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Lukman Santoso
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INDONESIA
Jurnal Kajian Hukum dan Sosial
Published by UIN Kiai Ageng Muhammad Besari Ponorogo
ISSN : 16935926     EISSN : 25027646     DOI : 10.21154/justicia
Core Subject : Religion, Economy, Humanities, Social,
Religion Humanities Economics, Econometrics & Finance Law, Crime, Criminology & Criminal Justice Social Sciences
The journal aims to advance knowledge in Islamic legal studies within Muslim societies from various perspectives, enriching both theoretical and empirical research. It covers a range of subjects, including in-depth studies of living law in Muslim communities, legal negotiations on human rights, and issues related to comparative legal systems and constitutional law in Muslim-majority countries.
Arjuna Subject : Ilmu Sosial - Hukum
Articles 359 Documents
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Qawaid al-Fiqhiyyah Analysis on the Prohibition of Monopoly Practices and Unfair Business Competition: A Critical Review Ahmad Lutfi Rijalul Fikri
Justicia Islamica Vol 18 No 1 (2021)
Publisher : Faculty of Sharia UIN Kiai Ageng Muhammad Besari Ponorogo

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.21154/justicia.v18i1.2466

Abstract

Qawa'id Al-Fiqhiyyah is essential in identifying new problems that arise for analysis, whether they follow Islamic law or not. The purpose of forming qa'idah-qa'idah in realizing Maqashid al-Sharia in protecting community property rights must be implemented in every statutory regulation or established by the government. This article examines and analyzes the prohibition of monopolistic practices and unfair business competition in Law No. 5 of 1999 using several qawa'id al-fiqhiyyah. This paper's study is based on literature data analyzed using qualitative research methods with a multidisciplinary approach. This study concludes that the Law on the prohibition of monopoly and unfair business competition in Law No. 5 of 1999, which contains the prohibition of control of production and marketing, the prohibition of fraud/ conspiracy, and the prohibition of using a dominant position under qawa'id al-fiqhiyyah, among others, namely the rules that say La Yahtakiru illa Khathi'un, an-Najasyu Haramun, and at-Tas'ir. The conformity of the objectives of laws and regulations with the establishment of qa’idah-qa’idah is something that the government must maintain in the Draft Law on the Prohibition of Monopolistic Practices and Unfair Business Competition, which is being programmed by the House of Representatives (DPR) of the Republic of Indonesia, so the purpose of being able to maintain community property rights can be implemented in this Law.    
Gender Construction in the Perspective of Living Fiqh in Indonesia Arifah Millati Agustina
Justicia Islamica Vol 18 No 2 (2021)
Publisher : Faculty of Sharia UIN Kiai Ageng Muhammad Besari Ponorogo

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.21154/justicia.v18i2.2488

Abstract

This article aims to comprehensively explain the uniqueness of the emergence of gender issues in Indonesia and contribute to the development of Islamic law in terms of the discovery of Islamic legal products, and introduce local culture underlying the forming of laws depending on place and era, including gender issues, where western and eastern cultures certainly differ in various sides. Living fiqh on gender is a term for responding to women’s issues through interpretation, considering Indonesia’s local culture. Living fiqh is a term for strengthening Islamic legal products, prioritizing the principle of locality. This study used a qualitative method to respond to the concept of living fiqh in Indonesia. The first step in this research was to explore the genealogy of gender issues in Indonesia compared to the history of gender issues in the West. After that, the differences in the causes of gender issues in Indonesia and the West were classified. Finally, the products of fiqh on gender in Indonesian madzhab were found. In this article, the author argues that the products of fiqh on gender in Indonesia have relations with Indonesian culture. Besides, fiqh on gender in Indonesia emerged from the women activists’ anxiety against discrimination in marriage and rules. Fiqh on Indonesian madhab contributes to minimizing gender inequality that emerged massively after strengthening colonialism and the influence of transnational Islam, changing the interpretation of the scripture and madhab fanaticism.
Discourse of Substitute Heirs in the Indonesian Heritage Legal Practice: Comparative Perspective Nawir Yuslem; Mhd. Yadi Harahap; Suarni Suarni
Justicia Islamica Vol 18 No 2 (2021)
Publisher : Faculty of Sharia UIN Kiai Ageng Muhammad Besari Ponorogo

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.21154/justicia.v18i2.2522

Abstract

This article examines substitute heirs in Islamic and civil code inheritance laws. In Islamic inheritance law, substitute heirs are regulated based on the provisions of the Islamic Law Compilation in Article 185, stating that if the heirs die, their inheritance rights are given to their children. In the civil code, substitute heirs are regulated based on articles 841-848, with provisions covering the replacement of rights and obligations such as the replaced person’s life. This research relies on two questions: what are the substitute heir concepts according to Islamic and civil code inheritance laws? Moreover, how is the comparison of substitute heir concepts based on Islamic and civil code inheritance laws? This study aims to analyze the existence of substitute heirs in Islamic and civil code inheritance laws. To answer both questions, this research employed a normative juridical method, with an approach to laws, cases, comparisons, and conceptual approaches, including conceptual theories and ideas regarding the substitute heir concept from the perspective of Islamic and civil code inheritance laws. This study finds that Islamic inheritance law is based on the Qur’an and hadith, mentioning that the share of the substitute heirs is not the same as that of the replaced heirs. In contrast, according to civil law, the share of the substitute heirs is similar to that of the replaced heirs. Furthermore, this study contributes significantly to realizing benefit, peace, and justice in the distribution of inheritance.
Diversity in Determining Maturity Age in Indonesian Law: Maqashid al-Sharia Perspective Ali Sodiqin; Al-Robin Al-Robin
Justicia Islamica Vol 18 No 1 (2021)
Publisher : Faculty of Sharia UIN Kiai Ageng Muhammad Besari Ponorogo

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.21154/justicia.v18i1.2621

Abstract

This article explores the emergence of diversity in determining the age of maturity in Indonesian laws, particularly in civil, penal, marriage, and citizenship laws. Maturity is a crucial element in determining a legal act. Therefore, the diversity of its determination can lead to overlap and ambiguity in determining the validity of legal action and legal accountability. This raises the question of why there is a difference in the determination of maturity age and its factors. This diversity problem is analyzed in maturity age using the maqashid al-sharia approach, using Jasser Auda’s system theory. The study shows that differences in legal proficiency required cause differences in the determination of maturity age in legislation, a legal paradigm used as a basis, and differences in the law's scope. From the maqashid al-sharia perspective, maturity age occupies a position as a wasilah or a strategy to achieve legal purposes, thus allowing for diversity. The more interests are protected, the higher of age is set. The diversity of maturity ages has an interrelated hierarchy without causing any contradictions between laws. The maturity age difference is intended to fulfill legal authority requirements, proficiency to act, and authority to act, with their specifics.
Developing Halal Tourism Guidance in Indonesia Based on Maqashid al-Shari'a Approach Haerul Akmal; Setiawan bin Lahuri; Mohammad Ghozali; Nurizal Nurizal
Justicia Islamica Vol 18 No 2 (2021)
Publisher : Faculty of Sharia UIN Kiai Ageng Muhammad Besari Ponorogo

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.21154/justicia.v18i2.2650

Abstract

The increase in the tourism sector in the world, including Indonesia, which has various lands and cultures, will captivate tourists’ attention. On the other side, with the majority Muslim population, Indonesia should keep its culture and tradition within the Islamic framework. This paper aims to develop Halal tourism in Indonesia by employing the Maqashid al-Sharia approach in four sectors: hotel, restaurant, tour, travel, and SPA. These sectors are the point of development of Halal tourism in Indonesia based on the Ministry of Tourism and Creative Economy regulation. This study explored the theories related to the five universals of Maqashid al-Sharia, including preserving din (religion), life, intellect, descendants, and wealth. The analysis results indicate that if the four sectors are used in the five universals of Maqashid al-Sharia, implementing Shariah tourism is about the Shariah label and the substance of the objectives. This study guides the development of halal tourism in Indonesia based on Islamic teachings, that is, al-Kulliyyat al-Khams on Maqashid al-Sharia.
Punishment of Criminal Act of Accusing Adultery (Qadzaf) in Indonesian Positive Law: Perspective of Maqasid al-Sharia Sudarti Sudarti; Ainun Najib
Justicia Islamica Vol 18 No 2 (2021)
Publisher : Faculty of Sharia UIN Kiai Ageng Muhammad Besari Ponorogo

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.21154/justicia.v18i2.2711

Abstract

Amid the hectic new social space (virtual space), mediated reality, and an era of disruption, the truth of information spread via media is hard to determine, especially with the outbreak of hoaxes that have become a trending issue in the past few decades. Hoaxes are a virtual crime, an act committed via the spread of false stories. Hoaxes can be in the form of accusations of another person committing an immoral act and defamation (assassination character), in this case, accusing another person doing adultery. The author argues that the issue of the criminal act of accusing adultery (qadzaf) in positive Indonesian law is significant to be studied since provisions of positive Indonesian law, as stated in the Criminal Code, do not specifically discuss the criminal act of accusing adultery (qadzaf). This study aimed to analyze the problem of the criminal act of accusing adultery (qadzaf) in positive law by using maqasid al-Sharia. The study is library research conducted by examining materials from the main book relating to problems and other supporting qualitative research studies. This research employed a descriptive-analytical method by describing the legal materials obtained, and then they were analyzed using Maqasid al-Sharia. The research results showed that punishment for the perpetrator of a criminal act of accusing adultery (qadzaf) as regulated in Article 310 paragraph (1) of the Criminal Code is a maximum imprisonment of nine months and or a maximum fine of four thousand and five hundred rupiahs. The aspect of darÅ«riyyāt about punishment for perpetrators of accusing adultery (qadzaf) is the protection of honor (ḥifz al-”˜ird). This aspect relates to everyone’s honor, which must be protected. Through the legislative institution, a country needs to reconstruct the Criminal Code into a better law, such as revising a particular chapter that has not fulfilled a sense of justice in eradicating crime very disturbing since a policy must righteously be able to settle the societal problems. Based on the changes in law, following the development of social life and technology today is inevitable.
Legal Transplant: Influence of the Western Legal System in the Muslim Countries Sri Wahyuni
Justicia Islamica Vol 19 No 1 (2022)
Publisher : Faculty of Sharia UIN Kiai Ageng Muhammad Besari Ponorogo

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.21154/justicia.v19i1.2756

Abstract

This article discusses the influence of Western legal systems on Islamic law in Muslim countries, such as Turkey, Egypt, Iraq, Kuwait, Syria, Libya, Pakistan, Indonesia, and Malaysia. It uses the comparative law scholars’ legal transplant theory to see the influence. The article may enrich the discourses in Comparative and History of Law. It may contribute to many scholars and reformers of law who choose the best model of Islamic law reforms according to the histories of the law of their countries. This study shows that the transplantation of Western law in Muslim countries has occurred since the colonialism period, World War I, and World War II. These legal transplants occur by taking part in a foreign legal system, namely the modern Western legal system, for overall such as in Turkey, as well as the majority of modern Western legal methods synthesized with local law, such as in Egypt, Indonesia, Malaysia, and other Muslim countries. There are three types of Muslim countries based on Islamic law reforms undertaken. They are the Muslim countries that apply Islamic law and traditional fiqh, with no legal transplant; the Muslim countries that adopt Western law. This is a legal transplant, and Muslim countries implement Islamic law using appropriate Western methods and procedures. Moreover, this is a partial legal transplant. The law reform in Muslim countries was carried out by intra- and extra-doctrinal reform, legislation (regulation), and codification methods. The last three methods are the partial legal transplant models.
The Study of Australian Government Policies on Maqasid al-Sharia Perspective M. Noor Harisudin
Justicia Islamica Vol 18 No 2 (2021)
Publisher : Faculty of Sharia UIN Kiai Ageng Muhammad Besari Ponorogo

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.21154/justicia.v18i2.2772

Abstract

This article discusses the Australian government policies from the perspective of Maqasid al-Shari’a. The performance of policies focusing on the study is traffic laws, taxes, the environment, and anti-domestic violence. In several literature pieces, Maqasid al-Shari’a is defined as the purpose, objective, and secret set by Allah SWT in every Sharia law. Maqasid al-Shari’a is “Allah's goal (Shari) in making law.” In addition to being ”˜ammah (general), khassah (unique), and juz’iyah (parts), in Islam, Maqasid al-Shari’a is based on five main points as follows: protecting religion, protecting the soul, protecting reason, protecting property, and protecting descendants. After conducting in-depth interviews with several informants, books, and journals and tracing the laws on traffic, tax, environment, and anti-domestic violence in Australia, the conclusion is that the Australian government policies are based on Maqasid al-Shari’a in one part. However, it is not a country based on religion or Sharia, in the other part. Australia is a liberal country providing freedom for its citizens to have faith or no belief. However, in several other respects, it appears that the Australian government’s policies are against the Maqasid al-Shari’a, such as the ability to drink heavily in limited spaces, the life of same-sex marriages, and so on. This article is critical in developing policy studies of non-Islamic countries from the Maqasid al-Shari’a perspective. 
A Concept of Islamic Notary as Registrar on Sharia Contract: al-Muwaththiq Perspective Iza Hanifuddin; Moh. Ihsan Fauzi
Justicia Islamica Vol 18 No 2 (2021)
Publisher : Faculty of Sharia UIN Kiai Ageng Muhammad Besari Ponorogo

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.21154/justicia.v18i2.2887

Abstract

Public notary officials are authorized to make authentic deeds. The notary’s deeds are significant for business activities, including Sharia contracts in Sharia banking. The notary paradigm derived from conventional concepts is undoubtedly different from the concept of sharia banking based on sharia principles. Thus, notaries often do not know these principles unless they only concern the contract's validity, which is still conventional. This research aimed to answer the void of Sharia notary law. Islam has the concept of al-Muwaththiq, similar to a notary mainly requiring personality and expertise, especially related to Islamic law. On the other hand, Law Number 2 of 2014 concerning Notary Official Changes also becomes a notary basis in every operation, including contracts in Sharia banking. This research employed library study approaches to explore the notaries’ competence in the concept of al-Muwaththiq. The results and discussions showed that notaries making authentic deeds in Sharia banking must have sharia competence as excavated from the concept of al-Muwaththiq since their incompetence will impact Islamic law validity. Moreover, Notaries must also follow the applied positive rule of law because Sharia banking, as a sub-system of national banking, is also subject to state-regulated regulations.
Problems of Mudharabah Financing in Islamic Banking After the Implementation of Qanun of Islamic Financial Institutions in Aceh Yusmalinda Yusmalinda; Asmuni Asmuni; Dhiauddin Tanjung
Justicia Islamica Vol 19 No 1 (2022)
Publisher : Faculty of Sharia UIN Kiai Ageng Muhammad Besari Ponorogo

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.21154/justicia.v19i1.3009

Abstract

The mudharabah contract has become one of the Islamic banking products legitimated by The National Sharia Board and Financial Services Authority. The Aceh government, through the Qanun of Islamic Financial Institutions, has emphasized that banking practices in Aceh must rely on sharia principles. The consequence of this regulation is that banks are only allowed to use sharia contracts in every financial and financing transaction. This research is an empirical juridical study with a sociological and normative approach. This approach was employed to analyze the use of mudharabah contracts from both practical and theoretical aspects. The results of this study indicate that although the mudharabah contract has been designated as one of the financing products in Islamic banking, the mudharabah contract is not fully applied for financing. The mudharabah contract is only implemented for corporate purposes, not for small traders. This is due to several things, including the high risk in mudharabah financing, low bank confidence in customers, fluctuating profits, and low-risk management. This study aims to analyze the problems of mudharabah financing after implementing the 2018 Qanun of Islamic Financial Institutions in Aceh. The results of this study can answer the main problems in the mudharabah contracts. Thus the mudharabah contract can be optimized in the financing system of Islamic banking in Aceh. Akad mudharabah sudah menjadi salah satu produk perbankan syariah yang mendapatkan legitimasi dari DSN-MUI dan OJK. Pemerintah Aceh melalui qanun lembaga keuangan syariah telah menegaskan bahwa praktik perbankan di Aceh harus menggunakan prinsip-prinsip syariah. Konsekuensi dari peraturan tersebut yaitu pihak perbankan hanya dapat menggunakan akad bernuansa syariah dalam setiap transaksi keuangan dan pembiayaan. Penelitian ini merupakan kajian yuridis empiris dengan pendekatan sosiologi dan normatif. Pendekatan ini digunakan untuk menganalisis penggunaan akad mudhrabah baik dari aspek praktik dan teoritis. Hasil penelitian ini menunjukkan bahwa, meskipun akad mudharabah telah ditetapkan sebagai salah satu produk pembiayaan pada perbankan syariah, namun nyatanya akad mudharabah tidak sepenuhnya di gunakan dalam pembiayaan, akad mudharabah hanya digunakan untuk korporasi saja, tidak untuk pedagang kecil dan UMKM. Hal ini disebabkan oleh beberapa hal; pertama, tingginya resiko dalam pembiayaan mudharabah; kedua, rendahnya kepercayaan perbankan terhadap nasabah; ketiga, keuntungan yang fluktuatif; keempat, lemahnya manajemen resiko. Penelitian ini berkontribusi untuk mengatasi persoalan pembiayaan mudharabah pasca penerapan qanun lembaga keuangan syariah tahun 2018 di Aceh. Sehingga dengan hasil penelitian ini dapat menjadi jalan keluar terhadap permasalahan utama dalam akad mudharabah, dan akad mudharabah dapat dioptimalkan dalam sistem pembiayaan pada perbankan syariah di Aceh.

Page 17 of 36 | Total Record : 359

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