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All Journal Al-Jami'ah: Journal of Islamic Studies Al-Manahij : Jurnal Kajian Hukum Islam
Syamsul Anwar
UIN Sunan Kalijaga
Religion Humanities Law, Crime, Criminology & Criminal Justice

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Dalālah al-Khafī wa Āliyāt al-Ijtihād: Dirāsah Uṣuliyyah bi Iḥālah Khāṣṣah ilā Qaḍiyah al-Qatl al-Raḥim Syamsul Anwar
Al-Jami'ah: Journal of Islamic Studies Vol 41, No 1 (2003)
Publisher : Al-Jami'ah Research Centre

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.14421/ajis.2003.411.153-170

Abstract

This article deals with an uṣūlī concept known among the Hanafi legal theoretician under the name of dalālāt al-khāf (the denotation of an obscure text) and its relation to the mechanism of ijtihād with special reference to the case of euthanasia. The author examines the meaning of the obscure text (al-khāfiy) and discusses the mechanism followed by the uṣūlī in clarifying the ambiguity in it, taking euthanasia as an example. From this, the author concludes that the process of legal reasoning in founding out a legal rule for a case involves three poles which have dialectical relations to one another: the text, the reality, and the objective of law. The text with its symbolic characteristic and its relying upon generalization and abstraction in expressing an object enables the mujtahid to add a new meaning to it and this meaning is produced through an adequate understanding of the case and the spatio-temporal space in which it happens in the one hand and through considering the objective of law as meaning space on the other hand. The reality of the case shades  light in our understanding of the text, while the text in the same time gives us a clear orientation in coping with the reality.
The Paradigm of Progressive Judge’s Decision and Its Contribution to Islamic Legal Reform in Indonesia Suad Fikriawan; Syamsul Anwar; Misnen Ardiansyah
Al-Manahij: Jurnal Kajian Hukum Islam Vol 15 No 2 (2021)
Publisher : Sharia Faculty of State Islamic University of Prof. K.H. Saifuddin Zuhri, Purwokerto

Show Abstract | Download Original | Original Source | Check in Google Scholar | Full PDF (393.919 KB) | DOI: 10.24090/mnh.v15i2.4730

Abstract

All this time, both in academic discourse and the reality of legal practice in the field tend to show a lack of attention to the rule of judges as an instrument of legal reform. Generally, the law is regarded as the main instrument of legal reform. Therefore, instilling an understanding of the law enforcement officers, especially the judges through their decision, is a very urgent thing to do. The main issue to be discussed in this paper is: How is the contribution of the Judge's decision to legal reform in Indonesia? This study used the perspective of the School of Sociological Jurisprudence, mainly the philosophical mind of Roscoe Pound. The results of this study show that the effort to make a judge's decision as a means of legal reform is a necessity. This can be realized through a progressive legal paradigm. The presence of a progressive legal paradigm is very important in order to give birth to a progressive type of judge who has a legal decision that qualifies maturity of law. The product of a progressive judge's decision is expected to become a jurisprudence that can be used as a reference in solving the next case so that judges will be able to make the law, not merely as a tool of social control as well as a tool of social engineering. These conceptions of legal function are essentially about to reveal that the nature of the law is dynamic rather than static. The legal philosophy of the sociological jurisprudence school offers a holistic understanding and a holistic view of the law, that is, the law applied must pay attention to the values, the living law, and the local wisdom of society. This holistic understanding of the law will ultimately be able to unify the law and society as its sociological basis.
Co-Authors Misnen Ardiansyah Suad Fikriawan