Mazahib: Jurnal Pemikiran Hukum Islam
Mazahib Jurnal Pemikiran Hukum Islam / Mazahib Journal of Islamic Legal Thoughts (P-ISSN: 1829-9067; E-ISSN: 2460-6588) is an international peer-reviewed Journal Published by the Faculty of Sharia Sultan Aji Muhammad Idris State Islamic University Samarinda since 2004. The Journal specializes in the study of Islamic law, both conceptual and fieldwork research with various academic approaches: normative-doctrinal, social, political, economic, historical, etc. The subject is intended to communicate original research and current issues on the relevant topics.
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<![CDATA[Kurikulum Fikih dalam Bingkai Negara Kesatuan Republik Indonesia: Upaya Membangun Peradaban Islam berbasis NKRI ]]>
<![CDATA[ Mazahib VOLUME 15, ISSUE 2, DECEMBER 2016 ]]>
Publisher : <![CDATA[UINSI Samarinda ]]>
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DOI: 10.21093/mj.v15i2.622
<![CDATA[Despite having a population that is predominantly Muslim, Indonesia is not an Islamic state; instead, it is a unitary state with different ethnic, tribal, cultural and religious views. Therefore, the awareness of Indonesian people toward the concept of plurality is instrumental in social life. This article attempts to discuss the need for a method in learning Islamic law that leads to the cognizance of the importance of plurality. By using content analysis method, this study focuses on finding learning methods of Islamic law within the framework of the Negara Kesatuan Republik Indonesia (NKRI, Unitary Republic of Indonesia). It finds that all textbooks on Islamic law taught at secondary schools have deficiencies in addressing Indonesian diversity in an inclusive manner. Hence, more reading materials that touches on issues of plurality in the interest of the state and nation are badly needed. The results of this study confirm that the plurality-sensitive Islamic jurisprudence (fiqh) can be implemented in two ways: first, through education; and second through reforming the body of fiqh itself. When the concept of fiqh is unresponsive toward the phenomenon of pluralism and human rights, then its manifestations by Muslims may also envisage this very own fiqh concept. Keywords: contextuality of fiqh, Unitary Republic of Indonesia, plurality education in Indonesia]]>
<![CDATA[Perda Berbasis Syari’ah dan Hubungan Negara-Agama dalam Perspektif Pancasila ]]>
<![CDATA[ Mazahib VOLUME 15, ISSUE 2, DECEMBER 2016 ]]>
Publisher : <![CDATA[UINSI Samarinda ]]>
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DOI: 10.21093/mj.v15i2.623
<![CDATA[Presidential Decree 1959 declared that the state of Indonesia back to the Constitution of 1945. The preamble of the 1945 Constitution turned out to comprise the formulation of article 1 of Pancasila which states the obligation of adherents of Islam to comply with Islamic law (a.k.a. the Jakarta Charter). Presidential Decree 1959 cannot nominally be used as the basis for the enactment of Shari'a in Indonesia as a whole. Even so, it has provided a place for the position of Shari'a in Indonesia, or at least been a foundation for the establishment of national legislation that is based on Shari'a. This article discusses the justifiability of Shari’a bylaws by means of the socio-historical value of the first principle of the Pancasila which is accommodative to Shari`a. It argues that Pancasila cannot only be viewed in terms of legal ideals containing philosophy as well as the idea of ideas and cultural values of a nation, but also the reflection of the moral values of Islam in all aspects of human life as a whole. Therefore, the existence of Sharia bylaws can be justified from the standpoint of the first principle of the Pancasila.]]>
<![CDATA[Pilkada Langsung Dan Pilkada Tidak Langsung Dalam Perspektif Fikih Siyasah ]]>
<![CDATA[ Mazahib VOLUME 15, ISSUE 2, DECEMBER 2016 ]]>
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DOI: 10.21093/mj.v15i2.630
<![CDATA[Direct and Indirect Regional Head Election (Pilkada), has been a long debate in the life of a democratic society in Indonesia. With Islam as a religious social background of the majority of the people of Indonesia, this makes the debate cannot be separated from the Islamic jurisprudence (fiqh). This paper is to compare the two electoral systems in light of Islamic constitutionalism (fiqh syasah). This study uses the theory of maqasid sharia of the maslaha as a tool to analyze the comparison of the two electoral systems. The findings of this study suggest that there are some positive things on one side, and some negative things on the other side on each system of direct election and indirect election. Taking into account the benefit of both the local election systems, the study concluded that direct election has more benefits that outweigh the indirect election. Some of the public benefits include: the strengthening of the people's sovereignty and avoid injustice in society at large as part of the learning aspects of politics and government. Second, it will build a litigious society and law enforcement officers who act decisively and are nonpartisan, which in turn creates a reverent attitude of the people towards the leader. In the field of socio-economic, public and private investors’ confidence in the system and the results of the election will increase due to the political stability that is essential for the economy.Keywords: Regional head election in Indonesia, direct election, indirect election, fiqh siyasah in Islam]]>
<![CDATA[Konsep Qath’i dan Zhanni dalam Hukum Kewarisan Islam ]]>
<![CDATA[ Mazahib VOLUME 15, ISSUE 2, DECEMBER 2016 ]]>
Publisher : <![CDATA[UINSI Samarinda ]]>
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DOI: 10.21093/mj.v15i2.632
<![CDATA[The term qath'i (definitive) and zhanni (speculative) in Usul al-Fiqh is used to explain the sources of Islamic legal texts either the Qur'an or Hadith in two ways, namely al-tsubût (existence) or al-wurud (sourced from the truth), and al-dalalah (textual implication). In terms qath'i and zhanni al-tsubut and al-wurud, Islamic jurists agree that the Koran and the hadith mutawatir is definitive, whereas ahad hadith is zhanniy ats-tsubut. They differ in terms of qath'i and zhanni of the al-dalalah (interpretation). Islamic jurists state that if a text of the Koran or Hadith contains only one meaning that is clear and not open up to other possible interpretations, as well as read certain numbers, then the text is regarded as the definitive text of textual implication. The texts relate to inheritance law fall into the category this qath`i al-dalalah. Meanwhile, contemporary Islamic jurists state that the qath'i and zhanni al-dalalah of the texts both the Koran and the hadith cannot be seen from the clarity of meaning of the texts but also on the desired essence of the text which is commonly known as the maqasid al-shari'ah. The maqasid approach must also be coupled with the theory ta'abbudi and ta'aqquli. Based on this, this article argues that the texts related to Islamic inheritance law is categorized zhanni al-dalalah because they concern of human social relations (mu`amalah) which are affected by the socio-economic context of the role of men and women in society (ta`aqquli). Consequently, the texts in the field of inheritance law are open to modern interpretations.Keywords: Islamic inheritance law, qath'i and zhanni in Islam]]>
<![CDATA[Naẓariyāt al-Ḥiyal fi al-Usrah al-Muslimah ]]>
<![CDATA[ Mazahib VOLUME 15, ISSUE 2, DECEMBER 2016 ]]>
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DOI: 10.21093/mj.v15i2.633
<![CDATA[This article discusses ḥilah (plural: hiyal) or stratagem in Islamic family law. Hilah is one of the most important concepts in Islamic jurisprudence (fiqh). Hilah is simply defined as an attempt to manipulate the law and replace it with other rules without losing the essence of the law. The question that arises is what is the ruling of legal engineering in Islam? By means of normative study, this article presents the legal opinions regarding hilah in Islam. This study reveals that hilah can be divided into two kinds: Hilah Jaizah (allowed hilah) and Hilah Muharramah (forbidden hilah). Hilah jaizah is allowed in Islam by looking at certain conditions. In the context of Islamic family law, hilah can be done in such following conditions as: the bride's requirements of her prospective husband so as not to committing polygyny, and if that happens then the wife may sue him for divorce. Other conditions include when someone is allowed to admit to be infidel (kafir) for the sake of his/her family safety. Meanwhile, a case of hilah muharramah is doing tahlil marriageKeywords: Ḥilah in Islam, Islamic family law]]>
<![CDATA[Al-‘Alāqah baina Ushūl al-Fiqh wa Maqāshidi al-Sharīah wa al-Da’wah ilā Ta’sīsi ‘Ilmi al-Maqāshid ]]>
<![CDATA[ Mazahib VOLUME 15, ISSUE 2, DECEMBER 2016 ]]>
Publisher : <![CDATA[UINSI Samarinda ]]>
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DOI: 10.21093/mj.v15i2.634
<![CDATA[The study of Maqāshid sharīa is an important point in the discussion of Islamic legal theory (ushūl al-fiqh). Serious debates began to emerge in the 19th century among Islamic jurists concerning the position of maqāshid sharīa. At least, there are three important debates in the history; first, whether maqāshid is part of the discussion ushūl al-fiqh; second, is maqāshid sharīa built upon a foundation of classical Islamic jurisprudence (fiqh); and third, whether the maqāshid sharīa study is able to become an independent science that is separated from the study of classical Islamic jurisprudence. This article tries to present a discussion of the three paradigms by employing a descriptive-analytic method. The results of this study uncover that the study of maqāshid sharīa is like two sides of one coin; theoretically it is a distinctive study from ushūl al-fiqh, but it cannot be separated from one another. Ushūl al-fiqh has become the foundation to find out more details about the study of maqashid sharia. The separation between classical Islamic jurisprudence (fiqh) and maqāshid sharīa study conducted by Islamic jurists is a relative separation. Keywords: Ushūl al-fiqh, maqāshid sharīa, separation between Ushūl al-fiqh and study of maqāshid sharīa.]]>
<![CDATA[Nikah dan Rujuk di KUA Samarinda: Implementasi Peraturan Pemerintah Nomor 48 Tahun 2014 Tentang Tarif Atas Jenis Penerimaan Negara Bukan Pajak ]]>
<![CDATA[ Mazahib VOLUME 15, ISSUE 2, DECEMBER 2016 ]]>
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DOI: 10.21093/mj.v15i2.635
<![CDATA[The implementation of Government Regulation No. 48 Year 2014 concerning the Tariff of Non Tax Revenue which revises the Government Regulation No. 47 of 2004 has become an important topic in marriage bureaucracy in Indonesia. Changes in these regulations include the rate or cost of marriage and marriage reconciliation, from IDR 30,000, - to IDR 600,000, - as long as the marriage solemnization is performed outside the Religious Affairs Office (KUA) or beyond the KUA business hours. As for marriage solemnization performed in the KUA, the charge fee is IDR 0.00. This zero rupiah rate also applies to citizens who are economically less fortunate as well as victims of disasters. After one year of its implementation, some questions arise regarding the efficacy of these regulations. By employing three case studies of KUAs in Samarinda Seberang district as a research strategy, this study aims to assess how far is the implementation of the regulation in the KUAs and what sorts of constraints encountered. The study finds that all of the procedures of payment and the cost of marriage and marriage reconciliation in the three KUAs of Samarinda Seberang is in accordance with the provisions of the regulation. However, there are two main obstacles experience: first, the time period for cashing marriage and marriage reconciliation fee is pretty long that it renders difficult for the KUAs to function; second, the lack of marriage registrars who serve in every KUA in Samarinda. These obstacles are needed to be addressed by the Ministry of Religious Affairs in order to better serve the society. Keywords: mariage and mariage reconciliation in Indonesia, Religious Affairs Office in Samarinda, Government Regulation No. 48 Year 2014 concerning the Tariff of Non Tax Revenue.]]>
<![CDATA[Ketiadaan Daluwarsa Penuntutan dalam Hukum Pidana Islam dan Pembaruan Hukum Pidana di Indonesia ]]>
<![CDATA[ Mazahib VOLUME 15, ISSUE 2, DECEMBER 2016 ]]>
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DOI: 10.21093/mj.v15i2.643
<![CDATA[A statute of limitation is the passage of specified number of years that become the reason for abolishing of criminal penalties against someone who has committed a criminal act. Basically, all the perpetrators of criminal acts should be prosecuted in a criminal court to face trial, but there are things which abolish criminal prosecution such as the statute of limitation. In order to reform the criminal law, it must necessarily be carried out by reconstructing underlying ideas of such reformation, that is the materialization of justice. One of the ways to do so is by including the concept of absence of the statute of limitation as adopted by the concept of Islamic criminal law. This paper argues that the statute of limitation enshrined in the Criminal Code gives more emphasis on the rule of law, while the absence of the statute of limitation in the Islamic Criminal Law give more emphasis on the fairness and certainty. Achieving justice is not limited by time; whereas certainty is limited by the availability of valid evidence. To that end, the introduction of the concept of absence of statute of limitation into positive law is necessary to ensure that justice which is the main purpose of law enforcement. In addition, the introduction of this Islamic criminal law concept is also a strategic move to make Islamic law a part of the positive law in Indonesia.Keywords: A statute of limitation, Jinayah in Islam, criminal law in Indonesia]]>
