scholarly journals Hukum dan Keadilan Sosial dalam Perspektif Hukum Ketatanegaraan

2016 ◽  
Vol 12 (4) ◽  
pp. 849
Author(s):  
Ahmad Fadlil Sumadi
Keyword(s):  
Islamic Law ◽  
Common Law ◽  
State Institution ◽  
The State ◽  
Human Interaction ◽  
Customary Law ◽  
State Legislation ◽  
Major Function ◽  
Religious Law ◽  
The Law

Law in this discussion is the law that is deliberately formed (by designed) by  the state, not the law that occurs naturally in the society, which constitute the crystallization of human interaction within the society as the subject of law.  Law is known as the common law or customary law and the second is the religious law, in particular, Islam with its Islamic law. The process of formation of common law or customary law is from the bottom upward (bottom-up process) while the establishment of islamic law is from top to bottom (top-down). The same as the nature of the process of formation of Islamic law is the in question in this discussion, which is the law called state legislation, or which is also usually known as laws and regulations. The only difference is, Islamic law is made by God, Allah SWT,  while the maker of statutory laws is a state institution of which the major function is to make laws (legislative power). Legislation is interrelated to with humanity and justice, both in the establishment, implementation, and enforcement. This can be proven by tracing since the establishment of the state, particularly Indonesia, because the law is one of the implementation of state functions. State is established on the basis of motivation associated with humanity and justice, so that the objectives and the foundations are also related to humanity and justice. The State and the law is  an instrument of humanity and justice, therefore, state and law must be related to humanity and justice, and thus, also would not be enough in the instrumental perspective, the state and the law itself without humanity and justice in serving the society.

scholarly journals MEMBACA PERKAWINAN MASYARAKAT ISLAM SASAK DARI PERSPEKTIF INTERLEGALITAS HUKUM

2018 ◽  
Vol 10 (2) ◽  
pp. 115
Author(s):  
Murdan Murdan
Keyword(s):  
Local Community ◽  
Islamic Law ◽  
The State ◽  
Legal Order ◽  
Customary Law ◽  
State Law ◽  
Legal Tradition ◽  
Social Contracts ◽  
Religious Law ◽  
Tribal Societies

This paper will discuss the side of the interlegality and interlaw among customary law, religious law and state law in tribal societies in Indonesia, which is focused on the marriage of Sasak people. As an Indonesian local community, the Sasak community has their own local laws in undergoing interactions and social contracts between each other, especially in matters of marriage. Along with the embrace of Islam by the Sasak community, the Islamic law also contributes in decorate every process of the marriage. In addition to the existence of customary law and Islamic law that adorn the marriage of the Sasak community, there is also a modern legal tradition, namely state law. As part of the Indonesian society, the Sasak people cannot escape the great influx of modern legal tradition or national law positivism, which is directly echoed by the state. Departing from this illustration, the discussion in this paper includes: the interlegality between Sasak customary law and religious law (Islamic law); the interlegality between Sasak customary law and state law; and the last is the interlegality among Sasak customary law (local legal order), religious law (Islamic law/Islamic legal order), and state law (state legal order).Tulisan ini akan membahas sisiinterlegalistikantara hukum adat, hukum agama dan hukum negara pada masyarakat kesukuan di Indonesia, yang difokuskan pada perkawinan masyarakat suku Sasak. Sebagai masyarakat lokal Indonesia, masyarakat Sasak memiliki hukum lokal sendiri dalam menjalani intraksi dan kontrak sosial antara satu sama lain, khususnya dalam persoalan perkawinan. Seiring dengan dipeluknya agama Islam oleh masyarakat Sasak, maka hukum Islam pun memberi andil dalam menghiasi setiap proses-proses perkawinan itu. Selain keberadaan hukum adat dan hukum Islam yang menghiasi perkawinan masyarakat Sasak, terdapat juga tradisi hukum modern, yakni hukum negara. Sebagai bagian dari masyarakat Indonesia, masyarakat Sasak tidak bisa melepaskan diri dari arus besar legisme atau positifisme hukum nasional, yang secara langsung digaungkan oleh negara. Berangkat dari ilustasi ini, maka pembahasan dalam tulisan ini meliputi: interlegalistik antara hukum perkawinan adat Sasak dan hukum agama (Hukum Islam); interlegalistik antara hukum perkawinan adat Sasak dan hukum negara; dan terakhir adalah interlegalistik antara hukum perkawinan adat Sasak, hukum agama (hukum Islam), dan hukum negara.

scholarly journals Pengalihan Wakaf oleh Sarak Opat di Aceh Tengah Ditinjau Hukum Islam dan Hukum Adat

2021 ◽  
Vol 15 (2) ◽  
pp. 263-276
Author(s):  
Hazar Kusmayanti
Keyword(s):  
Social Welfare ◽  
Legal Status ◽  
Islamic Law ◽  
Social Institutions ◽  
The State ◽  
Customary Law ◽  
Economic Values ◽  
State Administration ◽  
Legal Position ◽  
The Law

Waqf is one of the institutions of Islamic social institutions that contain socio-economic values that are expected to help to realize social welfare that benefits can be enjoyed together. However, there are many problems related to waqf land, one of which is the change in the designation of waqf land-based on adat meetings.  The purpose of this thesis is to examine the legal position of waqf land that has changed its designation and implementation of waqf in Central Aceh District based on Islamic Law and Customary Law in terms of the Law. The research in this thesis uses the normative juridical approach The specification of the research conducted is analytical descriptive. Based on the results of this study, the legal status of waqf land that has been represented cannot be used if it is not in accordance with the waqf pledge, but there are exceptions to the waqf land that can be changed its designation and must follow the procedure for changes stipulated by Law Number 41 of 2004 Execution of existing land parcels in Central Aceh Regency, Islamic Law has been implemented correctly, but the state administration has not been implemented to the maximum.

scholarly journals Peradilan Agama sebagai Penegak Hukum Islam di Indonesia

2019 ◽  
Vol 6 (1) ◽  
pp. 119
Author(s):  
Andi Intan Cahyani
Keyword(s):  
Islamic Law ◽  
Customary Law ◽  
Positive Law ◽  
Second Amendment ◽  
Religious Law ◽  
Statutory Law ◽  
The Law ◽  
Religious Courts

Keberadaan Pengadilan Agama sebagai pengadilan  Islam limitatif  mempengaruhi masyarakat Islam untuk mendapatkan keadilan. Dengan demikian, adanya Undang-Undang 50 Tahun 2009 atas perubahan kedua Undang-Undang No.7 Tahun 1989 tentang Peradilan Agama, Menjadi tongak supremasi hukum peradilan Agama di Indonesia. Sumber hukum Pengadilan Agama secara garis besar terdiri dari sumber hukum materil yang bersumber dari hukum Islam dan hukum materil yang terikat dengan Undang-Undang Nomor 50 Tahun 2009 atas perubahan kedua Undang-Undang Nomor 7 Tahun 1989 tentang Peradilan Agama dan sumber hukum formil adalah sumber hukum yang terdiri dari hukum perundang-undangan, hukum kebiasaan, hukum yurisprudensi, hukum agama dan hukum adat yang dinyatakan sebagai hukum positif. Kewenangan memeriksa, memutuskan dan menyelesaikan Perkara di tingkat pertama antara orang-orang yang beragama Islam  merupakan tanggung jawab Pengadilan Agama yang didasari atas kewenangan relatif dan kewenangan absolut. The existence of the Religious Court as an Islamic court that limits the influence of the Islamic community to obtain justice. Thus, the existence of Law Number 50/2009 on the second amendment to Law Number 7/1989 concerning the Religious Courts, has become a pillar of the supremacy of the law of the Religious Courts in Indonesia. The legal source of the Religious Courts in general consists of material legal sources sourced from Islamic law and material law which are bound by Law Number 50/2009 concerning the second amendment to Law Number 7/ 1989 concerning Religious Courts and formal legal sources are sources of law which consists of statutory law, customary law, jurisprudential law, religious law and customary law which are stated as positive law. The authority to examine, decide and settle cases in the first level among people who are Muslim is the responsibility of the Religious Court which is based on relative authority and absolute authority

Slavery and Ransom

2018 ◽  
Author(s):  
Will Smiley
Keyword(s):  
Eighteenth Century ◽  
Ottoman Empire ◽  
Young Men ◽  
Individual Characteristics ◽  
The State ◽  
Customary Law ◽  
Late Eighteenth Century ◽  
Late Eighteenth ◽  
The Law

This chapter explores captives’ fates after their capture, all along the Ottoman land and maritime frontiers, arguing that this was largely determined by individuals’ value for ransom or sale. First this was a matter of localized customary law; then it became a matter of inter-imperial rules, the “Law of Ransom.” The chapter discusses the nature of slavery in the Ottoman Empire, emphasizing the role of elite households, and the varying prices for captives based on their individual characteristics. It shows that the Ottoman state participated in ransoming, buying, exploiting, and sometimes selling both female and male captives. The state particularly needed young men to row on its galleys, but this changed in the late eighteenth century as the fleet moved from oars to sails. The chapter then turns to ransom, showing that a captive’s ability to be ransomed, and value, depended on a variety of individualized factors.

The Law of Contract

2018 ◽  
Author(s):  
Eva Steiner
Keyword(s):  
Common Law ◽  
World Market ◽  
Contract Law ◽  
The State ◽  
Legal Certainty ◽  
Philosophical Foundations ◽  
The Common ◽  
The Law

This chapter examines the law of contract in France and discusses the milestone reform of French contract law. While this new legislation introduces a fresh equilibrium between the contracting parties and enhances accessibility and legal certainty in contract, it does not radically change the state of the law in this area. In addition, it does not strongly impact the traditional philosophical foundations of the law of contract. The reform, in short, looks more like a tidying up operation rather than a far-reaching transformation of the law. Therefore, the chapter argues that it is questionable whether the new law, which was also intended to increase France's attractiveness against the background of a world market dominated by the Common Law, will keep its promise.

scholarly journals RIGHTS OWNERSHIP TO CERTIFIED LAND CONFRONTED WITH THE CUSTOMARY LAW IN THE LEGAL SYSTEM IN INDONESIA

2018 ◽  
Author(s):  
Saim Aksnudin
Keyword(s):  
National Development ◽  
Land Rights ◽  
The State ◽  
Customary Law ◽  
Legal Certainty ◽  
The Status ◽  
Need For Support ◽  
The Law ◽  
The Right ◽  
Ownership Of Land

In the national development the role of land for the fulfillment of various purposes will increase, either as a place to live or for business activities. In relation to that will also increase the need for support in the form of guarantee of legal certainty in the field of land. The result of the research is the conception of the state of Indonesia is a state law, which contains the meaning in the administration of government and the state based on the law, the protection of the law is a universal concept of the rule of law. The legal certainty on land rights as intended by the UUPA encompasses three things, namely the certainty of the object of land rights, certainty on the subject of land rights and certainty about the status of landrights. Legal conception of land title certificate is a proof that issued by authorized legal institution, containing juridical data and physical data which isused as evidence of ownership of land rights in order to provide assurance of legal certainty and certainty of rights to a plot of land owned or possessed by a person or legal entity. With the certificate of rights, it is expected that the juridical can guarantee the legal certainty and the right by the state for the holder of the right to the land. This country's guarantee is granted to the owner or the holder of the certificate may be granted because the land is already registered in the state land administration system.

scholarly journals SHARIAH AND THE POLITICS OF PLURALISM IN INDONESIA: UNDERSTANDING STATE’S RATIONAL APPROACH TO ADAT AND ISLAMIC LAW

2019 ◽  
Vol 4 (1) ◽  
pp. 14-30
Author(s):  
Ratno Lukito
Keyword(s):  
Islamic Law ◽  
Effective Means ◽  
The State ◽  
Rational Approach ◽  
State Law ◽  
Legal Tradition ◽  
Basic Character ◽  
Legal Traditions ◽  
Religious Law ◽  
Adat Law

The distinction in the normative character of legal traditions will give an effect of the state different attitude to those traditions. In the case of Islamic law and adat law in Indonesia, we see that although having different basic character in terms of its foundation of legal creation, Islamic law can relatively be closer to the character of the state law, which is uniform and nationally effective. It is clear here that the nationalization of Islamic law built on the basis of its adherents, and not on the tribe, clan, language, or other local denominations, becomes an effective tool for its rapprochement with the state law, which is also nationalized on the basis of citizenship. Thus, although it is not possible to equalize Islamic law and state law due to the sacredness of the religious law, the scope in the efficacy of both laws can be an effective means of legal rapprochement. This is however not the case with adat law. The character of adat law as a local and heterogeneous legal tradition is intrinsically not in line with the philosophy of national law, which is anti-localism and homogeneous. It is just impossible to bring adat law to become an effective law for all Indonesian citizens. As a result, the rapprochement is difficult between adat law and state law.

From Liberties to Liberty

2020 ◽  
pp. 105-130
Author(s):  
Charlotte Epstein
Keyword(s):  
Seventeenth Century ◽  
Common Law ◽  
The State ◽  
Natural Rights ◽  
The Political ◽  
Habeas Corpus ◽  
House Church ◽  
The Law ◽  
The Individual ◽  
Individual Body

This chapter studies how liberty in the law evolved from being attached to a collective, metaphorical body—the medieval corporation—to being rooted instead in the individual body across a range of practices in seventeenth century Europe. It analyses the early modern forms of toleration that developed from the ground-up in Protestant Europe (Holland and Germany in particular), including the practices of ‘walking out’ (auslauf) to worship one’s God, and the house church (schuilkerk). These practices were key to delinking liberty from place, and thus to paving the way to attaching it instead to territory and the state. The chapter also considers the first common law of naturalisation, known as Calvin’s Case (1608), which wrote into the law the process of becoming an English subject—of subjection. This law decisively rooted the state-subject relation in the bodies of monarch and subject coextensively. Both of these bodies were deeply implicated in the process of territorialisation that begat the modern state in seventeenth-century England, and in shifting the political bond from local authorities to the sovereign. The chapter then examines the corporeal processes underwriting the centralisation of authority, and shows how the subject’s body also became—via an increasingly important habeas corpus—the centre point of the legal revolution that yielded the natural rights of the modern political subject. Edward Coke plays a central role in the chapter.

The Context of Islamic Law

2019 ◽  
pp. 788-868
Author(s):  
Uwe Kischel
Keyword(s):  
Canon Law ◽  
Islamic Law ◽  
Special Problem ◽  
Special Importance ◽  
State Law ◽  
Religious Law ◽  
Single State ◽  
The Law

This chapter describes Islamic law. Islamic law is not the law of a single state, but rather a religious law of special importance, whose prominence has increased over the last few decades. It is therefore necessary to distinguish between Islamic law and the law in states with predominantly Muslim populations. The defining characteristic of Islamic law is its religious origin and character. In contrast to all state law, it is based on a God-given text, the Koran. Thus, at its core, it is itself divine in nature, not the product of mankind. This explains its special status and claims, but also its special problem. Meanwhile, the latter body of law is geared toward classical Islamic law to widely varying extents. Islamic law is by no means the only example of religious law, but other bodies of religious law—such as Jewish or canon law—are much less significant in the current times.

African Conference on Local Courts and Customary Law

1963 ◽  
Vol 1 (4) ◽  
pp. 537-539 ◽  
Author(s):  
Jacob O. Ibik
Keyword(s):  
Sierra Leone ◽  
Islamic Law ◽  
Common Law ◽  
Dar Es Salaam ◽  
Secretary General ◽  
Customary Law ◽  
African Countries ◽  
Local Courts ◽  
The Government ◽  
The University

This conference was sponsored jointly by the Government of Tanganyika and the University College, Dar es Salaam, and was financed by the Ford Foundation. It was attended by delegates from African countries, some of whose legal systems have been influenced by common law, some by European civil law or Islamic law. Official representatives came from Ethiopia, Ghana, the Ivory, Coast, Nigeria, Northern Rhodesia, Nyasaland, Sierra Leone, the Sudan, Uganda, Kenya, Tanganyika, and Zanzibar. Some celebrated authorities on Islamic law and African customary law attended as observers, and contributed a great deal to the discussions. The chairman of the conference was the Tanganyikan Minister of Justice, Sheik Amri Abedi, and the secretary general was Mr P. J. Nkambo Mugerwa of the local Faculty of Law.

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