Justicia Islamica

Religion and State in Islamic Constitutional Law: The Role of Pesantren in Strengthening Symbiotic Islam and the State in Madura

2024-10-11T11:18:27+07:00

The Pesantren Law further emphasizes the existence of pesantren who are responsible for spreading the ideology of patriotism. Pancasila has established a mutual need and benefit pattern between religion and the state. It is unique that the position of religion in Pancasila is based on the first principle. This follows the thinking of the pesantren in Madura, who view that religion and the state cannot be contradicted because both have a mutually beneficial relationship (symbiotic). The purpose of writing this article is to find out the strategy of the pesantren in spreading the symbiotic understanding of religion and the state in Madurese society, which has proven successful in preventing the spread of radicalism in Madurese Muslim society, where the process of spreading has been massive through social media and online media. This research uses empirical legal research with legal sociology and legal anthropology approaches. The results obtained in this study show that pesantren in Madura use two methods and strategies to spread the Islamic ideology of love for the homeland, namely through internal and external strategy. Internal strategies are carried out through the pesantren teaching system, based on the postulates and advice on patriotism to its students. The external strategy is carried out through establishing a network of pesantren and madrasah branches and organizing the duty ustad program in community life to build and maintain the Nusantara Islamic ideology that loves the country. This research contributes to efforts to improve public understanding of the importance of maintaining harmonious relations between religion and state. This model of strengthening understanding can be a reference for the government in implementing policies to strengthen public understanding of the symbiotic of Islam and the state through religious institutions.

Contradiction Implications of the Receptie a Contrario Theory in Minangkabau Inheritance

2024-10-15T06:53:42+07:00

This research explores the application of the receptie a contrario theory in its implementation in the inheritance law of the Minangkabau customary society. This research is a normative juridical research with conceptual and philosophical approaches. Data source analysis is conducted on primary legal materials in the form of expert interviews and laws and regulations, and secondary legal materials in the form of research results on Islamic law and customary law. Based on the research results, it can be concluded that the theory of receptie a contrario still applies to inheritance issues in Minangkabau. Although the Minangkabau people are famous for their adherence to customs, they consider breaking customs shameful. However, the Minangkabau community has explicitly stated that their customary inheritance law refers to Islamic inheritance law by recognizing that children and wives are heirs of their parents/husbands. In contrast, previously, the customary heirs recognized were nieces (kemenakan). This research confirms that the application of the receptie a contrario theory still applies to inheritance issues in Minangkabau. In addition, it also contributes to explaining to the broader community that inheritance in Minangkabau, although it adheres to matrilineal kinship lines, has implemented Islamic law.

Transformation of Kyai Authority in Marriage: A Law-Abiding Society in Pekoren, Rembang, Pasuruan

2024-10-15T07:45:24+07:00

This article discusses the role and authority of kyai in marriage practices in Muslim communities, especially in Pekoren Rembang Village, Pasuruan. This research uses a socio-legal approach and focuses on the role of kyai in carrying out marriages that are not always registered at the Office of Religious Affairs (KUA). In the Pekoren community, kyai have authority in religious law and are often involved in the marriage contract procession, even though the KUA does not officially record it. This gives rise to unregistered marriages, where marriages are considered religiously valid but not recognized by the state. This research also reveals that the role of kyai in marriage has shifted due to increasing legal awareness in society, pragmatism, and reduced appreciation for Islamic boarding school graduates. This research concludes that the authority of kyai in marriage practices in Pekoren is decreasing along with socio-economic changes and increasing legal awareness in society. Now, people prefer marriages officially registered by the head of the KUA to obtain legal guarantees. The shifting role of kyai in marriage practices in Pekoren Village can serve as a guide for policymakers and religious leaders in ensuring that marriages are recognised under state law, in line with socio-economic changes and the legal awareness of the community.

Systems of Government in Islamic Countries: The Dynamics of Sharia Law from the Prophetic Period to the Modern Era

2024-10-15T07:46:51+07:00

This article explores the forms and systems of government practiced by Islamic states from the time of the Prophet to the present day. This research departs from the problem of the debate on the relationship between religion and the state in the practice of Muslim countries that form the diversity of Islamic state administration from classical to modern times. This conceptual research is related to classical to contemporary government practices in Muslim countries. This research uses heuristic and philosophical approaches. Based on the research conducted, this study concludes that four factors cause diversity in the implementation of the constitutional state of Islamic countries, namely: 1) there are no specific rules on constitutionalism in Islamic teachings, 2) the centralized and absolute power of the caliph, 3) the growing tradition of the rule of law, and 4) the influence of Western concepts of democracy through international expansion and the expansion of power in the colonial era. This study contributes practically to offering a more adaptive model of interaction and negotiation of diversity-based governance and constitutions of Muslim-majority countries.

Harmony in Diversity: The Role of Minority Jurisprudence in Realizing Religious Harmony in Jayapura, Papua

2024-10-15T06:57:48+07:00

This research aims to answer how the ideal model of minority fiqh implementation in Jayapura Regency and its contribution to religious harmony in Indonesia. This research is a juridical-empirical research with normative theological and sociological approaches. The data was analysed using descriptive qualitative method. The research data was obtained through interviews and observations of informants and research locations in Jayapura. In contrast, document data was obtained from various literature sources, such as books, journal articles, and research reports. Based on the research conducted, the results show that the implementation of the fiqh of the Muslim Minority of Jayapura Regency can be formulated in 4 four models: 1) taking the opinion of the madzhab that facilitates the uncleanliness of dogs and pigs; 2) allowing Muslims to say Merry Christmas to Christians; 3) being able to participate in ceremonial activities and Christmas committees, and 4) the permissibility of electing non-Muslim leaders. Based on the research findings, it shows that there are factors driving the implementation of the fiqh of religious harmony by Muslim minority communities in Jayapura Regency. This research also contributes to realising religious moderation in a pluralistic society.

Settlement of Sharia Economic Disputes: Efficiency of Implementation in Indonesian Religious Courts

2024-10-15T07:00:17+07:00

This research is a critique of the efficiency of the sources of material law used in the settlement of sharia economic disputes to see how great the urgency is in creating sources of material law that are more specific and can be used as legally binding in sharia economic cases. This research uses descriptive qualitative research methods. The data collection method is done through observation, interviews, and documentation. Furthermore, data analysis was carried out using the methods of data reduction, data display, and conclusion/verification. The results of this study show that the source of material law in the settlement of sharia economic disputes is less efficient because the settlement of defaults and unlawful acts in the field of sharia economics still refers to the Civil Code (KUHPerdata). This finding confirms that there is a legal vacuum in sharia economic disputes, so dispute resolution only focuses on the agreed aspects of the contract, not on the form and practice of the contract. The implication is that the decision made by the judge does not fulfill the interpretative legal theory that adheres to the values of justice, fairness, and procedural due process. Ideally, the resolution of sharia economic disputes should still be based on Islamic law principles as the basis of the function of the Religious Courts. Practically, this research contributes to the conceptual framework of the source of material law in resolving sharia economic disputes in more effective Religious courts, as well as offering a concept of dispute resolution that follows the principles of the Islamic legal system.

Islamic Legal Strategies in Indonesian Contexts to Combat Cybercrime and the Spread of Illegal Data Dissemination

2024-10-15T07:02:03+07:00

This research examines Islamic law strategies in Indonesia to combat cybercrime and illegal data dissemination. The main focus is to identify and analyze relevant Islamic law approaches in cybercrime in Indonesia and assess their effectiveness in addressing illegal data dissemination. Qualitative methodology was used to collect data, including document analysis and expert interviews. The results show that applying Islamic law principles such as justice, transparency, and accountability can strengthen law enforcement policies and practices in addressing cybercrime. The findings also emphasize the importance of improving education and awareness about Islamic law in preventing cybercrime. As a practical contribution, this research offers a legal framework that policymakers and law enforcement can integrate to address cybercrime and illegal data dissemination more effectively. By referring to principles such as justice (al-'adl) and the protection of individual rights (huquq al-insan), the article proposes preventive and enforcement measures that can be applied in the context of legal product formulation, policy drafting and more flexible law enforcement.

Contestation and Negotiation on Interfaith Inheritance in Pancasila Village

2024-10-15T07:48:37+07:00

This research aims to investigate the division of inheritance between different religions in Kampung Pancasila Balerejo Wlingi Blitar and analyze the relationship between legal systems in the division of inheritance. This research is a non-doctrinal research using a legal pluralism approach. Data were collected through document study, observation, focus group discussion, and in-depth interviews. The data was analyzed using Sally Falk Moore's theory of legal pluralism. The results showed that the division of inheritance was carried out equally between men and women even though family members adhered to different religions. The process of inheritance division is carried out by deliberation by presenting village officials. The reality of the division of inheritance between different religions in Pancasila Village shows that local law and state law run simultaneously and complement each other. Kampung Pancasila has a self-regulating inheritance system. The capacity possessed by the people of Pancasila Village to regulate independently shows the existence of autonomy. However, this autonomy is not absolute (the semi-autonomous social field) due to the influence of state organs. These, namely village officials, come from outside the semi-autonomous area and affect the distribution of inheritance. This research contributes to identifying the contestation and negotiation between legal systems in the inheritance distribution practices of multi-religious families. In addition, this research also contributes to providing alternative solutions to the division of inheritance in multi-religious families.

The Prevention of Underage Marriage in Indonesia: State, Religious Authority and Human Rights

2024-10-21T07:44:25+07:00

This paper strives to investigate dynamic interplays among the state, religious authority, and human rights surrounding early marriage among Muslims in contemporary Indonesia. More specifically, this paper will address the following problems: (a) how do religious authorities respond to the cases of early marriage in Indonesia; (b) what kind of religious understanding should be developed to prevent early marriage in Indonesia; (c) how do religious judges exert their agency in preventing early marriage in Indonesia amidst the pressure of state, religion, and human rights. This research employs a qualitative methodology, including interviews with religious scholars and judges and analyzing legal documents. The finding of the research states that while some religious authorities advocate early marriage based on conservative interpretations, progressive scholars argue for delaying marriage to safeguard children's health and rights. In addition, a more context-sensitive understanding, rooted in maqasid al-sharia (objectives of Islamic law), is essential for preventing early marriage. Religious judges, meanwhile, play a pivotal role in navigating social, legal, and religious pressures, especially in cases involving pre-marital pregnancies in Indonesia. This study contributes to the sociology and politics of Islamic law, most notably in unravelling the complexity of power relations among the state, religious authority, and human rights regarding underage marriage.

Mortgage Rights for The Sharia Banking Murabahah Akad its Position and Application

2024-10-21T08:31:08+07:00

This research aims to explain the practice of mortgage rights in Islamic banking, the legal position of mortgage rights as a form of collateral in Islamic banking financing, the application/implementation of mortgage rights in Islamic banking financing, and explore whether mortgage rights as a form of collateral in Islamic banking financing have an equal position with credit in conventional banking. This research uses a sociolegal approach with secondary data sources, namely a review of primary legal texts, secondary legal literature, and non-legal sources. This research concludes that: 1) Mortgage Rights' validity in Islamic banking financing can be observed through the institution of Mortgage Rights regulated in Law Number 4 of 1996 concerning Mortgage Rights on Land and Related Objects. 2) In Islamic banking practice, there is a strong emphasis on the existence of collateral in the assessment of providing financing to customers. 3) Mortgage rights as collateral have a different position between conventional and Islamic banks. This research contributes to understanding the legal position and application of mortgage rights as collateral in murābaḥah contracts in Islamic banking. It compares it with the credit system in conventional banking. The research results are expected to provide policy references in the banking sector regarding more effective implementation of mortgage rights in murābaḥah contracts.