THE COmPARISON AND CHANGES OF LEGAL SySTEm TOwARD A STATE IDENTITy
2. The Comparison and Changes of Legal System Toward a State Identity
According to Lawrence M. Friedman there are three substances of legal system namely legal substance, legal structure, and legal culture:12:
1. Legal substance refers to laws (norms) and legal principles
2. Legal structure refers to the organization, state institution and its officials such as executive, legislative, and judicial bodies include with all officials.
3. Legal culture refers to all verdicts or circumstances based on the first substance.
Turkey is a border state of Asia and Europe, but since Mustafa Kemal in office, Turkey refer to adopt and apply European Law, hence Turkey included in the family of Continental European.
Based on history Turkey had triumphed over six centuries. Moreover Turkey conquered several European regions in Ottoman khalifah era in other word Islamic legal system makes turkey survive and conquer some of European regions. Islamic legal system replaced with secular system by Mustafa Kemal in 1923.
As explain by previous paragraph, there are three substances of legal system. Based on its authors examine the legal system of Turkey before 1923 as follows:
1. Legal Substance/ Legal Materials
Turkey has strong legal material under Ottoman era since 1453 to 1922 based on Islamic law 2. Legal Structure
Turkey applies Islamic Caliphates system which means this state lead by Caliphate helped by legal scholar as policy maker
3. Legal Culture
Islamic values were adopted by Turkish on their daily life since majority of them are Muslim until secular system grows.
On the other hand, on December 13, 2015 President Yahya Jammeh confidently and openly declared Gambia to be an Islamic state. Indirectly Gambia refuses to continue England legal system. Gambia and Turkey has a similar history background except on the legal system. Gambia was colonized by England and included in Commonwealth State that makes Gambia apply Anglo- Saxon or Common Law system. England legal system-common law and precedent based-that applied in Gambia merely part of political interest. Substance of ideology and religion has biggest influence and role on changes of legal system in Gambia. The declaration made based on strong reason since 95% of Gambia’s population is Muslim who live by apply Islamic value.
Compared to Turkey and Gambia, Indonesia has specificity on its ideology called Pancasila or the Five Principle. Pancasila is the spirit of and the law of Unitary Republic Indonesia so then Pancasila is the highest source of law in Indonesia. Despite Indonesia applies the Netherland legal
12 Lawrence M. Friedman, Sistem Hukum, Nusa Media, Bandung, 2013
system or Continental European legal system-there are many fundamental differences between Indonesia and applied legal system. It’s proven by huge differences on philosophy of belief in the one and only God (KETUHANAN yANG MAHA ESA) and concept of ADULTERy (ZINA) between the Netherland law and the living values.
According to Von Savigny there is no universal language as well as there is no universal law, the nature of any particular system of law was the reflection of the spirit of the people who evolved it13. This means that the Continental European unsuitable with the statehood of Indonesia.
Nevertheless, Indonesia protect the law which has strong historical and need of society by allow the application of Adat Law such as in Nagari Minang, Papua, Dayak, etc.
On the other hand, Islamic legal system has long history in Indonesia archipelago. Based on theory of Mecca, Islam enters into Indonesia directly from Mecca or Arabs in early 7th century. This theory introduced by Haji Abdul Karim Amrullah or Hamka one of Islamic scholar and litterateur in Indonesia.14 while Prophet Muhammad was alive. From 1267 to 1690 there are several Islamic kingdoms established in Indonesia such as Samudera Pasai, Aceh, Demak, Banten, etc. A new stage of Islamic development Indonesia followed by regional and national Islamic big organization that arises in Indonesia such as Budi Utomo, Persis, Nahdatul Ulama, Muhammadiyah, etc.
According to yusril, when Islamic law implementation unsupported politically, it will done by penghulu and kadi (Islamic scholar) who are appointed by local Islamic society. Surrounding area of Batavia in the 17th century for instance, penghulu and kadi recognized and appointed by the community, because this area was under control of the Netherlands. People who settled around Batavia come from various region of Indonesian archipelago with languages, cultures and customary law diversities. Around Batavia there are also communities “the Moors” the Arabs and Muslim Indians.15
Nowadays Islamic legal system fully or partially applied in Indonesia according to needs of local communities, fully in Special Province Aceh and partially Bulukumba Region for instance. Manifestation of Islamic law in Aceh can be seen from the judicial institutions such as sharia courts, religious police, and Aceh’s law is called Qonun. While in Bulukumba, implementation of Islamic law imply on its regional law together with Tanggerang City, Padang City and other region.
Among Turkey, Gambia and Indonesia there are various differences with an intrinsic similarity namely Islamic legal system. After all, legal systems must not be applied in accordance with colonization or political interest on the other hand in accordance with society needs and recognition.
Therefore application of the legal system in accordance with the history, ideology and society
According to Earl Warren the 14th Chief Justice of the United States (1891-1974) in the world legal scholars meeting 1963-World Peace Through Law-in Athens, Greece, he explained:16
“The walls of the room where we hear cases that in dropping out by the Supreme Court, sculpted paintings / emblem legal builder’s leaders. We arrange such a manner, so that the left wall there are names such as Menes (Egyptian), Hammurabi (Babylon), Moses and Sa- lomon (Israel), Lycurgus, Solon and Draco (Greece), Confius (China) and Augustus (Rome) as a nine-figure legal builder who lived before Christ. While names like Justisianus (Rome), Muhammad (Islam), Charlemagne (Germany), King John and the Black Stone (UK), Saint Louis and Napoleon (France), Hugo Grotius (Dutch) and Marshall (USA) located adjacent to placed his right as legal builder’s nine figures who lived AD. And always when we convene each including when listening to the arguments of the lawyers and decide those cases, figures builder’s legal world as if looking down is watching us and not infrequently we are looking up to them to find inspiration in deciding case.”
D. CONCLuSION
From discussion above author conclude:
1. Turkey, Gambia, and Indonesia are states that apply principles of Islamic legal system as their legal system partially and not revolutionary.
2. Islamic legal system is one of recognized and applied legal system that classified into one of family of last long legal system in the world.
3. Legal systems must not be applied in accordance with colonization, commonwealth states, and political interest. On the other hand the truth legal system must be applied in accordance with society needs, living value or norms, history, ideology and in line with the order of statehood. In other word, in line with the title of this paper, state that legal system is crucial factor of state identity.
REFERENCES
Busthanul Arifin, Hukum Pidana (Islam) dalam Lintasan Sejarah, dalam Pidana Islam di Indonesia: Peluang, Prospek dan tantangan, Pustaka Firdaus, Jakarta, 2001
Erik J.Zurcher, turkey, a Modern History, alih bahasa oleh Karsidi Diningrat R, Sejarah Modern turki, PT Gramedia Pustaka Utama, Jakarta, 2003
Lawrence M. Friedman, Sistem Hukum, Nusa Media, Bandung, 2013
Mardani, Hukum Islam Pengantar Ilmu Hukum Islam Di Indoensia, Pustaka pelajar, yogyakarta, 2015 Michael Bogdan, Pengantar Penbandingan System Hukum, Bandung, Nusamedia, 2010
Mohammad Daud Ali, Hukum Islam: Pengantar Ilmu Hukum dan tata Hukum Islam di Indonesia, Jakarta, Rajawali Pers, 1990
Rony Hanitijio Soemitro, Metodologi Penelitian Hukum dan Jurimetri, Ghalia, Jakarta,1998
16 Busthanul Arifin, Hukum Pidana (Islam) dalam Lintasan Sejarah, dalam Pidana Islam di Indonesia: Peluang, Prospek dan tantangan, Pustaka Firdaus, Jakarta, 2001, page 34.
Sistem Hukum Indoneisa, Prinsip-Prinsip Dan Implementasi Hukum Di Indoensia, Ilham Bisri, PT Raja Grafindo Persada, Jakarta, Tahun 2004
Soerjono Soekanto, Pengantar Penelitian Hukum, UI Press, Jakarta, 2005
Sukarno Aburaera Dkk, Filsafat Hukum Teori Dan Praktik, Kencana, Jakarta, 2014
http://www.hukumonline.com/berita/baca/lt53a2eb91bd3ce/prof-dr-jan-michiel-otto--brahli- hukum-indonesia-harus-sering-kaji-putusan, accesed on 17 Desember 2015
http://yusril.ihzamahendra.com/2007/12/05/hukum-islam-dan-pengaruhnya-terhadap-hukum- nasional-indonesia/, Accesed on Desember 19, 2015
http://m.news.viva.co.id/news/read/710631-alasan-gambia-jadi-negara-islam, Accesed on 14 Desember 2015
https://chamzawi.wordpress.com/2008/07/26/islam-di-gambia/, Artikel tersebut telah dimuat dalam Majalah AMANAH No. 57, Th. XVIII, Desember 2004 / Syawal – Dzulqa’dah 1425 H.Accesed on14 desember 2014
RECONSTRuCTION LAw DIVISION OF PROPERTy IN CONJuNCTION wITH DIVORCE DuE TO HuSBAND wIFE wORKS BASED ON THE VALuE OF JuSTICE
IN INDONESIA - mALAySIA Eti mul Erowati
Post Doctoral Program on Law, UNISSULA [email protected]
Abstract
Article 97 KHI can not explain or resolve the problem if there is a case of the husband does not perform its obligations as a husband, or if she participated sufficiency in the family or wife even larger than the husband’s income. The purpose of the study was to analyze the division of joint property due to divorce to the husband and wife who work not based on values of justice. And analyzing the division of joint property due to divorce in the country of Malaysia. This study uses normative juridical approach supported by field data in the form of interviews with religious court judges and lawyers, with the critical paradigm is the paradigm that criticize the articles on the division of joint property due to divorce either in the Marriage Act and in KHI. Results and Conclusions of the existing decisions on the division of joint property due to divorce husband and wife who work still apply the provisions of Article 97 KHI is patchy, the judge has not made the maximum legal discovery. In theory Progressive Law according Satjipto Raharjo, the quality of law determined by the ability to serve human welfare, the legal changes is no longer centered on the rules, but at kreatifita offender law in actualizing the law in space and time, or perpetrators of legal discovery can do changes in the conduct of meaning creative to existing regulations without waiting for regulatory changes, so that judges are required to perform discovery of the Law for the reconstruction of the division of joint property due to divorce of a married couple who both sma work based on the values of justice by using the approach casuistry that the verdict could reflect a sense of justice. The provisions of article 97 in the Compilation of Islamic Huhum not mandatory provisions syar’i because no texts Dlm the Quran and al-Hadith that explains that the division should be like that, the husband and wife each got half / 50%. Hence we can understand why in the Philippines in the regulations that the government enacted for Muslims / code of moslem personnel laws of the philipines, cut no rules regarding joint property in marriage. Similarly, in the court decisions Malaysia, the issue of joint property is set in Act 303, which is still an issue which has not been completed.
Kata Kunci : Community property, divorce, working couple, fairness, Indonesia, malaysia A. Background
Joint property is marital property generated by married couples jointly during marriage is still ongoing. Joint property rights is the right of a husband and wife, so that both the couple has children or not having children is not a problem, because children do not have a right to property but the joint, but children only have the right to inherit from their parents. Law - Law No. 1 of 1974 governing the joint property in Article 35. Explanation of article 35 of Law No. 1 of 1974 states that, if the marriage broke up, the joint property is governed by the law of each.
In explanation of article 37 of Law No. 1 of 1974 explained that what is meant by “statute each - each” is religious law, customary law and other laws.
So if people who are Muslims, then the law used is Islamic law. Compilation of Islamic Law in article 88 states that, “In the event of a dispute between husband and wife concerning joint property, the settlement of the dispute was submitted to the Religious Court” Article 97 further
explains that, “The widow or divorced live each entitled to half of the property together as far as not otherwise provided in the agreement to marry “.
Whether in the practice of the Court in deciding the case on the division of joint property under the provisions of Islamic Law Compilation, ie half of the joint property for widowers and half of the joint property to the widow if it reflects the sense of justice? And how the division of joint property in particular Islamic country of Malaysia?