Justicia Islamica

Interreligious Marriages In Indonesia: From Legal Disharmony to Legal Conflict

Hasna Lathifatul Alifa, Ali Sodiqin, Bian Ambarayadi — Wed, 25 Oct 2023 08:28:37 +0700

This article explores legal conflicts regarding the legality of interfaith marriages in Indonesia. There was a legal conflict between the provisions in Article 2 paragraph (1) of Law No. 1 of 1974 concerning Marriage, which determines the validity of marriages based on religious law, with Articles 34 and 35 of Law No. 23 of 2006 concerning Citizenship Administration, which states that a valid marriage is reported and registered. Article 35, letter (a) says that the court determines a legal marriage. Disharmony of laws and regulations concerning interfaith marriage regulations has influenced the interpretation of legal provisions, resulting in differences in judges' decisions. This raises the question of harmonizing the legal provisions between these laws and regulations. Analysis of the problem of the legality of interfaith marriage law is carried out using a normative juridical approach by using Soerjono Soekanto's theory of legal effectiveness. The results of this study indicate that the disharmony of interfaith marriage law causes multiple interpretations for judges in determining the legality of interfaith marriages. Unclear regulations cause the legal rules of interfaith marriages in Indonesia to cause conflicts between legal institutions. The legal substance factor is the main root of the ineffectiveness of the regulations on interfaith marriages in Indonesia. Disharmony between legal authorities impacts conflicts between legal institutions and influences the practice of interfaith marriages in society.

From Tradition to Mainstream: Understanding the Integration of Islamic Law in Various Global Settings

Suud Sarim Karimullah — Thu, 26 Oct 2023 01:21:28 +0700

The study highlights the importance of integrating Islamic law in global legal settings, enriching the legal framework, and promoting interreligious dialogue. This is an important area that needs to be understood and taken seriously in the context of ongoing world changes. The study used a qualitative approach to analyze academic literature, legal documents, and related research reports from various sources. The research findings identify several significant examples of integration of Islamic law in different global settings, including Muslim and non-Muslim majority countries. The integration of Islamic law in a worldwide legal environment offers meaningful potential. First, values such as social justice, balance, and common good in Islamic law can provide a different and complementary perspective to the principles of secular law. This impacts more inclusive and fair policies for the Muslim community. Second, the integration of Islamic law can better facilitate interreligious dialogue. Non-Muslim communities' more profound understanding of Islamic law may open the way for constructive dialogue, mutual understanding, and cooperation in addressing global legal issues. This has the potential to reduce tensions and increase interreligious tolerance. However, challenges and controversies are also part of integrating Islamic law. Recognition of the validity and relevance of Islamic law in more comprehensive legal settings is still doubted by some. At the same time, differences in interpretation and implementation can lead to tensions in diverse societies.

The Justice Orientation in The Court Decree: The Judge Legal Reasoning in Compensation Imposition of Musharakah Agreement

Deni Purnama, Asmuni Asmuni, Dhiauddin Tanjung — Mon, 30 Oct 2023 07:35:45 +0700

This research explores the law consideration used as the foundation of the appearance of the obligation of compensation due to default in the musharakah verdict agreement. In practice, the bias between Islamic and conventional banks often occurs, especially regarding the musharakah agreement, which is sometimes interpreted as a debt agreement, as commonly occurs in traditional banks. Using a normative law research approach, the writer analyzes the internal works of law standards by using decisions of the first level of Religious Courts judges and the cassation level as the object. Based on the analysis, there are two types of law approaches of the judges: formal justice and substantive justice. The judges at the first level of the judiciary used a traditional method by comparing the sound of agreement and the facts of the court. Meanwhile, the substantive justice approach was taken from the cassation level judges who consider not only the agreement's validity but also the agreement's substantial. In this case, the judges on the cassation level managed to explore the substance of equality and partnership principles in the Musharakah agreement. Considering the precautionary principle in the implementation of financing by Islamic banking and the legal relation between the participants of the musharakah agreement, the deficiencies in this agreement will be burdened to each party as the fund deposited proportionally. This research contributes to the conflict resolutions of the Musharakah agreement proportionally

Dynamics of Child Marriage in Suku Anak Dalam Community

Rahmi Hidayati, Illy Yanti, Muhammad Farhan HR, Shahrul Hilmi Othman — Mon, 30 Oct 2023 07:37:10 +0700

This paper aims to explain the dynamics of child marriage and its impact on the Suku Anak Dalam community. This research uses observation, interview, and documentation methods, in which researchers directly go to the field to observe and interview perpetrators of early marriages and tribal chiefs. The results of the study show that the Suku Anak Dalam community has its own rules and traditions regarding the appropriate age limit for marriage and does not include provisions in the law that have been positive. This tradition is a way of measuring the maturity of the bride and groom. According to the Suku Anak Dalam, men can get married if they can earn a living through skill tests in hunting animals or are suitable for farming. At the same time, women are considered adults if they have menstruated. Child marriage is generally a tradition passed down from generation to generation and is an unwritten legal system in society. This practice is a form of neglect regarding women's rights in domestic life, which impacts divorce, physical health, malnutrition, and marriage administration. Several factors, including tradition, arranged marriages/endogamous marriages, economics, promiscuity, and gender inequality, cause this child marriage.

Social Justice and Humanity on Polygamous Marriage at The Religious Court of Pasuruan - Indonesia

Mukhammad Nur Hadi, Faridatus Suhadak, Zuliza Mohd Kusrin — Wed, 08 Nov 2023 02:48:44 +0700

Polygamy can be granted if it meets one of the alternative conditions and the absolute cumulative condition. However, sometimes alternative terms are used as wrappers for other reasons to look ridiculous, such as humanity. This paper examines three polygamy rulings at the Pasuruan Religious Court in 2019 using the three Indonesia Women Ulama Congress (KUPI) fatwa approaches ma’ruf, mubadalah, and ultimate justice. The article finds that the reason for public justice is used to wrap up humanitarian reasons. In the ma’ruf approach, the standard of public justice as the basis for judges' consideration needs to be more precise because it does not refer to the global public experience. These standards are not in harmony with the decent logic of women in general. The Mubadalah approach ensures a balanced interpretation and interplay of public justice and humanity. The judge’s reasoning for considering standards of public justice and humanity based on patriarchal paradigms deserves to be criticized. The ultimate justice approach illustrates that the judge's reasoning is not based on women's biological, sociological, and anthropological life experiences in the case of polygamy. Using justice and justifying humanitarian reasons in some polygamy rulings in the Pasuruan Religious Court does not yet have a solid basic legal paradigm

The Legal Protection of The Spiritual Rights of Muslim Consumers in The Halal Industry Development Through Self-Declare

Rooza Meilia Anggraini, Anis Hidayatul Imtihanah, Yudhi Achmad Bashori — Wed, 08 Nov 2023 02:50:07 +0700

The end of the Government Regulation in Lieu Law No. 2 of 2022 concerning Job Creation significantly changes the Halal Product Guarantee Law. The Indonesian Ulema Council is no longer authorized to issue fatwas on products filed under the Self Declare program. The transition from the Fatwa Commission to the Fatwa Committee, whose members are academics and ulama, as well as the accelerated halal certification program for institutions under the Ministry of Religion, may provide opportunities for violations for both business actors and PPH assistants, potentially affecting the spiritual rights of consumers. This article examines the government's strategy for promoting the halal business through self-declaration and comprehending the notion of ensuring Muslim customers' spiritual rights in the self-declare halal certification program. This normative legal research article has a conceptual, statutory, and case approach. This research is classified as library research since it relies on library materials as a normative legal research data source. According to the study's findings, the self-declare program is one of the government's methods for achieving 10 million halal certificates by 2024. However, this program needs further evaluation, particularly in terms of supervision. If PPH assistants and business actors apply the provisions of the Law, the spiritual rights of consumers as part of their religious rights granted by the Constitution can be fulfilled.

Exploring Islamic Law and Customary Law: The Saro-saro Tradition and The Prohibition of The Hijab in Marriage in The Jailolo Muslim Community, West Halmahera

Abu Sahman Nasim, Nur Azizah Rahman, Iin Junisti Hamid — Wed, 29 Nov 2023 08:30:36 +0700

This article explores the Saro-saro tradition in the marriage of the Jailolo Muslim Society. In this tradition, traditional symbols should be obeyed, such as the use of conventional clothing, a headscarf bun as a standard symbol, and the prohibition of wearing hijab. This research is qualitative research with an ethnographic approach. Research findings show the ban on head coverings or hijabs and the use of buns as a symbol of tradition, even though they wear hijabs daily. The obligation to wear a bun rule out the obligation to wear a hijab for a Muslim woman at a wedding. Implementing saro-saro is a traditional ritual classified as mubah (allowed) to be applied; merely the conventional symbol, which needs a bun for saro for those who wear hijab, is contrary to Islamic law. When the traditional provision and Islamic law provisions are contradictory, it is a must to negotiate and dialogue then preempt the main requirements on the philosophy of "adat matoto agama, agama matoto kitabullah, and Sunnah Rasulullah," so the tradition and Islamic law can get along in harmony.

Nahdlatul Ulama's Ijtihad Method in Fatwa: Analysis of The Content of Legal Decisions and Their Validity in Indonesia

Ismail Jalili, Fadillah Ulfa, Mualimin Mochammad Sahid — Wed, 29 Nov 2023 08:29:31 +0700

This research aimed to investigate the method of inference in Nahdatul Ulama Scholars to issue fatwas regarding some issues in Indonesia. This research applied the qualitative method to collect data for looking into the topic and using a content analysis approach to analyze the legal decision of Nahdatul Ulama scholars and its validity as a product of fatwa. The results show that the inference done by Nahdatul Ulama scholars did not correspond to the belief done by the Muslim scholars in the past era due to their shortcomings in fulfilling the requirement of Mujtahid Muthlaq. This research also reveals that their method can be categorized as ijtihad jama’i, and the validity of the fatwas was significant enough for the Indonesian Muslim society to perform their daily ibadah or muamalah activities. This research contributes to the existing body of literature by providing insights into the specific inference method employed in Indonesia. It focuses on the influence of fatwas issued by scholars affiliated with Nahdatul Ulama, highlighting their significant following among ordinary individuals associated with this organization.

Industrial Design Protection in Indonesia: A Fiqh Perspective and Its Challenges In Facing Communalistic Values

Husnul Haq, Muchtim Humaidi, Ali Muchtar — Tue, 19 Dec 2023 03:52:00 +0700

As a member of the World Trade Organization and a signatory to the TRIPs Agreement, the Indonesian Government drafted Law Number 31 of 2000 concerning industrial design. The establishment of TRIPs was the desire of industrial countries such as America and Europe to protect their products and strengthen their monopolistic position in international trade. Besides that, the philosophical foundation of TRIPs is based on individualism, while the social reality of the Indonesian nation adheres to a communalistic way of life. This research aims to describe industrial design protection in Indonesia and its problems from a fiqh perspective. This research is a legal research based on primary and secondary legal materials. Researchers also examined Law No. 31 of 2000 concerning industrial design and the Academic Paper of the Draft Law on Industrial Design in 2015. In data analysis, the authors use descriptive and comparative techniques. This study finds that although the Law of industrial design originates from the rules of the TRIPs Agreement, it generally does not conflict with Islamic jurisprudence but is in harmony with it. However, there are problems in protecting industrial design. To solve these problems, it is necessary to improve the industrial design law by considering national interests, improve the legal structure by increasing the professionalism of judges and judicial staff, and improve legal culture through education, socialization of legal regulations, good examples, and halal industrial designs.

Maqashid’s Lens on Checks and Balances of Simultaneous Elections in Indonesia

Muhaimin Muhaimin, Sirajul Munir, Zahratur Rofiqah — Wed, 27 Dec 2023 03:49:28 +0700

This study aimed to explore the principle of checks and balances using the results of simultaneous elections from the perspective of Maqashid al-Syariah. This study is legal research with a normative, comparative, and conceptual approach. According to the findings of this study, the scope of maqashid al-sharia has been considered in the control of state life (maqashid al-siyasah) as part of the development of current maqashid studies. In implementing checks and balances, the nation's interests (hifdz al-ummah) are the main objective of consolidating executive and legislative institutions after simultaneous elections. A government will function effectively if the elected president receives support from a broad coalition in parliament; if he receives just minority support in parliament, the government will face political challenges and become unstable. As a result, institutional ties must be strengthened to offer checks and balances based on maqashid siyasi. This study adds to the implementation of checks and balances based on performance and the interests of the people, rather than political sentiment, to develop friendly governance following the simultaneous elections.