Al-Mazaahib: Jurnal Perbandingan Hukum
Al-Mazaahib adalah jurnal pemikiran hukum milik Jurusan Perbandingan Mazhab dan Hukum, Fakultas Syari’ah dan Hukum UIN Sunan Kalijaga Yogyakarta. Al-Mazaahib merupakan jurnal yang berisi atau memuat karya-karya ilmiah yang terkait dengan pemikiran-pemikiran di bidang hukum, baik hukum umum (positif) maupun hukum Islam. Keberadaan Jurnal Al-Mazaahib ini tentu sangat penting dalam menggali, memperkaya, dan mengembangkan pemikiran dan teori-teori hukum. Dengan demikian, Jurnal Al-Mazaahib ini akan memberikan kontribusi positif dalam memperkaya khazanah pemikiran di bidang hukum, baik hukum Islam maupun hukum positif.
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<![CDATA[FIQH SAINS: ELABORASI KONSEP ‘ILLAT MENUJU PEMBENTUKAN HUKUM ISLAM YANG AKTUAL ]]>
<![CDATA[Sodiqin, Ali]]>
<![CDATA[ Al-Mazaahib: Jurnal Perbandingan Hukum Vol. 1 No. 1 (2012): Al-Mazaahib ]]>
Publisher : <![CDATA[UIN Sunan Kalijaga Yogyakarta ]]>
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DOI: 10.14421/al-mazaahib.v1i1.1338
<![CDATA[Fiqh is the nearest part in the religious life of the Islamic society. Almost all of the religious practices in the society are besed on the fiqh. On the other hand, fiqh is the product of fuqaha’s ijtihad which open to the change and diversity. The one of causes which became the change and diversity in fiqh is illat concept. The existing or lacking of law are dipend on the illat, therefor the illat of law elaboration became very important. The science and tecnology development can be recognized as the illat of law change. The law which had been formed by the classic and medieval ulama can be canged. It is not effective in the science and tecnology development era. The finding of new law become the new law illat. The concepts of majlis, safar, iddah need to be interpreted because of theinformation and transportation tecnology development. Therefore, it is impoetant to develope the concept of illat which is suitable with the Islamic law formative orientation (maqasid asy-syari’ah). The illat of law must capable to make law which is implied the mashlahah and relevant to the civilization development, in order to keep the fiqh flexibility and significancy to the life realities. The process can be conducted by activizing ijtihad, fusing between the istinbat (deductive) and istiqra’ (induktif) methods. The ijtihad model depends on the real problems, einther by using the tarjih intiqa‟i or ibdai insyai models.]]>
<![CDATA[PELAKSANAAN PERNIKAHAN ADAT SUKU ANAK DALAM DALAM PERSPEKTIF UU NO 1 TAHUN 1974 ]]>
<![CDATA[Hamzah, Iri]]>
<![CDATA[ Al-Mazaahib: Jurnal Perbandingan Hukum Vol. 1 No. 1 (2012): Al-Mazaahib ]]>
Publisher : <![CDATA[UIN Sunan Kalijaga Yogyakarta ]]>
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DOI: 10.14421/al-mazaahib.v1i1.1344
<![CDATA[Indonesian Marriage Law (UU No. 1/1974) has any problems in its implementing. This regulation conducted by government as a tool of unification of marriage law in order to anticipate legal uncertainty. There are three sistems of law in Indonesia; Adat/Customary law, Islamic law, and Western Law. UU No. 1/1974 is expected to be a solution of plurality of legal in Indonesia. However, this regulation had not able to protect that plurality, especially Adat law. Many of Indonesia's indigenous peoples remain insist running their customary marriage law and override the provisions in the legislation that has been legislated. This happens in the Suku Anak Dalam/Orang Rimba Jambi until now. Many of their marriage practices were inconsistent with the provisions of Law No. 1 of 1974. Most of them still adhere to animism- dynamism beliefs, had a way to measure maturity bride, and no concept of the guardian, witness, and also the recording of the marriage. This fact requires the government to review the provisions of Law No. 1 of 1974 in order to accommodate customary law currently applied until now.]]>
<![CDATA[KONTRIBUSI HASAN HANAFI DALAM KAJIAN USHUL FIQH ]]>
<![CDATA[Mashduqi, Muhammad Anis]]>
<![CDATA[ Al-Mazaahib: Jurnal Perbandingan Hukum Vol. 1 No. 1 (2012): Al-Mazaahib ]]>
Publisher : <![CDATA[UIN Sunan Kalijaga Yogyakarta ]]>
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DOI: 10.14421/al-mazaahib.v1i1.1339
<![CDATA[Hasan Hanafi is an expert on Islamic law who had the idea of reconstruction usul fiqh. Min Al-Nash ila Al-Waqi, written by him as the reconstruction effort, continuing the spirit of creativity, Al-Risala, Al-Mushtashfā and Al-Muwāfaqāt. Min Al-Nash ila Al-Waqi' written to undermine the claims of Islamic law to disappear the public good (al-mashāliħ al-' ammah). The entire reconstruction project of Hanafi had been referred as a result of application of the phenomenological method. Hanafi called tahlil manhaj al-khabarāt, comparable to manāhij al-ta'wil, manāhij al-nazhar, manāhij al-żauq, manāhij al-tahlil al-lughawī and other methods of classical Islamic creations. Through the philosophy of phenomenology, hermeneutics Gadamerian, Hanafi appreciate the application of the themes and traditions of thought, but in the context of Al-Quran and Al-Sunnah. Hanafi recommends usul fiqh as sacra hermeneutica, the specific case of general hermeneutics. Hanafi, divides methodological-epistemological consciousness of usul fiqh into three-dimensional consciousness; historical consciousness (la conscience historique), eidetic consciousness (la conscience eidetique), and the active awareness (la conscience active). Hanafi finds methodological shift that can be read from configuration changes chapter and logical structure of usul fiqh texts shift. This changes was seen in Al-Mustashfa, work of al-Ghazali (d. 505 H) and Al-Muwāfaqā,t work of Al-Syatibi (d. 790 H).]]>
<![CDATA[HIKMAH AL-TASYRI’ DALAM HUKUM POLIGAMI (Perspektif Filsafat Hukum Islam) ]]>
<![CDATA[Fauza, Nilna]]>
<![CDATA[ Al-Mazaahib: Jurnal Perbandingan Hukum Vol. 1 No. 1 (2012): Al-Mazaahib ]]>
Publisher : <![CDATA[UIN Sunan Kalijaga Yogyakarta ]]>
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DOI: 10.14421/al-mazaahib.v1i1.1345
<![CDATA[Poligamy is not new problem, but poligamy discourse is always being controversial issue in Indonesian community. In its tasyri‟ manner, poligamy is currently possible to be done based on certain reasons. But behind it‟s controversy in the society, there is community that disposed nash becoming dominant factor as faith strengthener while the reason is following Sunnah Rasul. But in a contrary, there is other community that refuses poligamy based on the argumentation of subordinative position of female community and discriminative policy for them. Historically, the practice of poligamy has been done before Islam era, even there was no limitation in marrying women. But since Islam has come, the practice of poligamy has been beginning to be restricted as four wives only, however it still becomes controversial issue in the society. So that, the writer efforts to investigate the philosophy of islamic law (falsafah al-tasyrī‟) about poligamy by exploring the philosophy value from its possibilities, wether it can realize the goal of marriage that is sakinah, mawaddah wa rah}mah) or even bocomes a strict problem in the family. This article is one way to get bridge in taking attitude of its controvercial side in the society.]]>
<![CDATA[FIQH SOSIO-KULTURAL: INTERKONEKSI ANTARA PERADABAN TEKS DAN PERUBAHAN KONTEKS ]]>
<![CDATA[Fathorrahman, Fathorrahman]]>
<![CDATA[ Al-Mazaahib: Jurnal Perbandingan Hukum Vol. 1 No. 1 (2012): Al-Mazaahib ]]>
Publisher : <![CDATA[UIN Sunan Kalijaga Yogyakarta ]]>
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DOI: 10.14421/al-mazaahib.v1i1.1340
<![CDATA[To understand and explain the building of Islamic law (fiqh) should not be fixated on the traditional topics of fiqh evolved in an sich. But as enrichment in fiqh useable insights such as the social sciences. Socio-cultural fiqh is a paradigm that try to combine between the fiqh that tend to normative and socio-cultural regions that lot to empirically grounded. This kind of fiqh is important to analyze the various fiqh issues when dealing with social realities and problems of society has changed, so, building Islamic law contains norms and worldview-that developed in the community can be appreciated as a process of strengthening and enrichment of fiqh in the modern era. It is, as is done by many previous muslim scholars of fiqh that also incorporate elements of socio-cultural as a means for determining the direction and the view of Islamic law. This paper tries to analyze deeper socio-cultural significance of fiqh as a means to develop the study of fiqh (tsarwah al fiqhiyah). At least, through this paper, we want to describe how the socio-cultural theory of fiqh in response to people's habits, one side needs related to the text and on the other hand it can not be separated from the context.]]>
<![CDATA[EUTHANASIA DALAM PERSPEKTIF MORAL DAN HUKUM ]]>
<![CDATA[Halim, Abdul]]>
<![CDATA[ Al-Mazaahib: Jurnal Perbandingan Hukum Vol. 1 No. 1 (2012): Al-Mazaahib ]]>
Publisher : <![CDATA[UIN Sunan Kalijaga Yogyakarta ]]>
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DOI: 10.14421/al-mazaahib.v1i1.1346
<![CDATA[Euthanasia is a conduct which is done by a doctor or other persons. They do a certain medical conduct to end the patient life process, or do nothing to help the patient who severe some dieses according to medical science are difficult to be cared, either by the patient or family asking or not, in order to patient or family interest. In the ethics perspective, euthanasia face the very basic principle, even the patient condition is in the vegetative status. In the other side, in the positive law perspective, Indonesia has not yet regulate specifically in the euthanasia case, but in the formal juridic in the positive law, there in the only one euthanasia, namely the euthanasia which is conducted by asking from the patient or victim, what is called by voluntary euthanasia, according to act 344 KUHP. According to Islamic law, euthanasia is not allowed as well as in the positive law, because the right to live is not the human right but it‟s Allah rignt.]]>
<![CDATA[TEORI HERMENEUTIKA HUKUM KHALED M. ABOU EL-FADL Membongkar Fiqh Otoriter Membangun Fiqh Otoritatif ]]>
<![CDATA[Zayyadi, Ahmad]]>
<![CDATA[ Al-Mazaahib: Jurnal Perbandingan Hukum Vol. 1 No. 1 (2012): Al-Mazaahib ]]>
Publisher : <![CDATA[UIN Sunan Kalijaga Yogyakarta ]]>
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DOI: 10.14421/al-mazaahib.v1i1.1341
<![CDATA[The hermeneutic approach in law is the new discourse. It has its unique, because of Khaled M. Abou El-Fadl‟s idea. It tries to deconstruct the law authoritarianism phenomena which bring to the new fiqh that is more authoritative and applicable in the contemporary fiqh discourse (Islamic Jurisprudence). Law hermeneutic he formed is tend to a text interpretation authority through negotiating the text, the author and the reader. The set of very basic methods are the basic assumptions such as assumption based on the values, methods, reason, and belief. The four assumptions according to Khaled M. Abou El-Fadl can‟t be leave in developing law theory and interpretation. The article aims to create the new meaning more objective, authoritative which is not included in the interpretation authoritarianism conducts, especially in the creating law texts more authoritative and humany.]]>
<![CDATA[PERNIKAHAN MELALUI TELEPON DAN REFORMASI HUKUM ISLAM DI INDONESA ]]>
<![CDATA[Asnawi, Habib Shulton]]>
<![CDATA[ Al-Mazaahib: Jurnal Perbandingan Hukum Vol. 1 No. 1 (2012): Al-Mazaahib ]]>
Publisher : <![CDATA[UIN Sunan Kalijaga Yogyakarta ]]>
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DOI: 10.14421/al-mazaahib.v1i1.1347
<![CDATA[Islamic law is universal. The law must be developed in accordance with socialneeds, as well as the fiqh rule that "the law change with the changing times andchanging times". Islamic law in reality is not idealistic yet and not seem toanticipate the changing and tend to be far from justice. For example, the oldproduct of Islamic law states that marriage or consent granted shall be carriedout in a single chamber. Reason or ‘illat of law of one chamber is to maintaincontinuity and confidence witness against two parties are performing thecontract. Social development of the people of Indonesia, especially in the field oftechnology is currently growing rapidly. Among the legal issues that are biasedtechnological progress is the marriage by the phone. This issue raises the prosand cons among Indonesian scholars. Differences of opinion are based ondifferent interpretations of the concept of the unity of the assembly (ittih}a>dulmajlis) in a marriage ceremony. Therefore we need the rule of law in order to fillthe legal vacuum due to differences of opinion. It takes a good legalconstruction, which can accommodate the interests of modern society.]]>
<![CDATA[PENGARUH POSITIVISME DALAM PERKEMBANGAN ILMU HUKUM DAN PEMBANGUNAN HUKUM INDONESIA ]]>
<![CDATA[Wahyuni, Sri]]>
<![CDATA[ Al-Mazaahib: Jurnal Perbandingan Hukum Vol. 1 No. 1 (2012): Al-Mazaahib ]]>
Publisher : <![CDATA[UIN Sunan Kalijaga Yogyakarta ]]>
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DOI: 10.14421/al-mazaahib.v1i1.1342
<![CDATA[This article discusses about the positivism influence to jurisprudence and law development, especially in Indonesia, and the analysis of the strength and the weakness of the positivism influence. Through the positivism which was introduced by August Comte, the rational and empiric truth and the standard of natural sciences were used also in the social sciences, law and jurisprudence. The concept of legal positivism is the proof of the positivism influence in law and jurisprudence. Legal positivism develops as the written law which is formulated by the legitimated state organ which has the power and souveregnity. It is separated from the moral and the right and wrong values. There were many scholars who use the positivism in their legal opinion, namely Hart, Hans Kelsen and John Austin. The concept of legal positivism in Indonesia also follows the legal positivism opinion, which seen in many aspect such as the written law, law unification, and legislation.]]>
<![CDATA[KANUNISASI HUKUM ISLAM DI INDONESIA (Perspektif Usul al-Fiqh) ]]>
<![CDATA[Afandi, Mohammad]]>
<![CDATA[ Al-Mazaahib: Jurnal Perbandingan Hukum Vol. 1 No. 1 (2012): Al-Mazaahib ]]>
Publisher : <![CDATA[UIN Sunan Kalijaga Yogyakarta ]]>
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DOI: 10.14421/al-mazaahib.v1i1.1343
<![CDATA[There is a lot of controversy about the canonization of the Islamic law in Indonesia which invites many of the muslim scholars, especially those who obtain education in formal institutions and those who receive it in traditional ones. Thanks to this long debate, the discourse of the canonization not only becomes a sensitive national issue but also has a practical effect all of the Indonesian muslim people feel, that is, there are some of Islamic acts such as the act of the marriage and the act of the heritage which are adopted as parts of the state law like KHI and number 41 of 2004‟s act about waqaf. Henceforth this discourse of canonization spreads more and more broadly, so that the syari‟a-based economic system is regarded as one of the definitive and effective solutions to overcome the economic crisis.Using the Islamic jurisprudence as an approach, this research tends to find out and set a pattern of the development of future formulation of Islamic law in Indonesia by posing an academic question as to in what fields the canonization can be done. As the result, we can organize Islamic laws or norms around three themes: (1) norms that in practice are under individual‟s authority; (2) norms that in practice are under people‟s authority; (3) norms that in practice are under state‟s authority. Only in the last norm, including the family law, the civil law, the law of politic,the law of judgment, and the criminal law, can the canonization of the Islamic law be done.]]>
