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Istinbath : Jurnal Hukum
Published by Institut Agama Islam Negeri Metro Lampung
ISSN : 18298117     EISSN : 25273973     DOI : https://doi.org/10.32332/istinbath.v17i1
Core Subject : Religion, Economy, Humanities, Social,
Religion Humanities Economics, Econometrics & Finance Law, Crime, Criminology & Criminal Justice Social Sciences
Istinbath : Jurnal Hukum is Open Journal of Law, a Journal that contains legal-based scientific papers. Published by Sharia Faculty of IAIN Metro. Ever applied for accreditation in 2016. It is published twice a year in Mei and November. Istinbath Journal Law is a periodical publication of scientific articles containing thematic laws with various approaches in the scope of positive law and Islamic law. Journals are published in print and online. Istinbath Journal of Law is published by the IAIN Metro Sharia Faculty. Istinbath Journal of Law is published as an attempt to socialize scientific studies in the form of literature review articles and research results related to the law.
Arjuna Subject : Ilmu Sosial - Hukum
Articles 300 Documents
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Otoritas Sahih Bukhari Sebagai Kitab Hadis Rujukan Dalam Hukum Islam Tohari, Chamim
Istinbath : Jurnal Hukum Vol 18 No 2 (2021): Istinbath : Jurnal Hukum
Publisher : Institut Agama Islam Negeri (IAIN) Metro

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.32332/istinbath.v18i2.3171

Abstract

The study discusses the authority of the traditions in the book of Sahih al-Bukhari, as one of the main sources of reference for hadith in establishing Islamic law after the Qur'an. This study is intended to answer questions about the authority of the Book of Sahih al-Bukhari in terms of historical perspectives, fiqh Qaida, and modern science. This research is library research that uses content analysis as a method of analyzing the data obtained. In addition, this study also uses comparative analysis to answer the problem of hadith authority in Sahih al-Bukhari when viewed from the perspective of Qaida fiqh. In this study, there are three important points, first, the book of Sahih al-Bukhari until now is known as the book of hadith with the highest level of validity compared to other hadith books. However, as a human creation, the book of Sahih al-Bukhari does not escape criticism from its readers, one of which is because Al-Bukhari is considered close to the authorities. Second, in Sahih al-Bukhari there are traditions whose editorials contradict higher texts, and modern science. Third, as a result of al-Bukhari's ijtihad in the field of the authenticity of hadith as well as in the field of fiqh, and his position is sometimes considered higher than other hadith books. The researcher argues that the criticism that states Imam Bukhari was close to the ruler is not appropriate, but the political influence in the writing process cannot be fanned, while regarding the conflict between the hadith texts in the book of Bukhari and the texts of the Qur'an, history, and science, it is necessary deeper study, then the book of Sahih al-Bukhari should be positioned on a par with other hadith books.
Kesetaraan Gender Dalam Kompilasi Hukum Islam : Perempuan Sebagai Saksi Perkawinan: Indonesia Habibunnas, Habibunnas Habibunnas
Istinbath : Jurnal Hukum Vol 18 No 2 (2021): Istinbath : Jurnal Hukum
Publisher : Institut Agama Islam Negeri (IAIN) Metro

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.32332/istinbath.v18i2.3200

Abstract

Women's testimonies are a discussion that is still debatable in Islamic law studies, including women's testimonies in the field of marriage.. This paper finds in the Islamic Law Compilation or KHI that women do not have room to be witnesses. As stated in article 25 KHI which reads. “those who can be appointed as witnesses in the marriage contract are a muslim man, fair, aqil, baliqh, not impaired in memory and not deaf or deaf”. This paper uses a library research method, then analyzes it through a gender perspective approach (gender analysis) and statuory regulations (statue Approach) and uses theory content as a legal consideration analysis technique. The purpose of this paper is to analyze article 25 Compilation of Islamic Law (KHI) from the perspective of gender equality and legislation. This study found that the Islamic Law Compilation or KHI which is used as a reference for the leader in determining marriage witnesses has weaknesses, in addition to its content which reflects a lot from law No. 1 of 1974 also the basis of the article is almost entirely emphasized from the fiqh syafiiyah books which are then used as references. Whereas in Al-quran and Hadith itself it does not prohibit women from being witnesses of marriage. Likewise, constitutionally, women have the same position before the law. For this reason, there is a need for amendment to article 25 of the Compilation of Islamic Law by providing opportunities for women to be allowed to become saski in marriage.
Pemikiran Quraish Shihab Di Bidang Hukum Keluarga Islam Di Indonesia: Kajian Seputar Hukum Keluarga Islam Indonesia Juliansyahzen, Muhammad Iqbal
Istinbath : Jurnal Hukum Vol 18 No 1 (2021): Istinbath : Jurnal Hukum
Publisher : Institut Agama Islam Negeri (IAIN) Metro

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.32332/istinbath.v18i1.3212

Abstract

M. Quraish Shihab is one of the great Muslim scholars in Indonesia, who is very productive in his work and has great concern for the development of tafsir al-Quran. In addition, he is also known to have a concern for the development of Islamic law, including family law in Indonesia. The legal thought pattern is more rational-progressive by contextualizing the text in the dimensions of space, time, and culture. Among the results of his ijtihad which is quite a lot of discussion is about the hijab. The author also presents some other thoughts such as polygamy, sirri marriage, and nusyuz to see the thought pattern of M. Quraish Shihab. In the context of KHI as a reference to Islamic family law in Indonesia, he is not fully in agreement with the legal substance. The result of this research is Quraish tried to re-read the religious text in this case the source of Islamic law, namely the Qur'an and Hadith as well as the results of ijtihad scholars. The istislahi (based on mashlahat) became the foundation of the Quraish in responding to the development of family law practices. This method pays close attention to the side of human welfare in every provision of the Shari'ah that has been revealed. The principle of equality is also a concern of the Quraish in discussing the relationship between husband and wife.
Islam, Fatwa dan Negara: Pluralisme Hukum Perceraian di Aceh, Indonesia Muhazir, Muhazir
Istinbath : Jurnal Hukum Vol 19 No 01 (2022): Istinbath : Jurnal Hukum
Publisher : Institut Agama Islam Negeri (IAIN) Metro

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.32332/istinbath.v19i02.3217

Abstract

This article examines the Legal pluralism of divorce in Aceh, even though the government has regulated divorce laws that apply nationally. However, the Ulama Consultative Assembly (MPU) of Aceh Has issued a fatwa whose legal substance was different from the divorce regulations made by the government, coupled with the legal conditions for divorce in Acehnese people who are fanatical to the school (mazhab) of Shafi'i which is theoretically different from the divorce law in Indonesia. This type of research is doctrinal with a legal pluralism approach. This article aims to analyze the dynamics of divorce law in Acehnese society. The results show that there are three kinds of law that normatively and sociologically apply in Aceh, namely fikih munakat, fatwa and state law, and each has its own legal concept regarding divorce.
Konsepsi HAM Universial Dan Partikular Dalam Putusan Mahkamah Konstitusi: (Analisis Putusan MK Nomor 46/Puu-Xiv/2017 TentangPasal PidanaDalam KUHPBagi Pelaku Zina Dan LGBT) Malian, Sobirin
Istinbath : Jurnal Hukum Vol 17 No 1 (2020): Istinbath : Jurnal Hukum
Publisher : Institut Agama Islam Negeri (IAIN) Metro

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.32332/istinbath.v17i1.3238

Abstract

The Constitutional Court's decision rejecting the petition for judicial review related to criminal articles for adultery and LGBT perpetrators in the Criminal Code can certainly reap the pros and cons. Because the Court'sdecision is a decision with a disenting opinion. Of the 9 judges, 5 judges thought the petition was unacceptable, while the other 4 judges thought the petition was acceptable. Therefore, this decision is interesting to study and analyze further from the point of view of law, psychology, religion and other sciences which have a correlation with the object of this decision. Theoretically, it is found that the concept of human rights (especially regarding LGBT) is not only related to the concept of universal human rights, there is also the concept of particular human rights, meaning that when discussing human rights issues, there are normative boundaries that are juridical, religious, and traditional / custom. Based on these universal and particular human rights concepts, it can be concluded that the correct decision by the Constitutional Court was to grant a request for a judicial review in relation to the criminal article for adultery and LGBT perpetrators.
Ratio Legis Penerapan Beban Pembuktian Terbalik Di Indonesia: (Komparasi Hukum Pidana Indonesia Dan Hukum Pidana Islam) hatta, muhammad
Istinbath : Jurnal Hukum Vol 18 No 1 (2021): Istinbath : Jurnal Hukum
Publisher : Institut Agama Islam Negeri (IAIN) Metro

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.32332/istinbath.v18i1.3288

Abstract

The reverse proof is the burden of proof to the suspect of a crime. In principle, the application of the reversed burden of proof is against the universal law of proof and is not following the presumption of innocence. However, the reverse burden of proof contained in the Law on the Eradication of Criminal Acts of Corruption, and the Law on the Prevention and Eradication of the Crime of Money Laundering, with a Legis Ratio of the two types of crimes classified as white color crimes, and extraordinary crimes, is right. Because it can be ascertained that, when the verification process takes place, law enforcement will have difficulty in proving the guilt of the perpetrators of the crime. In Indonesia, the application of the reverse burden of proof is applied to corruption and money laundering crimes which are limited to the Eradication of Corruption Crimes and Money Laundering Crimes. In Islamic law, the application of the reverse burden of the proof system is included in the ta'zir category which is based on government policy (ulul amri). The inverse burden of proof system is implied in the Qur'an, Surah Yusuf, Verses 26-29. However, in applying the reverse proof system, the jurists use istihsan in making ijtihad on contemporary social problems. Thus, both in the perspective of general law and Islamic law, the reverse proof is something that is specifically allowed, for criminal cases where it is estimated that there will be difficulties in proving it. Keywords: Ratio Legis Reverse Proof System, Indonesia, Comparative Legal Study
Kesadaran Hukum Masyarakat Baduy Banten Pada Pikukuh Adat, Dan Moderasi Hukum: (Kajian Sosiologi Hukum Pada keberadaan Living Law Masyarakat Adat Baduy) Murdiana, Elfa; Sudiono, Titut; Kosim, Nandang; E.P., Destalia
Istinbath : Jurnal Hukum Vol 18 No 1 (2021): Istinbath : Jurnal Hukum
Publisher : Institut Agama Islam Negeri (IAIN) Metro

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.32332/istinbath.v18i1.3383

Abstract

Artikel ini menggali internalisasi nilai yang membentuk ketaatan dan kesadaran hukum masyarakat pada aturan hukum yang tidak tertulis yakni Pikukuh adat yang secara turun temurun diyakini dan dijalankan secara sadar dan membentuk sikap Toleransi sebagai Dasar Nilai Moderasi .hasil penelitian ini membuktikan bahwa positivisme hukum bukan satu-satunya jaminan dalam pencapaian keadilan sebab kekuatan bangunan hukum untuk dilaksankan dan ditaati adalah manusia sebagai subyek pelaku dan hukum sebagai mekanisme pengendali sosial yang persuasif mewujudkan keadilan hukum. Melalui pendekatan sosiologi dan pendekatan hukum yang dianalisis secara Induktif, disimpulkan bahwa Ketaatan hukum masyarakat Baduy pada pikukuh adat secara sadar telah membentuk prilaku moderat yang sangat menjunjung tinggi dan menghormati hak-hak orang lain yang berbeda keyakinan. Artinya ketaatan orang baduy pada pikukuh adat tak lantas menjadikan mereka fanatis dan Radikal . justru sebaliknya, bahwa dengan pikukuh yang dijalankan justru membentuk toleransi tanpa paksaan dimana nilai Toleransi tersebut memiliki relevansi dengan nilai Moderasi Hukum dalam mengontrol prilaku masyarakat (Social Control) dan mewujudkan Keadilan
Maqaṣid Al-Syari’ah: Teori Dan Aplikasi Dalam Istinbaṭh Hukum Islam Nurjannah, Siti
Istinbath : Jurnal Hukum Vol 17 No 2 (2020): Istinbath : Jurnal Hukum
Publisher : Institut Agama Islam Negeri (IAIN) Metro

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.32332/istinbath.v17i2.3453

Abstract

In the era of digitalization of science and modern information-communication technology, the tradition of legal thought (at-turas) among Islamic legal methodological thinkers (uṣuliyyin) is increasingly developing in the context of extracting law (istinbaṭ al-ahkam). However, the thinking of legal methodology itself is considered by them to have a crisis of methodology in addition to a crisis of paradigm. Meanwhile, various contemporary legal cases (al-waqi'iyyah al-mu'asirah) continue to emerge that demand statutory legal certainty. Even the substance of the methodology of Islamic law (uṣul al-fiqh) is considered by a minority, many of which are no longer relevant to the needs of this modern era. Therefore, as a problem solving to overcome this methodological crisis, the alternative is to rely on maqaṣid asy-syari'ah, both as a doctrine and as a method of ijtihad. Because in its application it is not only based on religious texts (al-Qur'ān and sunnah), but searches and excavations behind the text in an effort to determine and determine legal certainty in every case that occurs. Such application and implementation has been, is being and continues to be developed by contemporary Islamic legal methodological thinkers.
Pertimbangan Hakim Memutus Akta Hibah Yang Dikeluarkan Oleh Pejabat Pembuat Akta Tanah Tidak Mempunyai Kekuatan Hukum (Studi Putusan Mahkamah Agung Tahun 2009 – 2017) Jannah, Siti Khurfatul
Istinbath : Jurnal Hukum Vol 18 No 2 (2021): Istinbath : Jurnal Hukum
Publisher : Institut Agama Islam Negeri (IAIN) Metro

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.32332/istinbath.v18i2.3583

Abstract

The judge's consideration is the most important aspect in determining the realization of the value of justice (ex equo et bono) and the legal certainty of a judge's decision. In this paper, we will discuss the decision on grant disputes determined by the judges of the Supreme Court. This research is normative legal research, with a conceptual approach. The data sources in this study are secondary data sources consisting of primary and secondary legal materials, which will be analyzed qualitatively. In this study, data were obtained from the Directory of Decisions of the Supreme Court of the Republic of Indonesia which informed that there were 369 cases of application for cancellation of grants that had been decided by the Supreme Court. And from these decisions, many decisions stipulate that the deed of grant is declared to have no legal force. Therefore, it is necessary to know the reasons that make the grant deed declared invalid and the consequences for the parties related to the legal act of the grant. From the results of the discussion, it is known that, although the provisions of grants according to Islamic law in Indonesia have been regulated in the KHI, the implementation of grants and grant deeds made by PPAT does not pay attention to the existing legal provisions. So that it is declared that it has no legal force by a judge of the Supreme Court, and it must be returned to its original position.
Perubahan Konstitusi : Dinamika Politik Dan Hukum Dalam Negara Yang Demokratis Firmansyah, Firmansyah
Istinbath : Jurnal Hukum Vol 18 No 2 (2021): Istinbath : Jurnal Hukum
Publisher : Institut Agama Islam Negeri (IAIN) Metro

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.32332/istinbath.v18i2.3629

Abstract

The constitution is essentially the legal basis of a country, and has a function as a tool of social control, meaning that the law determines the charac-teristics of society. However, the law must be able to respond to changing conditions of the people. This paper uses a normative legal research method, with a conceptual approach. The data source is secondary legal materials, which are analyzed qualitatively. Talking about changing the constitution, there are several aspects that need to be studied carefully. First, the relationship between the constitution and the dynamic condition of society. Second, the aspect of domination between politics and law. When correlated, the constitution and society have a dynamic relationship, meaning that the constitution can follow changes and the dynamics of development in society. As for carrying out the formation and amendment of the constitution, politics and law are two aspects that complement each other and act as a counterweight to each other. Therefore, community involvement in the formation and amendment of the constitution is some-thing that must be considered.

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