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Smart: Journal of Sharia, Tradition, and Modernity
Published by Universitas Islam Negeri Raden Intan Lampung
ISSN : -     EISSN : 28078268     DOI : https://doi.org/10.24042/smart.v1i2.10965
Core Subject : Religion, Social,
Religion Law, Crime, Criminology & Criminal Justice Social Sciences
SMART: Journal of Sharia, Tradition, and Modernity adalah jurnal peer-review, open-access yang diterbitkan oleh Prodi Hukum Keluarga Program Doctor Pascasarja Universitas Islam Negeri (UIN) Raden Intan Lampung. Jurnal ini bertujuan untuk mempublikasikan temuan penelitian yang berkaitan dengan studi hukum Islam, hukum keluarga Islam, Sejarah dan Pemikiran hukum Islam, Norma, Perilaku, dan Praktik Sosial Budaya di Indonesia pada khususnya dan Dunia pada umumnya, serta dimaksudkan untuk menerbitkan temuan penelitian asli dan isu-isu terkini tentang subjek tersebut.
Arjuna Subject : Ilmu Sosial - Hukum
Articles 55 Documents
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SMUGGLING OF THE LAW IN DIFFERENT RELIGIOUS MARRIAGE AS A LEGAL ACTION IN THE STATE OF PANCASILA Arsyita, Muhammad Aprizal; Khair, Damrah; Pane, Erina; Ja'far, A. Kumedi; Mahmudah, Siti
SMART: Journal of Sharia, Traditon, and Modernity Vol. 1 No. 1 June (2021)
Publisher : Universitas Islam Negeri Raden Intan Lampung

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.24042/smart.v1i1.9781

Abstract

Marriage in Indonesia is a legal act that is valid in an external forum based on the legal contract of each religious law or belief. Interestingly, interfaith marriages continue to occur and experience problems related to illegal acts against various attempts to smuggle laws to obtain legal recognition from the State. This issue will be analyzed based on the Civil Code, Law Number 1 of 1974 concerning Marriage, Law Number 39 of 1999 concerning Human Rights, Law Number 23 of 2006 concerning Population Administration, and the Decision of the Constitutional Court Number. 68/ PUU-XII / 2014. To find out the legal arrangements in interfaith marriages, a normative juridical legal research method and a statutory approach were carried out by collecting literature study data. Secondary data were analyzed using qualitative juridical analysis. The results of this study explain that positive law in Indonesia does not prohibit interfaith marriage, but does not regulate it. The substance of the validity of a marriage is pluralistic based on religious law and belief, even though the majority prohibits its followers so that a juridical understanding emerges that it is impossible to legalize interaction marriages, but in reality, some religions and beliefs provide dispensation or permission. Law smuggling by individuals adhering to religions or beliefs with low quality and/ or not obeying the forum internum which prohibits interfaith marriages, but imposes themselves on various motives (Al-Baits) based on positive law. The conclusion is that even though there is disharmony of norms, the smuggling of law in interfaith marriages fulfills the elements of acts against the law, which deliberately contradicts positive law, and reduces the authority of law and religion in the Pancasila State. Juridically, the determination of the legality of marriage is based on religious norms or beliefs, not a Court Ruling mechanism, because the State only determines administrative validity.Keywords: Smuggling, Marriage, Different Religions, Acts against the Law, Pancasila
APPLICATION OF CONTRA LEGEM IN JUDGE DECISIONS (Critical Study of Iddah Alimony Rights in Divorce Cases) Maksum, Endang Ali; Suharto, S.; Khairuddin, K.; Zuhraini, Z.; Susanto, Is
SMART: Journal of Sharia, Traditon, and Modernity Vol. 1 No. 1 June (2021)
Publisher : Universitas Islam Negeri Raden Intan Lampung

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.24042/smart.v1i1.9794

Abstract

The subject of this study is based on article 149 letters (b) Compilation of Islamic law which reads: ex-husband must provide maintenance, maskan, and kiswah to ex-wife during the iddah, unless the ex-wife has been granted talaq bain or nusyuz and is not pregnant. There are two barriers for an ex-wife to earn a living during the period of iddah, namely because the wife is divorced ba'in and or because the ex-wife is nusyuz. In general, the wife filed for divorce in court because she could no longer stand her husband's treatment of her. As a result of the law, if the wife who filed for divorce sues the Court, then the panel of judges will issue a divorce. Unless the husband violates the talaq. In the context of the wife falling into the act of nusyuz, generally as a result of the treatment and conduct of the husband towards the wife. If this is returned to the sound of the law then it will be very felt the injustice received by the wife (ex-wife). This study seeks to find the answer from the formulation of the problem "Why is contra legem important for the judge in deciding the case (inconcritoplaintiff) divorce with the decision of talaq ba'in and or proven in court nusyus wife's arbitrary because of the husband treatment of his wife? Materials and data are obtained by methods library research, the nature of the research is normative research. The goal to be achieved is to provide an alternative solution in providing justice and legal protection to women (ex-wives) who do not get iddah alimony because of filing a lawsuit or nusyus with a theory approach contra legem. Positive law in practice is not sufficiently able to accommodate the legal facts revealed in the Court, in another narrative it can be said that positive law always lags behind social reality. So in the legal system in Indonesia, the judge's ijtihad to deviate and or find the law is accommodated by the principle of Contra legemin order to provide justice and benefits to the community seeking justice, the judge needs to do contra legem.Keywords: Contra Legem; Iddah Livelihood; Divorce Lawsuit; Judge's Decision
THE MARRIAGE PRACTICES OF INDIGENOUS PEOPLES OF LAMPUNG SEBATIN FROM THE PERSPECTIVE OF ISLAMIC FAMILY LAW IN INDONESIA Idham, I.; Faizal, Liky; Qohar, Abdul; Hanif, H.
SMART: Journal of Sharia, Traditon, and Modernity Vol. 1 No. 1 June (2021)
Publisher : Universitas Islam Negeri Raden Intan Lampung

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.24042/smart.v1i1.9816

Abstract

This study analyzes the problems related to the existence of Lampung Sebatin Indigenous Marriages. Where the Lampung indigenous people Sebatin started a new life order in marriage combining custom and Islamic law. Marriage is divided into two ways, namely Nyakak/ Jujokh and Semanda marriages. The traditional marriage procedures have values and norms or rules. The problem in this research is how the practice of marriage and how the description of the relationship between customary law and Islamic law as well as positive law in Indonesia in the marriage of the indigenous community of Lampung Sebatin. The purpose of this study was to obtain information about: first, the practice of marriage traditional Lampung Sebatin procedures; and Second, positive law and Islamic law in the traditional marriage customs of Lampung Sebatin. This study uses the qualitative research method with a sociological legal approach that focuses on the process of implementing marriage based on Islamic law and customary law with predetermined objectives. The research data were obtained using the interview method conducted on the object of research or respondents. The findings of this study indicate that first, the practice of marriage traditional Lampung Sebatin in its implementation uses Islamic law, but there are several processions such as pre-marriage and after-marriage. Marriage Lampung traditional customs are Sebatin divided into two, namely Nyakak/ Jujokh and Semanda with the traditional stages before, the implementation customary stages and the customary stages after marriage and the pattern of settling after marriage. Second, the law of marriage in the teachings of the Islamic religion with the law on marriage, in the procedure of marriage, in Nyakak/ Jujokh and Semanda is general it can be said that line, in practice it is in accordance with the basis and reference, namely the law on marriage is al-Quran, al-Sunnah, Qaidah Fighiyah and Consensus (Ijma) of Muslims in Indonesia.Keywords: Marriage, Tradition, Lampung, Sebatin, Islamic Law
MARRIAGE CONTRACT THROUGH VISUALIZATION OF ONLINE VIDEO CALL COMMUNICATION MEDIA ACCORDING TO MARRIAGE LAW AND ISLAMIC LAW IN INDONESIA Faisal, F.; Isnaeni, Ahmad; Bahrudin, Moh.; Nasruddin, N.
SMART: Journal of Sharia, Traditon, and Modernity Vol. 1 No. 1 June (2021)
Publisher : Universitas Islam Negeri Raden Intan Lampung

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.24042/smart.v1i1.9847

Abstract

Talks about marriage always attract attention, not because it contains discussions about sexuality, but because marriage is a sacred event in religious teachings. Not only as a civil bond between individuals in general, but a bond that has to worship values, and is the longest worship practice in Islamic history. Marriage is valid if the pillars and conditions are met, one of which is ijab and qabul. The problem point arises when the ijab and qabul pledged by the parties are not in the same assembly, but in different places remotely through online communication media video call. To solve this problem, this study uses approach normative theological and normative juridical. Data analysis was carried out qualitatively, and conclusions were drawn using deductive thinking. The results of this study are that the marriage contract through online communication media video call has basically fulfilled the pillars and requirements for a valid marriage and does not conflict with the compilation of Islamic law. However, scholars differ on the validity of the marriage contract through online communication media video calls. This difference of opinion is caused by different understandings of the meaning of “Ittihad al-majlis”. One group of scholars defines it in a physical sense and another group in a non-physical sense.Keywords:     Marriage Contract, Online Video Call Communication Media, Marriage Law, Islamic Law.
THE EPISTEMOLOGY OF ISLAM NUSANTARA JURISPRUDENCE AND ITS CONTRIBUTION IN FAMILY LAW REFORM IN INDONESIA Fuad, Moh. Fahimul; Mukri, Moh.; Alamsyah, A.; Akla, A.
SMART: Journal of Sharia, Traditon, and Modernity Vol. 1 No. 1 June (2021)
Publisher : Universitas Islam Negeri Raden Intan Lampung

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.24042/smart.v1i1.9872

Abstract

The term Islam Nusantara has sparked and caused polemics, pros, and cons that are quite warm in Indonesia since 2015 until now. As happened in the West Sumatra MUI environment. Islam Nusantara is interpreted as a religious pattern that exists in the archipelago, both at the level of religious practice and how to preach it. The level of amaliyah is interpreted as religious behavior that exists in the archipelago, especially in relation to fiqh which originates from its religious understanding. The problem is: What is the source of knowledge used in formulating Islamic fiqh in Nusantara? What is the validity and method of understanding the sources of knowledge used in formulating Islamic jurisprudence in Nusantara? How is the contribution of Islam Nusantara jurisprudence in reforming family law in Indonesia? This study aims to find answers to the epistemological formulation of Islamic jurisprudence in the archipelago and its contribution to reforming family law in Indonesia. To answer the questions above, the author uses qualitative research methods, types of literature research, the theory of ijtihad with the ushul fiqh approach. This means that the study of the concept of Islam Nusantara is carried out using the framework of ushul fiqh knowledge, especially regarding the concept of ijtihad. At the level of research work, the stretching of thinking to produce fiqh concepts that are unique to the archipelago is seen as part of ijtihad activities. The findings of the research are: (a) The source of knowledge used in formulating Islamic jurisprudence in the archipelago is a source of knowledge commonly known in the study of fiqh and ushul fiqh, both the mujma ’alaih and the mukhtalaf fih, (b) the source of knowledge as said to be valid. By giving a large enough portion to 'urf, and a benefit-oriented understanding, (c) Islam Nusantara’s fiqh can be used as an alternative law in the context of reforming family law in Indonesia.Keywords: Islam Nusantara, Jurisprudence, Epistemology, Legal Reform
REINTERPRETATION OF LIVELIHOODS IN MARRIAGE LAW AND ITS IMPLICATIONS ON FAMILY RESISTANCE IN THE TIME AND POST COVID-19 Mu'in, Fathul; Mukri, Moh.; Khairuddin, K.; Mahmudah, Siti
SMART: Journal of Sharia, Traditon, and Modernity Vol. 1 No. 2 December (2021)
Publisher : Universitas Islam Negeri Raden Intan Lampung

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.24042/smart.v1i2.10965

Abstract

The rules regarding a living in Law Number 1 of 1974 concerning Marriage and the Compilation of Islamic Law imposes the obligation to earn a living only on the husband. These two regulations create problems in society. Many wives demand a living from their husbands. Not a few wives also have jobs and income, but they are spent on their own needs, including for consumptive things, channeling hobbies and others because they think that fulfilling a living is not part of their obligations. This condition is coupled with the interpretation of a number of verses of the Qur'an and the traditions of the Prophet which are still patriarchal. The marriage law and a number of verses of the Qur'an and the Prophet's hadith need to be reinterpreted. This is because the development of an increasingly advanced era makes the role of women not only as wives who only take care of the household, but also as one of the contributors to the economy. This research uses the library research method. This study concludes that the livelihoods in these two laws and regulations need to be updated to be relevant to current conditions. Supposedly, the wife also has the same obligation in matters of livelihood. The reinterpretation of livelihood using the interpretation of mubadalah is to produce the principle of mutuality. The wife can even be the main breadwinner under certain conditions. This interpretation has implications for the fulfillment of the family's economy during the pandemic and post-covid-19 pandemic. Because, in difficult economic conditions, the wife participates in helping the family economy on a macro basis or even as the main provider in the household who changes places with her husband.Keywords: Reinterpretation, Livelihoods, Marriage Law, Family Resistance, Covid-19 
LEGAL PROTECTION OF CHILD VICTIMS OF SEXUAL VIOLENCE AS A CONTINUOUS PROTECTION MEANS (Islamic Law Studies and Psychoanalytic Psychological Theories) Sulastri, S.; Suharto, S.; Zuhraini, Z.; Nurjanah, Siti
SMART: Journal of Sharia, Traditon, and Modernity Vol. 1 No. 2 December (2021)
Publisher : Universitas Islam Negeri Raden Intan Lampung

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.24042/smart.v1i2.10976

Abstract

Child protection is a right that must be obtained by children as it has become their rights as stated in the law. Child protection is a guarantee for its part to be upheld because in the constitution there is a guarantee of human rights, especially if you have been a victim of sexual violence. This article aims to find out how legal protection is for Child Victims of Sexual Violence and from the point of view of Islamic law and psychoanalytic psychology theory, which in the end can become sustainable protection. As a country that has various religions, there is Islam which plays a role in providing enlightenment, which is described in Islamic law with various theories. In addition, psychological impacts occur for children, will affect development so it is necessary to know how efforts must be made in terms of Psychoanalytic Psychology theory for this is an ongoing protection given to children as victims of sexual violence. This study uses a qualitative method with subjects AM (14 years) and MT (12 years) who are victims of sexual violence and stepfather perpetrators. The results of the research are: Legal protection must still be obtained, even though there has been a statement of forgiveness by the child as a victim inasmuch as this is clearly influenced by the psychological energy of anxiety caused by him getting wrong treatment from people who must provide protection to him. Islamic law exists so that children get their rights, including protection, education rights, custody rights, housing rights, the right to make choices, the rights of opinion and rights as children who are the hope of the nation.Keywords: Legal Protection, Child Victims Of Sexual Violence, Continuous Protection Means, Islamic Law, Psychoanalytic Psychological Theories
COMPARATIVE STUDY ON MARRIAGE PROMISES IN INDONESIA AND JORDAN IN OVERVIEW OF MASLAHAT Bunyamin, Mahmudin; Hermanto, Agus; Hidayat, Iman Nur
SMART: Journal of Sharia, Traditon, and Modernity Vol. 1 No. 1 June (2021)
Publisher : Universitas Islam Negeri Raden Intan Lampung

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.24042/smart.v1i1.10990

Abstract

The development of Islamic family law (al-Ahwal al-Syakhshiyah) in modern Islamic countries can be said to be a new format that accommodates the ideas of reforming Islamic law thought, including the position of marriage vows. The new thing in family law can be seen from the transition from fiqh law to positive law in the form of legislation in Muslim countries. Indonesia and Jordan, are one of the few Muslim countries that legalize marriage vows in legislation. The problem is how the form of marriage vows legislation in each of these countries. This study aims to determine the philosophical meaning and model of its renewal in each of these countries. The concept of maslahat that is applied in the legislation on marriage vows in Indonesia and Jordan is the concept of achieving a goal of Islamic law itself,  to achieve a legal benefit and reject harm or with the principle of preserving an existing law or rule that is considered good, and developing it by law, or more beneficial rules. The formation of marriage vows legislation in Indonesia and Jordan cannot be separated from the local wisdom possessed by each of these countries, so that the concept of maslahat applied in marriage covenant legislation in each country has its own characteristics, each country makes taklik talak a promise. marriage that must be obeyed by both parties.Keywords: Comparative, Marriage Promise, Indonesia, Jordan
PREVENTION OF DIVORCE THROUGH THE MOVEMENT OF THE MASTURAH PROGRAM AND ITS CONTRIBUTION TO RENEWAL OF FAMILY LAW IN INDONESIA (Case Study of the Tabligh Congregation in Lampung Province) Suratno, S.; Baihaqi, Yusuf; Maimun, M.; Faizal, Liky
SMART: Journal of Sharia, Traditon, and Modernity Vol. 1 No. 2 December (2021)
Publisher : Universitas Islam Negeri Raden Intan Lampung

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.24042/smart.v1i2.10991

Abstract

Islam as a perfect religion has regulated the entire order of human life both concerning the life of the world and the hereafter, one of which is the sustainability of human descendants through a legitimate way, through marriage, where one of the goals is to form a sakinah family, but to make it happen is not as easy as turning the hand. It takes a process and cooperation between husband and wife and family members to make it happen, and it is not uncommon for households to contain various disputes with the end of divorce, especially during the current covid-19 pandemic, and to minimize this, the Tabliqh congregation of Lampung Province carries out the Masturah Program movement to prevent the increase in divorce cases in Lampung. This research is a qualitative research using an empirical juridical approach and is descriptive analytic, data analysis using inductive and deductive thinking frameworks. This study found the fact that the masturah program is very effectively used as a contemporary method to make it easier to create a sakinah family and as a renewable method as a means of mediation by the mediator so that religious courts and scholars are able to reduce divorce rates in Lampung province, especially among the Tabligh congregation community. Keywords:     Divorce Prevention, Masturah Program, Tabligh Congregation.
RECONSTRUCTION OF NUSYÚZ CONCEPT IN COMPILATION OF ISLAMIC LAW IN INDONESIA (Gender Equality Perspective Analysis) Fitri, Al; Alamsyah, A.; Sadari, S.; Susanto, Is
SMART: Journal of Sharia, Traditon, and Modernity Vol. 1 No. 2 December (2021)
Publisher : Universitas Islam Negeri Raden Intan Lampung

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.24042/smart.v1i2.10992

Abstract

Nusyúz is a classical conception codified as a standard law written in Qs. an-Nisáa’ verses 34 and 128. The conventional fiqh perspective of nusyúz connotes the wife’s disobedience to her husband, because it is influenced by the patriarchy of pre-Islamic Arab culture. Presidential Instruction Number 1 of 1991 concerning the Compilation of Islamic Law in Indonesia mentions nusyúz in Articles 80, 84 and 125, only regulates the wife’s nusyúz and its legal sanctions, while the husband’s nusyúz is not mentioned. There is ambivalence, ambiguity and legal injustice for the wife. The focus of this research is the concept of nusyúz in KHI from a gender perspective and its correlation with the development of family law in Indonesia. This type of research is library research with a gender equality analysis approach. The results of this study indicate that it is necessary to rearrange the concept of nusyúz in the KHI, including the modern era understanding of nusyúz and adding the husband's concept of nusyúz and its legal sanctions in KHI.Keywords:     Nusyúz Modern Era, Gender Perspective, Justice.

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