international law.

Islamic Inheritance Law and Its Implications on the Rights of Adopted Children in IndonesiaPerspective on Adopted Children Enforcement in The Law of Inheritance

Adoption has developed into a widespread phenomenon in the context of Indonesian society. Due to the fact that adoption affects the interests of individuals within a family, adoption has been integrated into the legal framework that regulates family relationships As a result of the way it influences individual interests within the family, it has been incorporated into the legal framework governing family relationships. Article 39 of the Child Protection Law, adoptive parents must pay attention to the best interests of the child during the process, which must also be carried out in accordance with community habits, applicable laws and regulations. There are two categories of adoption in Indonesia: domestic adoption, which occurs between Indonesian citizens, and international adoption, which involves children of Indonesian citizens who are adopted by people who are not residents of Indonesia. The research method used is known as normative juridical research. This research method is used to understand and evaluate whether a legal regulation has complied with the applicable legal principles and formal requirements set by the law. The author chooses this method because it is relevant to various fields of law and generates new ideas. According to research, the inheritance rights of indigenous Indonesians are carried out based on Islamic law in situations involving Indonesian inheritance law. Adopted children are still considered biological parents and are not entitled to inherit from their adoptive parents. The local customary law system will determine how many adopted children are entitled to inheritance. Adopted children still receive inheritance from their biological parents, not from their adoptive parents because adopted children do not inherit from their adoptive parents. Increased public awareness and stricter regulations in Indonesia regarding adoption practices can help protect the rights and interests of children and promote safer and more secure adoption practices.

Das „antipandektistische Manifest“ von Leonard Piętak.

This essay deals with the programmatic advance of one of the leading representatives of the non-pandectist current in Roman law studies in Galicia in the second half of the XIX century, the Lviv Professor of Roman Law Leonard Piętak (1841–1909). In a manual of Roman inheritance law published in 1882 Piętak wrote a kind of methodological credo of the anti-pandectist current within Galician Roman law studies. In the introduction to the aforementioned handbook he announced that he intended to deal exclusively with pure Roman law. In this context, he emphatically stated: The pandect law of the 19th century was, strictly speaking, to a large extent no longer Roman law at all and was, therefore, completely dispensable in the contemporary teaching of Roman law. In the opinion of the author of the present essay, Piętak‘s initiative at that time may be described as an „anti-pandectist manifesto“ of Galician Roman law studies from today‘s legal historical perspective.

Meningkatkan Pemahaman Ayat-Ayat Hukum Waris Dan Mu’amalah Pada Santri Di Pondok Pesantren Qur-any Jombang

The purpose of this service is to describe the training and assistance of students in understanding the verses of inheritance law and mu'amalah at the Qur-any Jombang Islamic boarding school. The method of implementation is that prior to the implementation of training and mentoring, a literature study is first carried out on various ways of organizing the funeral, preparation of tools and materials for the practice of organizing the funeral, determines the time of implementation and the duration of the community service activities together with the implementation team, determines and prepares material to be delivered in community service activities. The result of this service is that the students can read, interpret, analyze, know the law and practice the verses of the Qur'an regarding the Law of Inheritance and Mu'amalah properly and correctly. The students' knowledge and understanding of the verses of the Qur'an concerning the law of inheritance and mu'amalah increased the activities, so that the activities took place smoothly and effectively. The inhibiting factor is the limited training time.

Husein Muhammad’s Thoughts on Gender Equality in Islamic Inheritance Law

This research aims to analyze the philosophical reasons for Husein Muhammad's thoughts about the importance of the equal distribution of inheritance between men and women in Islamic inheritance law, as well as the method of legal reform that he uses when understanding verses about inheritance. This research is field research. Data was collected through virtual interviews. Data analysis was descriptive qualitative, with maslahah theory, and historical and sociological approaches. The research findings show that one of the reasons why verses about inheritance need to be reinterpreted, according to Husein, is because these verses fall into the category of mutashabihat verses (interpretable) so they need to be reinterpreted by looking at the current context. Another reason is that the inheritance verses that regulate section 2:1 for men and women in the Prophet's era were only intended for the context of society at that time, where women had no inheritance rights, and even women were used as objects of inheritance. Nowadays, the existence of women is growing. That way the portion of their inheritance should be reformed and adapted to current socio-cultural developments. Husein emphasized that gender bias occurs due to bias when interpreting the Qur’an, and the influence of patriarchal culture.

UPAYA KODIFIKASI HUKUM KEWARISAN SECARA BILATERAL DENGAN POLA DIFERENSIASI DALAM MASYARAKAT PLURALIS

The currently applicable inheritance law in Indonesia is pluralistic in nature since it is formed collectively by adat, Islamic, and western legal systems; not to mention the diverse custom, ethnicity, and belief. Hence, codification of bilateral inheritance law that could address differences in our inheritance and kinship system is needed. Islamic Inheritance Law is a law that regulates heritage treasure of someone who has passed away and given to the beneficiary.Indonesia has set the Compilation of Islamic Law Islamic law of inheritance, such as heirs and inheritance. In the Compilation of Islamic Law, there are several updates to the law of inheritance that do nothave in the past, suchas the division of the estate for the adoptedchild, the adoptive parents, and non Muslim heirs. It makes the writer feel compelled to study deeper the Islamic law of inheritance in IslamicLaw Compilation by using glasses philosophy of law.Indonesian Inheritance Law uses a school of sociology law. The school ofsociology law is in accordance with the conditions of the community because it takes into account the existing customs in the community

Постмортальные дети в семейном и наследственном праве: «Быть или не быть, вот в чем вопрос…»

In this article the author considers the issues related to the legal status of post mortem children in family and inheritance law. The medical practice of posthumous reproduction has led to the birth of heirs during a long period after the death of the testator. The possibility of “creating” such heirs inevitably raises the question of the infinity of hereditary succession, the appearance of “lying inheritance” and eternal heirs. At the same time, the current regulation, focused mainly on the natural method of reproduction, does not allow establishing the origin of a postmortal child from a deceased parent, as well as “providing” him with a legal status in hereditary terms. The literal interpretation of Article 1116 of the Civil Code in the context of posthumous reproduction entails the necessity to define the term “conceived during the life of the testator” in order to clarify which of the stages of conception should be relevant for inheritance law: the moment of creation or implantation of the embryo. The comparative analysis of foreign legislation shows that the most liberal approach regarding the implementation of posthumous reproduction and the granting of inheritance rights to children born after the death of the testator is in Israel. At the same time, the approach of a number of US states should be recognised as the most balanced, taking into account all the interests. The research also made it possible to conclude that the recognition of postmortem children as heirs both by law and by will does not contradict the ideology of inheritance law.

Utah's Women Homesteaders

Utah's Women Homesteaders

Legal Harmonization in the Distribution of Inheritance in the Dayak Ngaju Community in Central Kalimantan, Indonesia

The study aims to seek customary law in the Dayak Ngaju community to become a solution to settlement of inheritance law. Customary law in the Indonesian legal system is one of the doors to the eclecticism of inheritance law which can be developed as part of the construction of national inheritance law, so that there is a process of harmonization and integration of the inheritance law. This research is emperical juridical research using statutory and legal pluralism approaches. The legal pluralism approach aims to examine the harmonization and integration of various legal systems applied in society. The data analyzed came from scientific documents and in-depth interviews with traditional leaders. The results of the research show that there is competition for norms, encounters or conflicts between various legal systems. Some of the reasons that can be put forward are. First, customary law as a sub-system of the customs of the Dayak Ngaju community is an unwritten law that has long existed and has become part of the legal awareness of the Dayak community itself, both in personal, family, group and community life in every activity. Second, the Dayak Ngaju customary inheritance legal system is not a system that stands alone. If the inheritance law system changes, the change will disrupt social cohesion that has been built for a long time. Efforts towards the unification and condification of inheritance laws that apply nationally should be started, in addition to avoiding family conflicts, providing legal certainty, as well as reforming things that are considered unfair in the inheritance law system. It is also a part of legal pluralism which recognizes and provides space for the development of various laws that live in society.