Council of Ulama in East Java stating that Shi’ite teachings propogated by Tajul Muluk are heretical and misleading. I argued that fatwa is a non-binding legal opinion from the perspective of Islamiclawand hence, contingent to certain contexts, mostly political. Ulama themselves have differing opinions on every legal issue as their techniques of drawing legal inferences vary along with their madhhab preferences. Indeed, Islam does not prevent Muslims from having different opinions not only on legal issues but also on theological issues pertaining to its fundamental belief and teaching. The significance of political context for a fatwa is evidenced in the fatwa on Shiite in 1984 by the Indonesian Council of Ulama, which were then forced to emphasize harmony among different religious groups along with the government policy of making Pancasila as the sole fondation (asas tunggal) of all political, social, cultural and even religious activities.This fatwa only stated that there is a need for Indonesian Muslims to be aware of destructive (meaning political) influences of Shiites on religious harmony in the country. Moreover, I argued that in Islamic tradition theological debates have abounded since the early days of Islam. After the death of the Prophet Muhammad, the debates have become more intense along with Muslims’ encounter with Greek philosophical tradition. Touching on fundamental doctrines of Islam, including the issues of God, prophethood of Muhammad, the authenticity of the Quran, destiny, and Judgment Day, the debates took place within the specific domain of mutakallimun, or theologians. Ideas and opinions arising from the debates were called ra’y or theological opinions and these were beyond the authority of muftis whose domain was confined to respond to legal issues by using legal categories such as obligatory, recommended, permitted, disapproved and forbidden. The theological opinion, on the contrary, examined a thought, deed or action of a person from a theological perspective: Whether that is false and misleading, for example. Those having theological opinions will bear on their shoulder theological consequences, not legal consequences. And the theologians always asserted that this is ra’y or theological opinion, which has accordingly nothing to do with legal affairs. In a theological conception, one having the authority to lay down consequences to such actions is not ruler or theologians, but God alone. If the person is declared infidel from a certain theological point of view, he would be prepared to accept theological consequences, being punished by God.
women as specified in QS Al-Maidah: 5. If Muslim men are allowed to marry Ahlul Kitaab women, the reverse must also be true (Monib & Nurcholis, 2009). This opinion, nevertheless, is very weak as such analogy deviates from the nash or the explicit Quranic text. Experts on Ushuul al-Fiqh (Principles of IslamicJurisprudence) say: “Laa qiyaas ma’a al- nash” (There shall be no analogy for nash/Quranic texts or hadiths). The Quranic text in this case is the command of Allah: “they are not lawful [wives] for them, nor are they lawful [husbands] for them” (QS Al-Mumtahanah: 10). In fact, there is already an ijmaa’ (consensus) of the Muslim community that it is illegitimate for non-Muslim men to marry Muslim women (Al-Thabariyy, 2000).
namely books of Islamicjurisprudence (al-kutub al-fiqhiyyah), decrees of Islamic courts, lawand regulation adopted by Muslim countries, and legal pronouncement of juris consults (fatwa>s), each of which subjects to socio-cultural and socio-political factors surrounding. See Mohammad Atho Mudzhar, Islam andIslamiclaw in Indonesia A Socio- Historical Approach (Jakarta: Office of Religious Research and Development, and Training, 2003), p. 94-104. In a rather different emphasize, Bowen suggests that those four types of institutions can, did, and do exist in many possible combinations. See John R. Bowen, “Shar³‘a without Fiqh: the Anthropology of Law without Law? Reflection from France”, Paper presented at the ISIM Workshop on the Athropology of IslamicLaw (Leiden, March 14-16, 2003), p. 1. Given the fact that the compilation of Islamiclaw in Indonesia is different from any of the four, it is reasonable to say that the compilation contributes to a new form of Islamic legal literature.
e second phase covers the 1950s, when the Yogyakarta-based leading religious scholar Hasbi Ash-Shiddieqy and the Jakarta-based prominent professor of law Hazai- rin, both expressed the need for a new national Indonesian madhhab. For both men, Islam could remain a vital force in the lives of believers only if Indonesian ﬁqh within the framework of a national madhhab was in line with the local cultures of Indonesia and at the same time was based on the Qurʾān and the Prophetic tradition. In their view, an Indonesian madhhab was a necessary response to the plurality of laws devel- oping in post-independent Indonesia, which incorporated the Dutch colonial code, local customary lawand Shāﬁʿī jurisprudence.
Furthermore, when once they were seen as the moral underpinning of the social order and as an exemplary guideline of conduct which generated willing submission – but by no means a systematic implementation of “lawand order” --, they would now, under the nation-state, acquire a disciplinarian fixity with which they had not been associated. Hand mutilation or capital punishment (protecting property and life, respectively) would not be a flexible hermeneutical exercise sporadically used to maintain social harmony (in a specific, localized social group) whenever the jurists and judges felt a limit had been breached, but the all-or-none punishment that must reflect the much cherished blind-justice. How could the cherished values that characterized -- indeed distinguished -- Islamic societies and made them what they are be, mutatis mutandis, maintained in the face of such hegemonic transformations? How would the maqa>s}id maintain that minimalist essence that makes a society Muslim/Islamic, and distinct from others, in the face of modernity’s powerfully homogenizing effects? The overarching estrangement of the maqa>s}id from their native soil does not alter only their form but also their substantive meaning and material contents. Perhaps most central in this transformation is the loss of the moral order, or the moral community, upon which the application of Islamiclaw depended and which it presupposed. If the maqa>s}id universals are to have any genuine Islamic meaning and content, they must be situated in a morally-based community, in the sense that the socially-embedded moral code is systematically maintained as the driving engine of the law, not the other way around. The loss of the moral community is the quintessential triumph of modernity. How this community can be revived under the clutches of the modern project is perhaps the most central and urgent question of all.
The ‘law as culture’ thesis initially emerged from the debate between Gluckman (1955) and Bohannan (1957) on the issue of whether or not the legal logic and the process of reasoning in dispute settlements are present in all societies in the same way. The work of Clifford Geertz (1983) shed light on this debate. Geertz considered that norm or value should be called ‘law’ if rooted in the collective resources of culture rather than in the separate capacities of individuals. This was because, for Geertz (1983: 215), ‘law is local knowledge’. Geertz (1983: 218, 232) thus argued that law is ‘a species of social imagination’, in which it ‘is constructive of social life, not relective, or anyway not just relective, of it’, and, hence, different cultural traditions maintain different legal sensibilities. Lawrence Rosen, who studied an Islamic village court in Morocco, echoed Geertz’s conception of law as an expression of culture. In one of his books, Rosen (2006) argues that law is actually part of culture’s way of expressing its sense of the order of things. Rosen (2006: 7) suggested that law must not be seen simply as a mechanism for attending to disputes or enforcing decisions, not solely as articulated rules or as evidence of differential power, but as a framework for ordered relationships. Law, in Rosen’s understanding, cannot be detached from an orderliness that is itself dependent on its attachment to all the other realms of its adherents’ lives.
based on the Quran surat al-Maidah verse 90. Islamic penal sanctions provided against abusers and drug dealers are ta'dzir customized with deeds. Positive law in Indonesia has made a clear and unequivocal sanctions against perpetrators penyaahgunaan and drug dealers in the form of imprisonment and a fine tailored to his actions (minimum and maximum). The concept of prevention and control of drug in the form of Islamic Criminal preventive, repressive and educative. While the concept of prevention and control in the positive law in Indonesia through Law No. 35 of 2009 in the form of the preventive, repressive, curative and educational and are already making mandatory provision of rehabilitation for addicts and victims of drug abuse. Islamic criminal lawshould require rehabilitation to addicts and victims of drug abuse and formulate the concept rehabilatasi specifically for victims of drug abuse because Islamiclaw derived from revelation is believed to be able to answer all the problems of life (solah li kulli al-zaman wa al-Spot), including eradicating against abuse drug efficiently.
The thesis in title: The protection of child in the Indonesian lawandIslamicjurisprudence (Comparative Study). Research problem of thesis There are a numbers of violence toward children or abaut their rights in Indonesian society. Study objectives to explain about the definition of child, principles, law sources, and implementation of child protection in the Indonesian lawand the Islamicjurisprudence? Also to explain of children’s rights, a kind of punishment for trespasser of children’s rights, Finally, to explain about similarities and differences between Indonesia lawandIslamicjurisprudence in the child protection affair. Research methodology used of thesis Analytical deductive comparative model.
Section 10-13 mentions the qualifications to be the SC members who shall be an individual and have qualification or possess necessary knowledge, expertise or experience in Islamicjurisprudence (Usul al-Fiqh); or Islamic transaction or commercial law (Fiqh al-Mu'amalat). At this point, the guidelines provides that the SAC has the authority to decide which view it sees best on any issue on Islamic finance either it is in line with the principles of the shariah or not. In fact, a court and an arbitrator may refer to the SAC on any dispute involves shariah issues whereby the former just as a matter of taken into consideration and the latter is absolutely binding.
ye who believe! Lo! Many of the (Jewish) rabbis and the (Christian) monks devour the wealth of mankind wantonly and debar (men) from the way of Allah. They who hoard up gold and silver and spend it not in the way of Allah, unto them give tidings (O Muhammad) of a painful doom, On a Day whereon they Shall be heated in Hell- Fire, and therewith shall be branded their foreheads and their sides and their backs: this is that which ye treasured up for yourselves, so taste now that which ye have been treasuring up 23 .
Making a proposal made possible to change, which formed when making a proposal using the electronic media through online matchmaking service. Such provisions seems to imply that online matchmaking service is a service bureau through electronic media as a tool that can be used as one instrument as a substitute for evidence of which is common when making a proposal. Online matchmaking service is a contemporary phenomenon of technological development. This can lead to a controversial issue as the online matchmaking service a service bureau when making a proposal to the higher level for a good marriage from the perspective of religion andlaw.
During pre-colonial period, the existence of the religious courts is said to have great influence to the earliest efforts by some Muslim Scholars to compose fiqh books and or establish a standard manual book by translating Arabic fiqh books to the Malay language and further adding some commentaries. In this chapter, the author also succeeds in showing the dynamics of the contestation between the Dutch authority and the indigenous Muslim population in relation to the application of the law concerning family cases. It shows the divergent Dutch’s attitudes toward Islamiclaw as it happened in colonial territories. Colonial masters, the Dutch in this case, initially imposed western law by ignoring Islamic legal tradition that lived on the ground.
“ Forbidden to you (for food) are: dead meat, blood, the flesh of swine, and that on which hath been invoked the name of other than Allah; that which hath been killed by strangling, or by a violent blow, or by a headlong fall, or by being gored to death; that which hath been (partly) eaten by a wild animal; unless ye are able to slaughter it (in due form); that which is sacrificed on stone (altars)... ”
The case settlement through mediation is led by a mediator who is independent or has no relationship with the litigants. The American Bar Association (ABA) stated that mediators are not bound by standard procedures such as court settlement. The mediator is free to determine what mechanism that he considers appropriate to the case he is handling. One of the most important things is that the mediator must be able to create a comfortable mediation forum so that the parties to the dispute can think quietly and can produce acceptable decisions and satisfy all parties. The mediator must know and understand all stages of mediation if the mediator finds either party imposing coercion, dishonesty, fraud or an unbalanced position, the mediator is entitled to stop the mediation process. 57
Challenging the Secular State presents an innovative analysis of a timely and important issue, and Salim supports his arguments with solid empirical research. While the book’s central message is both persuasive and significant, a number of the book’s theoretical claims strike me as somewhat forced or artificial, and some elements of the critique assume a standard of coherence that real-life legal systems rarely achieve. For example, comparing the Ministry of Religious Affairs to Ottoman millets overstates the degree to which MORA is able to act autonomously, and the efforts by Muslim parties to subject constitutionally guaranteed individual rights to the constraints of religious values is not meaningfully different from what would be expected of nonreligious communitarian conservatives. Although Salim frames the argument in abstract terms as a clash between incompatible legal ideologies, the force and salience of the argument comes primarily from Salim’s sensitive analysis of his empirical findings. The most compelling case against state enforcement of a formalized Islamiclaw comes from Salim’s discussion of the consequences of particular Islamization programs. In the details of his case studies, Salim shows that enacting Islamic doctrine as state law both infringes on principles of tolerance and equal treatment guaranteed by the state and also threatens the integrity of religious values by transferring control over religious practices out of the hands of religious leaders.
Interestingly ironic, the rise of number of non-Moslems as customers of necessarily means that the Moslems will support it even more. There are still several critics. Among them is the Central Executive Board of Nahdlatul Ulama (PBNU) that has run the review against the concepts and practices of banking operated by sharia banking and sharia financial institution in Indonesia. Abdul Jalil, a member of Fatwa Commission (Bah } th al-Masa >’ il) of NU in 2015, critisizes that at the substance level, sharia banking and conventional banking is not much different. He objects some who argue the difference between legality (shar ‘ i) and “non-legality (non-shar‘ i) is measured from contract (‘aqd). He criticized it as a simplification. He then ellaborated as follows:
16 In correlation with Islam, there is a controversy about the relation between Islamicand adat law. Previously, Dutch legal scholars assumed that adat law represented Islamiclaw because Moslem was the most population in Indonesia. This paradigm was popularly called receptio in complexu theory, which argued that Islamiclaw was practiced effectively in local
To sum up, we must fight against the indirect ways of playing with the law in the Indonesian Marriage Law No. 1 of 1974 especially in the section of divorce. Also, organizing the activities of institutions and courses related to the family in educating the community about their rights and duties that go with the spirit of Islamiclaw.
The researcher, when writing this study, has talked in both theory and application. She followed the inductive approach to the provisions of Islamicjurisprudenceand the methodology of criticism compared to the laws of personal status on the Marriage Law in Indonesia No. 1 of 1974 in the section of divorce. She compared them to the applications of Indonesian Muslim society and she supported that with a field study. She also revealed the data issued by the Religious Court related to divorce issues in Solo city.
The purpose of the foregoing distinction between the four types of clear words is to identify their propensity or otherwise to ta'wil, that is, of admitting a meaning other than their obvious meaning, and whether or not they are open to abrogation. If a word is not open to either of these possibilities, it would follow that it retains its original or primary meaning and admits of no other interpretation. The present classification, in other words, contemplates the scope of ta'wil in that the latter is applicable only to the Zahir and Nass but not to the Mufassar and Muhkam. The next purpose of this classification is to provide guidelines for resolving possible conflicts between the various categories of words. In this way an order of priority is established by which the Muhkam prevails over the other three varieties of clear words and the Mufassar takes priority over the Nass, and so on. But this order of priority applies only when the two conflicting texts both occur in the Qur'an. However, when a conflict arises between, say, the Zahir of the Qur'an and the Nass of the Sunnah, the former would prevail despite its being one degree weaker in the order of priority. This may be illustrated by the ayah of the Qur'an concerning guardianship in marriage, which is in the nature of Zahir. The ayah provides: 'If he has divorced her, then she is not lawful to him until she marries (hatta tankiha) another man' (al-Baqarah, 2:229). This text is Zahir in respect of guardianship as its principal theme is divorce, not guardianship. From the Arabic form of the word 'tankiha' in this text, the Hanafis have drawn the additional conclusion that an adult woman can contract her own marriage, without the presence of a guardian. However there is a Hadith on the subject of guardianship which is in the nature of Nass, which provides that 'there shall be no marriage without a guardian (wali). [29. Abu Dawud, Sunan (Hasan's trans.), II, 555 Hadith no. 2078; Badran, Usul, p. 408.]