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Syariah: Jurnal Hukum dan Pemikiran
Published by Universitas Islam Negeri Antasari Banjarmasin
ISSN : 14126303     EISSN : 2549001X     DOI : 10.18592/sjhp.v22i1.4843
Core Subject : Humanities, Social,
Humanities Law, Crime, Criminology & Criminal Justice
Syariah specializes on Law and Islamic law, and is intended to communicate original research and current issues on the subject. This journal warmly welcomes contributions from scholars of related disciplines.
Arjuna Subject : Ilmu Sosial - Hukum
Articles 370 Documents
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Analisis Kerangka Hukum Ahli Waris Pengganti dalam Perkara Kewarisan Islam: Perspektif Pengadilan Tinggi Agama DKI Jakarta Budiono, Eko; Mukhlas, Oyo Sunaryo; Mustofa, Mustofa; Solehudin, Ending; Ridwan, Ahmad Hasan
Syariah: Jurnal Hukum dan Pemikiran Vol 23 No 2 (2023)
Publisher : Universitas Islam Negeri Antasari Banjarmasin

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.18592/sjhp.v23i2.12545

Abstract

The purpose of this study is to comprehensively analyze the construction and legal certainty of replacement heirs in the compilation of Islamic law and its application in the religious courts of the DKI Jakarta region. This research uses a qualitative method with a normative legal approach, legislation, decision analysis, and Islamic law literature. Primary sources are obtained from the decisions of the religious courts of the DKI Jakarta high religious court region numbered: 131/pdt.p/2022/pa.jp, 339/pdt.p/2021/pa.jp, 166/pdt.p/2021/pa-jb, 3950/pdt.g/2020/pa-js, the compilation of Islamic law, and other legal materials related to inheritance. Meanwhile, secondary sources are obtained from literature searches such as books, documents, and journals that have the same relevance as this research. After the data is obtained and collected, data will be filtered and grouped according to its type, then the data is analyzed using descriptive analysis to be able to provide an overview of the existing problems. The results showed that, the legal construction of the concept of substitute heirs in the Compilation of Islamic Law in the Religious Courts in the DKI Jakarta PTA region by placing the position of substitute heirs by applying justice to the inheritance of his parents who had died before the heir. The research confirms the legal construction and rationale behind substitute heirs in Islamic inheritance law, highlighting their significance in inheritance disputes. Recognized under KHI Article 185, substitute heirs play a crucial role in ensuring fairness and equity in inheritance distribution. However, obstacles such as public awareness, evidentiary challenges, and conflicts with local customs impede the effective implementation of the substitute heir rule.
Perang sebagai Fenomena Sosial Budaya: Perspektif dan Konseptualisasi Kriminologis dengan Studi Empiris di Ukraina Sokurenko, Vitalii; Hanenko, Ihor; Orlov, Yurii; Korotiuk, Mykhailo; Kritsak, Ivan
Syariah: Jurnal Hukum dan Pemikiran Vol 24 No 1 (2024)
Publisher : Universitas Islam Negeri Antasari Banjarmasin

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.18592/sjhp.v24i1.12547

Abstract

This research delves into the sociocultural phenomenon of war, focusing on Russia's illegal invasion of Ukraine. It examines war through a criminological lens, aiming to understand its short and long-term effects on society. Through empirical analysis of Ukraine's management of the crisis, the study evaluates how the socio-cultural perspective influences war handling. Destructive consequences such as increased stress levels and migration, alongside constructive factors, are identified. The research highlights the criminogenic potential of war trauma and post-war syndrome. Despite various methods and hypotheses, socio-cultural effects persist, posing a complex challenge for Ukraine. War is portrayed as a multifaceted phenomenon influenced by demographic, economic, and ideological factors, as well as historical legacies. Ultimately, the conclusion underscores the irreparable impact of war on the environment, populations, and international relations. This suggests a pressing need for comprehensive efforts to mitigate the long-term consequences of war and foster stable post-conflict societies.
Foreign Experience of Ensuring Human Rights during Recruitment of the Armed Forces as an Element of the State’s National Security Zaporozhchenko, Yuliia; Kononets, Vita; Kumeiko, Andrii; Lemekha, Rostislav; Pysmennyi, Oleksandr
Syariah: Jurnal Hukum dan Pemikiran Vol 24 No 1 (2024)
Publisher : Universitas Islam Negeri Antasari Banjarmasin

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.18592/sjhp.v24i1.12577

Abstract

The purpose of the article is to carry out an original study of the main aspects of ensuring human rights during recruitment of the armed forces as an element of the state’s national security. Four methods of recruitment (manning) of armed forces have been established in the world, namely: on the basis of general military duty - by conscription of citizens for military service; on a voluntary basis - by recruiting military personnel under a contract; mixed - on the basis of the law on general military duty and voluntary recruitment of servicemen under contract; police method - on the basis of the law on the general military conscription. This article is the qualitative research with a historical and comparative approach. It was concluded that the main argument of supporters of a professional army in the world consists in the following: firstly, professional possession of military equipment in conditions of the digital development of society, and secondly, motivation of military personnel to complete military service. Currently, most developed countries such as the United States of America (USA), France, Israel, Germany, Poland, the Czech Republic, and Switzerland adhere to the course of professionalizing their armed forces and recruit their armies on a voluntary basis.
Place of Principles of Law in Legal Regulation of Public Relations in Conditions of Digital Society: Theoretical and Legal Research Rostovska, Karyna; Hryshyna, Natalia; Pakhomova, Irina; Liubchyk, Viktor; Koval, Marat
Syariah: Jurnal Hukum dan Pemikiran Vol 24 No 1 (2024)
Publisher : Universitas Islam Negeri Antasari Banjarmasin

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.18592/sjhp.v24i1.12647

Abstract

Purpose of the article is to carry out original research on the place of principles of law in legal regulation of public relations in conditions of digitalization. Being a specific (fundamental, abstract, etc.) rule of law, a principle of law must be expressed in a certain external form (constitution, law, court decision, doctrine). During writing this article, a functional research, induction, deduction and classification methods was used; it allows to thoroughly reveal dynamic aspects of principles of law, their practical purpose, place and role among other elements of law and the legal system of society in general, as well as influence social relations in the form of legal regulation and other forms of legal influence (informational one, value-oriented one, psychological one, system-forming one, etc.). It was concluded that inclusion of universally recognized principles and norms of international law in the domestic legal system significantly changes its content, in a new way raises the question of interaction, hierarchy of legal acts in accordance with their legal force and the meaning of norms contained in them. Importance of principles of law is reflected in the fact that they act as a framework, a fundamental structure of the legal system; principles of law are a guide in the process of law development and formation; they significantly influence the formation of people’s legal awareness, can be a direct basis for making individual legal decisions in specific cases; in the case of gaps in the legislation, principles of law can be used as a legal ground when considering the issue of law, while they act as a source of law, principles of law contribute to the correct interpretation of legal norms. The state of implementation of the fundamental principles of the Union in the founding states, using the example of the Federal Republic of Germany and the French Republic, as well as problems with the implementation of the principles of the law of the Republic of Poland, were studied. Thus, Germany and France today have a fairly high level of implementation and compliance with the main principles of European Union law, while Poland has recently had certain problems with this. So, over the past 7 years, this state has violated EU values in two categories at once - in the category of personal and political rights. In 2023, cases of legitimate abortions were limited in the Republic of Poland, which violated the right to the integrity of the individual and its inviolability, which is one of the main values of the European Union. In 2022, the European Commission filed a lawsuit against Poland to the European Court of Justice regarding violations of the latest requirements of the EU Treaty regarding the principle of judicial independence.
Analisis Terhadap Produk Hukum Pengadilan Agama Sampang dan Tanjung Tentang “Radd” Terhadap Suami/Istri Pewaris Heryadi, Wahidah; Mulyati, Farihatni
Syariah: Jurnal Hukum dan Pemikiran Vol 24 No 1 (2024)
Publisher : Universitas Islam Negeri Antasari Banjarmasin

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.18592/sjhp.v24i1.12889

Abstract

Penetapan dan Putusan Pengadilan Agama Sampang dan Tanjung, merupakan dua sampel produk hukum yang mengadopsi teori Utsman dalam penyelesaiaan kasus radd. Yaitu sisa lebih harta warisan diberikan terhadap suami/istri pewaris yang selama ini tertolak oleh faraidh. Dua fakta hukumnya; anak perempuan menghijab saudara, dan radd diberikan kepada ahli waris sababiyah, tampaknya sudah jauh bergeser dari pendapat kelompok mayoritas. Atas dasar ini, tujuan penelitian yang diselaraskan dengan dua rumusan masalah, difokuskan untuk mengetahui bagaimana pertimbangan dan amar putusan, serta alasan hakim di dua Pengadilan Agama terkait suami/istri dalam kasus kewarisan radd.? Metode penelitian hukum normatif ini, menjadikan dua produk hukum tersebut sebagai bahan hukum primernya, yang dikumpulkan, diolah, dan dianalisis melalui survei kepustakaan dan studi literatur. Respon sejumlah pihak terkait, diperoleh melalui “open ended question” untuk melihat korelasinya. Temuan penelitian menunjukkan, bahwa pada kasus kewarisan di PA. Sampang; Istri mendapat tambahan sisa lebih harta, dengan menjadikan 19 sebagai ashal masalah baru (Pasal 193 KHI). Sedang pada Putusan di PA. Tanjung, radd diberikan kepada suami, yaitu 1/6 saham yang seharusnya dibagi secara proporsional dengan ibu pewaris. Namun karena ada kesalahan teknis dalam metode perhitungannya, radd tidak dibagi secara berimbang sebagaimana gagasan Utsman. Kenyataan ini menunjukkan, bahwa pola pembagian berimbang dalam upaya penyelesaian kasus radd, perlu memperhatikan metode pemecahan kasus sebagaimana faraidh. Simpulan tulisan ini, sekaligus membedakan dengan beberapa temuan hasil penelitian terdahulu yang hanya melihat permasalahan radd berdasarkan konsep faraidh, atau Kompilasi Hukum Islam (KHI) saja.The Determination and Decision of the Sampang and Tanjung Religious Courts are two samples of legal products that adopt Uthman's theory in resolving radd cases. That is, the remaining inheritance is given to the husband/wife of the heir who has been rejected by faraidh. The two legal facts; daughters veil brothers, and radd is given to sababiyah heirs, seem to have shifted considerably from the opinion of the majority group. On this basis, the research objectives, which are aligned with the two problem formulations, are focused on finding out how the considerations and rulings, as well as the reasons for judges in the two Religious Courts related to husband/wife in radd inheritance cases? This normative legal research method makes the two legal products as primary legal materials, which are collected, processed, and analyzed through literature surveys and literature studies. The responses of a number of related parties were obtained through an "open ended question" to see the correlation. The research findings show that in the case of inheritance in PA. Sampang; The wife gets additional remaining assets, by making 19 as a new problem (Article 193 KHI). While in the decision in PA. Tanjung, radd is given to the husband, namely 1/6 share which should be divided proportionally with the mother of the heir. However, due to a technical error in the calculation method, the radd was not divided equally as Uthman's idea. This fact shows that the pattern of balanced distribution in an effort to resolve radd cases, needs to pay attention to the method of solving cases as faraidh. The conclusion of this paper also distinguishes it from the findings of previous studies that only looked at radd issues based on the concept of faraidh, or the Compilation of Islamic Law (KHI).
Redefining Legal Frameworks: Progressive Methods in Ascertaining Children's Lineage from Fasid Marriages in Religious Court Proceedings Fitriyadi, Fitriyadi; Hidayati, Tri; Hasan, Ahmadi; Sarmadi, Akhmad Sukris
Syariah: Jurnal Hukum dan Pemikiran Vol 24 No 1 (2024)
Publisher : Universitas Islam Negeri Antasari Banjarmasin

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.18592/sjhp.v24i1.12894

Abstract

This research aims to reveal and analyze the considerations of the panel of judges in cases of determining the origin of children because the marriage was annulled (fasid) in all Religious Courts in South Kalimantan, and offers an ideal legal construction in determining the origin of children in the context of legal protection for children based on a legal approach progressive. This research is normative legal research, using case, statutory, and concept approaches. The analysis process uses content analysis techniques. The results determine the origin of children from fasid marriages at the Religious Courts in South Kalimantan from 2020 to 2022 consisting of 13 who rejected the request and 15 who granted the request. Those who agreed considered the importance of child protection based on the Child Protection Law and the Opinions of Contemporary Ulama. On the other hand, those who reject it based on the Marriage Law and KHI that fasid marriages are materially and formally invalid so that their children become illegitimate. Protection for children is a fundamental right that judges must explore with a progressive legal approach, that children from fasid marriages must not bear the burden of their parent's mistakes and negligence on legal rules.
Tata Kelola Lingkungan di Indonesia: Peran Muhammadiyah, Intervensi Negara, dan Dinamika Praktik Hukum Wahdini, Muhammad; Kamsi, Kamsi; Hasse Jubba
Syariah: Jurnal Hukum dan Pemikiran Vol 24 No 1 (2024)
Publisher : Universitas Islam Negeri Antasari Banjarmasin

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.18592/sjhp.v24i1.12897

Abstract

The study explores the causes of the controversy between the Muhammadiyah and the State in the policy of ecological law in Indonesia. The exploration uses methods of normative law research with conceptual approaches and philosophy of law. The results of this study show that the contestation of the Muhammadiyah and the State in ecological law politics in Indonesia is caused by the first factor of epistemological differences in legal policy, the epistemology of Muhammadiyah in line with the Islamic ecological concepts of Tauhid, Khilafah, Amanah, Halal Haram, Balance and Misconduct. This epistemology differs from what the state practices, namely industrialization, which is reflected in the birth of some legislative regulations that are considered ecologically unfair. Both paradigm differences, Muhammadiyah advances theoantroposentrism. As God's representative on earth, Muhammadiyah takes precedence over a prophetic perspective. The State paradigm also in practice needs to industrialize for economic growth, so that in practice there is controversy in legal politics. In practice, the controversy led to a change in the political direction of ecological law in Indonesia as Muhammadiyah succeeded in conducting judicial review, criticizing state policy to advocating the law against societies in conflict ecological sector
ANALISIS TERHADAP PERKEMBANGAN DAN KONSEP FIKIH LINGKUNGAN DALAM KITAB ULAMA BANJAR Sukarni, Sukarni; bin Mahmud, Hafini
Syariah: Jurnal Hukum dan Pemikiran Vol 24 No 1 (2024)
Publisher : Universitas Islam Negeri Antasari Banjarmasin

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.18592/sjhp.v24i1.12906

Abstract

This research is motivated by the increasing importance of seeking efforts for environmental safety as the main support for human survival. The aspect of religious thought (fiqh) is one of them. The Banjar people, especially those who live in South Kalimantan, as the land of Mecca's verandas, the land of a thousand mosques, and the city of Islamic students, have undoubtedly given birth to many works of Islamic legal thought. Based on the results of the search, in the books of Banjar Islamic jurisprudence from the XVIII, XIX and XX centuries AD, there are 10 books by Banjar Islamic scholars, of which the 10 (ten) Banjar Islamic jurisprudence books mostly discuss muamalah, worship and law. So the research aims to analyze the development and concepts of environmental jurisprudence in the Islamic jurisprudence works of Banjar ulama in the contemporary era. The method used according to type is library research with a historical, hermeneutical and istinbath approach because the focus of the study in this research is environmental jurisprudence thinking on the jurisprudence of the work of Banjar ulama. The research results show that there are no books by South Kalimantan (Banjar) ulama that discuss environmental jurisprudence. The works of this banjar cleric include the Books of Sabilal Muhtadin, Parukunan Jamaluddin, USSA, Parukunan Melayu Besar, Asrar as-Salat, Risalat Rasam Parukunan, Mabadi Ilmu Fiqh, Risâlah Mu'âmalât, Is'af al-Haidh book, and Tangga Ibadah. From several of these books, it can be seen that the development of the concept of environmental jurisprudence is not yet visible. The jurisprudential aspect of worship dominates the discussion pages. Water issues and agricultural land conservation (environmental aspects) have been discussed in several books, but the descriptions have not shown positive developments.
REAKTUALISASI PRINSIP MASLAHAT DAN KEADILAN SOSIAL DALAM KONTEKSTUALISASI FIKIH ZAKAT Rahmat Hakim, Budi; Nafi, Muhammad; Hidayatullah, Hidayatullah; Herlinawati, Herlinawati
Syariah: Jurnal Hukum dan Pemikiran Vol 24 No 1 (2024)
Publisher : Universitas Islam Negeri Antasari Banjarmasin

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.18592/sjhp.v24i1.12909

Abstract

As a text, Muslims agree that zakat is a pillar and ritual of Islam that every Muslim is obligated to perform. Nevertheless, as a form of text-ritual, zakat will always be contextualized. He is always tied to the culture of the community where the zakat ritual is performed. That is, the implementation of zakat is very likely to vary, depending on how the meaning of zakat is interpreted and reinterpreted by local communities. The law of zakat is different from other laws of worship, because the nature of the law at this level is flexible, dynamic and elastic in accordance with the development and needs of society (mu'amalah ijtima'iyyah) which is based on normative passages that are general and zanniyyah. This paper seeks to analyze and find applicative ideas about the theory of maslahat and social justice in various concepts of contemporary scholarly thought to then be correlated with the formulation of the development of ijtihad zakat based on maslahat and justice. A number of relevant references are used as sources as well as material for conducting critical analysis with a qualitative descriptive approach so that it can be emphasized the building of ideas and strategic steps to make zakat an Islamic social system that not only touches the question of creed alone, but also the socio-economic welfare of the community as well as the great purpose of zakat sharia.
Penundaan Pembagian Waris: Suatu Tinjauan Teoretis dalam Kerangka Sistem Hukum di Indonesia Maimanah, Maimanah; al-Amruzy, M. Fahmi; Arni, Arni; Faridah, Siti
Syariah: Jurnal Hukum dan Pemikiran Vol 24 No 1 (2024)
Publisher : Universitas Islam Negeri Antasari Banjarmasin

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.18592/sjhp.v24i1.12916

Abstract

Delays in the distribution of inheritance are common in the Banjar community, and these delays in the distribution of inheritance cause various problems, ranging from conflicts between heirs that cause family relationships to break down, neglected inheritance, to litigation between families in court. This paper intends to scrutinize why this delay in inheritance distribution occurs. To answer this, the author discusses it in the perspective of Laurence M. Friedman's Legal System Theory, this research uses qualitative research methods in the form of empirical legal research. Data were obtained through in-depth interviews and observations, then analyzed with interpretative descriptive analysis. From this research, it was found that the legal structure of delaying the distribution of inheritance, namely religious courts, judges, advocates and scholars do not have the authority to "force" the community to immediately distribute inheritance. The substance of the law, namely the Qur'an, al-Hadis, Fiqh books and the Compilation of Islamic Law as the source of inheritance law of the Banjar community does not explicitly state the time of distribution of inheritance, even this source of law they "abandon", customary inheritance law is the law that lives and becomes the legal culture of the community regarding the time of inheritance implementation, where for generations they have delayed the distribution of inheritance, distributing inheritance immediately is considered an unethical or uncivilized act.

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