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IJTIHAD Jurnal Wacana Hukum Islam dan Kemanusiaan
Published by Institut Agama Islam Negeri Salatiga
ISSN : -     EISSN : -     DOI : -
Core Subject : Social,
Law, Crime, Criminology & Criminal Justice
Arjuna Subject : -
Articles 234 Documents
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Problems with the Islamic legal system regarding child marriages in Indonesia during the covid-19 pandemic period Anthin Lathifah; Briliyan Ernawati; Anwar Masduki
Ijtihad : Jurnal Wacana Hukum Islam dan Kemanusiaan Vol 22, No 2 (2022)
Publisher : State Institute of Islamic Studies (IAIN) Salatiga

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.18326/ijtihad.v22i2.155-176

Abstract

The high number of child marriages during the Covid-19 pandemic period poses problems related to the Islamic legal system in Indonesia. This study aims to describe the problems of the Islamic legal system regarding the phenomenon of child marriages during the pandemic period in Indonesia. This paper is the result of a qualitative research with a socio-legal analysis approach, that is based on Friedman Hayden's legal system theory. The results of the study show that there are three substantial problems with the Islamic legal system, namely: (1) the problem associated with the legal substance where the Marriage Law stipulates the age of a bride to increase from 16 to 19-year-old as contained in article 7 paragraph (1) of the Marriage Law number 16 of 2019, while at the same time it enables child marriages to be carried out through a marital dispensation request, it acknowledges marital vows (ithbat), and there is an absence of legal sanctions for violating the Marriage Law; (2) the problem related to the legal structure of child marriages that is rooted in the formation, enforcement, and development of child marriage law; and (3) the problem of legal culture in relation to the legal behavior of child marriage, unregistered marriages (sirri) for minors, and the lack of social arrangements to promote the culture of marriage at a mature age. Therefore, this paper offers a reconstruction of the Islamic legal system in terms of legal substance, legal structure, and legal culture to minimize child marriage practices in Indonesia.
Harmony of religion and culture: fiqh munākahat perspective on the Gayo marriage custom Dri Santoso; Wahyu Abdul Jafar; Muhamad Nasrudin; Musda Asmara; Fauzan Fauzan
Ijtihad : Jurnal Wacana Hukum Islam dan Kemanusiaan Vol 22, No 2 (2022)
Publisher : State Institute of Islamic Studies (IAIN) Salatiga

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.18326/ijtihad.v22i2.199-218

Abstract

This study aimed to describe the established harmony between religion and culture within the traditional Gayo marriage custom. In addition, it determined whether the blending of religion and culture in traditional Gayo marriages adheres to fiqh munākahat. This study was descriptive and qualitative field research using the sociological juridical approach. Interviews and documentation were used as data collection methods. Meanwhile, to identify informants, researchers employed a purposive sampling technique. The important finding of this study was that in traditional Gayo marriages, religion and culture are harmonized appropriately and without coercion. The acculturation of fiqh munākahat evidences harmonization: ta'aruf (introduction), khitbah (proposal), marriage advice, discussions, i'lanu nikah (marriage announcement), and hospitality. The acculturation of the fiqh munākahat concept is found in the procession of the risik kono (introduction of the bride and groom's family), the munginte (proposal), the beguru (giving advice), the betelah (discussion), the segenap and begenap (discussion and family), the mah bai (accompanying the groom) and mah beru (accompanying the bride), mah kero opat ingi (carrying rice for four days) and tanag kul (a visit to the bride's house). Moreover, only two of the five Gayonese marriage customs adhere to the fiqh munākahat: ango/juelen (patrilineal) and kuso now (to and fro) marriages. In contrast, engagement marriages (matrilineal), Naik (eloping) and mah tabak (marriage submission) are not in line with fiqh munākahat.
Ḥaḍānah conflict resolution through litigation: analysis of sharia court decisions in Aceh Nispul Khoiri; Adelina Nasution
Ijtihad : Jurnal Wacana Hukum Islam dan Kemanusiaan Vol 22, No 2 (2022)
Publisher : State Institute of Islamic Studies (IAIN) Salatiga

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.18326/ijtihad.v22i2.177-198

Abstract

This research aims to analyze the resolution of ḥaḍānah conflicts through litigation, specifically the decisions of the Sharia Court in Aceh regarding child custody (ḥaḍānah) to find legal certainty. This research uses a normative-empirical type of research by integrating normative law and empirical law. Normative legal analysis is carried out by examining library archives or secondary data. This research uses laws and judges' decisions in ḥaḍānah cases at the Aceh Syariah Courts. The instruments used in collecting data are observation, interviews, and documents or literature studies. To obtain research data on the number of ḥaḍānah cases that were filed separately at the Sharia Court, the article draws on existing decisions starting from 2016-2021. In this research, 5 (five) Sharia Courts were taken as research samples with 32 ḥaḍānah cases, particularly the Sharia Courts in Langsa, Kuala Simpang, Idi, Jantho, and Takengon. The research applies the theory of legal objectives according to Gustav Radbruch: legal certainty, justice, and expediency. The research shows that legal certainty through the decision of the Sharia Court has been realized. However, this has not provided justice for children because many defendants have not complied with court decisions, especially the surrender of child custody according to court decisions and payment of monthly child support according to what has been decided by the court. Hence, the benefits of the court decisions on the ḥaḍānah case are still not maximized. The solution is to formulate a law that is capable of providing a deterrent effect for defendants unwilling to fulfill court compliance.
Dynamics of family fiqh: the multiple roles of women in realizing family resilience Tri Wahyu Hidayati; Ulfah Susilawati; Endang Sriani
Ijtihad : Jurnal Wacana Hukum Islam dan Kemanusiaan Vol 22, No 2 (2022)
Publisher : State Institute of Islamic Studies (IAIN) Salatiga

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.18326/ijtihad.v22i2.219-238

Abstract

This research seeks to reveal the multiple roles of working women in realizing family resilience. This research argues that family resilience will determine the resilience of a nation. The research was conducted through interviews and observations on 15 civil servants (PNS) at the State Islamic University (UIN) of Salatiga. They consisted of 6 lecturers, 6 educational staff, and 3 postgraduate students. The results of the study show that women had a central role in realizing family resilience. The multiple roles that women played as a wife, mother, community member, and worker indicate their strong personality. They were women who were able to pursue their family resilience in their own way, depending on the conditions and situations that they faced. They were not only concerned with domestic affairs, but also other affairs in society and at work. They were able to negotiate their multiple roles to maintain their existence without abandoning their role in the family as a wife and mother. Some of the important practices that these women implemented include building communication and openness, implementing the principle of mutuality in carrying out tasks at home, acting smart to seize opportunities and not being monotonous, setting priorities between several tasks or jobs, and increasing spirituality/religiosity and minimizing negative effects of using social media on children.
Harmonization of Islam and human rights: judges’ legal arguments in rejecting child marriage dispensation in Sukadana, Indonesia M Anwar Nawawi; Sulastri Sulastri; Relit Nur Edi; Agus Setiawan
Ijtihad : Jurnal Wacana Hukum Islam dan Kemanusiaan Vol 22, No 1 (2022)
Publisher : State Institute of Islamic Studies (IAIN) Salatiga

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.18326/ijtihad.v22i1.117-134

Abstract

This article analyzes the rejection of an application for child marriage dispensation at the Sukadana Religious Court, Indonesia. Normatively, building a family and preserving the lineage are human rights, but the judges reject the application for the marriage dispensation. This normative research used observation, interviews, and documentation to collect data. In rejecting the marriage dispensation, the Religious Court judges used two arguments: normative (fiqh rules) and juridical (regulations related to human rights). The legal arguments integrate Islamic values (benefits and avoiding disgrace) with human rights principles. They seek to protect the petitioners' human rights, especially children's rights. From the finding above, the researchers suggest that there is no conflict between Islam and human rights. Both harmonize in their value of protecting the citizens. This study has implications for the increased unregistered marriages that do not have legality.
Harmonization of customary and Islamic law in the gama tradition of the muslim Mongondow community of North Sulawesi Rosdalina Bukido; Nurlaila Harun; Edi Gunawan; Rahman Mantu
Ijtihad : Jurnal Wacana Hukum Islam dan Kemanusiaan Vol 22, No 2 (2022)
Publisher : State Institute of Islamic Studies (IAIN) Salatiga

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.18326/ijtihad.v22i2.239-254

Abstract

Gama in the Mongondow Muslim community is considered mandatory to determine a marriage’s validity. Therefore, this study aims to examine in depth the relevance of customary and Islamic law to the tradition of gama in the Muslim community of Mongondow, North Sulawesi. The study was conducted in the Bolaang Mongondow area of North Sulawesi using a juridical-sociological approach. Data were collected using observation, interviews with traditional and religious leaders, as well as document study. The steps in data processing include data collection, presentation, reduction, and verification. Furthermore, analysis was carried out using the concept of urf and receptie a contrario. The results showed that even though the gama tradition predates the arrival of Islam in Bolaang Mongondow area, its implementation has Islamic values, otherwise known as urf shahih. The community upholds the noble values of traditions passed down by their ancestors. Islam teaches that the gama tradition has a symbol of respect for women. This indicates that customary and Islamic law play a joint role in shaping the life of the Bolaang Mongondow people. Conclusively, respect for the existence of women is a noble value in the Customary law of the Mongondow people.
The early marriage of the Tolaki Konawe community in the perspective of critical Islamic law Kamaruddin Kamaruddin
Ijtihad : Jurnal Wacana Hukum Islam dan Kemanusiaan Vol 22, No 2 (2022)
Publisher : State Institute of Islamic Studies (IAIN) Salatiga

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.18326/ijtihad.v22i2.255-270

Abstract

The Konawe people have a unique tradition of early marriage. Research from a critical Islamic perspective has yet to be widely studied in this tradition. This study investigated the initial legitimacy process as an ethnic tradition in early marriage. A legal ethnographic case study design was used in this study. Thirteen individuals participated in the study, including four community leaders, three indigenous peoples, two academics, and four parents of early marriage doers. In-depth interviews and observation were used to collect the data. Reduction, presentation, and interpretation are all used in data analysis methods. The study revealed three key findings: First, the chieftain decides on early marriage in the Tolakiness community. Second, decisions and agreements must be followed and upheld by everyone in the community. Thirdly, different legal systems—such as Islamic, Indonesian, or Western civil law—impact these judgments and agreements, which alters the relationship between law and freedom. This article argued that the Tolakian community needs to undergo cultural reconstruction to accommodate women's rights and freedoms and avoid coercive judgments from tribal chiefs. 
Sharia and Islamic state in Indonesia constitutional democracy: an Aceh experience Khamami Zada
Ijtihad : Jurnal Wacana Hukum Islam dan Kemanusiaan Vol 23, No 1 (2023)
Publisher : State Islamic University of Salatiga

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.18326/ijtihad.v23i1.1-18

Abstract

A question arises in the implementation of Sharia in Aceh: Is Sharia compatible with democracy as a political system in Indonesia? And with a comprehensive Sharia implementation, will it threaten the existence of the Indonesian state? This paper discussed Sharia's expansion, potentially leading to the establishment of the Islamic state of Aceh. This study was conducted using qualitative research. Primary data were taken from interviews with academics, journalists, non-governmental organization activists, youths, and focused group discussions with the leaders of the Islamic Sharia Office in Aceh Province. Meanwhile, the secondary data were gathered from historical documents, legislation, and Qanun in Aceh. The collected data were analyzed using the legal history theory of Pound (1923) and the Islamic democratic state theory of Hayes (2014). This research found the gradual implementation of Sharia in Aceh within the Indonesian democratic system. These constitutional ways were chosen to avoid the conflict between the Sharia and national legal and political systems. This, then, has led to the legalization of Sharia in the local and national political contestation. In the next phase, with the increasingly widespread Sharia rules and regulations on worship, criminal law, and economic law, Aceh can be called a small prototype of an Islamic state. With the significant historical, political, and social power, the roadmap of Sharia implementation in Aceh indicates a clear direction for the reflection of God's sovereignty as the foundation of the Islamic democratic state, even if it is in the local context.
Restorative justice-based criminal case resolution in Salatiga, Indonesia: Islamic law perspective and legal objectives Ariefulloh Ariefulloh; Hibnu Nugroho; Angkasa Angkasa; Riris Ardhanariswari
Ijtihad : Jurnal Wacana Hukum Islam dan Kemanusiaan Vol 23, No 1 (2023)
Publisher : State Islamic University of Salatiga

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.18326/ijtihad.v23i1.19-36

Abstract

Restorative justice is a pattern of dispute resolution which emphasizes the responsibility of the perpetrator for the consequences of his actions while at the same time paying attention to the position of the victim. This is not simply about punishing the offender; it is about obtaining justice through discussion outside of the criminal justice system to ensure the situation can be returned to its prior state. Islamic law offers a concept of restorative justice called islah, which is a technique to resolve conflicts between parties by forgiving one another. Salatiga City, the most tolerant city in Indonesia, is where this study is being conducted. The idea of restorative justice is used to resolve disputes through the role of a lurah (head of neighborhood), who is responsible for upholding communal order. It is intriguing to investigate whether the reality of restorative justice in Salatiga City can achieve the three main objectives of the law as outlined by Gustav Radburch: justice, benefit, and legal certainty. This study employs a qualitative methodology and a socio-legal research design. Interviews with the offenders, victims, and the lurah who served as the government's mediator resulted in the gathering of data. The findings of this study demonstrate that Salatiga City's restorative justice method to conflict settlement has achieved the goals of justice and legal advantage and can even foster good will among the parties. The absence of lurah's legal standing in the resolution of this issue, however, does not satisfy the requirement of legal clarity. For Salatiga City residents, a legal foundation is required for restorative justice-based legal dispute settlement
Examining Qanun in Aceh from a human rights perspective: status, substance and impact on vulnerable groups and minorities Dian Andi Nur Aziz; Al Khanif; Mimin Dwi Hartono; Ade Angelia Yusniar Marbun
Ijtihad : Jurnal Wacana Hukum Islam dan Kemanusiaan Vol 23, No 1 (2023)
Publisher : State Islamic University of Salatiga

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.18326/ijtihad.v23i1.37-56

Abstract

The Helsinki Agreement between the Aceh Freedom Movement (GAM) and the Indonesian Government aimed to end long-standing conflict and inequality in Aceh. It also legally empowered the Acehnese to govern their own province and protect their citizens from human rights abuses. Regrettably, the implementation of laws and policies in Aceh since the agreement, such as Qanun, has had an adverse effect on human rights, particularly for vulnerable groups and minorities. This paper analyses the need to align the substance of Qanun with international human rights norms and assesses the feasibility of implementing Qanun without violating human rights. The research method used is the qualitative method. The data collection technique mainly involves in-depth interviews with key informants, including academics, members of Aceh parliament, civil society organisations, representatives of religious organisations, the Aceh Sharia Court, the Acehnese government, and practitioners on women and children, as well as victims of human rights violations and literature reviews. This study has found that the implementation of Aceh Qanun has had negative consequences on the protection of human rights, particularly for vulnerable groups and minorities. In addition, it also affects vulnerable groups, Muslim and non-Muslim minorities who have been “forced to conform” with Aceh Qanun. The paper advocates for a harmonious balance between Qanun and human rights, which can be achieved through a more constructive dialogue between the two.

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