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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 234 Documents
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Strengthening Family Resilience Through Local Wisdom: Pulang Ka Bako Type of Marriage in Minangkabau Warman, Arifki Budia; Zulkifli, Zulkifli; Yustiloviani, Yustiloviani; Nabilah, Wardatun; Hayati, Riska Fauziah
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.v8i1.6971

Abstract

This paper aims at explaining the background of the persistence of Pulang ka Bako marriage in Lasi area and its correlation to family resilience. This research is field research. The Minangkabaunese still carry out the tradition of Pulang ka Bako marriage (marrying the daughter of father’s female sibling) in Minangkabau community, especially in Lasi area. This marriage is considered the ideal type of marriage in Minangkabau. The data sources were obtained from the result of interview with married couples, traditional leaders, and religious leaders. The collected data were then reduced, presented, and concluded. This result showed that the background of Pulang ka Bako marriage was the community’s understanding that this type of marriage can guarantee the development and maintenance of inheritance, kinship social relations, and preservation of traditions and customs. This tradition can build family resilience in the terms of economic and social, and it strengthens cultural resilience as well. From the perspective of maqashid al-sharia, Pulang ka Bako marriage does not only bring benefit to the individual but also to the family. Besides fulfilling the elements of hifzun nasl (preserving offspring), hifzul mal (managing assets), and hifzul 'irdh (maintaining honor), Pulang ka Bako also fulfills the elements of tahqiqul sakn wal mawaddah wa rahmah (realizing the sense of peace, love, and compassion) and tanzimul janibul mali (managing family finances). It can be concluded that Pulang ka Bako type of marriage has fulfilled the objectives of Islamic law and is capable of being one of the solutions to family resilience issues.
Analysis of Islamic Law Accommodation In National Law during the Era of Democratic Transition Government 2001-2004 Hayati, Ilda; Edyar, Busman
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.v8i1.5657

Abstract

This paper aims to analyze the position of Islamic law in the national legal system during the democratic transition (2001-2004), which was led by Megawati Sukarnoputri. Although she and the supporting party she led (PDIP) are often associated with secularism (at least considered insensitive to the problems of Muslims), during her reign from 2001 to 2004 several regulations were born that accommodated the interests of Muslims in the form of laws. This study uses a normative research method with primary-based secondary data sources. This study found that of the 126 laws that were legislated during the 2001-2004 transitional government, fourteen of them had intersections with the interests of Muslims which were accommodated in two patterns; first, formalist accommodation where the law strengthened the enactment of Islamic law for Muslims in Indonesia, such as Law No. 18 of 2001 concerning Special Autonomy for the Province of NAD; Law No. 18 of 2003 concerning Advocates, and so on. Second, accommodation in the form of substantive laws that are in line with Maqashid Shari'ah or at least do not contradict Islamic teachings as illustrated in Law No. 20 of 2001 concerning Amendments to Law No. 31 of 1999 concerning Corruption, Law No. 30 of 2002 concerning the Corruption Commission, Law No. 23 of 2002 concerning Child Protection, and others.
Copyright as a Waqf Object in the Context of Fiqh and Positive Law Sukiati, Sukiati; Rahmadany, Rahmadany; Sebyar, Muhamad Hasan; Harahap, Purnama Hidayah; Man, Yovenska L
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.v8i1.6696

Abstract

This research aimed to analyze the position of copyright as a waqf object from the perspective of fiqh and positive law. This study was literature research with a normative approach. The data collection technique used in this study is the documentation technique. At the same time, the analysis technique in this study used descriptive inductive techniques. The results of this study indicated that copyright is protected by Sharia law. The owner has the right and authority over his or her copyright and is protected by the rules and laws. Copyright as a waqf object is permitted by Islamic law as long as the requirements for a waqf object are met. This is reinforced by the decision of the Indonesian Ulema Council (MUI) number 1 MUNAS/VII/5/2005, which allows Intellectual Property Rights (IPR) as a waqf object. The permissibility of copyright as a waqf object is also supported by positive law, i.e. Law No. 41 of 2004 concerning Waqf and Government Regulation No. 42 of 2006. In addition, copyright as part of IPRs fulfils the criteria of a waqf object, i.e. a valuable asset permissible by Sharia law whose ownership rights are transferrable. Accordingly, IPRs are legally used as a waqf object, and such rights should not be violated.
Qiwamah's Reconception of Muhammad Shahrur's Thoughts and Their Implications for the Feminist Movement in the World Nelli, Jumni; Harmanto, Adi; Hardani, Sofia; Syu'aib, Kholil; Megawati, Devi
AL-ISTINBATH : Jurnal Hukum Islam Vol 9 No 1 (2024)
Publisher : Institut Agama Islam Negeri Curup

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.29240/jhi.v9i1.9797

Abstract

This research aims to reconceptualize Muhammad Syahrur's views on the meaning of qiwamah. Muhammad Syahrur stated that the person most worthy of being qiwamah in the household is a woman. This view is different from the Jumhur Ulama which states that the leader in the household is a man. Does Shahrur's thoughts support the world feminist movement? This library research was carried out by examining books related to the research problem. Primary data sources are the books Al Kitab Wa Al Qur'an and Nahwa Ushul Jadidah Li Al-Fiqh Al-Islami by Muhammad Syahrur. Secondary data sources were obtained from other fiqh books and journals related to the problems in this paper. Descriptive analysis uses the content analysis method. The results of the research found that Syahrur is of the view that qiwamah can be played by husband or wife, as long as it has stability in the economic sector and the characteristics of qiwamah, namely shalihat, qanitat and hafizat; because these qiwamah qualities were firmly instilled by Allah, as qualities possessed by women, the ones most worthy of being appointed as qiwamah are women; Even though Syahrur only relies on linguistic analysis, and ignores the study of the context of the Asbab al Nuzul verse, resulting in inconsistencies and meanings that seem forced, Shahrur's thoughts seem to have given encouragement to the feminist movement in the world. Muhammad Shahrur's breakthrough feminist thought influenced the thinking of Muslim women in the world. This can be seen from the change in their mindset, who no longer want to simply follow or be controlled by men. Contemporary Islamic thinkers agree to provide leadership to men and women with conditions, but they do not say that women are the main leaders.
The Idea of Privatization and Self-Financing of Prison Management in Positive Law and Islamic Law Herlambang, Herlambang; Pradityo, Randy; Rahmasari, Helda; Eryke, Herlita; Putra, Yagie Sagita
AL-ISTINBATH : Jurnal Hukum Islam Vol 9 No 1 (2024)
Publisher : Institut Agama Islam Negeri Curup

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.29240/jhi.v9i1.9055

Abstract

This research aims to explore the basics of the idea of abolishing criminal justice in Indonesia and possible alternative solutions to problems that arise in prisons, especially from a theoretical perspective and comparison with Islamic law and customary law. The legal research method in this research is normative (doctrinal), research activities carried out include inventorying, explaining, interpreting and systematizing and broadcasting all Islamic law and customary law, which are related to the idea of abolishing prison sentences. The results of the research show that imprisonment is not recognized in the Islamic view, whereas currently imprisonment is acceptable only as long as the punishment provides a lot of benefits or kindness or benefits to society. Thus, imprisonment is not an absolute in the view of Islamic law. Based on the inventory of customary law as the original unwritten law of the Indonesian nation, no form of imprisonment was found. Therefore, without imprisonment, customary law can be enforced to maintain order and create justice in Indonesian society. From this analysis, especially related to the study of Islamic law and customary law, it is concluded that imprisonment can be considered for abolition if its shortcomings are more dominant than its benefits. Apart from that, the Indonesian Government should provide a forum for the idea of privatizing correctional institutions in the sense that the management of correctional institutions is carried out by private parties on a non-profit basis.
Reconstructing the Concept of Khalwat Sahihah in the Digital Era: An Analysis of Scholars' Legal Perspectives Musarrofa, Ita; Sa'adah, Mazro'atus
AL-ISTINBATH : Jurnal Hukum Islam Vol 8 No 2 November (2023)
Publisher : Institut Agama Islam Negeri Curup

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.29240/jhi.v8i2.8234

Abstract

The digital era has opened up the possibility of long-distance sexual relations for married couples, commonly known as cybersex. This article aims to examine the relevance of cybersex between married couples with the debated concept of khalwat sahihah in the interpretations of various Islamic legal schools. Can long-distance sexual relations, such as cybersex, be categorized as khalwat sahihah with legal implications for dowry (mahar) and waiting period (iddah)? Then what are the legal consequences for dowry and iddah? Data on cybersex is collected from websites, and online articles about cybersex, as well as from research on cybersex that has been conducted. On the other hand, data regarding the debates among scholars from various Islamic legal schools (mazhab) about khalwat sahihah is gathered from books on comparative jurisprudence authored by Wahbah Zuhaily and Abdurrahman al-Jaziri. The data is then analyzed using content analysis and examined through the lens of the theory of maslahah. The research findings suggest that cybersex between husband and wife cannot be equated in terms of legal status with physical sexual intercourse, as cybersex entirely precludes physical contact. Cybersex is more relevant to the concept of khalwat sahihah, the law of which is being debated by school scholars. Cybersex is more relevant to the concept of khalwat ṣaḥīḥah, which remains a debated issue among scholars from different Islamic legal schools (mazhab). According to the viewpoints of the Shafi'i and Maliki schools, cybersex between a husband and wife results in an obligation to pay only half of the dowry (mahar). In the Shafi'i school, divorce following the occurrence of cybersex does not obligate the wife to observe the waiting period (iddah). However, according to the Maliki school, the wife is still obligated to observe the waiting period (iddah). In the Hanafi and Hanbali schools, cybersex obligates the husband to pay half of the dowry (mahar) and requires the wife to observe a waiting period (iddah) similar to that after a divorce (iddah talak bain). To fulfill the sexual needs of LDR (Long Distance Relationship) couples, cybersex has maslahah value depending on the condition of each individual's sexual needs. Cybersex is only a means (wasā'il) that can change in realizing the goal (ahdāf) of building a marital relationship that is sakinah, mawaddah and rahmah.
The Childfree Phenomenon Based on Islamic Law and Its Respond on Muslim Society Jafar, Wahyu Abdul; Zulfikri, Zulfikri; Sadiqin, Amin; Jayadi, Usman; Suriyani, Irma
AL-ISTINBATH : Jurnal Hukum Islam Vol 8 No 2 November (2023)
Publisher : Institut Agama Islam Negeri Curup

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.29240/jhi.v8i2.7865

Abstract

This study aims to determine the cause of married couples choosing the childfree trend and to describe the impact of the development of the childfree trend in Muslim society. In addition, this study also aims to learn about childfree law from the perspective of Islamic law in various perspectives. This study is field research. The data collection technique in this research is using a survey. Respondents in this study amounted to 215 people. Based on the survey results, several significant findings related to the childfree phenomenon were found, among others: the factors that most influence married couples to choose the childfree trend are economic factors as much as 42% and health factors as much as 21.5%. The majority of informants, as much as 54%, stated that the childfree phenomenon might impact the social life of the Muslim community. The conclusion of the childfree law on the grounds of economic and social factors is that it is forbidden. Likewise, childfree use of permanent types of contraception is illegal. The childfree for reasons of health and trauma factors (psychological disorders); the law is permissible. Public rejection of the childfree trend due to economic factors is around 56.3%. Meanwhile, the community's rejection of the childfree trend for reasons to be happier is around 76.2%.
Legal Institutions in Resolving Divorce Cases in Aceh Muhazir, Muhazir; Azwir, Azwir; Zubir, Zubir
AL-ISTINBATH : Jurnal Hukum Islam Vol 9 No 1 (2024)
Publisher : Institut Agama Islam Negeri Curup

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.29240/jhi.v9i1.8529

Abstract

This study aims to examine the legal institutions involved in divorce settlement in Langsa City. Apart from that, this study also analyzes the influence of each institution on the solution to the divorce problem in Aceh. Empirical legal studies are carried out using social and legislative frameworks. A statute approach is used to examine the legal elements in the process of resolving divorce cases, while a sociological approach is used to examine the social components of divorce practice. This study found that the Gampong traditional institution has more influence than the Sharia Court in resolving divorce cases. Even though state law does not allow divorce outside of court, the community believes that the Gampong traditional institution can resolve divorce cases more quickly, cheaply, easily, and with ease. more sacred. This differs from divorce in religious courts, which usually takes time, and filing takes time. Divorce through religious courts is used by the community when the parties want to legalize their new marriage. This study concludes that the influence of traditional institutions is very strong for the people of Langsa City because traditional institutions are able to resolve divorce problems easily and quickly. This study contributes to a distinct viewpoint on divorce by demonstrating that, in addition to state institutions, traditional institutions play an essential role in resolving divorce cases. Without disobeying state laws, the government need to respect traditional institutions' rulings in divorce situations. This implies that a conventional institution's decision may serve as a basis for the law in divorce situations. Aside from that, a court divorce still carries a bad reputation in society because of the length, difficulty of the procedure, and perceived difficulty of the operations.
Tradition, Wisdom and Negotiating Marriage and Inheritance Disputes on Javanese Muslim Huda, Miftahul; Purnomo, Agus; Mun'im, Abdul; Aminuddin, Lutfi Hadi; Santoso, Lukman
AL-ISTINBATH : Jurnal Hukum Islam Vol 9 No 1 (2024)
Publisher : Institut Agama Islam Negeri Curup

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.29240/jhi.v9i1.9887

Abstract

This study aims to find a negotiation model in the tradition of Javanese Muslim communities in resolving disputes regarding marriage and inheritance restrictions. When the reality of resolving marriage and inheritance disputes impacts family and community strife, this becomes crucial. The qualitative paradigm was used to construct this research, which included a series of observations and in-depth interviews with the disputed families and focus group discussions with informants in the East Java community. This research discovers three models for resolving the tradition of avoiding marriage and inheritance disputes in Javanese Muslim society with social components in a heterogeneous society. 1) negotiating the traditional cum theology model, 2) negotiating the tradition and law model, and 3) negotiating the traditional wisdom model. Furthermore, when many cultural traditions fade, the growing negotiation model can serve as the foundation for policy for local governments in generating variants of the nation's cultural traditions.
Representation of Family Law in the Digital Space: A Study of Discourse Analysis on Instagram Accounts Amri, Amri; Aminah, Siti; Janah, Sidanatul; Utama, Yopi Yudha; Dewi, Dwi Ratna Cinthya
AL-ISTINBATH : Jurnal Hukum Islam Vol 8 No 2 November (2023)
Publisher : Institut Agama Islam Negeri Curup

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.29240/jhi.v8i2.6578

Abstract

The emergence of interesting content through Instagram accounts managed by a person or a certain group representing a family law is important to discuss. One of the discourses that appears in these contents is related to the advice of husband and wife in building their household, then brings up tips for husband and wife to pay attention to each other. The husband and wife can apply the contents which are posted on the instagram account to create a harmonious household life. This paper aims to see the narratives that appear in the posts of intagram accounts through a discourse analysis approach. This research data is focused on 3 Instagram accounts with a selection of many followers on the Instagram account. The 3 Instagram accounts are @suami.istri.bahagia, @nasihatsuamiistri, @suamiistriromantis. This research leads to Netnographic studies or digital-based research. Then, because the data obtained is in the form of written content narratives, pamphlets, and videos posted on Instagram, it will be analyzed using discourse theory. The results showed that the content of the program gave rise to two studies that represented family law. First, it relates to the husband's obligation to the wife and the wife's obligation to the husband by posting content in the form of advice for the husband and wife. Second, post content about parents' obligations to children by posting narratives in the form of tips and procedures. Furthermore, the author found that the problem that occurs in these Instagram accounts is the existence of gender bias, this means that posts that represent family law are more content intended for the Wife and their content reflects the business of selling Products.

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