Justicia Islamica (Journal)
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Tracing the Trialectic: The Process and Influence of Three Laws in the Establishment of Religious Courts in Indonesia
No full textThis 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.
 
Mortgage Rights for The Sharia Banking Murabahah Akad its Position and Application
No full textThis 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 murÄbaḥah 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 murÄbaḥah contracts.Penulisan artikel ini bertujuan untuk menjelaskan definisi hak tanggungan serta perbankan syariah, mengetahui bagaimana kedudukan hukum hak tanggungan sebagai bentuk jaminan dalam pembiayaan perbankan syariah, penerapan/implementasi hak tanggungan dalam pembiayaan perbankan syariah, dan untuk mengetahui apakah hak tanggungan sebagai bentuk jaminan dalam pembiayaan perbankan syariah memiliki kedudukan yang setara dengan kredit dalam perbankan konvensional. Terdapat banyak refernsi yang digunakan untuk menjelaskan rumusan-rumusan masalah tersebut. Teknik metodologis digunakan dalam penelitian ini, termasuk menggambarkan dan menjelaskan tentang hak tanggungan serta bank syariah, dan kedudukan antara pembiayaan perbankan syariah dengan kredit dalam perbankan konvensional. Artikel ini menggunakan metode pendekatan sociolegal dengan sumber data sekunder, yaitu telaah teks hukum asli, literatur hukum sekunder, dan sumber-sumber non-hukum sehingga diapat disimpulkan, bahwa: 1. Keabsahan Hak Tanggungan dalam pembiayaan pada perbankan syariah dapat diamati melalui keberadaan lembaga Hak Tanggungan yang diatur dalam Undang-Undang Nomor 4 Tahun 1996 tentang Hak Tanggungan atas Tanah Beserta Benda-Benda yang Terkait. 2. Dalam praktik perbankan syariah, terdapat penekanan yang kuat pada keberadaan agunan dalam penilaian pemberian pembiayaan kepada nasabah. 3. Hak Tanggungan sebagai bentuk jaminan memiliki kedudukan yang berbeda antara bank konvensional dan bank syariah
Examining Witness Interest: The Obstacles of Testimony in Islamic Jurisprudence and Positive Law
No full textThis 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
Legal Politics of Religious Moderation and State Defense Policy at Public Universities
No full textThis 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
Sociological Dimensions of the Application of Islamic Inheritance in Indonesia
No full textDifferences 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
Regulation of Halal Product Certification in the Dynamics of Indonesian Legal Politics
No full textThis study aimed to explore how the regulation of halal product certification in the dynamics of Indonesian legal politics, especially since the institutionalization of the halal certification system in 1975, then continued with the issuance of Law No. 8 of 1999 concerning Consumer Protection (UUPK), which transformed with the establishment of Law no. 33 of 2014 concerning Guarantee of Halal Products (UU JPH). By using a doctrinal research typology and qualitative data analysis, this research produces the following conclusions: First, the regulation of halal certification presents a political configuration, especially during the discussion of the JPH Law, resulting in pros and cons between the MUI, the government including the faction of the DPR faction regarding the institution authorized to carry out the certification, including whether or not business actors must carry out certification. Second, the shift in authority for halal certification, which was initially carried out by the MUI, after the arrival of the JPH Law, the transition and implementation of halal certification by BPJPH have triggered a political configuration that needs to be harmonized and consolidated immediately so as not to cause institutional disharmon
Reinforcement Pattern Religion, Social, and Marriage Law for Resistance Family Baha'i Minority in Indonesia
No full textThe lives of minority groups have slightly different forms of interaction in religious aspects, social relations, and marriage law. Minority groups often experience discrimination in religious, social, and marriage administration services. This research provides an overview of religious patterns, social relations, and marriage law for the Baha'i minority group in Indonesia and the obstacles they face in interacting with general community groups. This research is qualitative research with a phenomenological approach. The participants in this study amounted to 10 people who were heads of families of the Baha'i group. The study's results found four crucial aspects of the life of the Baha'i community. First, the Baha'i group in religious life has three principles: the existence of the One God, the unity of all religions, and human unity. Second, the Baha'i group socially has no problems with the general public and can be socially accepted. Third, the Baha'i group in the legal aspect of marriage cannot access the legal registration of marriage. They perform inter-group marriages only and are only known to their group. Fourth, the obstacles experienced by the Baha'i group are more related to social and state rights services. The results of this study contribute theoretically to enriching and strengthening science and practically will reduce social problems in society, especially respect for minorities such as the Baha'i group.Life group minorities have formed little interaction different in aspect religion, relationship social and legal marriage. Group minority often experience being discriminated against in service rights, religious, social, and marriage. Study this gives description about pattern religion, relationship social and legal marriage for group the Baha'i minority in Indonesia and the obstacles they face in interact with group Public general. Study this is study qualitative with type approach phenomenology. Participants in study this totaling 12 people who are head family group baha'i. Technique data collection using Interview structured and also documented with instrument guide interviews and documentation. Data analysis techniques using procedure reduction, presentation and conclusion based on data interpretation. Research results find four aspect important in life the Baha'i community. First, group happy in life religious have three principle that is existence Almighty God One, unity all religions and unity human. Second, society Baha’i by social no have trouble in connection with Public common and possible received by social. Third, the Baha'i community in aspect wedding no could access recording law wedding by legitimate. They to do wedding between group just and hanay is known the group. Fourth, many obstacles experienced by the group baha'i more relate with service right by social and state. Research results this show that there is a number of findings important that can Becomes base To do study next with same them
Maqashid’s Lens on Checks and Balances of Simultaneous Elections In Indonesia
No full textThis 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.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
Akad al-Ijarah al-Mausufah fi al-Dzimmah in Sharia Banking in Aceh: A Study of Homeownership Finance
No full textThis paper aims to analyze the al-Ijarah al-Mausufah fi al-Dzimmah contract model and its application to Islamic Banking. So far, the paradigm that has developed regarding homeownership financing contracts (PPR) is to use Murabahah or Musyarakah Mutanaqisah (MMQ) contracts. In practice, the results of housing built are often not by the previously agreed contract. This is a dilemma for Customers because, on the one hand, the down payment has been given, and the payment process has been carried out. In these conditions, applying the al-Ijarah al-Mausufah fi al-Dzimmah (IMFZ) contract is essential to protect the rights of Customers which have been neglected. The al-Ijarah al-Mausufah fi al-Dzimmah contract requires the cancellation of the contract from the Customer if the reality and the contract made with the Bank do not match. This research is non-doctrinal with a conceptual approach. The conceptual approach is used to analyze theoretically and practically the use of the al-Ijarah al-Mausufah fi al-Dzimmah contract. The study results show that Islamic Banking in Aceh has not used the IMFZ contract. This is because of first, the lack of understanding of the contract from both the Bank and the Customer; second, the tendency of the public and Banks to use Murabaha contracts than other contracts because Murabahah contracts are easier to understand and commonly used, so far; third, Banks and Developers will face more significant risks when using al-Ijarah al-Mausufah fi al-Dzimmah contracts than Murabahah and Musyarakah contracts. The IMFZ contract requires the Bank, Developer, and Customer to collaborate to supervise house construction to avoid default. Using the al-Ijarah al-Mausufah fi al-Dzimmah contract will minimize fraud and gharar committed by the Developer against the Customer. This article contributes to Customers and Banks in maintaining quality in housing finance which Developers often overlook.
Aligning Islamic Law and Customary Law: Legal Dialectics in the Tradition of Forced Marriage in Jambi
No full textThis research will discuss the practice of forced marriage tradition by customary sanctions for returning home late at night in the Lekuk 50 Tumpi Lempur Jambi community. This research will also examine the interaction between Islamic law and customary law on the sanctions of the tradition. The research method used is field research. Data is collected by interviewing 16 informants, 7 couples, and two traditional leaders in Lekuk Lima Puluh Tumbi Lempur Jambi. Furthermore, the data that has been obtained is analyzed. So that the research results found that the interaction of Islamic law and customary law in the tradition of forced marriage in the Lekuk 50 Tumbi Lempur community, First, pre-marriage or imposition of sanctions, the nuances of Islamic law and custom go hand in hand. Second, the marriage contract procession is carried out with the Islamic religion, such as pillars and conditions. Third, post-contract, although the nuances of custom can be said to be more, it does not leave the nuances of religion. Theoretically, this research offers insight into the harmonious and complementary relationship between Islamic law and customary law, which is different because the two laws generally intersect. In addition, practically, this research reveals the practice of forced marriage carried out by custom, not from the family, which generally occur