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Mazahib
ISSN : 18299067     EISSN : 24606588     DOI : -
MAZAHIB Jurnal Pemikiran Hukum Islam (MAZAHIB Journal of Islamic Legal Thoughts, p-ISSN: 1829-9067, e-ISSN: 2460-6588) is a peer-reviewed journal published by the Faculty of Sharia, Samarinda State Institute of Islamic Studies (IAIN Samarinda). This scholarly periodical specializes in the study of Islamic law and seeks to present the various results of the latest research, both conceptual-doctrinal and empirical, in the field. The editors welcome contributions in the form of articles to be published after undergoing a manuscript selection mechanism, peer-review, and editing process.
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Articles 110 Documents
Meretas Tradisi Monolitik dalam Kajian Islam/Hukum Islam Ahyar, Muzayyin
Mazahib Vol 17, No 2 (2018)
Publisher : IAIN Samarinda

Show Abstract | Download Original | Original Source | Check in Google Scholar | Full PDF (313.088 KB) | DOI: 10.21093/mj.v17i2.1404

Abstract

Back Pages Ahyar, Muzayyin
Mazahib Vol 17, No 2 (2018)
Publisher : IAIN Samarinda

Show Abstract | Download Original | Original Source | Check in Google Scholar | Full PDF (584.614 KB) | DOI: 10.21093/mj.v17i2.1405

Abstract

Front Pages Ahyar, Muzayyin
Mazahib Vol 17, No 2 (2018)
Publisher : IAIN Samarinda

Show Abstract | Download Original | Original Source | Check in Google Scholar | Full PDF (765.147 KB) | DOI: 10.21093/mj.v17i2.1406

Abstract

Islamic Law and Copyright In Academic World: The Dynamic Debates between Privatization and Distribution of Knowledge Darmawati, Darmawati
Mazahib Vol 17, No 1 (2018)
Publisher : IAIN Samarinda

Show Abstract | Download Original | Original Source | Check in Google Scholar | Full PDF (644.941 KB) | DOI: 10.21093/mj.v17i1.948

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The article explores copyright problem dynamic in a globalized academic world, especially in the Muslim worlds. The discussed issue in this paper is a conflict of interest between knowledge privatization and distribution, and its relation to the Islamic norms. This paper argues that the main problem of the concept is that the discourse is dominated by the idea of knowledge privatization by the publishers as capitalists, supported by the Government through the policy represented in Copyright law. This study finds that there are several movements emerged in response to the development of copyright law. At least, there are two stream movements; anti copyright movement and movement which demand copyright reform. By presenting examples of copyright resistance movements in the academic world such as Sci-Hub, Libgen, A2K movement, and some copyright experiences in the Muslim world, this article will be guided by Foucauldian genealogical discourse theory. This article confirms that the interests of publishers and academic interests are two things that are difficult to discuss in order to achieve a win win solution. While copyright laws favor the ruling interests of things, it does not fully effective in handling the legal cases on academic and non-profit matters. Besides, Islamic law has its own ambivalence to the copyright case. On the one hand, Islam advocates the widespread dissemination of knowledge, but on the other hand the Muslim worlds have to limit the spread of the sciences in accordance with the interests of intellectual property rights.Keywords: Intellectual Property right, Islam and copyright, privatization of knowledge.
Legal Analysis on the Policy of Home Ownership Requirements for Foreigners in the Consumer Credit Agremeent of Syariah Bank in Indonesia Eka Husnul Khotimah, Rachmadani
Mazahib Vol 17, No 1 (2018)
Publisher : IAIN Samarinda

Show Abstract | Download Original | Original Source | Check in Google Scholar | Full PDF (786.044 KB) | DOI: 10.21093/mj.v17i1.1033

Abstract

The study examines the normative policy on the ownership rules of residential homes for foreigners in the credit agreement consumption of Syariah banks in Indonesia. This policy has existed since 2005. However, it does not make all Syariah banks in Indonesia provide credit facilities to foreigners since there is no specific implementing regulation and legal protection for the banks in the case of finance arrears caused by the practice which can disrupt their liquidity and profitability. Considering this, the article analyses the legal protection for Islamic banks, both in preventive and repressive context, in providing credit facilities for foreigners, so that they all can facilitate loans without any fears and risks. This becomes necessary as it can contribute to Indonesia’s economic growth.  It argues that the law should cover this matter, through both preventive and restrictive measures, in which the law should prevent the practice from causing finance arrears through musyārakah contract.  The results of this study confirm that there is legal protection that has been regulated by Bank Indonesia for Syariah Bank in giving credit to a foreigner.Keywords: Legal Policy, Syariah Bank, Foreigners, Consumer Credit Agreement
The Program of Circuit Isbat Nikah as the Embodiment of Access to Justice in Indonesia Andaryuni, Lilik
Mazahib Vol 17, No 1 (2018)
Publisher : IAIN Samarinda

Show Abstract | Download Original | Original Source | Check in Google Scholar | Full PDF (703.008 KB) | DOI: 10.21093/mj.v17i1.1054

Abstract

Human rights guaranteed by the Constitution require, among other things, that every citizen should be able to access the judiciary. In reality, however, not all citizens can access the judiciary in Indonesia due to various factors including litigation costs, ignorance of litigation procedures, and distance problem. The same situation is also experienced by the society seeking for justice through Islamic judiciary (Pengadilan Agama or PA) across Indonesia. One of the Religious Courts deserved for a case study is PA Tenggarong. PA Tenggarong is one of the Religious Courts in East Kalimantan, which covers two district areas, namely Kutai Barat and Kutai Kartanegara. Kutai Barat consists of 12 sub-districts with 182 villages, while Kutai Kartanegara has 18 sub-districts with 227 villages. The geographical conditions and locations of the villages are mostly far away from the PA Tenggarong that render it difficult for the justice seekers in accessing the court, and, thus, obtaining their rights. Their legal problems mainly come from their unregistered marriages which make their unions do not exist according to the effective law. Hence, this article analyzes how the program of the legalization of unregistered marriages (isbat nikah) in PA Tenggarong has been implemented in order to assist the justice seekers in securing the legal certainty of marriage status. The finding reveals that the process of the legalization of marriage is conducted as a circuit marriage contract in different sub-district/village office or decent premises across Kutai Barat and Kutai Kartanegara. The program is free for eligible parties and is facilitative towards their needs and conditions, namely lacks of legal documents, ignorance of the litigation procedures, and afar domicile. This thus makes PA Tenggarong now more accessible to the public and the circuit isbat nikah as the embodiment of access to justice principle in Indonesia.Keywords:Circuit isbat nikah, access to justice, Islamic Judiciary in Indonesia  
Muslim Feminists` Reading of the Quran: A Juristic Analysis on Family Law Issues Haneef, Sayed Sikandar Shah; bt Mohd Yunus, Saidatolakma; Al-Fijawi, Mohammed Farid Ali
Mazahib Vol 17, No 1 (2018)
Publisher : IAIN Samarinda

Show Abstract | Download Original | Original Source | Check in Google Scholar | Full PDF (828.84 KB) | DOI: 10.21093/mj.v17i1.1056

Abstract

Muslim feminist movement represents an indigenous voice among the contemporary literature on women and family. Its main contention is that women in Muslim society are accorded less favourable treatment especially in terms of legal rights. To remedy the situation, feminist scholarship`s main argument is that there is a need for feminist-reading of the sacred texts so as to purge the juristic legacy of male-biased views and achieve justice and equality for Muslim women in contemporary families. One principal methodological framework for this idea to materialise is to embark on the re-reading of the Qur`an from the women`s perspective. In this context, this paper presents issue-based analysis of Amina Wadud`s reading of the relevant Qur`anic passages on family law matters and finds that in spite of its merits, its main handicap lies on its methodological flaws, both in terms of approach and outcome. Methodologically, it is regarded as selective and ultra-vires of Islamic methodology of legal reform. It terms of impact, it is suspected as being tainted with Western inspired assumptions of rights in terms of justice and equality between the genders. To overcome this impasse, the paper argues for a mediated holistic approach to harmonise relations between men and women in the family.  Keywords: Family law, gender equality, justice, Muslim feminist.
Back Pages Ahyar, Muzayyin
Mazahib Vol 17, No 1 (2018)
Publisher : IAIN Samarinda

Show Abstract | Download Original | Original Source | Check in Google Scholar | Full PDF (713.57 KB) | DOI: 10.21093/mj.v17i1.1165

Abstract

The Role of Ulama in the Application of Islamic Syariah in Aceh: A Study of Aceh Ulama Council’s Fatwa on Apostasies and Heresies Nurdin, Abidin; Abubakar, Muhammad bin; Alchaidar, Alchaidar; Apridar, Apridar
Mazahib Vol 17, No 1 (2018)
Publisher : IAIN Samarinda

Show Abstract | Download Original | Original Source | Check in Google Scholar | Full PDF (633.538 KB) | DOI: 10.21093/mj.v17i1.1022

Abstract

This article examines the role of ulama in the implementation of Sharia in Aceh by focusing on the study of their fatwa concerning apostasies and heresy. Since the time of the Aceh Sultanate, the role of the ulama has been prominent as the royal judges who applied sharia due to the status Aceh as the region that embraces Sunni Islam as the official schools of jurisprudence and theology. This situation continues in the period of independence and it has legally been further strengthened in the post-Soeharto regime (reformation era) by the special autonomy status granted to Aceh that includes the right to implement sharia in full. Based on the special autonomy, the council of ulama in Aceh, known as Majelis Permusyawaratan Ulama (the Consultative Assembly of Ulama) or MPU) is officially instuted as the government partner and vested with the authority to issue religious edicts (fatwa) and give considerations regarding the problems of governance, development, community development, and Islamic economy to the government. With regards to Islamic theology, the MPU has the authority to determine the orthodoxy of a religious group by issuing fatwa. As studied, there are fourteen fatwa issued by the MPU on sects and religious movements flourished in Aceh which are deemed to be deviating from Islamic orthodoxy; those include Shiah, Millata Abraham, and Gafatar.   From in-depth studies of the fatwa, this article reveals that the influential role of ulama in Aceh in the life of society and government comes from three legitimations, namely; history, legal, and social. This thus has made the society and government feel bound by the MPU fatwa on apostasies and heresies which prompt the Aceh government to ban the groups despite freedom of religion guaranteed by the constitution. This condition is theoretically appealing because, as far as the legal system of Indonesia is a concern, obeying a fatwa is a matter moral compliance instead of legal compliance.Keywords: Aceh, Islamic Sharia, Ulama Council’s Fatwa on Apostasies and Heresies
Para-fiqh: Bridging Thematic Fiqh to Ushūl and Ushūl’s Response to Specialization of Fiqh Siregar, Ahmad Sholihin
Mazahib Vol 17, No 2 (2018)
Publisher : IAIN Samarinda

Show Abstract | Download Original | Original Source | Check in Google Scholar | Full PDF (834.938 KB) | DOI: 10.21093/mj.v17i2.1192

Abstract

The latest trend regarding the study of contemporary thematic Islamic jurisprudence (fiqh) is built upon a paradigm that fiqh, as a science developed in the Islamic tradition, is able to respond to every modern challenge. This paradigm seems to be incompatible with the study of the Islamic legal theory (Ushū al-fiqh) which is considered stagnant. However, the study of Ushū al-fiqh is, the initial gate to the discussion of legal reasoning which enables those who master it come up with theoretically correct rulings and hopefully responsive to the needs of the times. Discussing the thematic Islamic jurisprudence (fiqh) without going through the Ushū al-fiqh thinking framework may lead to a serious gap to the product of the thematic fiqh study. The thematic fiqh studies such as fiqh siyāsah (Islamic jurisprudence on constitution), fiqh munākahat (Islamic jurisprudence on marriage), and Islamic jurisprudence on health issues are not infrequently distorted from the actual context. This article offers a way of dealing with the gaps. In this case, the terminology presented is para-fiqh. Para-fiqh is a term to bridge the trend between the thematic fiqh studies and the stagnancy of Ushū al-fiqh study which, in turn, give birth to the antithesis in the form of thematic Ushū al-fiqh. This article employs the conceptual-doctrinal approach which seeks to present the problems of various classical literatures of the Muslim scholars. By scrutinizing the concept para-fiqh, it is hoped that: first, this article presents a universal legal argument on some particular legal themes; second, it explains the principles of Ushū al-fiqh to understand the thematic fiqh products. The findings emphasize that the para-fiqh concept is important for enriching the intellectual tradition of Muslim communities, as well as being a bridge between the gaps created by the study of Islamic jurisprudence (fiqh) and the study of Islamic legal theory (Ushū al-fiqh).Keywords: para-fiqh; thematic ushūl, thematic fiqh, Ushūl jināyat; Ushūl mu`āmalat. AbstrakTrend terbaru mengenai kajian fiqh tematik kontemporer saat ini membangun paradigma bahwa fiqh adalah salah satu ilmu yang berkembang dalam tradisi Islam yang mampu merespon tantangan zaman. Paradigma ini seakan tidak sebangun dengan kajian Ushul fiqh yang dianggap stagnan. Namun demikian, kajian Ushul fiqh sebenarnya adalah gerbang awal pembahasan penalaran hukum sehingga melahirkan keputusan-keputusan hukum yang tepat. Membahas fiqh tematik tanpa melalui kerangka berfikir ushuliy  membawa gap yang serius terhadap produk kajian fiqh tematik tersebut. kajian-kajian tematik seperti fiqh siyāsah, fiqh, munākahat, fiqh kontemporer dan kesehatan tidak jarang terserabut dari konteks yang sebenarnya. Artikel ini menawarkan sebuah jalan lintas mengenai gap yang terjadi. Dalam kasus ini, terminology yang dihadirkan adalah para-fikqh. Para-fiqh adalah istilah untuk menjembatani antara trend kajian fiqh tematik dengan stagnasi kajian ushul fiqh; sehingga melahirkan antitesa berupa ushul fiqh tematik. Kajian dalam artikel ini bersifat konseptual-doktrinal yang berusaha menyajikan persoalan dari berbagai pustaka klasik sarjana Muslim. Artikel ini menemukan ada 2 tujuan: pertama, menghadirkan argumen hukum universal pada beberapa tema hukum yang partikular. Kedua, menjelaskan prinsp-prinsip ushūl   guna memahami produk fikih tematik. Hasil dari artikel ini menekankan bahwa para-fiqh penting untuk memperkaya khazanah intelektual tradisi intelektual masyarakat Muslim, sekaligus menjadi jembatan penghubung dari gap yang terjadi karena persoalan fiqh dan ushūl fiqh.Kata Kunci: para-fiqh; ushūl tematik, fikih tematik, Ushūl jināyat; Ushūl mu`āmalat.

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