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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 318 Documents
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Implementation of Maqāṣid Sharī’ah in Reform of Case Management of Violence against Women and Children Aibak, Kutbuddin
De Jure: Jurnal Hukum dan Syari'ah Vol 15, No 1 (2023)
Publisher : Shariah Faculty UIN Maulana Malik Ibrahim Malang

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.18860/j-fsh.v15i1.20666

Abstract

This study aims to reflect on the values of maqāṣid sharī’ah in management patterns of violence cases against women and children. This is based on arguments about case management which until now has not been able to completely resolve violence against women and children in Indonesia. The presence of maqāṣid sharī’ah in the management pattern of violence against women and children is expected to hold strong legitimacy to formulate a management pattern that is integrated with the basis and values of Islamic law goals. This step is a form of embodiment to resolve violence cases against women and children through maqāṣid sharī’ah-based case management to reflect the resolution of violence cases through integrated steps to realize solutive fiqh for the matter. In an academic purview, this study uses a literature review involving primary and secondary data observed with in-depth analysis. The findings in this study indicate that maqāṣid sharī’ah has implications for the realization of protection for women and children through case management reforms.
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 : Shariah Faculty UIN Maulana Malik Ibrahim Malang

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.
Cumulative Versus Alternative Conditions: A Study of Polygyny Permits in Indonesia From the Perspective of the Legal Certainty Principle Helim, Abdul; Suradilaga, Aris Sunandar; Benevolent, Wafid Syuja' Vennovary; Adawiyah, Rabiatul
De Jure: Jurnal Hukum dan Syari'ah Vol 15, No 1 (2023)
Publisher : Shariah Faculty UIN Maulana Malik Ibrahim Malang

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.18860/j-fsh.v15i1.15384

Abstract

This paper aims to examine the conflict of authority between the alternative and the cumulative conditions stipulated in Law Number 1 of 1974 concerning Marriage, especially under the polygyny permit section. In this normative study, the problem is focused on the alternative conditions that determine the cumulative conditions and the analysis took into account the critical legal studies and adz-Dzari’ah theories, revealing that the alternative conditions are not appropriate to be determinant that allows polygyny to take place. Instead, these conditions are supposed to be additional or optional. Conversely, the more appropriate condition as the polygyny permit determinant is cumulative. Similarly, in the analysis of the adz-Dzari’ah theory, when the alternative condition is the determinant, it will bring harm instead, meaning that it is included in the category sadd adz-Dzari’ah (prohibited or even forbidden). It is advisable to make the cumulative conditions the determinant of polygyny permits because it carries more benefits that allow for easier polygyny as it is included in the category fath adz-Dzari'ah. If there are requirements, they are still within reasonable limits that can be pursued. In addition, polygynous marriage can be performed before the Marriage Registrar witnessed by the first wife.
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 : Shariah Faculty UIN Maulana Malik Ibrahim Malang

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.
Distributing Rights, Social Justice, and Managing Conflict of Ahmadis Anthin Lathifah
De Jure: Jurnal Hukum dan Syari'ah Vol 14, No 2 (2022)
Publisher : Shariah Faculty UIN Maulana Malik Ibrahim Malang

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.
Critical Study of Amina Wadud's Thought in the Issue of Inheritance Zenrif, Fauzan; Bachri, Syabbul
De Jure: Jurnal Hukum dan Syari'ah Vol 15, No 1 (2023)
Publisher : Shariah Faculty UIN Maulana Malik Ibrahim Malang

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.18860/j-fsh.v15i1.22217

Abstract

This study aims to examine the main arguments presented by Amina Wadud on inheritance in her book "Quran and Women" and evaluate the validity of her arguments. The scope of this research will include an analysis of Wadud's method of interpreting the Quran as outlined in the book Quran and Women which influenced her thoughts on Islamic inheritance and a critical study of her thoughts. This research is a type of qualitative research with a critical study approach. The results of the study show that a critical study of Wadud's thinking shows that she generalizes the 2:1 provision on the shares of men and women which actually only applies in certain cases. In addition, Wadud's demands for reinterpretation cannot be done without adequate interpretive science tools. Science explains that justice need not be interpreted as equality. There are two categories of justice, according to Aristotle: commutative justice and distributive justice. So that there can be no justification for questioning the Quran's just inheritance allocation. Furthermore, the provisions in the inheritance verse in the Quran are qath'i provisions so there is no justification for doing ijtihad which is presumptive (dzanny) in a reassuring text (qath'i). In addition, Wadud's thoughts are also considered less specific and do not provide a real format for how the redistribution she proposes. Therefore, Wadud's rereading in terms of inheritance is considered incomplete or incomprehensive of the Qur'an.
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 : Shariah Faculty UIN Maulana Malik Ibrahim Malang

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.
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 : Shariah Faculty UIN Maulana Malik Ibrahim Malang

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 Development of Indonesian Marriage Law in Contemporary Era Miqat, Nurul; Bakhtiar, Handar Subhandi; Salam, Safrin; Tridewiyanti, Kunthi; Ibrahim, Kayode Muhammed
De Jure: Jurnal Hukum dan Syari'ah Vol 15, No 1 (2023)
Publisher : Shariah Faculty UIN Maulana Malik Ibrahim Malang

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.18860/j-fsh.v15i1.17461

Abstract

Family law is part of the legal system that applies in Indonesia, which has developed along with social developments in society. This paper provides an overview of how the development of family law in Indonesia uses a normative approach and describes the development of family law in Indonesia these days. The development of family law in Indonesia is influenced by several factors, ranging from the historical aspect of law to today's social developments. The development of family law develops according to the community's needs for legal certainty and aspects related to family relations, starting from age limits for prospective husbands and prospective wives, child status, and marriage agreements to a marital status that is not administratively registered.
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 : Shariah Faculty UIN Maulana Malik Ibrahim Malang

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.

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