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Al-Istinbath: Jurnal Hukum Islam
Published by Institut Agama Islam Negeri Curup
ISSN : 25483374     EISSN : 25483382     DOI : http://dx.doi.org/10.29240/jhi
Core Subject : Religion, Social,
Religion Law, Crime, Criminology & Criminal Justice
Al-Istinbath : Jurnal Hukum Islam, is an academic journal focuses on Islamic Law studies and aimed to accommodate and socialize innovative and creative ideas from researchers, academics, and practitioners who care in the field of Islamic Law. The focus of this journal is an effort to load scientific works related to thoughts or studies in the field of Islamic law and actualize and add to the treasure of a better understanding of Islamic law through the publication of articles and research reports. Al-Istinbath : Jurnal Hukum Islam is published twice in a year, on May and November. This journal is published by the Institut Agama Islam Negeri (IAIN) Curup in partnership with Asosiasi Dosen Hukum Keluarga Islam (ADHKI) Indonesia, download MoU here. This journal is projected as a media, sphere, and dessemination of scholars studies on islamic law issues. Indeed, Al-Istinbath invites all of participant—scholars and researchers to submit their best-papers, and publish it in Al-Istinbath : Jurnal Hukum Islam.
Arjuna Subject : Ilmu Sosial - Hukum
Articles 16 Documents
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Search results for , issue "Vol 8 No 1 May (2023)" : 16 Documents clear
Transformation and Future Challenges of Islamic Law in Indonesia Siroj, A. Malthuf; Marzuki, Ismail; Elkhairati, Elkhairati
AL-ISTINBATH : Jurnal Hukum Islam Vol 8 No 1 May (2023)
Publisher : Institut Agama Islam Negeri Curup

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.29240/jhi.v8i1.6618

Abstract

This study aims to investigate the transformation of Islamic law starting from pre-entry of Islam to Indonesia, entry of Islam, colonialism, and independence to current reformation in Indonesia, as well as various challenges to the formalization of Islamic law. The method used was a qualitative method with the type of library research namely by researching and reviewing legal materials that include primary legal materials, secondary legal materials, and tertiary legal materials that relevant to the object of this research. The results show that pre-entry of Islam to Indonesia, the applicable law was adat law, then since the entry of Islam into Indonesia, Islamic law has been well accepted and implemented by the community, and even its existence has gained legitimacy from both legal experts and the Dutch government. After Indonesia's independence, especially during the Old Order era, Islamic law did not transform significantly. During the New Order after such party collapsed, Islamic law began to transform significantly. Although since the reform period, Islamic law has transformed significantly, the challenges of Islamic law are serious, both internal and external. The most dominant internal challenges among are not fully codified Islamic law, Indonesian pluralistic condition, politics of the rulers' law, misconceptions of some legal experts about Islamic law, and other. Meanwhile, external challenges include influence of transnational ideologies which give a negative stigma against Islam, the development of Western ideologies that clash with Islamic law and the human rights, and strong influence of the domination of Western law in Indonesia.
The Progressivity of Umar Ibn Al-Khattab's Ijtihad in Responding to Community Social Changes Arrasyid, Fauzan; Pagar, Pagar; Tanjung, Dhiauddin; Nor, Mohd Roslan Mohd
AL-ISTINBATH : Jurnal Hukum Islam Vol 8 No 1 May (2023)
Publisher : Institut Agama Islam Negeri Curup

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.29240/jhi.v8i1.4872

Abstract

This study aims to see how Umar Ibn Al-Khattab's legal ijtihad typology responds to social changes that occur in society. Ijtihad is a legal decision-making process based on syar'i arguments. During his leadership, Umar ibn Khattab was known to history as one of the caliphs who often performed ijtihad and the results often differed from those of other companions of the Prophet in terms of understanding and practice of Islamic law. Umar bin Khattab often recited the Quranic texts and hadith of the Prophet by contextualizing verses and hadiths through his maqasid approach.  This research uses normative legal research methods. The data were obtained through literature review and analyzed using a descriptive analysis approach. The results showed that Umar's ijtihad pattern of Islamic law in some cases is considered as an integrated, integral, and authentic understanding in order to realize the benefit of Muslims. He carried out the policy of Islamic law by paying attention to rapidly developing social changes. Although his Ijtihad seems contrary to the provisions of the text, in fact Umar can be said to be able to understand the general principles (al-ushul al-kulliyat) of the Koran.  So that the Quranic text, which has descended historically, can always provide answers and solutions to social problems of society that are always undergoing changes.
Sultan's Law and Islamic Sharia in The Ottoman Empire Court: An Analysis of The Existence of Secular Law Fatarib, Husnul; Meirison, Meirison; Saharuddin, Desmadi; Bahar, Muchlis; Karimullah, Suud Sarim
AL-ISTINBATH : Jurnal Hukum Islam Vol 8 No 1 May (2023)
Publisher : Institut Agama Islam Negeri Curup

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.29240/jhi.v8i1.4908

Abstract

This article aims to describe the impact of legal dualism within the Ottoman Empire. After Constantinople was taken over, Sultan Muhammad Al-Fatih instituted a significant policy, including issuing laws and regulations for the benefit of society; then, there was also a dualism system within the Ottoman Empire, which was visible during the reign of Sultan Sulaiman I. During this time, foreign nationals were mainly recruited, and foreign traders began to gain impunity at the peak of power. This then prompted several questions, such as were the sultans free to create the laws they wanted, or was Islamic law still binding on them? Was Sultan's law an innovation from the Ottoman Empire or a legacy from the preceding dynasty in the form of Capitulation? To address those issues, the authors conducted a comparative historical analysis of various types of literature. We used a descriptive qualitative approach to Qānūn's position, which served as a springboard for foreign intervention in an Empire that was strong but weak in political policies which occasionally strayed outside the corridor of Islamic Sharia which had become customary and national culture. The tolerance separated from the corridors of Islam derailed during the crisis. This became a springboard for legal dualism in a state body with integrity in various dimensions.Keywords: Sultan's Law, Sharia, Judiciary,  Ottoman
Comparing KHI and KHES in Marital Property Grant Disputes: An Analysis of Judges' Views Apriantoro, Muhamad Subhi; Alis, M. Naufal Ibnu; Septianozakia, Sendy; Setiana, Dadang
AL-ISTINBATH : Jurnal Hukum Islam Vol 8 No 1 May (2023)
Publisher : Institut Agama Islam Negeri Curup

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.29240/jhi.v8i1.6464

Abstract

This study aims to assess how judges make decisions regarding disputes over grants on marital property from the perspectives of two legal systems, KHI and KHES. Specifically, the study examines a case (numbered 145/Pdt.G/2021/PA.Slk) that was heard at the Solok City, West Sumatera Religious Court and involved a communal property grant dispute. The research methodology used was normative juridical, a quantitative approach that uses secondary legal principles, and a qualitative system that relies on library research data. The study's findings indicate that comparing grant arrangements by Compilation of Islamic Law and Compilation of Sharia Economic Law, specifically in terms of the pillars mentioned in KHI and KHES, is closer to the consensus of scholars but not identical because KHI has additional witnesses and KHES has qabd.
Muslim Society's Response to the New Rule of Marriage Age Bukido, Rosdalina; Harun, Nurlaila; Alwi, Muhammad; Kamaru, Fahri Fijrin
AL-ISTINBATH : Jurnal Hukum Islam Vol 8 No 1 May (2023)
Publisher : Institut Agama Islam Negeri Curup

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.29240/jhi.v8i1.5521

Abstract

This study aims to describe the response of the Muslim community to the new marriage age regulation. The existence of this new provision reaps pros and cons because the community and the government understand the age of marriage, especially Muslim people, who basically consider the age limit for marriage to be when they have reached puberty. This research was conducted in North Sulawesi with a qualitative-descriptive research type and a sociological approach. Data was collected through interviews with informants starting from the community level, religious leaders and community leaders and then analyzed in a descriptive way. The results obtained are that there is a strong religious doctrine and public ignorance of the issuance of Law no. 16 of 2019. With this rule in place, they hinder many couples who are ready to get married. Most people show an attitude of disapproval of the 19-year age limit for marriage. For society, the law does not look good, especially for those who are not yet 19 years old. The community’s understanding is that both partners have reached puberty, as explained in Islamic teachings. Even so, for religious figures to show the opposite attitude, the 19-year marriage penalty rule is very necessary because it involves emotional and economic stability in living a household life. Actually, the implementation of Law No. 16 of 2019 could be more effective if Perma No. 15 of 2019 was also socialized because they related it to the purpose and reasons for the intended marriage age limit. There is a lack of public understanding of the 19-year age limit for marriage because Law No. 16 of 2019, which is socialized, is only a prohibition which prohibits it. Perma No. 15 of 2019 is the answer to the regulatory age limit for marriage at 19 years, which is always questioned in society.
Polygamy in Perspective of Islamic Law Hermeneutics Danial, Danial
AL-ISTINBATH : Jurnal Hukum Islam Vol 8 No 1 May (2023)
Publisher : Institut Agama Islam Negeri Curup

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.29240/jhi.v8i1.5139

Abstract

This article examines the legal verses of polygamy from a hermeneutical perspective. The third verse of surah al-Nisa is often understood as a verse commanding polygamy, because it contains recommendations to marry more than one woman, namely: two, three and four. The data used in this article are divided into two categories. The collected data were then analysed using the hermeneutic theory of Emelio Betti, Martin Heidegger, Hans Georg Gadamer and Paul Ricoeur with a descriptive method. The results of the research based on the hermeneutic theories above show that the third verse of surah al-Nisa which is usually used as the argument for polygamy from the Koran actually reinforces the recommendation of monogamy because according to Betti the purpose of marriage is sakinah mawaddah wa rahmah, this goal is difficult to realize in polygamy. Then according to Heidegger the verse above talks about justice for orphans. Furthermore Gadamer that polygamy is carried out with 2 conditions; (1) the 2nd, 3rd and 4th wives are widows who have orphans; (2) there must be a feeling of worry that they cannot do good and justice to orphans except by marrying their mothers. Finally, Ricoeur is of the view that the verse above is an order to act fairly in protecting the assets of orphans. The conclusion is that the third verse of surah al-Nisa is a recommendation for monogamy, not an order for polygamy.
The Crown Witness From the Point of View of Islamic Criminal Law in Truth Discovery of Criminal Cases in Indonesia Zulhendra, Joni; Firdaus, Firdaus; Wirman, Hardi Putra
AL-ISTINBATH : Jurnal Hukum Islam Vol 8 No 1 May (2023)
Publisher : Institut Agama Islam Negeri Curup

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.29240/jhi.v8i1.6918

Abstract

This article aims to elucidate  Islamic criminal law's point of view on the existence of crown witnesses in the truth discovery of criminal cases in Indonesia. In fulfilling the shortage of witness evidence, one of the perpetrators of the crime was carried as a case witness in the case. This study uses normative research methods by reviewing books relevant to the problem (Library Research) by tracing, comparing, and analyzing normative doctrinal law through a qualitative approach regarding crown witnesses. This study found that Islamic criminal law requires fairness to be accepted as a witness. If a crown witness is indeed needed as evidence to reveal a criminal case without being accompanied by other supporting evidence, then a crown witness is permitted. Should there is other evidence, the crown witness will be disqualified because the crown witness does not meet fair requirements. The rule of law in Indonesia based on the Criminal Procedure Code (KUHAP) article 185 paragraph 2 states that the statement of one witness is insufficient to prove a criminal case called the principle of unus testis nullus testis (one witness is not a witness). Therefore, there are no other witnesses apart from the crown witness.
The Struggle of Custom and Sharia: Classic Dilemma of Inheritance Settlement in Javanese and Minangkabau Ethnic Communities in Indonesia Elfia, Elfia; Surwati, Surwati; Bakhtiar, Bakhtiar
AL-ISTINBATH : Jurnal Hukum Islam Vol 8 No 1 May (2023)
Publisher : Institut Agama Islam Negeri Curup

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.29240/jhi.v8i1.5480

Abstract

This research aims at determining the reasons and causes for dividing inheritance before the death of the testator, as well as the implications of this inheritance division pattern on the heirs. The disagreement between custom (also known as adat) and Sharia creates an issue in the division of inheritance in Sungai Duo Village, South Solok Regency, Indonesia. In its principle, inheritance is divided after the testator dies. However, in Sungai Duo Village it applies differently, where inheritance is distributed before the testator passed away. This is empirical legal research using a qualitative legal approach, which was investigated through the Islamic inheritance law's perspectives. The data included primary data, which were obtained from interviews, and secondary data generated from document studies. Data were analyzed through several stages, including data reduction, data display, and verification. Based on the research findings, the reasons for dividing inheritance before the testator dies are: first, to avoid disputes between the heirs; second, lack of knowledge of the heirs concerning the Islamic inheritance system, resulting in inheritance division contradicts the provisions of Sharia; third, inheritance division pattern applied in society is dominated by customs that have been passed down for generations, and fourth, the diverse community of Minangkabau and Javanese ethnicity causes their inheritance division pattern to reflect their regional customs. The implication of this inheritance division pattern to the heirs is that there is peace for the heirs in terms of inheritance responsibility because they consider the heirs to have had the maturity and ability to manage the assets of their parents who are no longer able to manage these assets. So that it can improve their children's economies or serve as a support for those who are married. These findings also prove the existence of legal duality, namely Islamic inheritance law and customary inheritance law. However, it appears that customary inheritance law is more prevalent than Islamic inheritance law.
Korelasi Antara ASI dengan Sperma Sebagai Faktor Penyebab Mahramiyah Susuan Lawang, Karimuddin Abdullah; A. Rahman, Maimun; Nur, Syamsiah; Azhar, Muh. Zaim; Suage, Ali
AL-ISTINBATH : Jurnal Hukum Islam Vol 8 No 1 May (2023)
Publisher : Institut Agama Islam Negeri Curup

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.29240/jhi.v8i1.5253

Abstract

This paper aims to answer the question of why breast milk can cause mahramiyah of breastfeeding in the same way as sperm can cause mahramiyah of nasab. Breast milk is food for babies that serves to grow flesh and strengthen bones. On the other hand, breast milk is a liquid that comes out of the human body, similar to blood. However, breastfeeding a baby who has not reached the age of two years can cause mahramiyah, which is the same as mahramiyah caused by sperm. This is different from blood transfusions, which do not have any legal consequences. The research method used is a descriptive qualitative research method. The data collection technique is documentation review sourced from classical literature and scientific journals. After the data is collected, it is analyzed using content analysis techniques. The results show that breast milk has a correlation with sperm so that it can cause a mahramiyah relationship to be established. This is because breast milk contains genes as found in sperm, so that the genes owned by the mother will be inherited to the child when she is breastfed. The similarity of the inherited genes is what causes a negative impact on offspring in the event of marriage, so Islam states that there is a mahramiyah relationship from breastfeeding.
Decency Norms in Law Enforcement to Online Prostitution in Indonesia: An Islamic Law Perspective Alfitra, Alfitra; Faizin, Afwan; Mansur, Ali; Zuhdi, Muhammad Harfin
AL-ISTINBATH : Jurnal Hukum Islam Vol 8 No 1 May (2023)
Publisher : Institut Agama Islam Negeri Curup

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.29240/jhi.v8i1.7044

Abstract

This study aims to describe Islamic law norms as living Law are offered decency norms for law enforcers against online prostitution as Article 27 of Information and Electronic Transaction (IET) law, and the factors that prevent the enforcement of the decency norms under Article 27 against the massive development of online prostitution. This research was conducted in four provinces: Jakarta, West Java, East Java, and South Sulawesi. The interviewees are investigators from the Indonesian National Police and District Court judges in four cities of four provinces. The method used is a qualitative approach.The research subjects were selected by purposive sampling,  and the data were analysed using descriptive analysis. The findings of this study show Islamic Law as decency norms or living law can be a priority for law enforcement to online prostitution by using Article 27 of the IET Law, where decency norms can be imposed on perpetrators, pimps, sex workers, and buyers. Sex services, as well as intermediaries. This study also shows the reluctance of law enforcers at the investigation and court levels to enforce Article 27 more strictly and maximally because it is not a cybercrime priority that must be enforced to prevent the massive development of online prostitution.

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