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DE JURE
Published by Universitas Islam Negeri Maulana Malik Ibrahim Malang
ISSN : -     EISSN : -     DOI : -
Core Subject : Social,
Law, Crime, Criminology & Criminal Justice
de Jure adalah jurnal yang mengkaji permasalahan syariah dan hukum baik hasil penelitian atau artikel telaah. Terbit dua kali dalam setahun pada bulan Mei dan November. de Jure diterbitkan oleh unit Penelitian, Penerbitan dan Pengabdian Masyarakat (P3M) Fakultas Syariah Universitas Islam Negeri Maulana Malik Ibrahim Malang. Penyunting menerima naskah yang belum pernah diterbitkan dalam media lain.
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Articles 21 Documents
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Search results for , issue "Vol 14, No 2 (2022)" : 21 Documents clear
Philosophical Basis of Various Polygynous Requirements: Comparative Study of Family Law’s Philosophy in Asia and Africa Lia Noviana; Asep Awaludin
De Jure: Jurnal Hukum dan Syari'ah Vol 14, No 2 (2022)
Publisher : Fakultas Syariah

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.18860/j-fsh.v14i2.18330

Abstract

Polygyny is one of the objects to reform Islamic family law in modern Muslim countries. In addition to meeting the demands of the times, the renewal of polygyny regulations also aims to improve the position and protect women's rights. Most modern Muslim countries have renewed polygyny regulations by limiting and prohibiting polygyny accompanied by criminalization. This study utilizes a comparative descriptive method to compare the polygynous requirements in Indonesia, Morocco, Tunisia, Somalia, Turkey, and Pakistan from the perspective of the philosophy of Islamic law. The research findings show that the categorization of polygyny regulations in modern Muslim countries consists of: absolute prohibition of polygyny, permissibility with strict conditions, permissibility with weak conditions, obligation to seek court permission, and criminalization of polygyny. There are two main elements required for polygyny in modern Muslim countries: an internal element in the form of the condition of husband and wife and an external component in the form of the role of the court institution in granting polygyny permits. Thus, the philosophical basis of these differences is mostly caused by the diversity of Madhabs in each country that aimed to maintain their people’s prosperity and to renew Islamic family law which brings a contemporary spirit especially the embodiment of equality and increase in the position of women
The Principle of Segendong Sepikul in the Inheritance Distribution System of the Muslim Community from the Perspective of Multidisciplinary Studies Nur Alfy Syahriana; Zaenul Mahmudi
De Jure: Jurnal Hukum dan Syari'ah Vol 14, No 2 (2022)
Publisher : Fakultas Syariah

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.18860/j-fsh.v14i2.15238

Abstract

This research was motivated by the researcher's interest in the principle of segendong sepikul which is applied in the Muslim community of Kandangtepus Village, Lumajang Regency, East Java, in distributing the inheritance. The purpose of this article is to describe the practice of the principle of segendong sepikul in the inheritance distribution model by the Muslim community of Kandangtepus Village. In the light of that, the researcher analyzes the said practice by using a multidisciplinary study in the present juridical-empirical research. Analyzed from the juridical-normative side, this practice is not in accordance with the provisions on the distribution of inheritance as found in the Sunni jurisprudences and the Compilation of Islamic Law. From a sociological perspective, this practice is appropriate with principles of justice according to Gustav and the concept of al-islah (reconciliation), as one of the teachings of Islam. Finally, the practice is likewise appropriate with the principles of Human Rights as it gives the person's rights according to the degree of the responsibility they carry.Keywords: Islamic inheritance; adat law; local wisdom.
Overcoming the Dilemma between the Clarity and Flexible Norms in Environmental Offenses Mahrus Ali
De Jure: Jurnal Hukum dan Syari'ah Vol 14, No 2 (2022)
Publisher : Fakultas Syariah

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.18860/j-fsh.v14i2.18279

Abstract

Environmental offences are phrased abstractly and flexibly due to the standards developed by other administrative bodies with environmental responsibilities. The phrasing violates the lex certa principle that an offence must be defined clearly with not more than one interpretation. People easily grasp well-defined transgressions and know the penalties for violating them. Therefore, this study aimed to formulate a balance between flexibility and clarity in environmental offences using doctrinal legal research with the statute and conceptual approaches. The findings showed that the design representing this balance includes leaving technical and environmental offences to government regulation while including the essential elements in the Act. Administrative officials are granted the discretionary ability to determine a criminal act on these technical matters. However, this discretionary window must not violate the principles of reason and proportionality to maintain clarity and legal certainty. Science would make a formula for an offence currently considered unclear and obvious. The results also indicated that a legal rule's clarity is determined by its phrasing and the underlying notion of justice. This study was limited to identifying the formula for bridging the gap between hard and flexible norms while defining environmental crimes. Therefore, future studies could explore how law enforcement officers understand environmental crimes supported by administrative demands or obligations covered by the law.
A Comparative Analysis of the Missing (Mafqud) Husband Regulations in Indonesia and Malaysia: A Study to Reform the Regulation That Meets Legal Certainty in Indonesia Farahsyinta Gladisia Puspa Fardiana; Khoirul Hidayah; Mohd Hazim bin Borhan
De Jure: Jurnal Hukum dan Syari'ah Vol 14, No 2 (2022)
Publisher : Fakultas Syariah

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.18860/j-fsh.v14i2.17347

Abstract

This article aims to resolve legal issues regarding missing (mafqud) husbands in Indonesia and to provide input for revising these laws to better provide protection to wives whose husbands are missing in keeping with the principle of legal certainty. There are two circumstances when the husband leaves the house, the first is the husband leaves his house without his wife's permission but his whereabouts are still known, this condition is called absent husband or ghaib husband. The second circumstance is the husband leaves the house with the wife's permission, but his whereabouts and life and death are unknown, which is often called the missing husband or mafqud husband. The differences in the circumstances of the husband's departure from home require different verdicts in the dissolution of marriages. The regulation of the missing (mafqud) husband in Indonesia has not been differentiated from the regulation of absent (ghaib) husband so there is no regulation that regulates the death determination for the missing (mafqud) husband to dissolve the marriage in Indonesia. This article is a normative juridical study using a statute and comparative approaches. The results of this article indicate the need to legislate for missing (mafqud) husbands that provide legal certainty for women. The regulation of missing (mafqud) husbands in Indonesia that can provide legal certainty for women is to set a minimum limit of four years for a husband to leave the home to be determined his death as stipulated in section 53 of the 1984 Islamic Family Act (Federal Territory) 1984.
Indonesian Judicial Commission in Appointment Ad Hoc Judges: In Search of Constitutional Modality Zainal Arifin Mochtar; Idul Rishan; Ayu Atika Dewi
De Jure: Jurnal Hukum dan Syari'ah Vol 14, No 2 (2022)
Publisher : Fakultas Syariah

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.18860/j-fsh.v14i2.17843

Abstract

In Indonesian Constitution, Judicial Commission had the authority to nominate the candidate Supreme Court Justice. This study aims to find the constitutional model for the authority of the Judicial Commission to propose the appointment of the Supreme Court ad hoc judges. It is doctrinal legal research using the qualitative analysis. The constitutional model was analyzed using the approach of six modalities of constitutional argument suggested by Philipp Bobbit. This study has found that, despite no explicit authority stipulated in the Indonesian Constitution, Bobbit's interpretation methods offer a constitutional perspective that from the textual, historical, doctrinal, structural, prudential, and ethical arguments, the Judicial Commission has the constitutional legitimacy of proposing the candidates for the Supreme Court ad hoc judges.
Child Marriage in Indonesia: Sexual Violence or Not? Inna Fauzi; Any Ismayawati
De Jure: Jurnal Hukum dan Syari'ah Vol 14, No 2 (2022)
Publisher : Fakultas Syariah

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.18860/j-fsh.v14i2.17850

Abstract

Child marriage in Indonesia presents a progressive article as stated in Article 4 of Law Number 12 of 2022 concerning the crime of sexual violence. This is a problem that is quite complicated for the Indonesian people because child marriage creates new problems because it contains elements of punishment. In this regard, this paper aims to examine how the interpretation of the article on the punishment of children is carried out, how to implement the elements of punishment for child marriage as stipulated in the Act on the Crime of Sexual Violence and how to review Islamic law on the article on the punishment of child marriage. The results of the study show that the Article policy with certain threats for perpetrators of mental sexual violence through child marriage is carried out by giving criminal sanctions. the implementation of punishment for the perpetrators involved in the occurrence of child marriages with coercion is the use of criminal sanctions. while the review of Islamic law on the article on criminalizing child marriage should be measured more deeply using the right of ijbar and ikrah as they should because both have different positions and meanings.
Quo Vadis Marriage Dispensation in Indonesia: Judge's Decision in Preventing Child Marriage at the Jepara Religious Court Aristoni Aristoni
De Jure: Jurnal Hukum dan Syari'ah Vol 14, No 2 (2022)
Publisher : Fakultas Syariah

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.18860/j-fsh.v14i2.17408

Abstract

This article aims to explore how to optimize the judges of the Jepara Religious Court in preventing child marriage amid increasing requests for dispensation every year as a result of changing the age limit for marriage in the Marriage Law. To answer these objectives, this article uses a type and research approach, namely sociological juridical with a qualitative basis. The primary data source was obtained directly from the informants, namely the Jepara Religious Court judges. The secondary data sources are in the form of books and journals which are still relevant to this theme. To obtain the data and information needed in this article, data collection techniques such as interviews were used. After the data is obtained, the next step is to process the data using data analysis techniques in the form of descriptive qualitative. The results of this study indicate that the optimization carried out by the judges of the Jepara Religious Court in preventing child marriage along with the increase in cases of requests for dispensation of marriage include carrying out administrative tightening and adding recommendation letters from doctors or midwives, and recommendation letters from social services or workers following Court Regulation Number 5 the Year 2019. In addition to conducting massive and simultaneous outreach by involving all elements of society such as religious leaders, community leaders, parents or guardians, families, educational institutions, NGOs, and local government to provide education to the public so they have legal awareness and provide an understanding of negative effects of child marriage.
Authority of the Chief of Village in the Customary Mediation of Marriage Disputes: Phenomenon in Madura, Indonesia Sayful Mujab; Nabila Luthvita Rahma
De Jure: Jurnal Hukum dan Syari'ah Vol 14, No 2 (2022)
Publisher : Fakultas Syariah

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.18860/j-fsh.v14i2.18023

Abstract

The authority of the Chief of Village, which has so far been limited to mere administrative authority, may apparently be exceeded by the authority of the chief of Village in conducting customary mediation in marriage disputes in Taman Village, Sreseh sub-district, Sampang Regency, East Java, Indonesia, where so far the mediation authority lies in the competence of a certified mediator.  In this regard, two questions is discussed in this paper: first, how is process of customary mediation; and the second, how the implications of the customary mediation on family life in the Taman Village of Sreseh district, Sampang, East Java, Indonesia.  The research method used is a socio-legal approach by conducting interviews with the Chief of Taman Village, and local academics. Socio-legal selection is limited to methodology and analytically carried out by using the rules of legal research. The results show that the customary mediation process carried out by the Chief of Village is in line with the mediation process carried out by certified mediators with several similarities and one difference.  However, the results of customary mediation showed significant successes that surpassed the success rate of court mediation.   The implications of the customary mediation process are threefold.  First, it brings local values as the basic of customary mediations.  Second, it strengthens the local mediation that aids in reducing the divorce rate in Religious Courts.  Third, as a breakthrough in the role and function of the Chief of Village as the leader at the village level.
Local Government Authority in The Field of Religion; A Study of Regional Regulation (Perda) on Zakat in Riau Province Suparto Suparto; Admiral Admiral; Deni Jaya Saputra
De Jure: Jurnal Hukum dan Syari'ah Vol 14, No 2 (2022)
Publisher : Fakultas Syariah

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.18860/j-fsh.v14i2.15322

Abstract

Zakat as one of the five pillars of Islam is the obligation of every Muslim who can afford it and is reserved for those who have the right to receive it. With a proper management, zakat is a potential resource that can be utilized for the progress and prosperity of society. In 2018, The Government of Riau Province established a Regional Regulation (Perda) on zakat but did not obtain a Register Number from the Minister of Home Affairs so that the Regional Regulations could not be enacted in regional papers. The purpose of this study was to determine the authority of the local government in making a Regional Regulation on zakat and the urgency of zakat management to be regulated by a Regional Regulation. This research is a normative juridical with a statutory approach. The data used is secondary data and analyzed qualitatively descriptive. Based on the discussion, it was found that the authority of the Regional Government in the field of Religion; namely Zakat, is only limited to proposing the formation of the National Amil Zakat Agency (BAZNAS) to the Minister, while the regulation of Zakat through Regional Regulations violates statutory regulations considering that the mandate of the formation of Regional Regulations is only related to the implementation of regional autonomy in the context of concurrent affairs. On the other hand, the management of zakat which is regulated by Perda as in Bengkalis Regency managed to make the receipt of zakat has increased compared to before the existence of Perda. The government is not consistent in conducting executive previews of the Regional Regulation (Perda) on Zakat, because the Province of West Nusa Tenggara (NTB) has a Perda on Zakat, that is No. 9 of 2015 as well as Bengkalis Regency has a Perda on Zakat, No. 3 of 2018 and received a Register Number from the Governor as a Representative of the Central Government. In the future, the Government must be consistent and equitable in conducting executive previews of the Regional Regulation on Zakat so that there are no disparities between regions in Indonesia.
Distributing Rights, Social Justice, and Managing Conflict of Ahmadis Anthin Lathifah
De Jure: Jurnal Hukum dan Syari'ah Vol 14, No 2 (2022)
Publisher : Fakultas Syariah

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.18860/j-fsh.v14i2.18289

Abstract

The freedom of religion recognized as one of a fundamental rights whether in The Indonesian Constitution or international human right principles. However, Ahmadiyya in Indonesia does not recognize as one of religions or belief registered in the national laws, although in its implementation it largely depends on the policy of the local government. This article aims to describe the distribution patterns of rights, social justice, and conflict management for the Ahmadis in Wonosobo. This article is the result of qualitative research with a sosiological and political approach. The data were obtained from interviews and related documents. The analysis used is a descriptive analysis. The results of the study indicates that the distribution of the right of religious freedom towards Ahmadiyya in Wonosobo are realized for four reasons: 1) The Government's commitment to distribute the right of religious freedom for all its citizens with the existence of a local regulation that regulates human rights, including the religious right; 2) Synergic role between the government and the community in managing religious rights; 3) the ability of community leaders and religious leaders to manage, negotiate and solve problems when there is a religious conflict in the community; 4) government and society use communicative and inclusive methods. Therefore the four patterns can be a model in managing religious rights for minorities.

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