Justicia Islamica

Examining Witness Interest: The Obstacles of Testimony in Islamic Jurisprudence and Positive Law

2024-06-24T13:51:04+07:00

This study compares Islamic jurisprudence and positive law to explore the obstacles of testimony, focusing on the complexity and controversy surrounding witnesses' interests. Employing a legal comparative method, the research examines self-interest in testimony, emphasizing authoritative sources like fiqh books and Jordanian law, shedding light on the concept of self-interest as its primary focus. It highlights the differences between Islamic jurisprudence and contemporary legal frameworks, providing a nuanced understanding of witness actions in legal processes. This research's findings reveal that testimony's self-interest predominantly relates to lineage, siblinghood, marital relationships, hostility, and partisanship. The results show both Islamic jurisprudence and positive law recognize the prohibition of testimony due to self-interests is not absolute; there are many interpretations and exceptions to this restriction, with differences stemming from the reliance on religious texts in Islamic jurisprudence and legal reasoning in positive law. This gap arises from the ability of contemporary law to examine the interests of witnesses from various perspectives and through the use of different evidentiary tools. This research contributes practically that the application of law that is different from what has been formulated by fiqh scholars in Islamic jurisprudence does not necessarily indicate that the legal decision is at odds with Islamic law.

Resilience of Muslimah Sex Workers: Fulfilment of Children's Rights Based on Fiqh Hadhanah and The Child Protection Law

2024-06-24T13:51:04+07:00

This research study aims to further explore and delve into the resilience efforts of Muslimah sex workers in fulfilling their children's rights as mandated by Hadhanah jurisprudence and the Child Protection Law, which has become a living law in society. This is socio-legal research with a case study in Wisata Karaoke (ex-localization), Suko, Malang, Indonesia. The method of data collection used in this study is in-depth interviews with four muslimah prostitutes who have children, observation, and documentation. The results of this study indicate that Muslimah sex workers employ two resilience models in fulfilling their children's rights. The first resilience model involves placing their children in Islamic boarding schools (pesantren), considered authoritative childcare institutions. The second resilience model consists of entrusting their children to immediate family members, such as grandparents and aunts, who are perceived to be free from negative influences like promiscuity and alcohol consumption, which are commonly associated with the world of prostitution. Both resilience models are based on mitigation efforts to prevent their children from falling into the same cycle of prostitution as their mothers. This research contributes to becoming new policy material for scholars, government, legislators, and academics in initiating the formation of childcare institutions around ex-localizations as a guarantee of continuity, protection, and fulfillment of the rights of abandoned prostitutes' children.

Sexual Exploitation in Marriage Tourism: Justice and Legal Protection for Victims in Cianjur and Jember

2024-06-24T14:09:41+07:00

This article aims to provide recommendations for establishing regional regulations related to tourist marriage, the imposition of strict sanctions, and efforts to protect victims. The urgency of this research is because, in several tourist areas, there has been a practice of contract marriage involving women and children with tourists for years. This research uses descriptive-qualitative data analysis with a case study approach. In contrast, data collection techniques are done through interviews and a literature review of online source data. Based on the results of the research, it was found that contract marriage cases in the Puncak Bogor area and the Jember area are one type of sexual trafficking with child victims involving marriage brokers, parents, and tourists. This marriage is motivated by economic factors to save themselves and their families from poverty. Victims are primarily virgin girls aged 14-18 years who are married off on a transactional basis in exchange for half of the promised dowry. In practice, marriages are conducted are not registered. The local government in Jember has passed a local regulation on protecting women and children, while in Cianjur a district head regulation on the prohibition of contract marriages was passed. Socialization from the Religious Affairs Office and local government is still done in tourist areas. However, some contract marriage practices can still be found because women do not feel they are victims of sexual trafficking. This research provides a basis for local government policy towards handling and minimizing the practice of contract marriage.

Sociological Dimensions of the Application of Islamic Inheritance in Indonesia

2024-06-24T15:06:02+07:00

Differences in place and time, shifting conditions and situations, and societal changes cannot be avoided. However, there is a view that Islamic inheritance law is specific and fixed so that it cannot be modified. This study examines the application of inheritance law using the perspective of double movement theory by looking at the sociological dimensions that developed in Indonesia. This research is a sociological, legal research using qualitative data. The approach used in this research is socio-historical, intended to determine generalizations based on specific historical facts related to the application of Islamic inheritance law. The collected data is identified and verified, then analyzed using Fazlur Rahman's double movement theory. The results showed that based on moral ideals generalized based on double movement theory, it was found that justice and benefit became the primary reference in the application of Islamic inheritance law in Indonesia. Islamic inheritance law can flexibly adjust Indonesian society's environmental and social conditions. This research presents a methodological framework for a more adaptive and flexible application of Islamic inheritance law in line with Indonesia's diverse cultural landscape and evolving social norms.

Legal Politics of Religious Moderation and State Defense Policy at Public Universities

2024-06-24T18:46:32+07:00

This study aims to discuss the policy of the Ministry of Religious Affairs through the Sub Directorate of Islamic Religious Education at Public Universities (PTU) in forming Griya Moderasi Beragama dan Bela Negara (MBBN) to strengthen the understanding of religious moderation and eliminate religiousness that often legitimizes violence as a manifestation of religious teachings during the rise of groups that claim to be the most correct. This study uses doctrinal law, political law, and critical analysis approaches. Data analysis was conducted by exploring moderation policy documents and legislation products. This study found that the legal politics of Religious Moderation and State Defence at PTU is a strategic government policy to strengthen the nation's life amid legal and religious plurality in the face of confrontation with radicalism groups. The government's strategic policy is synergized with national development, accelerating the realization of justice and welfare. The policy is also a firm step by the Indonesian government in contributing to the world according to the demands and developments of diversity in the era of globalization, especially in counteracting the massive movement of radicalism and intolerance in Indonesia.

The Existence of Marriage Post The Constitutional Court Decision: As A Right or A Prerequisite?

2024-07-02T06:49:46+07:00

The practice of marriage is always closely related to the arrangements in religious law and state law. This research aims to answer two legal issues, namely the existence of marriage after the Constitutional Court Decision No. 24/PUU-XX/2022 and the implications of the Constitutional Court Decision No. 24/PUU-XX/2022 in the aspects of Islamic law and national law. This research is a normative legal research with case, conceptual, and legislative approaches. The findings of this research confirm that the existence of marriage after the Constitutional Court Decision No. 24/PUU-XX/2022 is not only seen as a human right as a freedom for everyone to enter into marriage. But it must be based on the values of religious law as a representation of the legality of marriage by the state. The orientation of the Constitutional Court Decision is important because KHI and the Marriage Law have the same perspective in viewing marriage as a prerequisite and not as a right. The practical contribution of this research is related to ideal legal policy, namely the need for affirmation and formulation in Indonesian legislation that marriages that do not aim to form families and are oriented towards continuing offspring are invalid in accordance with the aspects of maslahat mursalah and the Indonesian legal system.

Tracing The Trialectic: The Process and Influence of Three Laws in The Establishment of Religious Courts in Indonesia

2024-07-02T15:11:59+07:00

This article discusses the legal trialectic in establishing the Religious Courts in Indonesia. Since its establishment in 1882, the Religious Courts have not fully represented Islamic law as its primary source. To trace this trialectic, the author uses Ebrahim Moosa's theoretical framework of "transculturation, counterpoints, social imaginary, networks, and legal orientalism." For this purpose, the author proposes two problem formulations. First, what is the process of trialectic attraction between Islamic law, positive law, and customary law in the establishment of the Religious Courts? Second, what is the extent of the influence of positive and customary law in limiting the role of Islamic law? The author offers two novelties, namely methodological novelty in Indonesian Islamic studies, by adopting Ebrahim Moosa's theory. Finally, the conclusive novelty is that the Religious Court is not derived from Islam but from the trialectic of three laws. The practical contribution of this study is to re-question the roles of religious courts in formalizing and implementing Islamic law in Indonesia, with the hope that religious courts will become a dialectical space where Islamic law continues to develop so that it can make a practical contribution to contemporary Indonesian society.