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All Journal Jurnal Ilmiah Mahasiswa Raushan Fikr Indonesian Journal of Islamic Law (IJIL)
Maskur Rosyid
UIN Walisongo Semarang, Indonesia
Religion Arts Humanities Law, Crime, Criminology & Criminal Justice Social Sciences

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Normative Divergence on Consensual Homosexuality: A Comparative Study of Islamic Criminal Law and Indonesian Positive Law M. Nurul Irfan; Laila Palupi Rahmadani; Maskur Rosyid; Harapandi Dahri; Shalini Urteaga-Crovetto
Indonesian Journal of Islamic Law Vol. 8 No. 2 (2025): Indonesian Journal of Islamic Law
Publisher : Postgraduate Programme of UIN Kiai Haji Achmad Siddiq Jember

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.35719/jrbvhk28

Abstract

The criminalisation of liwāṭ in Islamic criminal law is grounded in a robust normative framework. However, it contains a dialectic between the determination of ḥudūd and the discretion of taʿzīr, with the principle that darʾ al-ḥudūd bi al-shubuhāt prevents criminalisation when there is doubt. In contrast, Indonesian positive law explicitly does not criminalise consensual same-sex relations between adults because the principle of legality requires the formulation of a written, clear, and definite criminal offence. This absence of norms is not a legislative omission but rather a policy choice that creates legal ambiguity as a control mechanism, achieved indirectly through other legal regimes. This study employs a normative and comparative juridical approach, focusing on the textual interpretation of Islamic criminal law and national statutory provisions. The results show that the tension between the certainty of criminalisation in Islamic criminal law and the ambiguity of Indonesian positive law illustrates two different models of social control: cautious normative certainty versus managed normative absence. The primary contribution of this research is to offer a new conceptual framework by repositioning the "legal vacuum" not simply as the absence of criminal norms at the national level, but as a government strategy based on legal ambiguity in responding to the prescriptivity of Sharia norms. Based on this analysis, the precautionary principle of sentencing in Islamic criminal law has the potential to serve as a basis for harmonisation that aligns with the principles of legality and human rights protection in the national legal system, thereby opening up space for reconciliation between Islamic moral norms and the constitutionality of law in Indonesia.
Tanggung Jawab Pidana dan Viktimisasi Sekunder dalam Penipuan Segitiga: Analisis Viktimologis dan Hukum Pidana Islam Ahmad Murtadzo; Maskur Rosyid
Jurnal Ilmiah Mahasiswa Raushan Fikr Vol 15 No 1 (2026): Jurnal Ilmiah Mahasiswa Raushan Fikr
Publisher : Lembaga Kajian dan Pemberdayaan Mahasiswa UIN Prof. KH. Saifuddin Zuhri Purwokerto

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.24090/jimrf.v15i1.16090

Abstract

This article examines criminal liability and secondary victimization in triangle fraud through victimology and Islamic criminal law. Using a qualitative socio-legal multiple-case design, it analyzes two fraud cases in Indonesia through in-depth interviews and documentary evidence. The findings show three interrelated forms of secondary victimization: structural victimization caused by weak institutional protection, procedural victimization resulting from asymmetric evidentiary burdens, and social victimization expressed through stigma and victim blaming. The study argues that the core legal problem lies not in the absence of legal norms, but in normative fragmentation, weak attribution of digital evidence, and the lack of a victim oriented enforcement framework. It reconstructs tazir as a flexible normative basis for a victim centered model of criminal liability linking punishment, restitution, and institutional responsibility, and proposes a layered accountability framework involving offenders, digital platforms, and the state
Co-Authors Ahmad Murtadzo Harapandi Dahri Laila Palupi Rahmadani M. Nurul Irfan Shalini Urteaga-Crovetto