Islamic Law In Indonesia Research Articles

The Urgency of Reforming Marriage Laws and Compilation of Islamic Law Entering the 5.0 Era

Marriage laws and the compilation of Islamic Law in Indonesia have a very important role because they are a reference for the people and judges in religious courts. However, several rules in the two regulations are no longer in accordance with the times, which are currently entering the 5.0 era. This research includes library research whose data sources come from laws and scientific articles. This study concludes that the rapid development of times and technology has an impact on Islamic law. Therefore, reforms are needed that can respond actively to changes that occur in society, so that the relevance of Islamic law is maintained.
 Keywords: update, marriage law, compilation of Islamic Law, 5.0

Analisis Polarisasi Dualisme dan Pluralisme Hukum Islam di Indonesia

Some people still think that everything contained in the books of fiqh is sacred and no one is competent to change it. In fact, the tendency that occurs is that it is very difficult for them to accept the changes that occur in society today. Various ideas for reforming Islamic law have also colored the dynamics of Islamic legal thought in Indonesia, which is essentially the response of Islamic legal thinkers to modernization and development. Thus, this journal will discuss Polarization, Dualism and the Dynamics of Islamic law in Indonesia. This research uses qualitative research with a literature data or literature study approach. The data collection method is by using literature (libraries) from the books Treatise on Marriage Law, National Marriage Law, and the Struggle for Islamic and Customary Law in Indonesia. The research results show that there are two currents of thought which then give rise to dualism and pluralism of sirri marriage law in Indonesia. First group. states that a marriage/marriage is actually valid if it fulfills the pillars and conditions as stipulated by religious teachings. However, the second group states that even though a marriage/marriage has been carried out in compliance with the pillars and requirements according to religious provisions, it is still considered invalid before the law as long as it has not been registered and authentic evidence of the marriage event has not been obtained.

Contradiction of CIVIL Code with Islamic Law Regarding Children Guardianship Outside Marriage in Indonesia

Basically, child custody is the responsibility of both parents; however, in reality, in Indonesia, not all parents do it or get it. Many children do not get protection and rights, even though the related regulations already belong to the Indonesian state. It turns out that this can happen because of various factors that influence one of them related to legal marriage according to Civil law and Islamic law, there are differences between the two regulations. For example, according to civil law, marriage is legal if it is registered with the state, while in Islam it does not have to be. Under the existing rules, this causes an inequality between protection and the rights obtained by children. Based on these problems, this research was conducted to conduct an analysis related to civil law and Islamic law in Indonesia, which regulates child guardianship for children who are considered born out of wedlock, using qualitative research methods. The results obtained from this research show that according to civil law, marriage must be registered with the state to protect child custody and provide clear legal protection, not only for children but also for wives. Meanwhile, according to Islamic law, a marriage that cannot be registered with the state still has a valid law, for example, Siri marriage or underhand marriage. However, in both civil and Islamic law, it is clear that a child in this condition can only have a bloodline relationship between the mother and the mother’s family. The biological father cannot be the guardian of the child. The current condition of society, which tends to take the matter of marriage lightly by ignoring marriage registration and so on, should receive special attention from the government. In this case, the government can more often provide premarital counselling and/or outreach related to marriage in Indonesia. Also, it is very important to increase public awareness.
 Keywords: child born out of wedlock, marriage, custody

Pemahaman Masa Iddah Setelah Perceraian Pada Masyarakat Muslim Indonesia

This research examines the scholarly debates surrounding the iddah period in the context of Islamic law in Indonesia. The focus of this research is on a comparative study of the diverse understandings of iddah among various schools of thought and scholars in Indonesia. The research approach used is document analysis, utilizing various primary sources such as classical Islamic texts and scholars' fatwas. A comparative approach is employed to compare the views of scholars from different schools of thought, such as the Shafi'i, Hanafi, Maliki, and Hambali schools. The results show that there are significant differences of opinion among scholars regarding various aspects of the iddah period, including its duration, the ruling for women who are pregnant when widowed, and the regulation of iddah for divorced women. These debates reflect the diversity of views and interpretations among Indonesian scholars, influenced by factors such as cultural context, local traditions, and interpretations of religious texts. The implications of this research highlight the importance of understanding local contexts in interpreting Islamic law, as well as the need for dialogue among scholars to achieve a more comprehensive and inclusive understanding of Islamic legal issues. Recommendations for further research include conducting more in-depth studies on Indonesian scholars' thoughts on the iddah period and comparative studies with other countries to enrich the discourse of Islamic scholarship in Indonesia and internationally.

The Relationship of Religion and State Law in Indonesia Paradigm Theory Perspective of the Relationship Between Religion and the State

The discourse on the relationship between religion and the state in the context of the implementation of Islamic law in Indonesia is an issue that will never go stale. This article aims to examine the relationship between Islamic law and state law from a paradigm theoretical perspective on the relationship between religion and the state, a study of the thoughts of Indonesian thinker Prof. Arskal Salim. The type of method used is qualitative, data comes from library materials, the main data is the book "Challenging the Secular State; The Islamization of Law in Modern Indonesia” by Prof. Dr. M. Arskal Salim GP, M.Ag. The data is read, analyzed, separated and categorized and then analyzed using descriptive analysis and content analysis. The research results show that Prof. Arskal Salim in his book raises five issues related to the dynamics and discourse of the relationship between religion and the state in the form of the application of Islamic law in state law in Indonesia. The five issues are the dialectic of the concept of sharia and the issue of the nation state, the dialectic of the formalization of Islamic law and the issue of nationalism, the implementation of Islamic law in the Pancasila state constitution, legislation and the formalization of Islamic law in national law, the formalization of Islamic law in Aceh from the beginning of independence to the reform era. Based on the theoretical analysis of the paradigm of relations between religion and the state, namely the integralistic, symbiotic and secularistic paradigms, a fourth new typology was discovered, namely symbiotic-integralistic which is a combination of the symbiotic and integralistic paradigms. This symbiotic paradigm applies throughout Indonesia, and the integralistic paradigm only applies in Nangroe Aceh Darussalam Province.

Sharia Actualization: Realizing the Indonesian Islamic Jurisprudence

Sharia is intertwined with fiqh. In English terminology, Sharia is translated as “Islamic law based on the Quran.” In the context of reforming Islamic law in Indonesia, the method of talfiq is needed, selectively choosing opinions that align with the conditions in Indonesia. It is believed that the Islamic legal tradition, in terms of formation, reform, or legal development, is closer to the Anglo-Saxon legal system known as precedent law. This is because Muslims fully accept that all the dogma, principles, and Islamic sharia are already perfected in the Quran and the Sunnah of the Prophet. The question at hand is how these legal texts can be guaranteed to remain relevant and capable of meeting the needs of all times, places, cultural contexts, and social levels. This study delves deeper into the Sharia within the Contemporary Era, relating to the Typology of Islamic Legal Reform Actualization and the Application of Islamic Law in Indonesia. The research is a literature study, focusing on the examination of figures and the object of study, which is Sharia in a modern context. This study employed a qualitative approach to analyze the Typology of Islamic Legal Reform Actualization and the Application of Islamic Law in Indonesia. The dynamics of Islamic law in Indonesia are expected to continue evolving and innovating so that in the future, Islamic law with universal value will not only pertain to the realm of fiqh muamalat (transactions) and akhwal sakhsiah (personal matters) but will also contribute positively to the development of national law in Indonesia in various aspects.

Analytical Study of the Development of Islamic Law in Indonesia

The study of Islamic law is currently experiencing development, because the impact of developments in science and technology, especially information and communication technology, is taking place rapidly. Changes in society in one place quickly spread to people in other places. The events occurring at this time stimulated the emergence of movements demanding free forms of the Quran and the Prophet's Sunnah, the reopening of the doors of ijtihad, and the abandonment of the doctrine of taqlid. This study uses a qualitative method with content analysis approach, all data taken from various sources are derived from classical holy books, books, theories and expert opinion of Islamic education. The results of this research found the results of the development of Islamic studies during colonial rule, Islamic law in Indonesia during the period of national independence and types of Islamic law and their application. Methods for updating Islamic family law include: Takhshish al-qadha', giving authority to judges, Takhayyur, choosing between opinions within one dominant school, or among four schools, even outside the Sunni school, Re-translating verses of the Quran an and Hadith (retranslation), Siyasah syar'iyyah, determining law based on benefits, Judge's Decision.

Wife Cannot Nullify Husband’s Responsibility to Provide Nafkah

In the Quran, it explains that the husband has an obligation to provide Nafkah for his wife. However, in the Indonesian Islamic Law Compilation, Article 80 Paragraph 6, it is explained that a wife can nullify her husband’s obligation to provide Nafkah. That Article is used as a legal basis for husbands to instruct their wives to be the main backbone of family. This is a problem that burdens the wife. The aim of this writing is to criticize Article 80, Paragraph 6, of the Indonesian Islamic Law Compilation. So that husbands will not let go of their responsibilities. The writing method used is a literature review method. The author tries to find the legal basis for Article 80, Paragraph 6 of the Indonesian Islamic Law Compilation. The Article will be analyzed in the context of a fiqh perspective. The results of the writing can be summarized as follows: this Article has no legal basis. In fiqh, Nafkah that cannot be paid will become a debt that eventually needs to be paid later. And the wife can nullify her husband’s obligation to pay that debt. But not for the Nafkah that has not been paid yet.

KEMODERNAN PENEGAKAN HUKUM ERA PERTAMA ISLAM DITINJAU DARI BUDAYA HUKUM

One of the obstacles to enforcing Islamic law in Indonesia in particular, there are still many people who view Islamic shari'a as a law that does not meet the elements of justice, not in accordance with this era (not modern). But a close look at Islamic law in particular and Islamic teachings in general do not correspond to what the general public imagines. The Medina Charter is one of the concrete and concrete evidences, how the Prophet had built a civilization that was very advanced beyond the thinking of the people at that time, where Piagama Medina as a prototype of the constitution that exists in modern times today. On the other hand, Prophet Muhammad and his companions had a very good legal culture so that they upheld the awareness of obeying the law and law enforcement. A good legal culture cannot be separated from the role of leaders who always instill religious values accompanied directly by providing good examples to their communities.The Medina Charter and the good legal culture of the Muslim community can already reflect that the Islamic legal system is a modern system and will always be modern.

APPLICATION OF THE PRINCIPLE OF VOLUNTARINESS IN MARITAL PROPERTY DECISIONS

Marital Property Assests or what is usually called ‘gono-gini; harta bersama’ is property acquired or obtained by a husband and wife together while they are in a marriage bond. The concept of shared prices or what is usually called gono-gini property comes from customs that continue to develop and are supported by positive law or Islamic law in Indonesia. Mediation is a peace institution in the Court which brings benefits to the Judges and the parties, there is good faith of the principals (husband and wife) in the process of resolving divorce cases, it is not uncommon for ego attitudes to be more dominantly put forward by each party. Mediation has a voluntary principle, each conflicting party comes to mediation of their own free will and willingness and there is no coercion or pressure from other parties or outside parties. This principle of voluntarism is built on the basis that people will be willing to work together to find a way out of their disputes, if they come to the negotiation place of their own choice.

Revisiting ‘Iddah: A Critical Analysis of Gender Equality in Indonesian Feminist Islamic Legal Discourse

Feminist legal theory highlights the persistence of women's subordination within the prevailing legal framework and emphasizes the importance of legal mechanisms that promote women's emancipation and equality. So far, the discourse of feminist Islamic law in Indonesia has caused more rejection, particularly with the emergence of the Counter Legal Draf-Kompilasi Hukum Islam (CLD-KHI), which is considered contrary to Islamic law, one of which is in the provisions of 'iddah. This study seeks to examine and analyze the demand for gender equality in the 'iddah period as manifested in the CLD-KHI. Using a qualitative research approach emphasizing library-based research on the draft in question and the supporting writings, this study bases its content analysis on the theory of Maqāṣid al-Sharī'ah, with al-Shatibi as the primary source. The results of this study reveal an insufficiency in the justification of the plea for gender equality in the enforcement of 'iddah from the view of Maqāṣid al-Sharī'ah. From the conventional perspective of Islamic law, the principle of gender equality as a maqṣad does not have a solid foundation, so it leads to rejection rather than acceptance. Therefore, to bear fruit, any legislative effort in the field of Islamic law must be carefully shaped by methodologies and ethos derived primarily from its tradition.

Positivization of Fatwas of the National Sharia Council of the Indonesian Ulema Council in the Sharia Banking Law: Problems and Challenges

The positivization of DSN MUI's fatwa within Sharia Banking Law ensures compliance with sharia principles. This study examines how DSN MUI incorporates its fatwas into the law and the associated strategies. Using a descriptive qualitative approach with historical, normative, and philosophical methods, primary data include UUPS and MUI fatwas from 2000/2007, while secondary data encompass statutory theory and supportive materials. Findings reveal a methodical and democratic positivization process. Law No. 7 of 1992 marked the onset of Islamic banking via profit-sharing financing. Law No. 10 of 1998 introduced dual banking, while GBHN 1999 and the 1945 Constitutional Amendment further empowered the DPR. DSN MUI was established by MUI to implement Islamic economics. Up to 2007, DSN MUI issued 64 fatwas, formerly non-binding but now legally binding through legislative integration. Although MUI holds a central role in establishing sharia principles, its position remains extrinsic to institutional structures. UUPS designates MUI as a sharia authority (Article 26) and a mass organization simultaneously. DSN MUI plays a pivotal role in supervising sharia compliance in banking products. UUPS absorbs DSN MUI's fatwas, evident in clause alignment with the fatwas. Articles 26 and 32 delineate MUI's role in overseeing sharia compliance. In summary, positivization of DSN MUI's fatwa in Sharia Banking Law implements Islamic law in Indonesia by melding DSN MUI's supervision and determination of sharia principles in banking.

Disparitas Hukum Pidana Terhadap Pelaku Kekerasan Seksual Pada Anak

This research aims to elucidate how criminal law disparities against perpetrators of sexual violence against children manifest based on Islamic law in Indonesia. The legal disparities indicate that child victims of sexual violence have not received comprehensive legal justice. This study adopts a qualitative descriptive approach, collecting data through exploration and reading online media with the keywords 'sexual violence against children in Indonesia' on the Google search engine. This paper reveals that legal imbalances have undermined the value of justice for child victims of sexual crimes, affecting them both psychologically and physically, and leading to other consequences such as dropping out of school, forced marriage to the perpetrator, and suicide. This study is crucial to bring about justice based on Islamic law for child victims of sexual crimes, juxtaposed with Pancasila justice. It highlights that the criminal legal disparities in cases of sexual violence consistently place children as the disadvantaged objects of legal justice. True legal inequality would not occur if the application of the law is based on Islamic Law grounded in divine values, as the punishment for perpetrators of sexual violence in Islam can be judged as hudud crimes, qhisas crimes, and ta'zir crimes.

COMPARATIVE STUDY OF GENDER REASSIGMENT IN INDONESIA IN THE PERSPECTIVE OF POSITIVE LAW AND ISLAMIC LAW

<p>Gender and sex are two different things. Sex is synonymous with the difference in physical form between women and men. While gender refers more to the characteristics, roles, functions, status, and responsibilities. Some people feel that their gender and sex are not in harmony, so they decide to change their sex by having sex reassignment surgery, and ask for a court order. This is certainly a pro and con for Indonesian society, which is predominantly Muslim, especially if a Muslim changes his or her gender. This research aims to analyze the regulation of sex reassignment in Positive Law and Islamic Law in Indonesia. This research uses the normative juridical method, namely with statutory documents, and other literature studies related to this research. The results of the study show that in Indonesia there is no specific regulation regarding sex reassignment due to sex reassignment surgery, but judges usually use jurisprudence and use the provisions of Article 56 Number 24 of 2013 concerning Population Administration, while in the view of Islamic Law the law of sex reassignment surgery is prohibited, unless the surgery is for health purposes then there are some scholars who allow it.</p>

Juridical Basis of Murabahah Bil Wakalah Contracts at Islamic Banks

The wakalah agreement that appears in financing schemes in Islamic banks becomes a series with the murabahah agreement. This series of contracts then appears in financing in the form of a murabahah bil wakalah contract. The specific purpose of this research is to find out and analyze the juridical basis of the murabahah bil wakalah contract in positive law and Islamic Law in Indonesia. This research is categorized as legal research with a normative juridical method. The normative juridical approach used is the statute approach. The data collection method in this research uses cross methods, namely literature study, observation and interviews, according to the types and sources of data needed. Until now, there are no rules governing murabahah bil wakalah as a unit in Islamic bank financing products, both rules in positive law and Islamic law in Fatwa DSN MUI. Therefore, the juridical basis for murabahah bil wakalah financing comes from the juridical basis for each murabahah contract and wakalah contract, whether from the Law, Regulations of the Financial Services Authority of the Republic of Indonesia, or other laws and regulations, as well as Fatwa DSN MUI.

Exploring Customary Law: Perspectives of Hazairin and Cornelis Van Vollenhoven and its Relevance to the Future of Islamic Law in Indonesia

The difference between Islamic law and Western law in viewing customary law is the core problem that forms the background of this research. This article aims to explore in-depth Customary Law from the perspectives of Hazairin and Cornelis Van Vollenhoven and its relevance to the future existence of Islamic law in Indonesia. This research is a literature study applying a qualitative Juridical-Normative approach. The primary sources for this research are the original works of Hazairin (Tujuh Serangkai tentang Hukum dan Hazairin, Hukum Kewarisan Bilateral Menurut al-Qur�an dan Hadith) and Van Vollenhoven (Het Adatrecht Van Nederlandsch-Indie and its translated version, Van Vollenhoven on Indonesian Adat Law). The secondary sources are all references relevant to the topic of the article. Comparative analysis is used in analyzing the data. The research findings explain that, according to Hazairin, customary law can be applied anywhere as long as it does not contradict Islamic law. In contrast, Van Vollenhoven argues that customary law does not need to consider religion because all humans have equal rights before God, thus rejecting or eliminating customs or traditions is considered undignified. The formation of national law due to culture and tradition is an important part of society. This research provides a conceptual historical-theoretical narrative related to customary law in Indonesia. Despite having different perspectives on customary law, both Hazairin and Van Vollenhoven share the vision that customary law should be made into positive law. Therefore, the existence of customary law needs to be considered by lawmakers to become national positive law.

Optimizing the utilization of government-owned tangible assets through managing institutional factors in Indonesia

This study aims to examine whether the institutional factors – governance, asset knowledge, internal control system, and competencies – optimize the utilization of provincial, regency, and municipal governments’ tangible assets in supporting public services. In contrast to previous research, which employed Sharia ethics as exogenous variables, this study includes Sharia ethics as a moderating variable in the model. Sharia ethics is one specific factor in implementing Sharia principles by the government that applies Islamic law in Indonesia. The province of Aceh, with all its regencies and municipals, is the only province that applies Islamic principles in running its government. Primary data were collected using a questionnaire sent to 285 provincial and district government asset managers using a Google form; 229 questionnaires were returned. Structural equation modelling (SEM) was employed to analyze the complex relationships and the hypotheses. The results reveal that institutional factors are not strong enough to optimize the utilization of tangible assets without having deep Sharia ethics. It meant that Sharia ethics is necessary for strengthening the relationship between the institutional factors and the optimization of government asset management in provincial, regency, and municipal governments. The results provide recommendations for provincial, regency, and municipal governments to develop appropriate and reasonable regulations and standards for optimizing asset management within the Aceh government.

Scientific Consideration in the Concept of Islamic Law in Indonesia

This study aims to incorporate scientific consideration in the application of falakiyah fatwas of the Indonesian Ulema Council and maps the patterns of the nexus between religion and science in those fatwas. This research involved a library study and a qualitative method. The approaches took into account ushūl fiqh and scientific approaches. With regard to the theoretical fundamentals, this research adheres to cum-doctrinaire introduced by A. Mukti Ali and the theory relating to the nexus between religion and sciences by Ian G. Barbour. The primary data were sourced from six falakiyah fatwas by the Indonesian Ulema Council from 1976-2010. The data were garnered from documentation and analysed with content analysis. The research results show that scientific studies in falakiyah fatwas of the Indonesian Ulema Council play the following three roles: first, scientific studies are to help understand problems that religious knowledge cannot fathom; second, scientific studies along with syar’ī theorem are referred to as a primary consideration in setting a fatwa; third, the scientific studies serve as the basis of amendments in a fatwa. Unfortunately, Scientific studies are not always consistently taken into account in setting falakiyah fatwah of the council, thereby sparking diverging religious patterns intertwining with sciences in falakiyah fatwas, ranging from conflict relations, independence, and dialogues, to integration.

Teori Receptie, dan Teori Receptie a Contrario dalam Pusaran Muslim Minoritas dan Muslim Mayoritas di Indonesia

This research investigates the application of the Reception Theory and Reception Theory A Contrario in the context of minority and majority Muslim communities in Indonesia. Through literature studies, case analyses, interviews, and contrastive analysis, this research aims to understand the impact of using both of these theories on the social reality in regions with different characteristics. The research results indicate that, although they hold academic value, the Reception Theory and Reception Theory A Contrario are not in line with the factual conditions of society in Indonesia, particularly in Aceh and Bali. The application of these theories has the potential to create conflicts between the majority and minority Muslim communities. Therefore, the author concludes that the Reception Theory and Reception Theory A Contrario should not be used as the main theories or references in regulating the application of Islamic law in Indonesia. Instead, a more inclusive approach is needed that can accommodate the cultural and religious diversity in Indonesia. This research provides a new contribution to the discussion on the relevance of Islamic law theories in the multicultural social context of Indonesia.

Authority Reformulation of Gender Equal Marriage Guardians: 4 Jurisprudence Schools Law of Marriage Guardians

Backgrounds: The existence of a guardian in the marriage contract within the framework of Islamic law in Indonesia is a condition that must be met by the bride. This means that the marriage contract is not valid if in the process there is no guardian accompanying the bride. The problem is that guardianship listed in the legal framework in Indonesia only gives full authority to fathers who are male. This is because the views of fiqh in Islamic marriage law in Indonesia take the Imam Syafi'i school of thought. Aim: The research would like to analyze the authority reformulation of gender equal marriage guardians through the lens of 4 jurisprudence schools. Methods: The article used the literature review method by utilizing secondary data from 3 Islamic yellow books and other supporting ones like journals and books. Findings: This study shows that the four schools of fiqh indicate the existence of opportunities or potential for female heads of households to become marriage guardians for their daughters.