WOMEN, GENDER, AND ISLAM IN AFRICA AND BEYOND

2014 ◽  
Vol 29 (1) ◽  
pp. 170-175
Author(s):  
Sarah Eltantawi
Keyword(s):  
Legal History ◽  
Islamic Law ◽  
Gender Justice ◽  
Legal Studies ◽  
Ethnographic Data ◽  
Historically Situated

Scholars of Islamic law, gender, and Africa will be pleased with the arrival of two important new volumes that are bold in their bringing together of ethnographic data with legal history and analysis. Margot Badran's Gender and Islam in Africa: Rights, Sexuality, and Law, and Christina Jones-Pauly and Abir Dajanfi Tuqan's Women under Islam: Gender Justice and the Politics of Islamic Law collectively advance a movement in Islamic legal studies that focuses on interdisciplinary explorations into the ways particular constructions of Islamic law are foregrounded and reified in accordance with the existential impulses and demands of a particular society at a particular time, what we might call the “hermeneutic of experience.” I would argue that gender functions as the category that most regularly exposes the limitations of various historically situated concepts of orthodoxy, and these books bear out this claim.

An Epistemic Shift in Islamic Law

2014 ◽  
Vol 21 (3) ◽  
pp. 209-251 ◽  
Author(s):  
Aria Nakissa
Keyword(s):  
Legal History ◽  
Islamic Law ◽  
Legal Reasoning ◽  
Natural Sciences ◽  
Legal Doctrine ◽  
Religious Learning ◽  
Ethnographic Data ◽  
Islamic Legal History ◽  
Textual Research

In this article, I combine textual research with ethnographic data collected at al-Azhar and Dār al-ʿUlūm to investigate how the modernization of traditional religious learning has transformed the character of Islamic legal doctrine. I argue that changes in educational techniques have produced a shift in “episteme”. Whereas traditional religious learning was dominated by language-based conceptions of knowledge, modern reforms have reoriented education towards new conceptions modeled on the natural sciences. This transformation has fundamentally altered patterns of legal reasoning, particularly with respect to ijtihād and taqlīd. I use these observations to urge a rethinking of the perspectives on ijtihād and taqlīd that currently structure Western research on Islamic legal history. 


Orientalism, Colonialism, and Legal History: The Attack on Muslim Family Endowments in Algeria and India

1989 ◽  
Vol 31 (3) ◽  
pp. 535-571 ◽  
Author(s):  
David S. Powers
Keyword(s):  
Legal History ◽  
Islamic Law ◽  
Legal Studies ◽  
Colonial Expansion ◽  
Legal Texts ◽  
The Subject ◽  
Islamic Legal History ◽  
Scholarly Production ◽  
The Impact ◽  
Muslim Family

One of the earliest and most highly developed areas of orientalist scholarly production was the study of Islamic law. Modern western investigation of Islamic law emerged during the era of European colonial expansion, and the first studies of the subject were written by citizens of the colonial powers, many of whom had lived in the colonies for extended periods. These men produced the first translations of legal texts, the first studies of individual legal institutions, and the first comprehensive studies of Islamic law, thereby laying the foundations for the modern discipline of Islamic legal history. Surprisingly, students of orientalism have devoted little attention to the colonials'viewsof Islamic law—that is, to the attitudes and assumptions that underlay their writings and interpretations—or to the impact of those views on the development of Islamic legal studies as a discipline.

scholarly journals Konstruksi Nalar Rechtvinding Hakim dalam Pemberian Izin Poligami yang Berkeadilan Gender dalam Putusan Pengadilan Agama Jombang No. 0899/Pdt.G/2016/PA.Jbg

AL-HUKAMA ◽  
2019 ◽  
Vol 9 (2) ◽  
pp. 496-517
Author(s):  
Abdullah Taufik ◽  
Ilham Tohari
Keyword(s):  
Content Analysis ◽  
Research Method ◽  
Islamic Law ◽  
Gender Justice ◽  
Legal Research ◽  
Analysis Techniques ◽  
Positive Law ◽  
The One ◽  
Legal Discovery ◽  
Religious Courts

The practice of polygamy in Indonesia until now has drawn criticism from some feminists who did not agree. But on the one hand, both Islamic law and positive law permit various conditions. In this case, the Religious Court (PA) becomes the last fence which becomes the determining point for a man to be able to polygamy. For this reason, researchers conducted a study of PA decisions on polygamy, namely Jombang PA Decision No. No. 0899 / Pdt.G / 2018 / PA.Jbg . The focus of the problem is (1) the value of gender justice in the decision and (2) reasoning rechtvinding(legal discovery) judge. The method used in this study is a normative-qualitative legal research method with content analysis techniques from Charles Purse. The results showed that the practice of polygamy licensing in the Religious Courts had actually gone through processes that reflected gender justice. This is reflected in the obligation of the Religious Court to summon the longest wife of the applicant for polygamy to be asked for willingness and information. The results of subsequent studies show that PA Jombang judges used hermeneutic techniques in making legal discovery efforts. Because, they not only focus on aspects of legality, but also consider the contextualization.

scholarly journals PERBANDINGAN SISTEM HUKUM COMMON LAW, CIVIL LAW DAN ISLAMIC LAW DALAM PERSPEKTIF SEJARAH DAN KARAKTERISTIK BERPIKIR

2018 ◽  
Vol 25 (1) ◽  
pp. 98
Author(s):  
Farihan Aulia ◽  
Sholahuddin Al-Fatih
Keyword(s):  
Legal System ◽  
Legal History ◽  
Islamic Law ◽  
Common Law ◽  
Legal Systems ◽  
Legal Tradition ◽  
History Of ◽  
Legal Thinking ◽  
Anglo American ◽  
The Comparative Study

The legal system or commonly referred to as the legal tradition, has a wealth of scientific treasures that can be examined in more depth through a holistic and comprehensive comparative process. Exactly, the comparison of the legal system must accommodate at least three legal systems that are widely used by countries in the world today. The three legal systems are the Continental European legal system, Anglo American and Islamic Law. The comparative study of the three types of legal systems found that the history of the Continental European legal system is divided into 6 phases, while Anglo American legal history began in the feudalistic era of England until it developed into America and continues to be studied until now. Meanwhile, the history of Islamic law is divided into 5 phases, starting from the Phase of the Prophet Muhammad to the Resurrection Phase (19th century until nowadays). In addition to history, the authors find that the Continental European legal system has the characteristic of anti-formalism thinking, while the Anglo American legal thinking characteristic tends to be formalism and is based on a relatively primitive mindset. While the thinking character of Islamic Law is much influenced by the thought of the fuqoha (fiqh experts) in determining the law to solve a problem, so relatively dynamic and moderate.

scholarly journals PENGAMBILALIHAN HAK ATAS JAMINAN (EKSEKUSI) JAMINAN FIDUSIA DAN RAHN TASJILY PERSEPEKTIF HUKUM POSITIF DAN HUKUM ISLAM

2019 ◽  
Vol 10 (2) ◽  
pp. 186
Author(s):  
Heri Kuswanto
Keyword(s):  
Financial Institutions ◽  
Islamic Law ◽  
Descriptive Analysis ◽  
Critical Legal Studies ◽  
Legal Studies ◽  
Positive Law ◽  
Qualitative Descriptive ◽  
The Right ◽  
And Storage ◽  
Laws And Regulations

The phenomenon that occurs is related to the taking over of the right to guarantee (execution) of fiduciary security and Rahn Tasjily in the execution of executions carried out by financial institutions that do not comply with applicable laws and regulations. This research uses Normative legal methods, with qualitative descriptive analysis and critical legal studies. The results of the study that the process of taking over the right to guarantee (execution) fiduciary regulated in article 29 (1) of the fiduciary guarantee law. Among the first, execution based on Grosse fiduciary guarantee certificate or executable title (fiat execution) contained in the Fiduciary Guarantee Certificate carried out by the fiduciary recipient. Second, an execution based on the execution of separate executions through public auctions by fiduciary recipients. Third, execution by sale under the hand by the creditor fiduciary himself, and fourth, fiduciary execution by claiming. Based on Islamic law, the process of expropriation of the right to guarantee (execution) Rahn Tasjily, that the procedure for executing Marhun (collateral object), if due. Murtahin must warn Rahin to pay off her debt immediately. If the Rahin still cannot repay its debt, then Marhun is forcibly sold/executed through an auction, according to sharia. Marhun sales proceeds used to pay off debt, maintenance, and storage costs that have not paid and sales costs. The excess proceeds from the sale belong to Rahin, and the shortcomings become Rahin obligations. The execution process carried out by sharia companies must be based on fatwa no. 25/DSN-MUI/III/2002, and fatwa no. 92/ DSN-MUI/IV/2014. Positive law and Islamic law, which become normative references, have not been well understood and applied by the finance parties, causing injustice and legal uncertainty.Keywords: expropriation of rights, fiduciary guarantee, rahn tasjily ABSTRAKFenomena yang terjadi terkait pengambilalihan hak atas jaminan (eksekusi) jaminan fidusia dan rahn tasjily pada pelaksanaan eksekus yang dilakukan oleh lembaga pembiayaan tidak mematuhi aturan perundang-undangan yang berlaku. Penelitian ini menggunakan metode hukum Normatif, dengan analisis deskriptif kualitatif dan studi hukum kritis. Hasil penelitian bahwa, proses pengambilalihan hak atas jaminan (eksekusi) fidusia telah diatur dalam pasal 29 (1) undang-undang jaminan fidusia. Diantaranya pertama, eksekusi berdasarkan grosse sertifikat jaminan fidusia atau titel eksekutorial (secara fiat eksekusi) yang terdapat dalam Sertifikat Jaminan Fidusia yang dilakukan oleh penerima fidusia. Kedua, eksekusi berdasarkan pelaksanaan parate eksekusi melalui pelelangan umum oleh penerima fidusia. Ketiga, eksekusi secara penjualan di bawah tangan oleh kreditor pemberi fidusia sendiri, dan keempat, eksekusi fidusia secara mendaku. Berdasarkan hukum Islam, proses pengambilalihan hak atas jaminan (eksekusi) rahn tasjily, bahwa prosedur pengeksekusisan marhun (objek jaminan), apabila jatuh tempo. Murtahin harus memperingatkan Rahin untuk segera melunasi hutangnya. Apabila rahin tetap tidak dapat melunasi hutangnya, maka marhun dijual paksa/dieksekusi melalui lelang sesuai syariah. Hasil penjualan marhun digunakan untuk melunasi utang, biaya pemeliharaan dan penyimpanan yang belum dibayar serta biaya penjualan. Kelebihan hasil penjualan menjadi milik rahin dan kekurangannya menjadi kewajiban rahin. Adapun proses eksekusi yang dilakukan oleh perusahaan syariah harus berdasarkan fatwa Nomor: 25/DSN-MUI/III/2002, dan fatwa Nomor:92/DSN-MUI/IV/2014. Hukum positif dan hukum Islam yang menjadi rujukan normatif, belum difahami dan diterapkan dengan baik oleh pihak pembiayaan, sehingga menimbulkan ketidakadilan dan ketidakpastian hukum. Kata Kunci : jaminan eksekusi fidusia,pengambilalihan hak, rahn tasjily

scholarly journals EKSEKUSI NAFKAH PERCERAIAN DI PENGADILAN AGAMA KOTA MALANG

Ulumuddin ◽  
2018 ◽  
Vol 11 (1) ◽  
pp. 116
Author(s):  
Rendra Widyakso
Keyword(s):  
Rule Of Law ◽  
Islamic Law ◽  
Public Order ◽  
Scholarly Journals ◽  
Financial Responsibility ◽  
The Public ◽  
Legal Studies ◽  
Preliminary Study ◽  
The Law

This article aims to answer to important questions in legal studies that how to implement the legal execution of earning the expenses caused by divorce based on Indonesian law? And, how do the perspective of Islamic legal schools deal with the execution? There are numbers of scholarly journals studying this specific issue. However, the preliminary study that specifically focuses on the Legal Verdict of the Religious Court of Malang No. 0957/Pdt.G/2014/PA.MLG is offered by this article. It finds that legally, the judge has authority to order the ex-husband to pay the expences of the divorce compensation (mut’ah), financial responsibility due to divorce (iddah) and financial claim (madiyah) and financial childcare (hadhanah) before the divorce pledge is pronounced. If the expences cannot be paid, the ex-wife has right to purpose the legal execution to the court. Due to the purpose the chief of justice is responsible for and has authority to remind the ex-husband (aanmaning) and doing the legal execution if he disrespectly avoided the court’s order. The concept of legal expenses due to divorce is ruled by the fiqh of Islamic legal schools, in spite of the fact that the details of execution remain no any explanation. This article argues that the execution has been done referring to the law. It purposes to fulfil justice, expediency and rule of law. Furthermore, these purposes are the beginning step in order to achieve the public order (mashlahah) and the higher objective of Islamic law (maqashid al-syari’ah).

scholarly journals Kerangka Yuridis Kepatuhan Syariah dalam Operasional Perbankan Syariah di Indonesia

2017 ◽  
Vol 7 (1) ◽  
pp. 188-222
Author(s):  
Ja'far Baehaqi
Keyword(s):  
Legal History ◽  
Islamic Law ◽  
Institutional Development ◽  
Legal Framework ◽  
Business Activity ◽  
Legal Compliance ◽  
Liquidity Management ◽  
Financial Instrument

Abstract: This article discusses several aspects of sharia compliance framework in the operational of sharia banking in Indonesia. The aspects are institutional, banking products, liquidity management and financial instrument. From the perspective of legal history, it is discovered that sharia legal compliance evolved from speculative and simplistic to articulate and perfectionist. Institutionally, the arrangement is oriented on structural strengthening and display of sharia identity. There is a tension between the aspiration of institutional development and the decrease of sharia compliance into certain degrees. From the aspect of business activity, sharia compliance is comprehensive by formulating Islamic law which is a reference and transforms it to legal framework as well as elaborates supervisory institution. As to liquidity management and financial instrument, instruments which is compatible with sharia character is elaborated. Abstrak: Artikel ini membahas tentang kerangka yuridis kepatuhan syariah dalam operasional perbankan syariah di Indonesia dari beberapa aspek, yaitu kelembagaan, kegiatan usaha dan pengelolaan likuiditas serta instrumen keuangan. Dengan pendekatan sejarah perundang-undangan ditemukan bahwa kerangka yuridis kepatuhan syariah mengalami perkembangan dari semula bersifat spekulatif dan simplistik menjadi bersifat artikulatif dan perfeksionis. Secara kelembagaan, pengaturan diorientasikan kepada penguatan struktur dan penampilan identitas kesyariahan. Di sini terdapat ketegangan antara tujuan pengembangan kelembagaan dan penurunan tingkat kepatuhan syariah hingga derajat tertentu. Dalam aspek kegiatan usaha, kepatuhan syariah telah komprehensif dengan memformulasikan hukum Islam yang menjadi acuan dan mentransformasikannya menjadi bagian peraturan perundang-undangan, serta mengelaborasi lembaga pengawasan. Sedangkan dalam aspek pengelolaan likuiditas dan instrumen keuangan, telah dielaborasi instrumen-instrumen yang kompatibel dengan karakter kesyariahan bank syariah.

Islamic Law and Society in Southeast Asia

2016 ◽  
pp. 588-608
Author(s):  
Melissa Crouch
Keyword(s):  
Southeast Asia ◽  
Armed Conflict ◽  
Islamic Law ◽  
Comparative Law ◽  
The Philippines ◽  
The State ◽  
Law And Society ◽  
Legal Studies ◽  
Muslim Minorities

This article explores the ways Islam is recognized by the state in Southeast Asia, along with the scholarly debates that have arisen in response to these Islam-state configurations. It begins with an overview of the work of Professor M. B. Hooker, a pioneer of the field of comparative law in Southeast Asia, especially his study of Islamic law. It then considers how scholars have addressed the regulation and institutionalization of Islam in Malaysia, Indonesia, Brunei, and Singapore as well as the tensions and armed conflict between Muslim minorities and the state in Thailand and the Philippines, while largely overlooking Muslim minorities of Myanmar. Finally, it discusses the ongoing challenge of advocating for the importance of the study and contribution of Islamic law in Southeast Asia to the broader field of Islamic legal studies.

A PREQUEL TOLAW AND REVOLUTION: A LONG LOST MANUSCRIPT OF HAROLD J. BERMAN COMES TO LIGHT

2014 ◽  
Vol 29 (1) ◽  
pp. 142-169
Author(s):  
John Witte ◽  
Christopher J. Manzer
Keyword(s):  
Legal History ◽  
Good Deal ◽  
Legal Tradition ◽  
Legal Studies ◽  
Legal Thought ◽  
Comparative Methodology ◽  
Early Text ◽  
Legal Positivist

AbstractThe late Harold Berman was a pioneering scholar of Soviet law, legal history, jurisprudence, and law and religion; he is best known today for his monumentalLaw and Revolutionseries on the Western legal tradition. Berman wrote a short book,Law and Language, in the early 1960s, but it was not published until 2013. In this early text, he adumbrated many of the main themes of his later work, includingLaw and Revolution.He also anticipated a good deal of the interdisciplinary and comparative methodology that we take for granted today, even though it was rare in the intense legal positivist era during which he was writing. This essay contextualizes Berman'sLaw and Languagewithin the development of his own legal thought and in the evolution of interdisciplinary legal studies. It focuses particularly on the themes of law and religion, law and history, and law and communication that dominated Berman's writing until his death in 2007.

Islamic Law in Contemporary Scholarship

2000 ◽  
Vol 34 (2) ◽  
pp. 193-196
Author(s):  
Zouhair Ghazzal
Keyword(s):  
Islamic Law ◽  
Middle Eastern ◽  
Legal Framework ◽  
The Body ◽  
Roman Law ◽  
Normative Values ◽  
Near Eastern ◽  
Legal Studies ◽  
Large Audience ◽  
European Civil Code

Despite the importance of law in societal formations, and what looks like a revival in the field of legal studies, Islamic law is still by and large accessible to only a small group of specialists, and thus cannot claim a large audience even within Islamic and Middle (Near) Eastern studies, not to mention the much broader European and American legal scholarship. There are various reasons for such isolation, which are too complex to enumerate in a summary fashion, but which mostly involve the way the scholarship has evolved in the last few decades in Islamic societies, Europe, and North America, and which reflects the nature of Islamic law. First, unlike Roman law and all the continental codes that followed, and unlike the English and American common-law systems, what is commonly referred to as ‘Islamic law’ does not stand out as an organized set of codes, statutes, or even precedents. Instead, the body of Islamic law, which stretches over many centuries, has spawned several schools known as the madha̱hib, so that a modern scholar who needs to look at the legal framework of, say, an institution of the early ‘Abba̱sid period would have to dig hard into the labyrinth of the fiqh manuals only to realize that layers of interpretations follow each opinion, making it unrealistic to limit the ‘law’ to a set of codified norms. Second, modern scholars tend to look skeptically at the large corpus of Islamic law precisely because of its prescriptive nature and its uncertain historical evolution. We have consequently made little progress in assessing the nature of judicial decisionmaking and how the normative values prescribed by jurists affect it. Third, throughout the twentieth century, the majority of Islamic and Middle Eastern societies have adopted a new set of codes, a process that began in the second half of the previous century with Ottoman reforms, and which for the most part were derived from European civil-code systems. Since the implications of this rupture with the past have attracted little attention from scholars, the relevance of the classical legal systems is the biggest issue of concern here: will the transplanted systems utterly eclipse the various Islamic legal schools, or will there be a revival of the legal schools so as to make up for the inadequacies that result from the civil systems? Indeed, a lot needs to be done before more comprehensively elaborated codes are drafted, in particular in such domains as property, contract, and tort, which, under present conditions, seem like a hybrid mixture of Ottoman feudal practices and modern but poorly implemented Western notions.

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