Nurani: Jurnal Kajian Syari'ah dan Masyarakat
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The Role of Penghulu in Harmonising the Marriage Age Limit Perspective of Imam As-Syatibi\u27s Theory
Full text linkThe regulation of marriage age limit is contained in Law Number 16 of 2019 concerning Amendments to Law Number 1 of 1974 concerning Marriage, which is equalised to 19 years for men and women from the previous 19 years for men and 16 years for women. The Office of Religious Affairs as a government institution in charge and administratively responsible for the implementation of legal and recorded marriages is faced with the large number of early marriages recorded with Religious Court dispensation. This study aims to analyse the role of the headman in harmonising the age limit demanded by the law and the implementation of early marriage applications by the KUA in the maqāsid syarῑ\u27ah study of Imam As-Syatibi. This research is field research with qualitative descriptive method. Data were collected through interviews, documentation, and observation at 15 KUA sub-districts in West Lampung. The role of the penghulu in harmonising the demands of regulations and the implementation of early marriage, through three different patterns in the implementation of marriage and its recording. The first pattern is that the marriage is carried out at the same time as the dispensation application process at the Religious Court, while the recording is carried out after the dispensation decision. The second pattern is that the marriage is conducted after the decision of the marriage dispensation order while the registration is conducted at the same time. The third pattern is that both the marriage and the registration are carried out after a marriage dispensation decision that has permanent legal force
Characteristics of Legal Science as Sui Generis
Full text linkPhilosophy is a process of reasoning in thinking to make a conclusion to gain knowledge, because humans are thinking creatures, every attitude and action must come from knowledge based on the thinking process. Until now, the position of legal science is still debated because law is perspective and normative, the characteristics of legal science are doubtful in social science or humanities because it has its own characteristics, called sui generis. This research aims to examine the characteristics of legal science as sui generis from the perspective of the philosophy of science. The research method uses normative juridical with secondary data analysis that is related with the problem in a descriptive-qualitative with a philosophy of science perspective. The results showed that the parameters of sui generis can be seen from the perspective of normative science, terminology in a broad and narrow sense, the type and scope of knowledge in normative science and empirical science, also layers of legal science in the form of legal dogmatics, legal theory, and legal philosophy law. Legal science need to understand the history of development of law as the key to identifying sui generis characteristics through analysis of legal theory, legal concepts, and legal principles philosophically in certain conceptual viewpoints as fundamental to legal science, apart from that, legal research is also needed
Omnibus Method in National Legal Development Efforts
Full text linkPancasila is the view of life of the nation and state which is the basis for the implementation of national life. The precepts in "Pancasila" are the crystallization of the valuesthat live in Indonesian society. This is certainly a new thing in the Indonesian legal system which is more inclined towards the civil law system. The omnibus concept is better known in countries with a common law system. However, as stated by Mochtar Kusumaatmadja thatin efforts to develop law there must be alignment between the national legal system and the development of modern law from other countries. This alignment is solely intended so that the law can adapt to the times.The method used in this research is the normative legal method. -Invitation” which accommodates the omnibus method. This method is an effective and efficient effort to overcome regulatory obesity that occurs in Indonesia. However, in its implementation, future improvements are needed to achieve the target to be achieved
Maqashid Syariad Asy-Syatibi Review of Marital Rape in the Sexual Violence Crime Law
Full text linkIn today\u27s life, there are many cases that we often hear about or see that are directly or indirectly related to external sexual violence or marital rape. Therefore it is necessary to formulate rules that can reduce the number of violence, especially marital rape which is a concern for everyone to get married. Maqosid Syariah is one of the appropriate alternative sources of law originating from sources of Islamic law. The following research is a qualitative descriptive research equipped with library research methods with a normative juridical approach. The formulation for regulation of domestic violence in Law Number 12 of 2022 concerning the Law on Sexual Violence has fulfilled the dharuriyat category or primary needs in Maqashid Syariah related to kulliyat al khams, one of the main things, namely Hifzu al-nafs (life protection). In this position, the Act on Sexual Violence can use Maqashid Syariah as an alternative point of view. By formulating these regulations, the concept of Maqashid Syariah can be used for the purpose of common interest has been implemented. With regulations like this, it can be a benchmark for reducing domestic violence
Legal Analysis of Ambiguity of Trademark Registration in Indonesia
Full text linkThe purpose of this research is to overcome dual identities or brands that have similarities in principle or in whole for similar and/or dissimilar goods or services that go side by side where the ownership rights are obtained through trademark registration or through a decision from the Supreme Court which is protected by law. as the identity of the goods and/or services being traded. The research method used is normative juridical. The formulation of the problems in this study are: 1. How is the regulation of trademarks that are rejected for registration that have similarities in principle or as a whole; 2. How to set a registered mark with a second identity. The findings of this research are based on Law Number 20 of 2016 concerning Trademarks and Geographical Indications (MIG) where trademarks are denied registration on the grounds of equality in principle and/or in whole for similar goods or not similar to other marks registered in bad faith belonging to other parties and the need for a second identity of a registered mark and/or a well-known mark in dealing with marks that are similar in principle and/or in whole that run side by side and required legal protection for registered marks to obtain legal certainty and there needs to be a scientific study of the proposed identities of the two brands
Artificial Intelligence and the Law: The Use of Artificial Intelligence as a Tool to Assist Judges in Deciding Polygamy Cases
Full text linkThis research aims to discuss the relationship between Artificial Intelligence (AI) and law. The emergence of the idea of using AI as a tool to analyse judges\u27 decisions has generated mixed responses. On the one hand, the use of AI can be used as a tool to objectively ensure legal certainty, but on the other hand the use of AI can displace the legal supremacy of judges in court. This attracts the author\u27s attention to examine the use of AI in analysing legal cases and as a consideration for judges in deciding polygamy cases. Polygamy itself is a very complex case in court. Judges\u27 considerations in deciding polygamy cases do not only consider procedural aspects, but also involve substantial aspects related to the cumulative and alternative conditions of polygamy. As a chatbot-based platform, AI certainly has limited access in analysing the legal complexity in polygamy cases. This research focuses on the analysis of AI in analysing polygamy cases both in terms of legal basis and justice. This research method is normative with a conceptual legal approach, data is obtained by netnography using the ChatGPT/OpenAi platform and analysed using the content analysis method. The results showed that there were two aspects that were considered by the judge in the AI version of the polygamy case. First, the juridical aspect which is based on the polygamy provisions in the Compilation of Islamic Law. The second aspect is the social aspect based on gender justice. In addition to presenting the essence of several laws and regulations, AI also provides complex social analyses with a gender justice perspective with simple and straightforward sentences. However, this does not mean that AI can be an absolute and stand-alone consideration in polygamy licence cases. AI is only a complement that makes it easier for judges to analyse cases. This is because the judge\u27s involvement in cognitive and psychological aspects is still needed in interacting with litigants in court
Development Of Employment Of Zakat And Waqf For Remote Communities: The Case Of The Al-Qur\u27an Waqf Board
Full text linkThis paper discusses the development of utilization of zakat and waqf funds managed by the Al-Qur\u27an Waqf Agency (BWA) in order to help the community, especially on remote islands and remote areas during a pandemic. The purpose of this paper was to get an overview of the development of forms of utilization of zakat and waqf funds by BWA in helping the community. This paper belonged to the field of research on Islamic law and social institutions with a qualitative type of research. Data was collected through interviews and documentation, and analyzed using descriptive analysis. The results of the study stated that BWA developed forms of utilization of zakat and waqf in the health, religious and socio-economic sectors, by creating the Against Covid-19 Strengthen Indonesia program. The old programs were still a priority, such as several waqf programs and Peer to Peer Zakat. The conclusion of this paper was that the development carried out by BWA in utilizing zakat and waqf was carried out by analyzing the current pandemic situation. They remain focused on the old program while opening humanitarian services for people affected by Covid-19 on remote and inland islands
The Verstek Law Implementation In Religious Courts In South Sumatera
Full text linkVerstek decisions are decisions that often occur in courts, especially in the Religious Courts, so the authors were interested in conducting them by using the formulation of the problem: how to apply verstek at Sekayu Religious Courts, South Sumatra. Then, what are the obstacles in implementing verstek at Sekayu Religious Court, South Sumatra. Empirical research was used as the method of research. Research result; the application of verstek at Sekayu Religious Court of South Sumatra has been carried out in accordance with applicable law. Meanwhile, the obstacles faced by the Sekayu Religious Court of South Sumatra in resolving the verstek case were; the number of divorce cases was quite high from year to year; the time required in handling takes a long time, from the beginning of registration until the decision was read out; the down-payment fee for the verstek case had been determined by the Religious Court based on the radius of residence of the applicant/plaintiff and the respondent/defendant, not adjusted to the financial capacity of the parties; and witness constraints, sometimes the parties present witnesses who had never seen or heard of the dispute, but indeed the husband and wife had been separated for a long time
A Gender-Based Maqashid Sharia Study of Penghulu in Indonesia (A Study of Jasser Auda\u27s Views)
Full text linkThe Penghulu in Indonesia has always been identified and held by men instead of women. The legal opportunity in Ministry of Religious Affairs Regulation No. 20/2019 on Marriage Registration has been annulled by Compilation of Islamic Law (KHI), which requires men as guardians, where the existence of marriage guardians is one of the duties of the head of the family, which inhibits women from serving as head of the family. Although fiqh as the main source of KHI has given legality to women as marriage guardians, KHI does not adopt arguments in favour of women becoming marriage guardians. Whereas the duties of the penghulu are not only limited to wali hakim, there are many duties of benefit in marriage such as providing legal certainty through marriage registration. This article aims to find out the existence of female headmen in Indonesia in the perspective of maqashid sharia. The research employs a literature content analysis. The results showed that based on the study of the six features of maqashid sharia proposed by Jasser Auda, the existence of female headmen is basically something that should be commonplace in Indonesia. The value of maslahah behind the administrative duties and legal certainty of marriage is an objective reason for women to serve as penghulu. This is because realising benefit is the obligation and responsibility of every human being, regardless of gender. This is supported by the existence of cognitive features, wholeness, openness, interrelationship between levels, multi-dimensionality, and meaningfulness of women\u27s headship which has fulfilled the elements of maslahat and the objectives of Islamic law. Therefore, through this research, the reconstruction of guardianship law in KHI should be carried out immediately so that it can pave the way for women to access the position of penghulu
Factors of Unfulfilled Rights of Wife and Children as Consequences of Divorce in Religious Court Decisions
Full text linkPERMA Number 3 of 2017 serves as a guideline for judges in adjudicating cases involving women and can be used as a legal basis for providing protection to children who are victims of divorce. The problem discussed in this research is the implementation of PERMA in the Baturaja Religious Court. The aim of this study is to examine the issue of the non-fulfillment of the rights of the wife and children as a consequence of divorce in court decisions. A qualitative research approach with a field study design was chosen for this study. The research was conducted at the Baturaja Religious Court. The data used consisted of primary data and secondary data. Data analysis was divided into three parts: data reduction, data display, and conclusions. The research findings indicate that the implementation of PERMA Number 3 of 2017 regarding the rights of the wife and children as a consequence of divorce in the Baturaja Religious Court has not been fully implemented. This is due to several factors, such as the economic instability of the father, remarriage of the parents, psychological factors that prevent the former husband from meeting their children, and the ability of the mother to provide for the child\u27s welfare