scholarly journals Decolonial Translation: Destabilizing Coloniality in Secular Translations of Islamic Law

2021 ◽  
pp. 1-28
Author(s):  
Lena Salaymeh (لينا سلايمة)
Keyword(s):  
Islamic Law ◽  
Muslim World ◽  
Legal Studies ◽  
Islamic Tradition ◽  
Arabic Word ◽  
Religious Law ◽  
Secular Terms

Abstract Contemporary Islamic legal studies – both inside and outside the Muslim world – commonly relies upon a secular distortion of law. In this article, I use translation as a metonym for secular transformations and, accordingly, I will demonstrate how secular ideology translates the Islamic tradition. A secular translation converts the Islamic tradition into “religion” (the non-secular) and Islamic law into “sharia” – a term intended to represent the English mispronunciation of the Arabic word شريعة (sharīʿah). I explore the differences between historical Islamic terms and secular terms in order to demonstrate that coloniality generates religion and religious law; in turn, these two notions convert شريعة (sharīʿah) into “sharia” in both Arabic and non-Arabic languages. Consequently, the notion of “sharia” is part of a colonial system of meaning.

Islamic Law as a Comparable Model in Comparative Legal Research

2014 ◽  
Vol 3 (2) ◽  
pp. 186-202
Author(s):  
Hamid Harasani
Keyword(s):  
Islamic Law ◽  
Legal Systems ◽  
Legal Transplant ◽  
Legal Studies ◽  
Legal Method ◽  
Religious Law ◽  
The Subject ◽  
First World ◽  
Being Religious ◽  
Comparable Model

Increasingly, Islamic law has become the subject of comparative legal study. Further, in the applied sense, comparative legal studies’ greatest value lies in understanding our own legal systems, as well as benefiting from other legal systems by importing what we lack from them. Unlike secular legal systems, Islamic law, being religious in nature and having eschatological connotations, requires reworking the comparative legal method to take account of that. When it comes to religious laws, hermeneutics play a key role, as a religious legal system will only be receptive to foreign norms if such norms earn their place internally, following hermeneutic justification. Cultural and religious pride, as well as intellectual impartiality, decrees that a legal solution should not be preferable just because it comes from the First World. This paper will therefore formulate a methodology for comparative legal studies where religious law is one of the comparative models and there are potential suggestions of legal transplant.

scholarly journals PERKEMBANGAN PERUNDANG-UNDANGAN HUKUM KELUARGA MUSLIM DI MESIR ( STUDI WASIAT WAJIBAH DI MESIR)

2020 ◽  
Vol 1 (1) ◽  
pp. 1-20
Author(s):  
Ishak Tri Nugroho ◽  
Muhammad Akbar ◽  
Suhri Hanafi
Keyword(s):  
20Th Century ◽  
Islamic Law ◽  
Family Law ◽  
Muslim World ◽  
Muslim Country ◽  
Inheritance Law ◽  
Islamic Tradition ◽  
History Of ◽  
Islamic Family Law ◽  
The Law

The long history of reforming Islamic Family Law in the Muslim world began in the 20th century when Turkey became the first Muslim country to pioneer this reform. These reforms greatly influenced the reform of Islamic family law in Egypt and provided a more forward-looking color compared to what was previously done, the impetus for reform and reform of Islamic law in Egypt came from within the Islamic tradition itself and from outside the Islamic tradition. In addition to reforming family law in general, Egypt has also reformed the concept of inheritance law regarding wajibat for orphan grandchildren, which actually does not discuss this matter in classical books. Egypt regulates the issue of compulsory wills in the Egyptian Law, namely Law no. 71 of 1946 concerning inheritance, Egypt introduced a new concept in terms of inheritance for orphaned grandchildren who are usually considered as dzawil arham who are prevented from obtaining inheritance, so they are now entitled to inheritance by using the mandatory will. The concept of wills, mandatory, for inheritance for orphaned grandchildren does not exist in classical jurisprudence, and it appears that Egypt is trying to reform the law by inventing new laws or rechtsvinding, in order to find a solution to the inheritance problems that occur in Egypt.

Religious Freedom in Islam

2019 ◽  
Author(s):  
Daniel Philpott
Keyword(s):  
Religious Freedom ◽  
Muslim World ◽  
Human Right ◽  
The West ◽  
Empirical Examination ◽  
Public Controversy ◽  
Arab Uprisings ◽  
Islamic Tradition ◽  
The World ◽  
Muslim Majority

Is Islam hospitable to religious freedom? The question is at the heart of a public controversy over Islam that has raged in the West over the past decade-and-a-half. Religious freedom is important because it promotes democracy and peace and reduces ills like civil war, terrorism, and violence. Religious freedom also is simply a matter of justice—not an exclusively Western principle but rather a universal human right rooted in human nature. The heart of the book confronts the question of Islam and religious freedom through an empirical examination of Muslim-majority countries. From a satellite view, looking at these countries in the aggregate, the book finds that the Muslim world is far less free than the rest of the world. Zooming in more closely on Muslim-majority countries, though, the picture looks more diverse. Some one-fourth of Muslim-majority countries are in fact religiously free. Among the unfree, 40% are repressive because they are governed by a hostile secularism imported from the West, and the other 60% are Islamist. The emergent picture is both honest and hopeful. Amplifying hope are two chapters that identify “seeds of freedom” in the Islamic tradition and that present the Catholic Church’s long road to religious freedom as a promising model for Islam. Another chapter looks at the Arab Uprisings of 2011, arguing that religious freedom explains much about both their broad failure and their isolated success. The book closes with lessons for expanding religious freedom in the Muslim world and the world at large.

scholarly journals PENGAMBILALIHAN HAK ATAS JAMINAN (EKSEKUSI) JAMINAN FIDUSIA DAN RAHN TASJILY PERSEPEKTIF HUKUM POSITIF DAN HUKUM ISLAM

2019 ◽  
Vol 10 (2) ◽  
pp. 186
Author(s):  
Heri Kuswanto
Keyword(s):  
Financial Institutions ◽  
Islamic Law ◽  
Descriptive Analysis ◽  
Critical Legal Studies ◽  
Legal Studies ◽  
Positive Law ◽  
Qualitative Descriptive ◽  
The Right ◽  
And Storage ◽  
Laws And Regulations

The phenomenon that occurs is related to the taking over of the right to guarantee (execution) of fiduciary security and Rahn Tasjily in the execution of executions carried out by financial institutions that do not comply with applicable laws and regulations. This research uses Normative legal methods, with qualitative descriptive analysis and critical legal studies. The results of the study that the process of taking over the right to guarantee (execution) fiduciary regulated in article 29 (1) of the fiduciary guarantee law. Among the first, execution based on Grosse fiduciary guarantee certificate or executable title (fiat execution) contained in the Fiduciary Guarantee Certificate carried out by the fiduciary recipient. Second, an execution based on the execution of separate executions through public auctions by fiduciary recipients. Third, execution by sale under the hand by the creditor fiduciary himself, and fourth, fiduciary execution by claiming. Based on Islamic law, the process of expropriation of the right to guarantee (execution) Rahn Tasjily, that the procedure for executing Marhun (collateral object), if due. Murtahin must warn Rahin to pay off her debt immediately. If the Rahin still cannot repay its debt, then Marhun is forcibly sold/executed through an auction, according to sharia. Marhun sales proceeds used to pay off debt, maintenance, and storage costs that have not paid and sales costs. The excess proceeds from the sale belong to Rahin, and the shortcomings become Rahin obligations. The execution process carried out by sharia companies must be based on fatwa no. 25/DSN-MUI/III/2002, and fatwa no. 92/ DSN-MUI/IV/2014. Positive law and Islamic law, which become normative references, have not been well understood and applied by the finance parties, causing injustice and legal uncertainty.Keywords: expropriation of rights, fiduciary guarantee, rahn tasjily ABSTRAKFenomena yang terjadi terkait pengambilalihan hak atas jaminan (eksekusi) jaminan fidusia dan rahn tasjily pada pelaksanaan eksekus yang dilakukan oleh lembaga pembiayaan tidak mematuhi aturan perundang-undangan yang berlaku. Penelitian ini menggunakan metode hukum Normatif, dengan analisis deskriptif kualitatif dan studi hukum kritis. Hasil penelitian bahwa, proses pengambilalihan hak atas jaminan (eksekusi) fidusia telah diatur dalam pasal 29 (1) undang-undang jaminan fidusia. Diantaranya pertama, eksekusi berdasarkan grosse sertifikat jaminan fidusia atau titel eksekutorial (secara fiat eksekusi) yang terdapat dalam Sertifikat Jaminan Fidusia yang dilakukan oleh penerima fidusia. Kedua, eksekusi berdasarkan pelaksanaan parate eksekusi melalui pelelangan umum oleh penerima fidusia. Ketiga, eksekusi secara penjualan di bawah tangan oleh kreditor pemberi fidusia sendiri, dan keempat, eksekusi fidusia secara mendaku. Berdasarkan hukum Islam, proses pengambilalihan hak atas jaminan (eksekusi) rahn tasjily, bahwa prosedur pengeksekusisan marhun (objek jaminan), apabila jatuh tempo. Murtahin harus memperingatkan Rahin untuk segera melunasi hutangnya. Apabila rahin tetap tidak dapat melunasi hutangnya, maka marhun dijual paksa/dieksekusi melalui lelang sesuai syariah. Hasil penjualan marhun digunakan untuk melunasi utang, biaya pemeliharaan dan penyimpanan yang belum dibayar serta biaya penjualan. Kelebihan hasil penjualan menjadi milik rahin dan kekurangannya menjadi kewajiban rahin. Adapun proses eksekusi yang dilakukan oleh perusahaan syariah harus berdasarkan fatwa Nomor: 25/DSN-MUI/III/2002, dan fatwa Nomor:92/DSN-MUI/IV/2014. Hukum positif dan hukum Islam yang menjadi rujukan normatif, belum difahami dan diterapkan dengan baik oleh pihak pembiayaan, sehingga menimbulkan ketidakadilan dan ketidakpastian hukum. Kata Kunci : jaminan eksekusi fidusia,pengambilalihan hak, rahn tasjily

scholarly journals EKSEKUSI NAFKAH PERCERAIAN DI PENGADILAN AGAMA KOTA MALANG

Ulumuddin ◽  
2018 ◽  
Vol 11 (1) ◽  
pp. 116
Author(s):  
Rendra Widyakso
Keyword(s):  
Rule Of Law ◽  
Islamic Law ◽  
Public Order ◽  
Scholarly Journals ◽  
Financial Responsibility ◽  
The Public ◽  
Legal Studies ◽  
Preliminary Study ◽  
The Law

This article aims to answer to important questions in legal studies that how to implement the legal execution of earning the expenses caused by divorce based on Indonesian law? And, how do the perspective of Islamic legal schools deal with the execution? There are numbers of scholarly journals studying this specific issue. However, the preliminary study that specifically focuses on the Legal Verdict of the Religious Court of Malang No. 0957/Pdt.G/2014/PA.MLG is offered by this article. It finds that legally, the judge has authority to order the ex-husband to pay the expences of the divorce compensation (mut’ah), financial responsibility due to divorce (iddah) and financial claim (madiyah) and financial childcare (hadhanah) before the divorce pledge is pronounced. If the expences cannot be paid, the ex-wife has right to purpose the legal execution to the court. Due to the purpose the chief of justice is responsible for and has authority to remind the ex-husband (aanmaning) and doing the legal execution if he disrespectly avoided the court’s order. The concept of legal expenses due to divorce is ruled by the fiqh of Islamic legal schools, in spite of the fact that the details of execution remain no any explanation. This article argues that the execution has been done referring to the law. It purposes to fulfil justice, expediency and rule of law. Furthermore, these purposes are the beginning step in order to achieve the public order (mashlahah) and the higher objective of Islamic law (maqashid al-syari’ah).

scholarly journals GUGAT CERAI: MEMBEBASKAN PREMPUAN DARI PENDERITAAN

QAWWAM ◽  
2019 ◽  
Vol 13 (2) ◽  
pp. 101-122
Author(s):  
Nurmala Fahriyanti
Keyword(s):  
Life Cycle ◽  
Social Development ◽  
Islamic Law ◽  
Human Life ◽  
Daily Basis ◽  
State Law ◽  
Legal Systems ◽  
Religious Law ◽  
The Family

In Mataram West Nusa Tenggara, people is lives are regulated on daily basis by religious law, traditional (adat) law and state law. To understand these complex cultural and religious processes as they affect women in particular, I will examine the issue of divorce, also known as sue divorce. This tipe of divorce is socially-sanctioned. I will focus my examination in Mataram, an city of Lombok West Nusa Tenggara. In Lombok society marriage constitutes an important part of the life cycle.  Someone is not considered an adult until marriage.  Marriage is not only united two individual, but also united two families. However this dream canot be realized over the long term.  If family problems arise and  there are no suitable solutions, people may choose to divorce. For instance, if a wife unable to fulfill her obligations as a wife, her husband can divorce her by verbal means alone, according to any of the three existing legal systems (religious customary or state law). By contrast, if her husband unable to fulfill her obligations as a husband his wife can divorce him in only one way by making an application to Islamic Court to do divorce. In marriage available successful couple builds the family that sakinah, mawaddah and warahmah. But then available also that unsuccessful and end with separate or divorce. Separate constitutes a thing that often happens deep good human life divorce the initiating from the husband and also divorce the initiating from the wife, that its cause islamic law puts attention that adequately significant to that thing. It can appear if understand about islamic law, undoubtedly will find both of previous thing and its terminological  islamic law. There is no divorce without started by marriage. But upon that aim not attained, therefore divorce constitutes last way out that must been sailed through. Divorce can't be done but there is grounds which corrected by religion, adat and state law. In islamic law, that divorce grounds experience developing according to social development. Basically islamic law establishes that divorce reason which is wrangle which really culminates and jeopardize the so called soul safety with “ syiqaq ”. Intention is if worried a couple its happening dispute (dispute not only means wrangle among husband or wife can also distinctive principle and opinion) therefore delegate a someone of its husband family and a someone of wife family. And if both of wife and husband will goodness and they can make resolution and look for the solution, but if there are suitable solution wife or husband can do divorce.

scholarly journals PERDEBATAN PENGGUNAAN HERMENEUTIKA SEBAGAI METODE PENAFSIRAN AL-QUR'AN

ALQALAM ◽  
2010 ◽  
Vol 27 (1) ◽  
pp. 79
Author(s):  
MASRUKHIN MUHSIN
Keyword(s):  
The Other ◽  
Muslim World ◽  
New Method ◽  
The West ◽  
Islamic World ◽  
The Bible ◽  
Islamic Tradition ◽  
To Come

The word hermeneutics derives from the Greek verb, hermeneuin. It means to interpret and to translate. Hermeneutics is divided into three kinds: the theory of hermeneutics, the philosophy hermeneutics, and the critical hermenmtics. Hasan Hanfi is known as the first scholar who introduces hermeneutics in the Islamic World through his work dealing with the new method of interpretation. Nashr Hamid Abu-Zaid is another figure who has much studied hermenmtics in the classical interpretation. Ali Harb is a figure who also much involved in discussing the critism of text even though he does not fully concern on literature or art, but on the thoughts. Muslim thinker who has similar view with Ali Harab in seeing that the backwardness of Arab-Islam from the West is caused by the system of thoguht used by Arah-Muslim not able to come out of obstinary and taqlid is Muhammad Syahmr. On the other side, ones who refuse hermeneutics argue that since its heginning, hermeneutics must be studied suspiciously because it is not derived from the Islamic tradition, but from the unbeliever scientific tradition, Jews and Chrtians in which they use it as a method to interpret the Bible. Practically, in interpreting the Qur'an, hermeneutics even strengthens something, namely the hegemony of scularism-liberalism in the Muslim World that Muslims must actually destroy. Keywords: Hermeneutics, Tafsir, al qur'an

scholarly journals EFEKTIVITAS PELAKSANAAN BEUT AL-QURAN BA’DA MAGHRIB DI KABUPATEN ACEH BESAR

2017 ◽  
Vol 17 (2) ◽  
pp. 179
Author(s):  
Azwir Azwir
Keyword(s):  
Local Government ◽  
Islamic Law ◽  
Local Environment ◽  
Muslim World ◽  
Purposive Sampling ◽  
Research Participants ◽  
School Aged Children ◽  
Young Learners ◽  
Program Strategy ◽  
The People

Learning the Quran is regarded as an essential activity in Muslim world in order to educate their young generations. However, in Aceh Besar district, many children and teenagers are not accustomed to reciting the Quran after the sunset prayer, but instead wandering around the street. Therefore, in 2012, the local government initiated a program of Beut al-Quran Ba’da Magrib in all villages in Aceh Besar district. This study attempted to figure out the effectiveness of the implementation of the program, strategy used, and impacts on the people in Aceh Besar. Held in Aceh Besar district, the study used cluster-based purposive sampling in Banda Safa, Lamcot, and Meunasah Karieng Lamlhom villages. The research participants were the Head of Islamic Law Office of Aceh Besar, teungku (Islamic teachers) of the program, santri (students) of the program, and community figures. In addition, the researcher had also collected some important documents reagrading this program. The data were collected by interview, observation, and documentation. The data were also triangulated. The findings indicated that the implementation of Beut al-Quran Ba’da Magrib program was not effective as expected. The strategy used was requiring school aged children to take part in the program. The impacts, however, were very good as the program has induced positive spirit of the young learners, as well as of the community and local environment. The positive impacts have encouraged other villages to implement similar programs. Nevertheless, there were still some obstacles that need to attention during the implementation of the program.

scholarly journals SHARIAH AND THE POLITICS OF PLURALISM IN INDONESIA: UNDERSTANDING STATE’S RATIONAL APPROACH TO ADAT AND ISLAMIC LAW

2019 ◽  
Vol 4 (1) ◽  
pp. 14-30
Author(s):  
Ratno Lukito
Keyword(s):  
Islamic Law ◽  
Effective Means ◽  
The State ◽  
Rational Approach ◽  
State Law ◽  
Legal Tradition ◽  
Basic Character ◽  
Legal Traditions ◽  
Religious Law ◽  
Adat Law

The distinction in the normative character of legal traditions will give an effect of the state different attitude to those traditions. In the case of Islamic law and adat law in Indonesia, we see that although having different basic character in terms of its foundation of legal creation, Islamic law can relatively be closer to the character of the state law, which is uniform and nationally effective. It is clear here that the nationalization of Islamic law built on the basis of its adherents, and not on the tribe, clan, language, or other local denominations, becomes an effective tool for its rapprochement with the state law, which is also nationalized on the basis of citizenship. Thus, although it is not possible to equalize Islamic law and state law due to the sacredness of the religious law, the scope in the efficacy of both laws can be an effective means of legal rapprochement. This is however not the case with adat law. The character of adat law as a local and heterogeneous legal tradition is intrinsically not in line with the philosophy of national law, which is anti-localism and homogeneous. It is just impossible to bring adat law to become an effective law for all Indonesian citizens. As a result, the rapprochement is difficult between adat law and state law.

ḤUDŪDPUNISHMENTS IN THE FOREFRONT: APPLICATION OF ISLAMIC CRIMINAL LAW BY HARAKAT AL-SHABAAB AL-MUJAHIDEEN

2014 ◽  
Vol 29 (2) ◽  
pp. 317-329 ◽  
Author(s):  
Michael Skjelderup
Keyword(s):  
Criminal Law ◽  
Current Practice ◽  
Islamic Law ◽  
State Power ◽  
Muslim World ◽  
Terrorist Group ◽  
Islamic State ◽  
Law And Order ◽  
State Institutions ◽  
Muslim Scholars

AbstractHarakat al-Shabaab al-Mujahideen, usually referred to as al-Shabaab (the youth), is known primarily as a Somali terrorist group. But since the end of 2008, it has functioned as a state power in large parts of Southern and Central Somalia. In this article, I analyze the main legal body of the group: theqāḍīcourt. In order to establish law and order in their territories, al-Shabaab has applied their own version ofsharī'a. The article reveals that al-Shabaab's application of criminal law follows the inherent logic of classical Islamic legal doctrines on several points. However, the al-Shabaab courts tend to overlook many of the strict requirements regarding evidence and procedure that were outlined by the medieval Muslim scholars in order to humanize Islamic law. Therefore, the legal reality of al-Shabaab's regime is far more brutal than that of most other Islamic-inspired regimes in the contemporary Muslim world. Al-Shabaab's practice of Islamic criminal law may be seen not only as a means to exercise control through fear but also as an effective way of filling the vacuum of insecurity and instability that has followed twenty years of violence and the absence of state institutions in its territories. I argue that, in order to understand al-Shabaab's current practice of criminal law, one has to take into consideration the group's jihadi-Salafi affiliation. According to Salafi notions,sharī'ais not only a means to an end, but an end in itself. As such,sharī'a(i.e., God's divine law) is the visual symbol of an Islamic state. Consequently, the application of Islamic criminal law, and especially of theḥudūdpunishments, provides al-Shabaab with political-religious legitimacy.

Sign in / Sign up

Export Citation Format

Share Document