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INDONESIA
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 12 Documents
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Search results for , issue "Vol 16, No 2 (2024)" : 12 Documents clear
Indonesia’s Constitutional Identity: A Comparative Study of Islamic Constitutionalism Nggilu, Novendri Mohamad; Wahidullah, Wahidullah; Noviawati, Evi; Ismail, Dian Ekawaty
De Jure: Jurnal Hukum dan Syari'ah Vol 16, No 2 (2024)
Publisher : Shariah Faculty UIN Maulana Malik Ibrahim Malang

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.18860/j-fsh.v16i2.29851

Abstract

Constitutionalism in Muslim-majority countries faces the challenge of balancing the application of Islamic principles with modern values in the context of the nation-state. This research aims to analyse how Indonesia’s constitutional identity, based on the pluralistic Pancasila, differs from other Muslim-majority countries such as Egypt, Pakistan, and Iran, emphasising Sharia as the foundation of law. Using statutory, historical, and comparative approaches, this research finds that the Indonesian model creates a unique harmony between religious pluralism and Islamic values, different from the dominant theocratic. The novelty of this article is its comparative analysis of constitutional identities in Muslim-majority countries, particularly emphasising Indonesia's unique pluralistic model. In contrast to Egypt, Pakistan, and Iran, which incorporate Islamic principles to varying extents, Indonesia adopts a Pancasila-based approach that integrates religious values within an inclusive, pluralistic framework. This model illustrates how religious values coexist with democratic principles and human rights. The study positions Indonesia as a potential model for balancing nationalism, religious diversity, and modern legal frameworks, providing valuable lessons for other Muslim-majority countries facing similar challenges.
Inheritance Distribution and Conflict Resolution in Bone Regency: Upholding Women's Rights and Islamic Law Objectives Tarmizi, Tarmizi; Amir, Rahma; Syamsuddin, Darussalam; Hasan, Hamzah; Ridwan, Muh. Saleh
De Jure: Jurnal Hukum dan Syari'ah Vol 16, No 2 (2024)
Publisher : Shariah Faculty UIN Maulana Malik Ibrahim Malang

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.18860/j-fsh.v16i2.29477

Abstract

The implementation of the inheritance distribution system within the community remains partially ineffective, as conflicts among heirs frequently arise. These disputes hinder the objectives of Islamic law as outlined in maqāṣid al-syarīʿah, emphasizing the need for preventive efforts. This study aims to analyze inheritance conflict prevention in Bone Regency through gender-equitable deliberation by examining conflict resolution methods, causes of disputes, women’s inheritance rights, and conflict prevention strategies from the perspective of maqāṣid al-syarīʿah. This empirical research was conducted in Bone Regency using a theological-normative approach based on maqāṣid al-syarīʿah. Primary data were collected through interviews with academics, judges, and government officials, while secondary data were obtained from relevant literature and analyzed qualitatively. The findings reveal that inheritance disputes can be resolved through court litigation or non-litigation pathways involving local authorities. Key causes of conflicts include heirs’ greed, limited understanding of inheritance laws, lack of property transfer documentation, unfair distribution, and delays in inheritance division. Women's inheritance rights in Bone's customary law are preserved through deliberation during the distribution process. To prevent inheritance disputes, measures such as public education on inheritance law, facilitated consultations involving local authorities, and proper documentation of property transfers are recommended. These initiatives align with the values of maqāṣid al-syarīʿah, which prioritize the preservation of religion, life, intellect, property, and lineage. The government and relevant stakeholders are expected to play an active role in guiding and educating communities to ensure effective inheritance distribution and prevent conflicts.
The Legitimacy of Abortion: A Socio-Legal Analysis of Islamic Jurisprudence and Indonesian Law Jalili, Ismail; Syaifuddin, Helmi; Ulfa, Fadillah; Gusmansyah, Wery; Zaim, Muntaha Artalim
De Jure: Jurnal Hukum dan Syari'ah Vol 16, No 2 (2024)
Publisher : Shariah Faculty UIN Maulana Malik Ibrahim Malang

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.18860/j-fsh.v16i2.29077

Abstract

Navigating the intersection of religious doctrines and legislative frameworks poses a significant challenge in the abortion discourse, particularly in Indonesia. This study investigates the legitimacy of abortion through the dual perspectives of Islamic jurisprudence and positive law within Indonesia’s intricate socio-cultural and religious milieu, where Islamic principles deeply influence legal interpretations and societal views. The study aims to dissect the complex legal and religious debates surrounding abortion in Indonesia, offering a thorough analysis of its legitimacy under both Islamic jurisprudence and state law. Current literature reveals a fragmented legal landscape marked by diverse interpretations and applications of Islamic principles and state laws, resulting in inconsistent legal outcomes. Adopting a qualitative methodology, this research utilizes doctrinal analysis of primary and secondary legal sources, statutory laws, judicial decisions, and Islamic legal texts. Findings highlight a stark dichotomy between strict prohibitions in traditional Islamic jurisprudence and more lenient, context-specific interpretations by contemporary scholars. The Indonesian legal system, heavily influenced by Islamic values, nonetheless displays flexibility in cases involving maternal health risks or severe fetal anomalies. Ultimately, this study advocates for a nuanced, context-sensitive legal framework that harmonizes Islamic jurisprudence with positive law. It proposes a balanced approach that respects religious values while addressing modern societal needs and medical realities, aiming to ensure legal clarity and safeguard women’s rights in Indonesia.
Islamic Nations' Approaches to Combating Gender Discrimination against Women: An Examination of the Southeast Asia Region Ahmad, Nehaluddin; Zamri, Zheimie H.; Omarali, Noor Saffrena
De Jure: Jurnal Hukum dan Syari'ah Vol 16, No 2 (2024)
Publisher : Shariah Faculty UIN Maulana Malik Ibrahim Malang

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.18860/j-fsh.v16i2.29965

Abstract

Gender-based discrimination remains a pervasive issue despite gender equality being recognised as a fundamental human right. In Southeast Asia, where over two hundred and forty million Muslims reside, the challenge of gender discrimination continues to affect women, although Islam serves as the predominant religion. This study examines the policy and legal reforms adopted by Islamic nations in Southeast Asia—Specifically Malaysia, Brunei, Indonesia, Thailand (Southern Thailand), and the Philippines—in their effort to combat gender discrimination. This research mainly aims to assess the effectiveness of these reforms in addressing both legal frameworks and cultural practices that contribute to the marginalisation of women. Through qualitative analysis of policy documents, legal texts, official reports and academic reports, this study explores the reforms in key sectors such as employment, healthcare, family law, and political representation. Key findings highlight significant reforms, such as Brunei's national action plan for women's empowerment, Malaysia’s comprehensive public sector measures for gender equality, Indonesia's gender mainstreaming policies, and Thailand’s legal protections against gender discrimination. Despite these efforts, the study reveals persistent challenges, including limited political representation of women, cultural barriers, and inconsistent enforcement of legal reforms. The findings indicate that while progress has been made, the full realisation of gender equality requires continued legal reform, stronger policy implementation, and greater societal transformation. This research contributes to the broader discourse on Islamic legal perspectives and policy-making, offering insights into the intersection of religion, law, and gender equality. The study also provides recommendations for enhancing legal frameworks to achieve greater gender equity in the region.
Constitutional Contestation of the Islamic State Concept in the Indonesian Parliament 1956-1959 Anshori, Ahmad Yani; Abdurrahman, Landy Trisna
De Jure: Jurnal Hukum dan Syari'ah Vol 16, No 2 (2024)
Publisher : Shariah Faculty UIN Maulana Malik Ibrahim Malang

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.18860/j-fsh.v16i2.29572

Abstract

Among the most historic events that today's young generation of Muslims may largely forget is the unanimous agreement of various Islamic factions in the struggle to establish Islam as the basis of the state and Islamic law (Sharia) as the country's constitution in the forum of the Indonesian Constituent Assembly. This study examines the substance and urgency of that contestation, particularly regarding the concept of an Islamic State and the proposed framework of Islamic law. Utilising a qualitative methodology that combines historical and normative approaches. The data sources for this research consist of documents from the Constituent Assembly, political speech archives, and other relevant records, which are validated through source triangulation to ensure their reliability. The findings indicate that all Islamic factions were united in their desire to establish a state based on Islamic principles, specifically an egalitarian state with pluralism as its foundation, a state that guarantees the enforcement of Islamic law, a state that adheres to theistic democracy, and a state that adopts an Islamic economic system. This contestation influenced the outcomes of constitutional discussions and acted as a catalyst in shaping the character of political Islam in Indonesia, both in its accommodating forms and its oppositional stance towards the state. This research offers an important historical perspective for the study of contemporary Indonesian governance, particularly in integrating inclusive democratic Islamic values into the framework of the state and in alleviating the theological tensions experienced by some Indonesian Muslims as both religious community (Islamic umma) and state citizens—tensions that have often been a major trigger for conflicts between Islam and the state in Indonesia, both past and present.
Navigating the Tensions Between Sharia and Human Rights in Regional Legislation Fadhil, Moh.; Herman, Herman; Wagner, Ivan; Simbolon, Subandri; Harefa, Safaruddin
De Jure: Jurnal Hukum dan Syari'ah Vol 16, No 2 (2024)
Publisher : Shariah Faculty UIN Maulana Malik Ibrahim Malang

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.18860/j-fsh.v16i2.29031

Abstract

The legacy of past conflicts has prompted the emergence of a civil society movement with the objective of transforming Pontianak City into a Human Rights City. This movement is pursuing this goal through the drafting of a Regional Regulation on Tolerance. Nevertheless, the legislative and political process within the Regional Houses of Representatives has given rise to paradigmatic debates concerning the concept of human rights. This article aims to elucidate the paradigmatic conflict between state actors and civil society during the drafting of the Regional Regulation on Tolerance in Pontianak City. The field study presented in this article is based on active participation in public hearings and dialogues between the Regional Houses of Representatives and civil society. The study employs a socio-legal approach, which reveals a contention between two distinct paradigms: the positivist paradigm (naive realism), as represented by state actors, and the critical paradigm (historical realism), as advocated by civil society. The Regional Houses of Representatives, as state actors, oppose the institutionalization of tolerance on the grounds that the Eurocentric concept of human rights may conflict with Sharia and local culture. In contrast, civil society views tolerance as a tool for addressing structural inequalities inherited from past conflicts. The inability of the two parties to reach a consensus led to the failure to ratify the Regional Regulation on Tolerance, which prioritizes human rights. This outcome underscores that human rights have not been a primary consideration in the formulation of local regulations on tolerance. This attitude contrasts with international and national human rights law, which has the effect of neglecting the aspiration to become a human rights city. This research contributes to changes in the strategy of the civil society movement in advocating for human rights law in regional policy.
Unraveling Legal Complexities: Muslim and non-Muslim Estate Administration Process in Malaysia and Brunei Drs Nasrul, Muhammad Amrullah; A Alihan, Siti Azizah; Hamid, Aimi Atiqah Abdul; Sultan, Benny
De Jure: Jurnal Hukum dan Syari'ah Vol 16, No 2 (2024)
Publisher : Shariah Faculty UIN Maulana Malik Ibrahim Malang

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.18860/j-fsh.v16i2.29827

Abstract

Estate administration involves managing and distributing a deceased individual’s assets to beneficiaries, as well as managing the liabilities. This process comprises legal, financial, and administrative tasks that ensure assets are transferred based on the deceased's wishes and in accordance with the law. In Southeast Asia countries such as Indonesia, Malaysia and Brunei where Muslims represents the majority of population, the Islamic law plays an integral part in the inheritance management as the process to be in line with the Islamic teachings and principle. The role of the syariah authority namely the syariah courts is prevalent and therefore, abidance to the rule under the syariah legal system in these countries is a must to ensure smoothness and legal compliance. In this with statement, the paper explores inheritance management in Malaysia and Brunei through a comparative legal study, highlighting the distinct frameworks under the common law, Islamic law and customary practices. The study employs a comparative legal research methodology, utilising library-based research by drawing the primary and secondary sources, including statutory provisions, case law, academic literature, and official reports, to examine the legal frameworks, key issues, and recent developments in both jurisdictions. Findings reveal that the highlighted occurring issues require a careful and systematic approach to resolving them to avoid unwanted delay, which prevents the completion of the inheritance management and denies the entitlement of the beneficiaries.
Virality, Justice and the Principle of “Blocking the Means to Evil” Tanzilulloh, M. Ilham; Agmar, Khoirun Nisa Aprilian
De Jure: Jurnal Hukum dan Syari'ah Vol 16, No 2 (2024)
Publisher : Shariah Faculty UIN Maulana Malik Ibrahim Malang

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.18860/j-fsh.v16i2.28847

Abstract

Social media virality can expedite the resolution of legal cases, but it is not a suitable foundation for attaining genuine justice in Indonesian law enforcement because it can lead to inequality and human rights violations, particularly when viewed through the lens of Islamic law, which places a strong emphasis on preventing injustice. This research explains how the virality of social media affects the existence of a just legal construction from the perspective of Islamic law. Combining juridical and empirical approaches, this research draws on primary data from viral cases in several journal articles, analysed using the normative-qualitative method. Legal materials used to analyse data include primary legal materials, such as laws and regulations, secondary legal materials in textbooks containing legal theories and reasoning, and journals. The research results are presented in descriptive-analytical form. The results of this study reveal that although viral legal cases receive faster attention, the phenomenon of "no viral no justice" cannot ensure the achievement of true justice. This concept contributes to unequal case handling and risks violating individual rights. By examining the connection between social media virality and justice in Indonesian law enforcement, this research integrates Islamic law principles, particularly the concept of “blocking the means of evil” (saddu al-dzari'ah), emphasising the prevention of damage resulting from injustice. This research offers an approach to understanding the impact of social media virality on the legal process, highlighting how social media can influence public perception and, in turn, legal decisions.
Dimensions of The Islamic Law and Human Rights in The Protection of Children from Convicted Parents Zuhriah, Erfaniah; Fuadi, Suud; Sukadi, Imam; Ashari, Zahrah Salsabillah
De Jure: Jurnal Hukum dan Syari'ah Vol 16, No 2 (2024)
Publisher : Shariah Faculty UIN Maulana Malik Ibrahim Malang

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.18860/j-fsh.v16i2.25150

Abstract

Protection for children separated from their parents, particularly due to parental incarceration, is a pressing issue in Indonesia that demands serious attention. The absence of parental support and guidance places these children in vulnerable situations, negatively impacting their physical, emotional, and social well-being. This study examines the importance of legal and social protection for these children and explores the role of the state and government in providing adequate protection and welfare guarantees. Previous research reveals gaps in integrating Islamic legal principles with child protection policies that are contextual and relevant to contemporary social challenges. This article presents a review of key Islamic legal concepts related to child protection, such as maslahah mursalah, and integrates them with international human rights standards, such as the Convention on the Rights of the Child (CRC). Employing an empirical approach, the study investigates the implementation and practical outcomes of child protection laws. Primary data were gathered through interviews and observations involving key stakeholders, complemented by secondary data from books, journal articles, and legislative documents, including the Child Protection Act. The findings reveal that children separated from incarcerated parents often face neglect, discrimination, and social vulnerability. A case study of the Women’s Prison Class II A in Malang City highlights inadequate child protection measures due to insufficient government funding, which hampers the effective delivery of developmental and protective services for these children. To address these challenges, stronger regulatory frameworks and increased budgetary support are essential. Enhancing the role of the state in implementing robust policies will not only ensure the welfare of affected children but also set a standard for societal participation in fostering healthy, discrimination-free environments. Such measures are critical for safeguarding the rights and development of these vulnerable children.
Government Position in Religious Authority Contestation in Indonesia: Reviewing the Government Authority in Determining the Beginning of Islamic Months Musonnif, Ahmad; Mahardika, Ahmad Gelora; Maratus, Nuril Farida; Muttaqin, Muhammad Ngizzul
De Jure: Jurnal Hukum dan Syari'ah Vol 16, No 2 (2024)
Publisher : Shariah Faculty UIN Maulana Malik Ibrahim Malang

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.18860/j-fsh.v16i2.27517

Abstract

This article aims to examine the government's efforts and effectiveness in establishing itself as the sole religious authority in determining the beginning of the Islamic month. This qualitative study utilizes data from news sources, official decisions, and government activities related to setting the Islamic calendar, as well as fatwas from the Indonesian Ulema Council. Additionally, it presents the community's response, particularly from religious organizations, to the government's role in this matter. Drawing on Ismail Fajrie Alatas's theory of religious authority, which suggests that religious authority is shaped by a connection to the prophetic tradition and by fostering intellectual and emotional bonds with the community through service and outreach, the study finds that the government's effort to become the exclusive religious authority has encountered challenges. While the government aligns with the prophetic tradition by employing the ru'yah method (crescent sighting), based on authentic hadiths and followed by the majority of Muslims, the lack of intellectual and emotional connection with certain groups—such as Muhammadiyah and other religious congregations—leads them to resist the government's stance. In contrast, communities with closer intellectual and emotional ties to the government, like Nahdlatul Ulama, are more likely to align with its decisions. In the complex landscape of religious authority in Indonesia, the government navigates various roles, including tolerance, intervention, negotiation, and accommodation.

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