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All Journal Analisis: Jurnal Studi Keislaman JURNAL ISTINBATH JURNAL PENELITIAN Ahkam: Jurnal Hukum Islam Mazahib Al-Maslahah Justisia Ekonomika Istinbath : Jurnal Hukum Jurnal Penelitian
Chamim Tohari
Marmara University Istanbul Turkey
Religion Arts Humanities Economics, Econometrics & Finance Education Law, Crime, Criminology & Criminal Justice Social Sciences Other

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FIQH AL-AQALLIYYÂT: FRAMEWORK IJTIHAD HUKUM ISLAM UNTUK MUSLIM MINORITAS Tohari, Chamim
JURNAL ISTINBATH Vol 11, No 2 (2014): Edisi September 2014
Publisher : STAIN Jurai Siwo Metro

Show Abstract | Download Original | Original Source | Check in Google Scholar

Abstract

Tujuan dari tulisan ini adalah untuk menemukan jawaban dari poin-poin rumusan yang menjadi lingkup kajian di antaranya tentang latar belakang munculnya fiqh al-aqalliyyâth,makna etimologis, berikut pendiri dan tokoh-tokohnya, framework ijtihadnya, serta pembuktian atas legalitas fatwa  fiqh al-aqalliyyâth. Metode yang digunakan dalam penelitian ini adalah library research atau text studies (studi dokumen/teks) dengan pendekatan analisis metodologis, sosiologis, dan filosofis. Hasil penelitian ini adalah; (1) Fiqh al-aqalliyyâth diartikan sebagai pemahaman dan pengetahuan secara mendalam dan komprehensif terhadap hukum syarî’ah yang dikhususkan untuk umat Islam minoritas berdasarkan pertimbangan konteks sosial, zaman dan tempat. (2) metodologi ijtihad yang digunakan dalam fiqh al-aqalliyyâth adalah qiyâs (deduction), maslahah al-mursalah (public interest not based on text) dan‘urf (custom), sedangkan prinsip-prinsip ijtihad yang digunakan mencakup prinsip maslahah (public interest), dharûrah (necessity), dan taysîr (making fiqh easy). Selain itu, ada dua pola ijtihad yang dikembangkan dalam  fiqh al-aqalliyyâth, yaitu metode intiqâ’î, dan metode insyâ’î. (3) legalitas fiqh al-aqalliyyâth dapat dibuktikan setidaknya melalui sudut pandang metodologis, sosiologis, dan filosofis. Kesimpulan dari penelitian ini adalah,  fiqh al-aqalliyyâth merupakan perwujudan dari hukum Islam dengan sifatnya yang elastis sesuai dengan kemaslahatan yang dibutuhkan dalam konteks zaman, tempat, dan kondisinya. Keywords: Fiqh al-Aqalliyyât, Muslim Minoritas, Maqâshid al-Syarî’ah, Maslahah
HUKUKI AILE KARARNAMESI: Reformasi dan Konstitusionalisasi Hukum Keluarga Islam di Turki Tohari, Chamim
Jurnal Penelitian Vol 11, No 2 (2017): JURNAL PENELITIAN
Publisher : LP2M IAIN kUDUS

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.21043/jupe.v11i2.3484

Abstract

This research focused to the study about Hukuki Aile Kararmnamesi (HAK) in the historical aspect which is specialized to answer several main problems about background, characteristic of the fiqh thought, implementation as a legal constitution in Turkey, the methods of codification, and its role and existence between legislation of the family secular law in the early modern state of Turkey. The researcher use a historical analysis approach as method to describe the result of this research. The result of this research were: (1) The background of the codification of Islamic Family Law in Turkey is a condition of the Ottoman empire which had reformation in the law field in the Sultan Abdul Hamid period. Cause of the reformation of law is a pressure to the modernization and secularization by West states to the countries under Ottoman’s authority. Afterwards, the universal, unbounded to the one or more of mazhab thoughts, and realistic maybe can be mentioned as the characteristic of the HAK book; (2) The method of codification is Talfiq method. It is using several opinions from the muslem scholars in the difference sects, then choose one of the most relevan opinion of law which is needed by the citizen; and (3) Untill now the book (HAK) still implementated by the moslem society in the modern state of Turkey together with the legislation of The Civil Code, a secular family law as substitute of this book since the year 1926 ago.
Rekonstruksi Hukum Kewarisan Beda Agama Ditinjau dari Al-Ushūl Al-Khamsah Tohari, Chamim
Mazahib VOLUME 16, ISSUE 1, JUNE 2017
Publisher : IAIN Samarinda

Show Abstract | Download Original | Original Source | Check in Google Scholar | Full PDF (725.884 KB) | DOI: 10.21093/mj.v16i1.625

Abstract

                                                              Islamic Inheritance Law is believed to be a law containing rules that are in line with public interest. Hence, only few Moslem scholars (ulama’) have conducted ijtihad on the topic in order to reform its rules and bring them pursuant to contemporary situation. Consequently, when there is a gap between the ideal of Islamic inheritance law (i.e. maslaha) and its application in the Islamic society, a rational ruling over the problem of inheritance division faced by Moslems becomes unavailable. Given this, it is necessary to re-interprete the textual sources of Islamic Inheritance Law, in order to come up new rules pursuant to the objective of syari’ah. One of the pressing problems need to be resolved is about the status of Muslim heirs whose inherits from their non-Moslem family. This article thus discusses two main issues: first, what the opinions of Moslems scholars are about a Moslem who inherits from his/her non-Moslem family; and second, which opinion is the most relevant to the al-uṣhūl al-khamsah. This article is doctrinal legal research which employs comparative and deductive analysis. It reveals that: (1) the Moslem scholars are devided into two groups of thought, the first group forbid a Moslem to inherit from his/her non-Moslem family, and the second group allow it; (2) the most relevant opinion to the objective of syari`ah is the second opinion. This is so because the admissibility of a Moslem to inherit from his/her non-Moslem fulfils the criteria of public interest of essential and complimentary level. Keywords: Islamic Inheritance law, interfaith inheritance law, istiṣlāhi, al-uṣūl al-khamsah.  
HUKUKI AILE KARARNAMESI: Reformasi dan Konstitusionalisasi Hukum Keluarga Islam di Turki Tohari, Chamim
Jurnal Penelitian Vol 11, No 2 (2017): JURNAL PENELITIAN
Publisher : LP2M IAIN kUDUS

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.21043/jupe.v11i2.3484

Abstract

This research focused to the study about Hukuki Aile Kararmnamesi (HAK) in the historical aspect which is specialized to answer several main problems about background, characteristic of the fiqh thought, implementation as a legal constitution in Turkey, the methods of codification, and its role and existence between legislation of the family secular law in the early modern state of Turkey. The researcher use a historical analysis approach as method to describe the result of this research. The result of this research were: (1) The background of the codification of Islamic Family Law in Turkey is a condition of the Ottoman empire which had reformation in the law field in the Sultan Abdul Hamid period. Cause of the reformation of law is a pressure to the modernization and secularization by West states to the countries under Ottoman’s authority. Afterwards, the universal, unbounded to the one or more of mazhab thoughts, and realistic maybe can be mentioned as the characteristic of the HAK book; (2) The method of codification is Talfiq method. It is using several opinions from the muslem scholars in the difference sects, then choose one of the most relevan opinion of law which is needed by the citizen; and (3) Untill now the book (HAK) still implementated by the moslem society in the modern state of Turkey together with the legislation of The Civil Code, a secular family law as substitute of this book since the year 1926 ago.
KONSEP HAK DALAM PEMIKIRAN FIQH HANAFIYAH SERTA TRANSFORMASINYA DALAM UNDANG-UNDANG HUKUM PERDATA TURKI MODERN Tohari, Chamim
Ahkam: Jurnal Hukum Islam Vol 6 No 1 (2018)
Publisher : IAIN Tulungagung

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.21274/ahkam.2018.6.1.54-83

Abstract

ABSTRACTThis study disscuss the concept of right in the Hanafi’s fiqh books. The Hanafi’s thought was chosen as the object of this study because the discussion on thought of right is written more in the Hanafi’s literatures. The major problems which is discussed in this study are: (1) How is the concept of right and its application in the Hanafi’s fiqh school? (2) How is the relevance about the concept of right in the Hanafi’s school to the Turkish modern private law? This study is a library research with the content analysis method. The finding confirms that First, the terminology of right in the Hanafi’s fiqh school is more interpreted in the conection to the ownership of a property. In the Hanafi’s thought, the right is defined as a freedom or a special authority to use a thing according to the law. Then, the application ot the concept of right in the Hanafi school using several principles as (1) The application of concept of right cannot contradict to the Qur’an and Sunnah; (2) The utilization of right is permissible as long as it does not cause danger or loss to the owner and to the other; and (3) The utilization of right must be oriented to the benefit and avoid an invain and profuse by the owner. Second, the Turkish modern private law has a relevance with the Hanafi’s thought in relation to the right arrangements problem for its citizen. Based on several proofs which were discovered in this research, it can be concluded that the concept of right of the Hanafi’s thought had been transformed in the Turkish modern private law. The contribution which is expected from this study is the development of concept of right which may be applied to solve many contemporary problems in the field of Islamic economy.Keywords: Hak, Properti, Tasarruf, Fiqh Hanafiyah, Hukum.
FIQH KEINDONESIAAN: Transformasi Hukum Islam Dalam Sistem Tata Hukum Di Indonesia Tohari, Chamim
Analisis: Jurnal Studi Keislaman Vol 15 No 2 (2015): Analisis : Jurnal Studi Keislaman
Publisher : Universitas Islam Negeri Raden Intan Lampung

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.24042/ajsk.v15i2.730

Abstract

INDONESIAN JURISPRUDENCE: ISLAMIC LAW TRANSFORMATION   IN  LAW  SYSTEM  OF  INDONESIA.: This  study  discusses  about  the  idea  of  Islamic  law renewal in Indonesia,  as well as the  figures,  and it  makes  the  term  of Indonesian Jurisprudence   and  its  formalization   into  the  law system  of Indonesia.  The  purpose of this  study  is to  find  the answer  of these  following  points:  Firstly,  the interpretation or definition of Indonesian Jurisprudence concept; secondly, the figures who proposed Indonesian Jurisprudence and the result of their thoughts;  and the third, the formalization  of Jurisprudence concept  with  Indonesian  nuance  in the  law  system Indonesia. This study was a library research with a content analysis method. The results of this study are: (1) Indonesian Jurisprudence could be interpreted  as a Jurisprudence concept that is more Indonesian local-based; (2) Hasbi As-Shiddiqi  and Hazairin are two figures who proposed Indonesian Jurisprudence model, apart from other intellectuals. Hasbi is one of modernists  who offered his ideas comprehensively, started from his “Indonesian Jurisprudence” concept until the law renewal including its principle and method. Meanwhile Hazairin offered the development  of a new heritage system  which  interpreted   and  elaborated  based  on Al-Qur’an scriptural perception and Sunnah which is not a patrilineal system but bilateral family model); and (3) formalization  of Indonesian Jurisprudence   concept   produces   some   ordinance   regulation products  which are important  formally  and materially,  such as Ordinance  of Islamic Marriage Law, and also other  rules under the Ordinance, such as Government  Law, President  Instruction, and Supreme Court Law, as well as Islamic Law Compilation and Sharia Economic Law Compilation
HIWALAH SEBAGAI ALTERNATIF PENYELESAIAN SENGKETA UTANG PIUTANG: Studi Kasus di BTM Mulia Babat Lamongan Tohari, Chamim
Al-Maslahah : Jurnal Ilmu Syariah Vol 20, No 2 (2024)
Publisher : Fakultas Syariah (Syari'ah Faculty )

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.24260/al-maslahah.v20i2.3841

Abstract

This study is motivated by the frequent occurrence of problems in financing contracts between customers and BTM Mulia Babat Lamongan, including unsustainable credit issues and defaults. As commonly believed, the emergence of a sharia-based economic system is expected to provide solutions to various economic challenges faced by the community. However, The existence of facts about the emergence of various problems in the implementation of hiwalah at BTM Mulia became the spark of the author's interest in conducting this research. This research aims to address the following questions: (1) What are the common issues arising from debt agreements at BTM Mulia? (2) How is the hiwalah contract implemented at BTM Mulia Babat as a solution to debt problems? (3) Does the implementation of the hiwalah contract at BTM Mulia Babat comply with Sharia Economic Law? This field research collects data directly from BTM Mulia and can be classified as empirical legal research. The study employs a descriptive qualitative approach with a deductive framework, focusing on the legal actions (tasarruf) involved in the implementation of hiwalah contracts at BTM Mulia. The findings of this study are as follows: Firstly, common problems in hiwalah implementation include customers failing to fulfill their contractual obligations, resulting in payment arrears or defaults. These issues stem from two main factors: the customer's economic condition and the customer's or debt collector's character. To address these problems, BTM Mulia follows these steps: (1) conducting regular billing, (2) issuing warning letters (SP 1, 2, and 3) if billing is ignored, (3) engaging in deliberation with the customer if there is no response, and (4) seeking resolution through the Religious Court if necessary. Secondly, BTM Mulia Babat implements hiwalah financing contracts in accordance with the terms and pillars outlined in Sharia Economic Law, specifically using the hiwalah bil ujroh contract. Thirdly, the implementation of hiwalah financing agreements at BTM Mulia Babat generally aligns with Sharia Economic Law, indicating that the institution's practices are largely compliant with sharia principles.
PENERAPAN KONSEP MUSÂQAH DALAM PENGELOLAAN PERKEBUNAN TIDAK BERBUAH (Studi Kasus Di Desa Prayungan Kecamatan Sumberrejo Kabupaten Bojonegoro) tohari, chamim
Jurnal Justisia Ekonomika: Magister Hukum Ekonomi Syariah Vol 3 No 2 (2019)
Publisher : Universitas Muhammadiyah Surabaya

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.30651/justeko.v3i2.3945

Abstract

Abstract This study discuss about the application of the concept of musâqah in Islamic law to the management of plantations or trees that are not fruitful. What is meant by non-fruiting tree plantations are limited by teak and bamboo trees only. The chosen research location is Prayungan Village, Sumberrejo District, Bojonegoro Regency. Because in the village the practice of plantation cooperation is still practiced by residents. The questions problems that want to discovered its answers in this study include: (1) How is the concept of musâqah in Islamic law? And (2) How does the application of the concept of musâqah in the management of plantations not bear fruit in Prayungan Village, Sumberrejo Subdistrict, Bojonegoro Regency? This research is a field research, therefore, in obtaining data the author uses interviews and direct observation methods at the research location.The results of this study include: (1) Musâqah is a part of muamalah fiqh where in this transaction a garden owner enters into an agreement on the management of his estate with the cultivator of the garden as the person who is obliged to care for, maintain and maintain the garden to produce fruit for harvest, and yield harvest from the garden is divided between the owner and the cultivator in accordance with the conditions stated during the contract. If the garden that is kept in the form of a garden that does not bear fruit, then the provisions for the production are determined based on the contract agreed by the two parties between the owner of the garden and the manager of the garden. (2) When viewed based on Islamic law, the practice of plantation cooperation carried out by Prayungan villagers regarding the maintenance of teak trees and bamboo trees is in line with the concept of musâqah in Islamic law. Keywords: Musâqah, Teak, Bamboo, Wages, Profit Sharing.
PERLINDUNGAN HUKUM PEMBELI HAK ATAS TANAH BERDASARKAN PERJANJIAN PENGIKATAN JUAL BELI SECARA BERTINGKAT OLEH NOTARIS MENURUT PRINSIP-PRINSIP EKONOMI SYARIAH saprutro, troy permata; tohari, chamim
Jurnal Justisia Ekonomika: Magister Hukum Ekonomi Syariah Vol 4 No 2 (2020)
Publisher : Universitas Muhammadiyah Surabaya

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.30651/justeko.v4i2.6867

Abstract

The agreement of a transaction is a prelimenary agreement before the main agreement (AJB) done in front of the PPAT. PPJB often causes a problem when the right of the land is treated as a commodity by the seller and it is not registered its changes in Agrarian Office. The registration may be done after the right of the land is changed into the lastest buyer.The approach of this research uses the approach of laws and the conceptual approach. The result of the analysis is concluded as the law protection of the latest buyer in accord with Government Regulations No. 24 of 1997 about the land registration, so that the Notary in maing PPJB has an obligation to pay attention to the principles of caution and the risks because of law concerning the document of the buyer.Key words : Agreement of transaction; document of transaction; the right of the land and the building. 
PEMANFAATAN TANAH NON-SERTIFIKASI MENURUT HUKUM PERJANJIAN BARAT & ISLAM (Studi Kasus Rencana Pemanfaatan Tanah oleh PT. Solusi Bangun Indonesia dengan Pemerintah Desa Sawir, Kecamatan Tambakboyo, Kabupaten Tuban) nugraha, ario patra; tohari, chamim
Jurnal Justisia Ekonomika: Magister Hukum Ekonomi Syariah Vol 5 No 1 (2021)
Publisher : Universitas Muhammadiyah Surabaya

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.30651/justeko.v5i1.8767

Abstract

This research discusses about the status of land rights whose ownership has been not clear yet, which is the object of cooperation in utilization between the Sawir Village Government and PT Solusi Bangun Indonesia Tbk, according to the laws and principles in force in Indonesia. The problems that will be answered in this study include: (1) What is the status of land rights that are used as objects of utilization between the Sawir Village Government and PT Solusi Bangun Indonesia Tbk? (2) How is the land use cooperation between Sawir Village Government and PT Solusi Bangun Indonesia Tbk according to Western and Islamic Covenant Law? This type of research is a qualitative research, while the approach used is an empirical juridical approach, namely legal research that functions to see the laws that apply in the community. The results of this research are: (1) According to the Sawir Village Government, the land belongs to the Village Government as evidenced by the existence of a field map in the village C book. Meanwhile, according to the Tuban Regency Government, the Tuban Regency National Land Agency, and PT Solusi Bangun Indonesia Tbk, the land ownership is not registered and cannot be claimed as an asset of Sawir Village. According to Law Number 5 of 1960 concerning Basic Regulations on Agrarian Principles article 19 paragraph 1, the land cannot be referred to as land belonging to Sawir Village until the certification is completed on behalf of the village. And to get the ownership certificate, the Sawir Village Government must register or submit an application for ownership of the land to the National Land Agency of Tuban Regency. (2) According to the Islamic Covenant Law, the status of the land does not meet the requirements as an object of the agreement. This is because the land has not been legally proven to be owned by the Sawir Village Government. Whereas one of the main requirements for the validity of an agreement is that the object of the agreement must be legally owned by one of the parties who entered into the agreement.Keywords: Utilization, Non-Certified Land, Covenant Law, Customary Rights
Co-Authors nugraha, ario patra saprutro, troy permata