Justicia Islamica (Journal)
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Gender Construction in the Perspective of Living Fiqh in Indonesia
No full textThis article aims to comprehensively explain the uniqueness of the emergence of gender issues in Indonesia and contribute to the development of Islamic law in terms of the discovery of Islamic legal products, and introduce local culture underlying the forming of laws depending on place and era, including gender issues, where western and eastern cultures certainly differ in various sides. Living fiqh on gender is a term for responding to women’s issues through interpretation, considering Indonesia’s local culture. Living fiqh is a term for strengthening Islamic legal products, prioritizing the principle of locality. This study used a qualitative method to respond to the concept of living fiqh in Indonesia. The first step in this research was to explore the genealogy of gender issues in Indonesia compared to the history of gender issues in the West. After that, the differences in the causes of gender issues in Indonesia and the West were classified. Finally, the products of fiqh on gender in Indonesian madzhab were found. In this article, the author argues that the products of fiqh on gender in Indonesia have relations with Indonesian culture. Besides, fiqh on gender in Indonesia emerged from the women activists’ anxiety against discrimination in marriage and rules. Fiqh on Indonesian madhab contributes to minimizing gender inequality that emerged massively after strengthening colonialism and the influence of transnational Islam, changing the interpretation of the scripture and madhab fanaticism.
 
Punishment of Criminal Act of Accusing Adultery (Qadzaf) in Indonesian Positive Law: Perspective of Maqasid al-Sharia
No full textAmid the hectic new social space (virtual space), mediated reality, and an era of disruption, the truth of information spread via media is hard to determine, especially with the outbreak of hoaxes that have become a trending issue in the past few decades. Hoaxes are a virtual crime, an act committed via the spread of false stories. Hoaxes can be in the form of accusations of another person committing an immoral act and defamation (assassination character), in this case, accusing another person doing adultery. The author argues that the issue of the criminal act of accusing adultery (qadzaf) in positive Indonesian law is significant to be studied since provisions of positive Indonesian law, as stated in the Criminal Code, do not specifically discuss the criminal act of accusing adultery (qadzaf). This study aimed to analyze the problem of the criminal act of accusing adultery (qadzaf) in positive law by using maqasid al-Sharia. The study is library research conducted by examining materials from the main book relating to problems and other supporting qualitative research studies. This research employed a descriptive-analytical method by describing the legal materials obtained, and then they were analyzed using Maqasid al-Sharia. The research results showed that punishment for the perpetrator of a criminal act of accusing adultery (qadzaf) as regulated in Article 310 paragraph (1) of the Criminal Code is a maximum imprisonment of nine months and or a maximum fine of four thousand and five hundred rupiahs. The aspect of darÅ«riyyÄt about punishment for perpetrators of accusing adultery (qadzaf) is the protection of honor (ḥifz al-”˜ird). This aspect relates to everyone’s honor, which must be protected. Through the legislative institution, a country needs to reconstruct the Criminal Code into a better law, such as revising a particular chapter that has not fulfilled a sense of justice in eradicating crime very disturbing since a policy must righteously be able to settle the societal problems. Based on the changes in law, following the development of social life and technology today is inevitable
The Study of Australian Government Policies on Maqasid al-Sharia Perspective
No full textThis article discusses the Australian government policies from the perspective of Maqasid al-Shari’a. The performance of policies focusing on the study is traffic laws, taxes, the environment, and anti-domestic violence. In several literature pieces, Maqasid al-Shari’a is defined as the purpose, objective, and secret set by Allah SWT in every Sharia law. Maqasid al-Shari’a is “Allah's goal (Shari) in making law.” In addition to being ”˜ammah (general), khassah (unique), and juz’iyah (parts), in Islam, Maqasid al-Shari’a is based on five main points as follows: protecting religion, protecting the soul, protecting reason, protecting property, and protecting descendants. After conducting in-depth interviews with several informants, books, and journals and tracing the laws on traffic, tax, environment, and anti-domestic violence in Australia, the conclusion is that the Australian government policies are based on Maqasid al-Shari’a in one part. However, it is not a country based on religion or Sharia, in the other part. Australia is a liberal country providing freedom for its citizens to have faith or no belief. However, in several other respects, it appears that the Australian government’s policies are against the Maqasid al-Shari’a, such as the ability to drink heavily in limited spaces, the life of same-sex marriages, and so on. This article is critical in developing policy studies of non-Islamic countries from the Maqasid al-Shari’a perspective.
Epistemology of Islam Nusantara: Transformation of Islamic Legal Thought in Nahdlatul Ulama (NU)
No full textThe term Islam Nusantara has created pros and cons among Islamic leaders in Indonesia. For Nahdlatul Ulama (NU), Islam Nusantara is not a new teaching or sect in Islam, so there is no need to worry. Meanwhile, other groups think that the term Islam Nusantara will reduce the universality of Islam. Therefore, this study focuses on NU’s concept of Islam Nusantara and its application and epistemological construction of Islam Nusantara. This study found that Islam Nusantara is Islam practiced in Indonesia with the epistemological basis of maqÄÅŸid al-sharÄ«a, manhaj al-fikr ahl al-sunnah wa al-jamÄ’ah, and al-”˜urf. The epistemological foundation resulted in the typical ijtihad of Islam Nusantara. In the field of constitutional law, the results of the ijtihad Islam Nusantara gave birth to the concept that Indonesia is a peaceful country (dÄr al-ÅŸulḥ or dÄr al-salÄm). Meanwhile, in social, cultural, and religious realms, the epistemology of Islam Nusantara gave birth to the tradition of halal bi halal and tahlilan. In the circumstances of fiqh, there are several results of ijtihad, such as imsÄk (holding all things that may be breakfast 10 minutes before Shubuh prayer).
The Formulation of Islamic Bank Performance Based on Contemporary Maqasid al-Sharia
No full textThe current measurement of the performance of Islamic banks is more on financial performance. Islamic banks have two significant roles different from conventional banks: business and social. Financial performance evaluates the business role of Islamic banks. Meanwhile, the social role of Islamic banks has not yet received an equal portion of the measurement. This article proposes an Islamic bank performance measurement system based on Sharia economic goals. This formulation is necessary to adjust the performance assessment of Islamic banks based on Islamic economic goals. By using content analysis, this research used the contemporary Maqasid al-sharia approach. To formulate a measurement of the Islamic bank performance based on the roles and objectives of Islamic economics, contemporary maqasid al-sharia was employed as the construction basis. Based on the contemporary maqasid al-sharia, the Islamic bank's performance formulation can be broken down. Then, factors in assessing Islamic bank performance can be determined on financial and social aspects. Thus, Islamic banks are in line with the goals of Islamic economics, fighting for justice and the welfare of the community (falah), the objectives of sharia (maqasid al-sharia), and the primary goal of Islamic law (masalih al-'ibad)
Islamic Strategy Offers in The Implementation of The Science of Mawarist in Society : Study Centre of Mawarits Studies UNIDA Gontor
No full textAccording to Islam, this research aims to find out new offerings and strategies in implementing the science of mawarist in society, which were studied by CMS (Center for Mawarits Studies) UNIDA Gontor. Mawarits Science is one of the branches of science that must be studied by Muslims following with the advice of the Prophet Muhammad SAW because the mawarits science will be lost if no one learns and teaches it. Disputes between heirs often occur if the distribution of inheritance is considered unfair or not following by applicable law or norms. Inheritance matters are included in the civil realm, so laws are governing this issue. Sometimes in the distribution of inheritance using civil law, customary law, and Islamic inheritance law (mawarits). The CMS's primary task (Center For Mawarits Studies) is to educate Muslim families related to the science of mawarits. This research uses a sociological-normative approach with descriptive analysis to collect techniques with observation, interviews, and documentation. This study's results are several offers and education from CMS to the whole community, especially Muslim families, to implement the science of mawarits, including; forming KSM (Family Awareness of Mawarits) through studies in the mosque, seminars with the theme PSP method (Determination Before Distribution). Even though the distribution of assets uses the science of mawarist, the family still has to register the distribution of inheritance in the form of land and property to the local officials to bind legally. By understanding and implementing the science of mawarist, the whole community, especially Muslim families, have practiced sharia and aqeeda, hablun minallah, and hablun minannas.Tujuan dari penelitian ini adalah untuk mengetahui tawaran dan strategi baru menurut Islam dalam mengimplementasikan ilmu mawarist di masyarakat yang dikaji oleh CMS (Centre For Mawarits Studies) UNIDA Gontor. Ilmu Mawarits adalah salah satu cabang ilmu yang wajib dipelajari oleh umat Islam sesuai dengan anjuran Nabi Muhammad SAW karena ilmu mawarits ini akan hilang apabila tidak ada yang mempelajari dan mengajarkannya. Perselisihan ahli waris sering terjadi apabila dalam pembagian harta warisan dirasa tidak adil atau tidak sesuai dengan hukum atau norma yang berlaku. Masalah waris adalah termasuk dalam ranah perdata sehingga ada undang-undang yang mengatur masalah ini. Adakalanya dalam pembagian warisan menggunakan hukum perdata, hukum adat dan hukum waris Islam (mawarits). Tugas utama CMS (Centre For Mawarits Studies) adalah mengedukasi keluarga muslim terkait ilmu mawarits.Penelitian ini adalah penelitian kualitatif yang menggunakan pendekatan sosiologis-normatif dengan analisis deskriptif, adapun teknik pengambilan data dengan observasi, wawancara dan dokumentasi. Hasil dari penelitian ini adalah ada beberapa tawaran dan edukasi dari CMS untuk keluarga muslim untuk mengimplementasikan ilmu mawarits, diantaranya adalah; membentuk KSM (Keluarga Sadar Mawarits) melalui kajian- kajian di Masjid, Seminar mawarist dengan tema PSP (Penentuan Sebelum Pembagian), dan Tallaqi Kitab Mawarits. Meskipun dalam pembagian harta menggunakan ilmu mawarist akan tetapi keluarga tersebut tetap harus mendaftarkan warisan berupa tanah atau property ke pejabat setempat sehingga berkekuatan hukum tetap. Dengan memahami dan mengimplementasikan ilmu mawarist seluruh masyarakat khususnya keluarga muslim telah menjalankan ilmu syariah dan aqidah, hablun minallah dan hablun minanna
The New Fiqh in A National School of Legal Thought: A Paradigm Shift in National School of Islamic Law on M. Barry Hooker’s Perspective
No full textThe polemic of the domain between religious regulation and state authority in the national school of Islamic law in Indonesia seems to be endlessly debated by Indonesian and Western Scholars, Muslims, and non-muslims. This article discusses western scholarly discourses on the National School of Islamic law by examining the thoughts and works of M. Barry Hooker. Hooker introduced the term “new fiqh” in the national school of Islamic discourse and explained that the state's Indonesian fiqh was instrumentalized. Based on the model of the study of public figures and grounded its primary data of Hooker’s work, this paper shows that Hooker criticizes the shifting paradigm of classical fiqh text to fiqh dominated by the state. The state determines the process of fiqh with various instruments and public transmission of sharia, including religious bureaucratization, state intervention in the Islamic legal education curriculum, and religious pulpit mediums
Dissenting Approaches of Islamic Economics: The Contemporary Juristic Discussion of Riba
No full textAlong with the rapid growth and spread of Islamic economic enterprises, some of their products have prompted debates among Islamic scholars about their permissibility and whether they comprise usury (riba). Even though riba is one of the central concepts in Islamic economics, the ruling of riba and its definition is still among those objects of the ongoing long debates and discussions among Islamic scholars and economists. This issue comes about from a broader question about which Islamic economic system should be developed as an alternative to its conventional counterpart. By examining discussions on riba found in contemporary literature, it can be seen that the question is discussed through different approaches. At the same time, these approaches are used to understand and implement Sharia juristic principles in the economy. There are three approaches; the modernist approach, the revivalist approach, and the literalist approach. To further understand these approaches, this paper identifies some main topics of the ongoing debate among the proponents of these approaches, namely, the position of Fiqh opinions in defining Islamic economic concepts, the objectives of Sharia to comply in economic activities, and also the question of the applicability of concepts concluded by each approach
The Maslahat Epistemology in Cigarette Law: Study on The Fatwa Law on Cigarettes
No full textShaykh Ihsan Jampes gave the fatwa of the cigarette law as makruh, while Majelis Tarjih gave the fatwa haram. Although Sheikh Ihsan’s fatwa is individual, this fatwa deserves to be a comparison for the collective fatwa of the Majelis Tarjih. This is because Sheikh Ihsan’s fatwa is a complete picture of the NU fatwa in general. This paper is based on two essential questions: the two fatwas use the arguments in formulating the cigarette law and whether there are conceptual differences from these arguments. To answer these two questions, the method used is descriptive-critical-analysis with a critical hermeneutic approach. This article finds that both fatwa of Sheikh Ihsan Jampes and Majelis Tarjih have the same argument in deciding the cigarette law, namely the argument of utility or usefulness (maslahat). However, the two fatwas are various in formulating the maslahat model used. Shaykh Ihsan used maslahat tahsiniyyah while Majelis Tarjih put it in the shade of maÅŸlaḥah darÅ«riyyah. This article implies, not only from the various variants of the different choices of cigarette law but also providing insight into the epistemology that underlies these differences in law. This article educates smokers to choose between continuing or leaving smoking. Epistemology, as is well known, is open the door to one's actions. This article also provides a perspective for policy-makers between legalizing or banning cigarettes based on the theory of maÅŸlaḥat
The Concept of Istita'˜ah Al-Ba’ah in Marriage
No full textIslam has to the law of sharia a marriage between men and women to build a family that is sakinah, mawaddah, and rahmah. To achieve the goal of marriage, Islam has set a requirement for married couples to have several abilities to marry, termed as istita'ah al-ba'ah. Practically, there are still many people in marriages who understanding the concept of istita’ah al-ba’ah partially and even not applied it at all. This study aims to examine the concept of istita’ah al-ba’ah as a requirement in marriage and to explain its types and criteria according to sharia perspective through library research on Fiqh Principle and content analysis of Fiqh books. This study profoundly analyses the collective data. This study has successfully found the types and criteria of marriage recommended in marriage, firstly, non-material abilities including an ability to have sex, physical health from dangerous diseases, and age. The second is a material ability, including an ability to meet the cost of marriage consisting of paying dowry and living. This study contributes to the context of strengthening the ability standards for couples wishing to get married. Therefore, fulfilling the requirements of marrying is expected to minimize marriage problems, including minimizing the divorce rate