Syariah: Jurnal Hukum dan Pemikiran

Delegitimization Of Religious Motives in Polygamy in Banjar Society

2024-02-27T22:26:34+00:00

In fact, the practice of polygamy in the Banjar community is often carried out without being recorded and gives rise to legal problems, not only in the form of not fulfilling the right to justice but also gives rise to physical, verbal, and psychological violence. It is often that religion becomes a 'shield' in the form of unconscious motives to cover up the truly practical motives. The purpose of this writing is to describe why the practice of polygamy in Banjar society, with its duality of motives, actually creates problems and why religion is always a 'shield'. This research was conducted empirically with data obtained from the interview process with informants and then analyzed using a socio-legal approach. Based on the results of the study, it was found that the practice of polygamy for religious reasons as an unconscious motive has the potential to give rise to unfair polygamous behavior, acts of violence, and a disregard for the protection of rights and the law. The textual and partial interpretation of polygamy texts supported by a patriarchal socio-cultural system is the basis for legitimizing this behavior, even though this behavior is not by the essential goals of marriage including polygamy and the applicable regulations. Making religion an unconscious motive is something that is considered effective in legitimizing polygamy because, by the religious character of Banjarese society with Islam being an ethnic identity, the practice of polygamy is understood as a natural and legitimate thing. This condition is strongly supported by the traditionalist reasoning that many Banjar people adhere to so that often the understanding of a tuan guru includes polygamy as an accepted truth. This is because of the position of the tuan guru who is considered as an authoritative figure in every aspect of Banjarese people's life.

Judicial Discretion in Inheritance Case Resolution: Towards Progressive Legal Justice in Indonesia

2024-06-08T01:14:25+00:00

The results of the creativity of judges in conducting legal discovery with various methods allow for decisions that contain legal discretion in order to realize progressive legal justice. The presence of discretion to correct all weaknesses, independence is very important in the aspect of legal sources. Through in-depth research using normative legal studies on several decisions of the Religious Courts in South Kalimantan, it was found that a form of free discretion was found when the judge in the purification of the inheritance gave part of the inheritance through the establishment of a mandatory will for the ex-wife and justified the use of the inheritance for the payment of the spirit ritual debt. Such discretion of judges is categorized as ideal discretion because it is very progressive, where judges not only use normative interpretation but rather use sociological interpretation and connect the law with humanity, and morality.

Reactualization of Maslahat and Social Justice Principles in the Contextualization of Fiqh Zakat

2024-05-30T08:33:39+00:00

As a text, Muslims agree that zakat is a pillar and ritual of Islam that every Muslim is obligated to perform. Nevertheless, as a form of text-ritual, zakat will always be contextualized. He is always tied to the culture of the community where the zakat ritual is performed. That is, the implementation of zakat is very likely to vary, depending on how the meaning of zakat is interpreted and reinterpreted by local communities. The law of zakat is different from other laws of worship, because the nature of the law at this level is flexible, dynamic and elastic in accordance with the development and needs of society (mu'amalah ijtima'iyyah) which is based on normative passages that are general and zanniyyah. This paper seeks to analyze and find applicative ideas about the theory of maslahat and social justice in various concepts of contemporary scholarly thought to then be correlated with the formulation of the development of ijtihad zakat based on maslahat and justice. A number of relevant references are used as sources as well as material for conducting critical analysis with a qualitative descriptive approach so that it can be emphasized the building of ideas and strategic steps to make zakat an Islamic social system that not only touches the question of creed alone, but also the socio-economic welfare of the community as well as the great purpose of zakat sharia.

Enviromental Governance in Indonesia: Muhammadiyah's Role, State Intervention, and Legal Practice Dynamics

2024-05-29T00:26:33+00:00

The study explores the causes of the controversy between the Muhammadiyah and the State in the policy of ecological law in Indonesia. The exploration uses methods of normative law research with conceptual approaches and philosophy of law. The results of this study show that the contestation of the Muhammadiyah and the State in ecological law politics in Indonesia is caused by the first factor of epistemological differences in legal policy, the epistemology of Muhammadiyah in line with the Islamic ecological concepts of Tauhid, Khilafah, Amanah, Halal Haram, Balance and Misconduct. This epistemology differs from what the state practices, namely industrialization, which is reflected in the birth of some legislative regulations that are considered ecologically unfair. Both paradigm differences, Muhammadiyah advances theoantroposentrism. As God's representative on earth, Muhammadiyah takes precedence over a prophetic perspective. The State paradigm also in practice needs to industrialize for economic growth, so that in practice there is controversy in legal politics. In practice, the controversy led to a change in the political direction of ecological law in Indonesia as Muhammadiyah succeeded in conducting judicial review, criticizing state policy to advocating the law against societies in conflict ecological sector

An In-Depth Examination of Judicial Interpretations of 'Radd' in Spousal Inheritance within the Religious Courts of Sampang and Tanjung

2024-05-28T06:31:16+00:00

Penetapan dan Putusan Pengadilan Agama Sampang dan Tanjung, merupakan dua sampel produk hukum yang mengadopsi teori Utsman dalam penyelesaiaan kasus radd. Yaitu sisa lebih harta warisan diberikan terhadap suami/istri pewaris yang selama ini tertolak oleh faraidh. Dua fakta hukumnya; anak perempuan menghijab saudara, dan radd diberikan kepada ahli waris sababiyah, tampaknya sudah jauh bergeser dari pendapat kelompok mayoritas. Atas dasar ini, tujuan penelitian yang diselaraskan dengan dua rumusan masalah, difokuskan untuk mengetahui bagaimana pertimbangan dan amar putusan, serta alasan hakim di dua Pengadilan Agama terkait suami/istri dalam kasus kewarisan radd.? Metode penelitian hukum normatif ini, menjadikan dua produk hukum tersebut sebagai bahan hukum primernya, yang dikumpulkan, diolah, dan dianalisis melalui survei kepustakaan dan studi literatur. Respon sejumlah pihak terkait, diperoleh melalui “open ended question” untuk melihat korelasinya. Temuan penelitian menunjukkan, bahwa pada kasus kewarisan di PA. Sampang; Istri mendapat tambahan sisa lebih harta, dengan menjadikan 19 sebagai ashal masalah baru (Pasal 193 KHI). Sedang pada Putusan di PA. Tanjung, radd diberikan kepada suami, yaitu 1/6 saham yang seharusnya dibagi secara proporsional dengan ibu pewaris. Namun karena ada kesalahan teknis dalam metode perhitungannya, radd tidak dibagi secara berimbang sebagaimana gagasan Utsman. Kenyataan ini menunjukkan, bahwa pola pembagian berimbang dalam upaya penyelesaian kasus radd, perlu memperhatikan metode pemecahan kasus sebagaimana faraidh. Simpulan tulisan ini, sekaligus membedakan dengan beberapa temuan hasil penelitian terdahulu yang hanya melihat permasalahan radd berdasarkan konsep faraidh, atau Kompilasi Hukum Islam (KHI) saja.
The Determination and Decision of the Sampang and Tanjung Religious Courts are two samples of legal products that adopt Uthman's theory in resolving radd cases. That is, the remaining inheritance is given to the husband/wife of the heir who has been rejected by faraidh. The two legal facts; daughters veil brothers, and radd is given to sababiyah heirs, seem to have shifted considerably from the opinion of the majority group. On this basis, the research objectives, which are aligned with the two problem formulations, are focused on finding out how the considerations and rulings, as well as the reasons for judges in the two Religious Courts related to husband/wife in radd inheritance cases? This normative legal research method makes the two legal products as primary legal materials, which are collected, processed, and analyzed through literature surveys and literature studies. The responses of a number of related parties were obtained through an "open ended question" to see the correlation. The research findings show that in the case of inheritance in PA. Sampang; The wife gets additional remaining assets, by making 19 as a new problem (Article 193 KHI). While in the decision in PA. Tanjung, radd is given to the husband, namely 1/6 share which should be divided proportionally with the mother of the heir. However, due to a technical error in the calculation method, the radd was not divided equally as Uthman's idea. This fact shows that the pattern of balanced distribution in an effort to resolve radd cases, needs to pay attention to the method of solving cases as faraidh. The conclusion of this paper also distinguishes it from the findings of previous studies that only looked at radd issues based on the concept of faraidh, or the Compilation of Islamic Law (KHI).

Foreign Experience of Ensuring Human Rights during Recruitment of the Armed Forces as an Element of the State’s National Security

2024-04-18T02:38:11+00:00

The purpose of the article is to carry out an original study of the main aspects of ensuring human rights during recruitment of the armed forces as an element of the state’s national security. Four methods of recruitment (manning) of armed forces have been established in the world, namely: on the basis of general military duty - by conscription of citizens for military service; on a voluntary basis - by recruiting military personnel under a contract; mixed - on the basis of the law on general military duty and voluntary recruitment of servicemen under contract; police method - on the basis of the law on the general military conscription. This article is the qualitative research with a historical and comparative approach. It was concluded that the main argument of supporters of a professional army in the world consists in the following: firstly, professional possession of military equipment in conditions of the digital development of society, and secondly, motivation of military personnel to complete military service. Currently, most developed countries such as the United States of America (USA), France, Israel, Germany, Poland, the Czech Republic, and Switzerland adhere to the course of professionalizing their armed forces and recruit their armies on a voluntary basis.

Synergy of Samin Culture With Environmental Fiqh in Central Java

2024-06-27T09:51:04+00:00

This article explores the synergy between Samin culture and the concept of environmental fiqh in Central Java. This research employs qualitative methods, including in-depth observations, participatory observations, and documentation studies. This research seeks to provide a deeper insight into how local culture that has interacted with environmental fiqh can stop the plan to establish a cement factory as a pretext for national development. More specifically, this study uses the concepts of culture, ecology, and environmental fiqh to analyze the resistance of the Samin community to the plan to build the cement factory. The research findings show that the synergy of Samin culture with environmental fiqh was able to stop the plan to establish a cement factory on Mount Kendeng, Pati Regency, Central Java. This study offers a new perspective on formulating policies that are more inclusive and sustainable by strengthening the synergy between local culture and environmental fiqh principles.

Delay in the Division of Inheritance: A Theoretical Review within Legal System Framework in Indonesia

2024-05-29T16:33:20+00:00

Delays in the distribution of inheritance are common in the Banjar community, and these delays in the distribution of inheritance cause various problems, ranging from conflicts between heirs that cause family relationships to break down, neglected inheritance, to litigation between families in court. This paper intends to scrutinize why this delay in inheritance distribution occurs. To answer this, the author discusses it in the perspective of Laurence M. Friedman's Legal System Theory, this research uses qualitative research methods in the form of empirical legal research. Data were obtained through in-depth interviews and observations, then analyzed with interpretative descriptive analysis. From this research, it was found that the legal structure of delaying the distribution of inheritance, namely religious courts, judges, advocates and scholars do not have the authority to "force" the community to immediately distribute inheritance. The substance of the law, namely the Qur'an, al-Hadis, Fiqh books and the Compilation of Islamic Law as the source of inheritance law of the Banjar community does not explicitly state the time of distribution of inheritance, even this source of law they "abandon", customary inheritance law is the law that lives and becomes the legal culture of the community regarding the time of inheritance implementation, where for generations they have delayed the distribution of inheritance, distributing inheritance immediately is considered an unethical or uncivilized act.

Development and Concept of Environmental Fiqh in the Works of Banjar Scholars: Historical and Thought Analysis

2024-05-29T08:00:24+00:00

This research is motivated by the increasing importance of seeking efforts for environmental safety as the main support for human survival. The aspect of religious thought (fiqh) is one of them. The Banjar people, especially those who live in South Kalimantan, as the land of Mecca's verandas, the land of a thousand mosques, and the city of Islamic students, have undoubtedly given birth to many works of Islamic legal thought. Based on the results of the search, in the books of Banjar Islamic jurisprudence from the XVIII, XIX and XX centuries AD, there are 10 books by Banjar Islamic scholars, of which the 10 (ten) Banjar Islamic jurisprudence books mostly discuss muamalah, worship and law. So the research aims to analyze the development and concepts of environmental jurisprudence in the Islamic jurisprudence works of Banjar ulama in the contemporary era. The method used according to type is library research with a historical, hermeneutical and istinbath approach because the focus of the study in this research is environmental jurisprudence thinking on the jurisprudence of the work of Banjar ulama. The research results show that there are no books by South Kalimantan (Banjar) ulama that discuss environmental jurisprudence. The works of this banjar cleric include the Books of Sabilal Muhtadin, Parukunan Jamaluddin, USSA, Parukunan Melayu Besar, Asrar as-Salat, Risalat Rasam Parukunan, Mabadi Ilmu Fiqh, Risâlah Mu'âmalât, Is'af al-Haidh book, and Tangga Ibadah. From several of these books, it can be seen that the development of the concept of environmental jurisprudence is not yet visible. The jurisprudential aspect of worship dominates the discussion pages. Water issues and agricultural land conservation (environmental aspects) have been discussed in several books, but the descriptions have not shown positive developments.

Redefining Legal Frameworks: Progressive Methods in Ascertaining Children's Lineage from Fasid Marriages in Religious Court Proceedings

2024-05-28T14:08:16+00:00

This research aims to reveal and analyze the considerations of the panel of judges in cases of determining the origin of children because the marriage was annulled (fasid) in all Religious Courts in South Kalimantan, and offers an ideal legal construction in determining the origin of children in the context of legal protection for children based on a legal approach progressive. This research is normative legal research, using case, statutory, and concept approaches. The analysis process uses content analysis techniques. The results determine the origin of children from fasid marriages at the Religious Courts in South Kalimantan from 2020 to 2022 consisting of 13 who rejected the request and 15 who granted the request. Those who agreed considered the importance of child protection based on the Child Protection Law and the Opinions of Contemporary Ulama. On the other hand, those who reject it based on the Marriage Law and KHI that fasid marriages are materially and formally invalid so that their children become illegitimate. Protection for children is a fundamental right that judges must explore with a progressive legal approach, that children from fasid marriages must not bear the burden of their parent's mistakes and negligence on legal rules.

Reform of Decentralization of Power in Ukraine under Conditions of War: Legal Regulation, Management Features and Directions for Improvement

2024-03-12T07:45:12+00:00

The purpose of the article is to reveal the reform of the decentralization of power in Ukraine under conditions of war. In the concept of the territorial community of Ukraine, ancient European traditions of Ukrainian local self-government and modern standards of the European Union have been successfully embodied. The productive interaction of citizens, the state, and international organizations contributed to formation of Ukrainian territorial communities. It has been proven that the personal income tax is one of the main sources of filling community budgets. For 9 months of 2022 local budgets of the Dnipropetrovsk region of Ukraine received 16,364,124 Ukrainian hryvnias (UAH) as personal income tax, which is 34% more than for the same period in 2021. Methodology: The specifics of the research subject, as well as its purpose and tasks determined the use of general scientific and special methods of scientific cognition. Stabilization and restoration of territorial communities in Ukraine require the introduction of a new three-level effective and transparent system of strategic planning: state strategy — regional strategies — community strategies. For restoration and stimulation of regional development strategizing should contain definition of the following four functional types of territories: territories of recovery, poles of economic growth, territories with special conditions for development, territories of sustainable development.

War as A Socio-Cultural Phenomenon: A Criminological Perspective and Conceptualization with Empirical Study in Ukraine

2024-04-06T14:15:15+00:00

This research delves into the sociocultural phenomenon of war, focusing on Russia's illegal invasion of Ukraine. It examines war through a criminological lens, aiming to understand its short and long-term effects on society. Through empirical analysis of Ukraine's management of the crisis, the study evaluates how the socio-cultural perspective influences war handling. Destructive consequences such as increased stress levels and migration, alongside constructive factors, are identified. The research highlights the criminogenic potential of war trauma and post-war syndrome. Despite various methods and hypotheses, socio-cultural effects persist, posing a complex challenge for Ukraine. War is portrayed as a multifaceted phenomenon influenced by demographic, economic, and ideological factors, as well as historical legacies. Ultimately, the conclusion underscores the irreparable impact of war on the environment, populations, and international relations. This suggests a pressing need for comprehensive efforts to mitigate the long-term consequences of war and foster stable post-conflict societies.

Experience of Individual Northern European Countries in Providing Protection of Justice (Criminological Aspect and Criminal Law Aspect)

2024-03-20T09:17:38+00:00

The purpose of the article is to describes experience of Denmark, Finland, Norway and Sweden in providing criminological protection of justice. . This article is the qualitative research with a historical and comparative approach. Thus, as of 01 January, 2023, employees of the Court Security Service in Ukraine ensured public order and security in 590 appellate and local courts and bodies of the justice system, which is more than 80% of their total number , and as of 01 January 2024 security was ensured in 639 (87 %) objects of the justice system. To a large extent, this is related to introduction of restrictions in Ukraine provided for by martial law as a result of the armed aggression of the Russian Federation.The results of the study concluded that the it has been established that today in some countries of Northern Europe, in contrast to Ukraine, permanent security checks for all visitors are implemented only in those courts where such checks are needed for security reasons, and implementation of such a criminological function is entrusted to security inspectors represented by police officers, court employees, as well as security companies. Based on the results of the research, promising directions for improving activities of the Court Security Service of Ukraine were determined, and expediency of strategic planning practice in the sphere of ensuring protection of justice in Ukraine was also emphasized.

Ensuring Human Rights in Ukraine during Introduction of Martial Law: Constitutional and Administrative Aspect

2024-03-31T07:49:52+00:00

The purpose of the article is to reveal provision of human rights in Ukraine under the conditions of martial law. Human rights and freedoms are the highest value, but their characteristic feature, as a fundamentally important feature of a progressive society consists in historical instability, variability and subordination to socio-economic processes in the state, which contradicts the established principles of humanism, but remains typical in war conditions. Within the scope of the scientific study, it was determined that human rights have a characteristic of evolution together with society and the state, and therefore, taking into account the complexity of the events taking place on the territory of modern Ukraine, study of the available range of problems has a particularly important scientific and practical role. Study of the available range of problems was carried out using the methods of comparison, abstraction, analysis and generalization. In the course of the study, the essential characteristics of the social category were determined, in particular, the theoretical and methodological foundations of ensuring observance of human rights in conditions of martial law (the regulatory and legal basis). Summarizing the events taking place in Ukraine as a result of the treacherous armed aggression of the Russian Federation, it was concluded that under conditions of war human rights are the highest value.

Place of Principles of Law in Legal Regulation of Public Relations in Conditions of Digital Society: Theoretical and Legal Research

2024-05-12T22:02:34+00:00

Purpose of the article is to carry out original research on the place of principles of law in legal regulation of public relations in conditions of digitalization. Being a specific (fundamental, abstract, etc.) rule of law, a principle of law must be expressed in a certain external form (constitution, law, court decision, doctrine). During writing this article, a functional research, induction, deduction and classification methods was used; it allows to thoroughly reveal dynamic aspects of principles of law, their practical purpose, place and role among other elements of law and the legal system of society in general, as well as influence social relations in the form of legal regulation and other forms of legal influence (informational one, value-oriented one, psychological one, system-forming one, etc.). It was concluded that inclusion of universally recognized principles and norms of international law in the domestic legal system significantly changes its content, in a new way raises the question of interaction, hierarchy of legal acts in accordance with their legal force and the meaning of norms contained in them. Importance of principles of law is reflected in the fact that they act as a framework, a fundamental structure of the legal system; principles of law are a guide in the process of law development and formation; they significantly influence the formation of people’s legal awareness, can be a direct basis for making individual legal decisions in specific cases; in the case of gaps in the legislation, principles of law can be used as a legal ground when considering the issue of law, while they act as a source of law, principles of law contribute to the correct interpretation of legal norms. The state of implementation of the fundamental principles of the Union in the founding states, using the example of the Federal Republic of Germany and the French Republic, as well as problems with the implementation of the principles of the law of the Republic of Poland, were studied. Thus, Germany and France today have a fairly high level of implementation and compliance with the main principles of European Union law, while Poland has recently had certain problems with this. So, over the past 7 years, this state has violated EU values in two categories at once - in the category of personal and political rights. In 2023, cases of legitimate abortions were limited in the Republic of Poland, which violated the right to the integrity of the individual and its inviolability, which is one of the main values of the European Union. In 2022, the European Commission filed a lawsuit against Poland to the European Court of Justice regarding violations of the latest requirements of the EU Treaty regarding the principle of judicial independence.