MAQASIDI: Jurnal Syariah dan Hukum

Methodological Reasoning Finds Law Using Normative Studies (Theory, Approach and Analysis of Legal Materials)

Moh. Mujibur Rohman — 2024-12-27

Methodology is an important thing in research. A particular family of knowledge will experience development and is considered not rigid when studied using a certain methodology. Like water in the desert, scientific civilization will feel barren if it is not studied using the correct methodology. This article is a conceptual work on normative legal research which is studied normatively or doctrinally. The approach in this research uses a Conceptual Approach and an Analytical Approach. The author analyzes normative legal research methodology starting from naming to data analysis methods. The conclusions in this article were obtained in an inductive-deductive way. The research results show the importance of using methodology as a branch of knowledge construction. Normative research is the same as library research, only there are several approaches and analyzes that are not the same. It is hoped that legal researchers will not abandon the legal research methodology which has become a rule even though there are many perspectives.

The Birth of Illegitimate Children According to Islamic Law and Legislation in Brunei Darussalam

Siti Nur Adibah binti Haji Matnor — 2024-12-27

A child born out of wedlock, commonly referred to as an illegitimate child or a child of zina, is the result of unlawful sexual intercourse before the establishment of a marital relationship. This issue is increasingly prevalent worldwide, affecting people of all religions and ethnicities. The country of Brunei Darussalam is also not immune to facing cases of syariah crimes, such as premarital pregnancies, which lead to the birth of illegitimate children. Islamic jurists (fuqaha) have different views on the duration of a woman’s pregnancy in determining whether a child can be recognized as legitimate or not. The objectives of this study include understanding the concept of illegitimate children according to Islamic law and the Islamic Family Law (Chapter 217) in Brunei Darussalam, as well as exploring the current situation regarding illegitimate children in the country. Furthermore, this paper will discuss the rights of illegitimate children in terms of nasab (lineage) and inheritance. The methodology used in this study is qualitative, involving the collection of research data from books, journals, articles, and other sources relevant to the topic. Statistical data on the birth of illegitimate children were obtained from the Department of Immigration and National Registration of Brunei. The findings of this study indicate that according to Brunei’s Islamic Family Law, the duration of pregnancy, based on the opinions of jurists other than those of the Maliki school, is 180 days. Statistics on the birth of illegitimate children in Brunei show a significant number of such births. The rights of illegitimate children differ from those of legitimate children, particularly concerning nasab, inheritance, and other related aspects.

A Review of Islamic Law on the Practice of "Tumpang Rahim" Based on Maqāṣid al-Syarī'ah and Contemporary Scholars

Zulfahmi Zulfahmi — 2024-12-27

The practice of Tumpang Rahim (surrogacy) is one of the innovations in reproductive technology that has caused ethical and legal controversy in Islam, especially in the review of maqāṣid al-syarī'ah. This study aims to analyze the validity of interfering wombs based on the principles of maqāṣid al-syarī'ah, especially ḥifẓ al-nasl (nurturing offspring), as well as the views of contemporary scholars. The research method used is normative juridical with a literature study approach. The results of the study show that the majority of contemporary scholars reject the practice of interfering because it involves a third party in the reproductive process, which results in confusion in nasab, guardianship, and inheritance rights. This practice is also considered to bring more maḍarrah than maṣlaḥat, so it is contrary to the principle of maqāṣid al-syarī'ah which emphasizes the preservation of offspring. From the perspective of maqāṣid al-sharī'ah, the desire to have a child through intercession is not an emergency need. In addition, this practice can trigger various problems, including psychological burdens for husbands, wives, and women whose wombs are rented. Therefore, the practice of intercession is considered haram and is not following the purpose of sharī'ah in preserving offspring and avoiding damage.

The Involvement of State Officials in the 2024 Election Campaign Reviewed from the Siyasah Dusturiyah Perspective

Marina Marina — 2024-12-27

Elections are a democratic activity where every citizen has the right to directly elect leaders, people's representatives, and government officials for future leadership in a country. Apart from that, elections also become a stage for political contestation and become a democratic party in a democratic country. However, during the election, there were still many violations of the rules committed by several people. One of the rules that is often violated in organizing elections is during the campaign. This violation took the form of involvement of state officials in carrying out the campaign. In the 2024 Election, precisely during the campaign process, there are state officials who take part in the campaign, the state official who participates in the campaign is the Minister of Trade of the Republic of Indonesia. Basically, state officials are allowed to campaign but must fulfill several provisions, one of which is taking leave outside the state's responsibility and not being able to use state facilities other than accompanying the state official. However, the Minister of Trade of the Republic of Indonesia carried out a campaign outside the leave period that he had proposed. So his involvement in the campaign violated election administration. However, it is a shame that he did not receive strict sanctions from Bawaslu, as stipulated in the law, but the Minister of Trade of the Republic of Indonesia only received a strong warning from Bawaslu. This has also been prohibited in Siyasah dusturiyah, this is the same as not carrying out the mandate and abusing the authority that has been given.

Legal Certainty for Debtors in the Collateral Takeover Mechanism at Rural Banks

Dera Antika Kumalasari — 2024-12-27

Bad loans are a serious problem in the banking sector, not only harming financial institutions but also impacting the economic conditions of debtors. This study aims to evaluate the implementation of the Collateral Takeover mechanism in resolving bad loans at Rural banks. The method used is empirical, based on field observations and regulatory analysis, as well as legal literature. The results of the study indicate that the Collateral Takeover mechanism includes several stages, starting from identifying problem loans, taking over assets, assessing, selling, to recording in financial statements with settlement within an uncertain deadline. Existing regulations including Financial Services Authority Regulation Number 1 of 2024 concerning the Asset Quality of Rural banks have not provided legal certainty to debtors, especially regarding the time period for resolving Collateral Takeover. Challenges in implementing Collateral Takeover include unclear regulations, lack of creditor participation in auctions, high legal costs, and minimal education and access to legal assistance for debtors. These obstacles hinder debtors from obtaining legal certainty.

The Maqashid Sharia Perspective on Women's Involvement in Supporting Family Livelihoods in Jantho City

Jabbar Sabil — 2024-12-27

Employing women outside the home to meet the needs of the family can provide benefits, but it can also cause mafsadat to the family and the woman herself, both in the context of maintaining religion (hifz al-din) and maintaining the soul (hifz al-nafs). The benefits are private so they tend to be subjective, while the mafsadat that is possible to arise is public so that it can be objectified intersubjectively. This requires the ability to weigh the potential of mafsadat based on the conditions and situations experienced. This is the reason why research with problem formulation is important; The criteria for maslahat-mafsadat in women's involvement in fulfilling family support. The researcher combines descriptive social research methods with prescriptive legal research methods through a method called al-ijtihad al-maqashidi. It was found that there were various benefits including those at the primary level, and there were efforts from respondents to minimize the effects of mafsadat. It was also found that the social system at Jantho Market is still within the boundaries of manners and there is no quiet place that has the potential for khalwat to occur. In addition, female traders do not do activities at night to avoid a time when crime is vulnerable. This research concluded that the activities of women traders in Jantho Market have been in line with the rules of maqashidiyyah. However, mutual awareness and cooperation are needed to anticipate the potential of mafsadat.

Children Born Out of Adultery and Guardianship: The Bahtsul Masail Perspective on Old Marriage Cases

Zukhrufil Shadri — 2024-12-27

Marriage is a sacred institution in Islam whose validity is determined by fulfilling the conditions and pillars that the Sharia has set. One of the main pillars is the presence of a marriage guardian. In Islamic law, children resulting from adultery do not have a nasab relationship with their biological father, so the father does not have guardianship rights. However, cases of marriages where the biological father is the guardian often pose a legal dilemma, especially if the marriage has been going on for a long time. This study aims to analyze the legal status of biological paternity guardianship in the context of children resulting from adultery based on a cross-sect approach, focusing on the view of the Maliki School that provides flexible space for certain situations. This research uses a normative approach with a content analysis method on fiqh literature, Bahtsul Masail fatwa, and other sources of Islamic law. The results of the study show that according to the Shafi'i School, the guardianship of the biological father is not valid, so the marriage must be repeated with a legal guardian, namely the guardian of the judge. On the other hand, the Maliki school allows the guardianship of the biological father if it is openly recognized, with consideration for maintaining family benefits and social stability. This approach is relevant in certain situations and is supported by the principles of Maqashid Sharia, which include safeguarding religion (hifz al-din), heredity (hifz al-nasl), and avoiding social and economic damage (mafsadah). This study concludes that the adaptive application of ijtihad is needed to provide legal solutions that are relevant to the conditions of contemporary society, without ignoring the principles of Islamic law.

Juridical Review of KPU Regulation Number 10 of 2023 on Women's Representation in Parliament

Indah Permata Sari — 2024-12-27

Women's representation in Indonesian politics is part of the journey of democracy and the protection of minority interests. The KPU, as the institution responsible for organizing elections, some time ago the KPU issued a new regulation on women's representation contained in PKPU No. 10 of 2023 concerning Women's Representation, which regulates the mechanism for rounding fractional numbers so that it can reduce women's representation if the calculation results are less than 50%. This is contrary to the Election Law, which requires at least 30% female representation. This KPU regulation creates uncertainty and the potential for a reduction in the number of women, which can be detrimental to women's rights. This study analyzes the position of PKPU No. 10 of 2023 concerning Law No. 7 of 2017 and the perspective of siyasah dusturiyah; Regulations made by the authorized institutions emphasize that lower regulations must be subject to higher regulations and must prioritize the interests of the people. This article is based on articles and regulations governing women's representation. This research is qualitative research with a normative juridical approach, to facilitate data search as literature research through laws, journals, legal dictionaries, and others. As a result of this study, it can be concluded that PKPU No. 10 of 2023 is contrary to Law No. 7 of 2017 and should be revoked to ensure that women's rights are fulfilled under the principles of justice and equality in politics.

Consumer Legal Protection Against Developer Defaults in Binding Agreements for the Sale and Purchase of Flats

Faizzah Rabiatun Ramadani — 2024-12-27

This study discusses consumer legal protection against developer defaults in the binding agreement for the sale and purchase of flats (PPJB). The increase in housing development, especially through the pre-project selling system, often harms consumers due to uncertainty and default from developers. The research method used is a literature study, with a legal approach and a case approach. Analysis was carried out on Decision Number 91/PDT/2018/PT. Jakarta to assess the legal protection provided to consumers. The results of the study show that regulations, including Law Number 11 of 2011 concerning Flats, provide a strong legal basis for consumers to demand their rights. Consistent law enforcement in default cases creates a precedent that strengthens the position of consumers, increases public trust in the legal system, and creates a conducive environment for flats buying and selling transactions.

The Moderation of Al-Qaradhawi's Fatwas and Their Actualization in the Contemporary Context

Nurkhalis Muchtar — 2024-12-27

The process of providing answers to problems that arise or questions that arise is called a fatwa. The need for fatwas was felt from the beginning of the development of Islam. In Islam, fatwas have a high position so not everyone can give fatwas. Fatwas that come from non-experts will cause fatal mistakes in society. Islamic scholars have poured their thoughts on fatwas in various scientific works. However, there has been no work that examines the moderation of fatwas in the current context. On the other hand, there is also a paradigm that is wrong in making fatwas, some are too rigid and some are too flexible in making fatwas. Al-Qaradhawi as a leading jurist offers a breakthrough in fatwa, especially a new paradigm in fatwa. This study uses a qualitative descriptive research method on the findings of library data, with the approach of library research and content analysis, it is concluded that Al-Qaradhawi initiated the idea of moderation in the fatwa. This research also reveals that the moderate fatwa of Al-Qaradhawi is considered relevant to be applied in the current era. This research is expected to be one of the efforts to initiate the moderation of fatwas and their actualization in the current context so that there can be a fatwa that can realize stability, justice, and benefits in the life of human beings as a nation and homeland.

An Analysis of Wahbah Az-Zuhaili's Views on Interfaith Marriage and Its Implementation in Indonesian Legal Context

Arifin Abdullah — 2024-12-28

Marriage is a very important need in family and a social life that is pleasing to Allah, therefore in choosing a husband and wife, Islam strongly recommends that everything be based on religious norms so that the life companion has commendable morals, there is no balance to a belief. However, the problem is that it is forbidden for Muslim men to marry polytheistic women and marriage between Muslim women and infidel men. Meanwhile, Wahbah Az-Zuhaili's opinion that Muslim men and women are different from the opinions of other scholars. This research is with the formulation of the problem: How does Wahbah Az-Zuhaili think about interfaith marriage and how is the review of Islamic law about interfaith marriage in Islamic law thinking according to Wahbah Az-Zuhaili. This research is a type of library research. whose research object is the opinion and legal istinbath used by Wahbah Az-Zuhaili. The data collection method of this research uses a method of collecting legal materials, journals, and so on. The data analysis is qualitative, that is, the analysis is carried out by grouping data, presenting the results of the analysis in the form of a narrative, and drawing conclusions. Based on the results of this study, Wahbah Az-Zuhaili knew that it is forbidden to marry a Muslim man to a polytheistic woman, interfaith marriage, a Muslim woman to an infidel man, marriage between a Muslim man and a woman who is an expert in the book. The legal identity used by Wahbah Az-Zuhaili himself is QS. Al-Baqarah Al-Mumtahanah Al-Maidah. But the woman whose books are referred to is only the descendants of the children of Israel who still hold fast to the original book that was handed down to the Prophet Moses and the Prophet Jesus AS. As a defect, the prophets Moses and Jesus were sent only for the Bani Israel.

The The Existence of Turun Ranjang Marriage as an Effort to Enhance Family Harmony in Bakeong Village, Guluk-Guluk, Sumenep

Khairiyatin Khairiyatin — 2024-12-28

The main problem in this study is the existence of the practice of off-the-cuff marriage to achieve family harmony which especially occurs in the Bakeong Guluk-Guluk Sumenep community (case study in Bakeong Guluk-Guluk Sumenep village). Turun ranjang marriage itself is a marriage carried out by a husband or wife with a sibling of his or her deceased partner. The purpose of this study is to find out the description of turun ranjang marriage in Bakeong village with the motifs behind it and the existence of turun ranjang marriage in family harmony. This research is a field research with a type of qualitative research that is descriptive. The data collection method was carried out through observation and interviews. The results of this study show that the practice of turun ranjang in marriage is carried out after one of the husband or wife dies, and is religiously valid. Then the thing behind this marriage is the desire of the parties for the benefit of the child. Then the existence of turun ranjang marriage to family harmony is quite influential on the happiness of children and the harmony of a family.

Gender Equality in Article 1 of the Universal Declaration of Human Rights: An Islamic Law Perspective

Diding Jalaludin — 2024-12-29

This study aims to determine the relevance of Article 1 of The Universal Declaration of Human Rights which guarantees freedom, dignity and equal rights between human individuals from the perspective of Islamic Law which came with the vision of rahmatan lil 'alamin through the Prophet Muhammad Shallahu 'Alaihi Wasallam. The method used in this research uses a descriptive analysis method with a normative juridical approach and uses qualitative data types in the form of secondary data consisting of primary, secondary, and tertiary legal materials with data collection techniques through literature studies and content analysis techniques. This research concludes that there is a significant relevance where Islamic Law greatly strengthens and provides hujjah to the clause of gender equality position between individuals that has been formulated in Article 1 of The Universal Declaration of Human Rights. So the existence of several differences in concepts between men and women in the perspective of Islamic Law is not a discrimination against certain genders, the existence of these differences has placed each gender in a noble position based on its characteristics as conceptualized by Islamic law.

Review of the Validity and Legal Justice of the Prosecutor's Demands in the Corruption Case Number: 2/Pid.Sus.TPK/2023/PN.Mks

Khaidir Khaidir — 2024-12-29

The validity and fairness of the law against the charges are very important to be considered by the Public Prosecutor. The prosecution process by the public prosecutor begins with the study of the investigation file, then from the results of the public prosecutor's research can identify what evidence and the evidentiary strength is fulfilled, then for the inherent weaknesses known in the case file to prepare the juridical—accurate facts to anticipate problems that arise in the effort to prove in court. The problem in this paper is the basis for the Public Prosecutor's consideration regarding the Corruption Crime case and how to review the aspects of legality and legal justice against the Public Prosecutor's demands in case Number: 2/Pid.Sus.TPK/2023/PN.Mks. This paper uses a type of normative juridical method with the consideration that the problem being studied is relevant to the regulations and how to handle it in judicial practice. From the results of the research carried out, it can be concluded as follows: first, the Public Prosecutor in his Indictment in the form of an "alternative indictment" has been read out in the trial on January 13, 2023, filing an indictment against the defendant Eltinus Omaleng with the First Indictment Article 2 paragraph (1) Jo Article 18 of Law No. 31 of 1999 concerning the Eradication of Corruption Crimes Jo Article 55 paragraph (1) 1 of the Criminal Code Jo Article 64 (1) of the Criminal Code and the Second Indictment of Article 3 Jo Article 18 of Law No. 31 of 1999 concerning the Eradication of Corruption Jo Article 55 paragraph (1) 1 of the Criminal Code Jo Article 64 (1) of the Criminal Code. Second, the indictment and demands of the Public Prosecutor in case Number: 2/Pid.Sus.TPK/2023/PN.Mks do not have legal validity and justice, because all elements of the articles charged were not proven at trial.

Comparison of Authority Between the State Administrative Court in Indonesia and the Mazhalim Institution in Islam

Asy‘ari Asy‘ari — 2024-12-29

The State Administrative Court in Indonesia is a judicial institution that is almost similar to the Mazhalim Institution in Islam. Although they have similarities, the two institutions have many differences in their concepts. This study aims to examine in more detail the comparison of the concept of authority of the State Administrative Court in Indonesia and Mazhalim institutions in Islam. This research is carried out through literature studies by collecting various literature from books, journals, and other documents related to the comparison of the concept of authority of the State Administrative Court in Indonesia and the Mazhalim Institution in Islam. The results of the study show that there are many differences between the State Administrative Court in Indonesia and the Mazhalim Institution in Islam, including that the PTUN in Indonesia has the authority of the Court to be on duty and has the authority to examine, decide, and resolve State Administrative disputes. State Administrative Disputes that occur between a citizen/community or civil legal entity and the State Administrative Agency/State Biocracy Official. The Mazhalim institution/court is authorized to examine, adjudicate, decide, and punish disputes that occur between the ruler and the people which includes ten cases. The Mazhalim institution has a wider authority not only in terms of cases that have the right to be tried but also regarding the authority to sentence and dismiss a person who is proven to have abused his position.