Al-Manahij: Jurnal Kajian Hukum Islam 2018-12-06T12:44:53+00:00 Bani Syarif Maula Open Journal Systems <p><em>Al-Manahij: Jurnal Kajian Hukum Islam</em> (Journal of Islamic Law Studies) is published by Faculty of Syariah, Institute for Islamic Studies (IAIN) of Purwokerto, Indonesia.<br>The subject covers textual and fieldwork studies with various perspectives of Islamic law. Al-Manahij is published twice a year, presenting qualified scholarly articles. It always places Islamic law in the central focus of academic inquiry, and invites any comprehensive observation of Islamic law as a system of norms in Muslim society. This journal is a forum for debate for scholars and professionals concerned with the Islamic law and Islamic legal cultures within local and challenging global contexts. Al-Manahij has become a medium of diffusion and exchange of ideas and research findings, so much so that researchers, writers, and readers have interacted in the scholarly manner.</p> THE AUTHORITY OF MAJELIS TAFSIR AL-QUR’AN (MTA) FATWA: 2018-12-05T11:44:15+00:00 Muh Nashirudin Mudofir Mudofir <p>This paper discusses the authority behind the Sunday Morning Brochure by <em>Majelis Tafsir Al-Qur’an</em> (MTA). The Sunday Morning Brochure is a study material given on Sunday morning and distributed to MTA members, and they can be regarded as a <em>fatwa</em> or the result of the MTA’s <em>ijtihād</em> in understanding the sources of Islamic law. From the documentations and interviews, this research finds that the study materials on the MTA’s Sunday morning brochures have been designed by a team of experts under the supervision of Ahmad Sukina. However, the brochures are, in fact, only prepared individually by the chairman of the team, i.e. Masduki who cannot be said to be authoritative in the <em>istinbāṭ</em> or <em>ijtihād</em> of Islamic law because he does not meet the criteria as an individual <em>mujtahid</em> in establishing the Islamic law. While using the jargon <em>back to the Qur'an and Sunnah</em>, MTA still uses <em>ijmā'</em> and <em>qiyās</em> as a proposition though in a very limited case. Other sources than those four, such as <em>istiḥsān</em>, <em>maṣlaḥah</em>, and <em>istiṣḥāb</em> will not be used by the MTA.</p> 2018-12-05T08:19:31+00:00 ##submission.copyrightStatement## MENGGAGAS HAK KEKAYAAN INTELEKTUAL PERSPEKTIF HUKUM ISLAM KE DALAM HUKUM NASIONAL 2018-12-05T11:44:19+00:00 Nita Triana <p>This study aims to describe and analyze Intellectual Property Rights (IPR) under the rules of Trade-Related Aspects of Intellectual Property Rights (TRIPs) which are in several respects different from the laws that live in Indonesia. Therefore, it is necessary to initiate Intellectual Property Rights Law that is in accordance with the values that live in Indonesia, the majority of which are Muslim communities. The results of this study illustrate that the legal protection of the owners of In­tellectual Property Rights (IPR) in Indonesia has been regulated in various laws and regulations that are included in the Intellectual Property Rights Law system. These regulations must refer strictly to the TRIPs Agreement. The Intellectual Property Rights regime with the rules of TRIPs has two sides in the protection of intellectual property rights, on the one hand it protects individual interests from piracy and theft of intellectual property, but on the other hand empirically this le­gal protection greatly benefits developed countries. Based on this, the Intellectual Property Rights Law must&nbsp; be rebuilt with the source of material law originating from values that live in Indonesian society, namely Islamic law.</p> 2018-12-05T07:39:38+00:00 ##submission.copyrightStatement## DISKURSUS ‘IDDAH BERPERSEPKTIF GENDER 2018-12-05T11:44:23+00:00 Wardah Nuroniyah <p>Generally <em>‘iddah</em> only applies to women (wives), with the ultimate goal of knowing the emptiness of wife’s womb. But if indeed the sole purpose of <em>‘iddah</em> is to know the vacuum of the womb, then it is appropriate that <em>‘iddah</em> is only for women, for only women have wombs. In this case, it means that <em>‘iddah</em> only relates to sex (gender) and it is natural. However, the function of <em>‘iddah</em> is not only to know the cleanliness of a wife’s womb, but from some other wisdom such as the prevention of infectious diseases, the period of reconciliation, upholding marital problems, and also serving a period of mourning when one’s partner dies. The wisdom and purpose of <em>‘iddah</em> is actually an implementation of the concept of general benefits (<em>al-kulliyat al-khams</em>) namely <em>hifẓ al-dīn </em>(for religion)<em>, hifẓ al-nafs </em>(for souls)<em>, hifẓ al-‘aql </em>(for minds)<em>, hifẓ al-nasl aw al-‘ird </em>(for esteems) dan<em> hifẓ māl </em>(for properties/wealth). By using the method of <em>dalālah al-dalālah</em>, and by taking into account the legal reasoning (<em>‘illah al-ḥukm</em>), it is very logically and legally acceptable that the implementation of <em>‘iddah</em> is not only for women. The enactment of <em>‘iddah</em> for women (wives) and men (husbands) is at least more upholding the human dignity and human rights ​​when marriage is concerned. This study uses a philosophical approach, with the aim of trying to find benefit values ​​in syariah law from the concept of <em>‘iddah</em>, which is based on gender equality.</p> 2018-12-05T07:58:28+00:00 ##submission.copyrightStatement## INTERKONEKSI FIKIH HISAB RUKYAT DAN ILMU GEODESI 2018-12-05T12:39:24+00:00 Marwadi Marwadi <p>Islamic studies, including <em>fiqh</em>, using an integration-interconnection approach with other sciences are important to do to get a more complete perspective. One of them is the interconnection of “hisab-rukyat” <em>fiqh</em> with geodesy. In general, the study of the <em>Qibla</em> direction, the beginning of prayer times, the beginning of the <em>qamariah</em> month, and eclipses in “hisab-rukyat” <em>fiqh</em>, uses the general formula of spherical trigonometry with a round earth reference. Round earth references in the study of the region differ from the real condition of the earth in the form of an ellipsoid as described in geodesy. To get more valid results, it is important to convert latitude and place height. The latitude of the place obtained by reference or GPS is the geodetic latitude with the earth reference in the form of an ellipsoid, whereas the spherical trigonometry formula refers to the shape of a round Earth. The place height obtained through GPS is the ellipsoid height, not the desired orthometric height (above the average surface of sea water). By converting these data, studies of the “<em>hisab-rukyat</em>” <em>fiqh</em> can be more valid. By increasing the validity of the calculation results, the interconnection between “<em>hisab-rukyat</em>” <em>fiqh</em> and geodesy appears in the form of complementation, meaning that data and findings of geodesy can complement data and analysis in “<em>hisab-rukyat</em>” <em>fiqh</em>, so that it is possible to draw more valid conclusions.</p> 2018-12-05T00:00:00+00:00 ##submission.copyrightStatement## REKONSTRUKSI HUKUM WAḌ’Ī 2018-12-05T11:44:38+00:00 Ahmad Sholihin Siregar <p style="margin: 0px 0px 0px 28.4px; text-align: justify; line-height: normal; text-justify: inter-ideograph;"><span style="margin: 0px; font-family: 'Times New Roman','serif'; font-size: 12pt;">This study aims to reconstruct the <em>waḍ’ī </em>law in <em>uṣūl fiqh</em>. This reconstruction is important considering the facts: <em>mubṭil </em>which is always cited in <em>fiqh</em>, has no referrence to <em>uṣūl fiqh</em>, the ambiguity of <em>waḍ’ī’s </em>definition and its unsystematic function as explained in <em>uṣūl fiqh</em>. The reconstruction of <em>waḍ’ī </em>law in this article consisted of: 1) adding <em>mubṭil </em>to <em>waḍ’ī </em>law. <em>Mubṭil, </em>as a decree of Allah (<em>khiṭābullāh</em>) which stipulates something as the cause of the cancellation of acts, is required in law because it is needed in explaining the law of acts, it is not the opposite of conditions (<em>syarṭ</em>), and the decree (<em>khiṭāb</em>) about <em>mubṭil</em> is found in the Qur’an; 2) <em>‘azīmah </em>should also be determened as <em>khiṭābullāh</em>, which stipulates something as a special reason for the enactment of general law from special law, in addition to the initial definition. 3) the <em>waḍ’ī </em>law should be defined implicitly and exclusively as <em>khiṭābullāh</em>, assigned something as determinant factor or measurement for <em>mukallaf</em>’s (legal subjects) deeds. 4) Restructuring of <em>waḍ’ī</em> law according to its function, i.e. by measuring <em>taklīfī</em> law, it must be divided into three parts systematically, namely: pre-acts (<em>sabab-māni`-rukhṣah-’azīmah</em>), in acts (<em>syarṭ-mubṭil</em>), and post-acts (<em>ṣaḥīḥ-bāṭil</em>).</span></p> 2018-12-05T05:32:27+00:00 ##submission.copyrightStatement## ANALISIS CROWDFUNDING SYARIAH BERDASARKAN PRINSIP SYARIAH COMPLIANCE SERTA IMPLEMENTASINYA DALAM PRODUK PERBANKAN SYARIAH 2018-12-06T12:42:26+00:00 Anisah Novitarani Ro’fah Setyowati <p style="margin: 0px 0px 0px 28.4px; text-align: justify; line-height: normal;"><span lang="IN" style="margin: 0px; font-family: 'Times New Roman','serif'; font-size: 12pt;">The presence of fintech in the form of crowdfunding with sharia principles can increase financing in Islamic banking. The concept of Islamic crowdfunding must basically be guided by the Qur'an and the Sunnah. This is in accordance with the Fatwa of the National Sharia Council-Indonesian Ulama Council (DSN-MUI) Number 117 / DSN-MUI / II / 2018. Referring to the Fatwa of the DSN-MUI, sharia crowdfunding in its implementation must be in accordance with Islamic law. The suitability of Islamic law with the concept of sharia crowdfunding can be seen from the perspective of shariah compliance, which must be free from gambling (<em>maysīr</em>), usury (<em>ribā</em>), fraud (<em>gharar</em>) and wrongdoers (<em>ẓālim</em>). Sharia crowdfunding can have at least two types of contracts in the transaction, <em>musyārakah</em> and <em>qarḍ</em>. The two contracts must fulfill their respective terms and conditions so that the contract implemented can be considered valid. Problems that are often faced in implementing crowdfunding are in terms of legality and security. The problem of the law regarding the practice of sharia crowdfunding needs to be monitored by the National Sharia Board in order to conform to sharia so that people do not hesitate to invest through the sharia crowdfunding platform.</span></p> 2018-12-05T08:11:28+00:00 ##submission.copyrightStatement## PERCERAIAN DALAM KELUARGA MUSLIM DI JAWA BARAT 2018-12-06T12:44:53+00:00 Ramdani Wahyu Sururie Harry Yuniardi <p style="margin: 0px 16.8px 0px 18.93px; text-align: justify; line-height: normal;"><span lang="IN" style="margin: 0px; font-family: 'Times New Roman','serif'; font-size: 12pt;">This study aims to describe the causes of high divorce rates in Muslim families in West Java based on the decisions of the Religious Courts, and this study also aims to formulate a strategy to prevent the increase in divorce rates. This study uses descriptive analysis method with interview techniques, study documents on the decisions of the Religious Courts and literature studies. The results of this study indicate that the highest cause of divorce in the mulism family in West Java is due to economic factors, there is no harmony and no responsibility. Prevention strategies for increasing divorce rates in West Java need to be done systemically from top to bottom, starting from family education before marriage and during conflicts between husband and wife. Thus, it can be concluded that the cause of the high divorce rate in Muslim families in West Java is due to a lack of commitment and knowledge of the essence of marriage, which makes the marital bond in a Muslim family fragile. The strategy to prevent increasing divorce rates is done systemically involving various elements, namely the government, community institutions, and the Religious Courts.</span></p> 2018-12-05T00:00:00+00:00 ##submission.copyrightStatement## ZAKAT TANAMAN MENURUT ULAMA DAYAH ACEH PERSPEKTIF MAQĀṢID AL-SYARĪ‘AH 2018-12-05T11:44:56+00:00 Alimuddin Alimuddin Harjoni Desky <p>This study examines the reasons for Achehness Ulama of Dayah regarding plants and seeds that are subject to zakat. How the logic of thinking used by these ulama and their relationship with <em>maqāṣid al-syarī‘ah</em> (syariah legal purposes). This research focuses on the legal substance of zakat as intended by the Qur’an and Hadith, then it is analyzed from the side of <em>maqāṣid al-syarī‘ah</em>. The results of this study indicate that Acehnese Ulama argues that zakat of plants is only rice or a kind of staple food, on the grounds that it is a staple food of a country’s population, which has filling properties and can be stored and lasted. Other plants such as oil palm, cocoa, coffee, even though they are productive they are not zakatable wealth, because they do not meet these criteria. The legal reasoning of the Acehness Ulama uses the deductive method with the <em>bayani</em> (language) approach. On the other hand, the Acehness Ulama does not deny that the search for <em>maqāṣid al-syarī‘ah</em> can be done through in-depth study, but it is not yet certain that the obligations of zakat on productive plants can be formulated through this approach, so they reject it. According to them, the command of zakat can only be understood from the side of <em>ta‘abbudī</em> (worship approach), not through <em>ta‘aqqulī</em> (resourceful approach).</p> 2018-12-05T07:34:27+00:00 ##submission.copyrightStatement## MONOPOLI DALAM PERSPEKTIF JARĪMAH TA‘ZĪR: 2018-12-05T11:45:02+00:00 Moh. Makmun <p>This study is motivated by many cases of monopoly that cause consumer losses, and the absence of clear rules related to monopoly in the perspective of Islamic criminal law. The type of this research is field research using a comparative approach and the maqāṣid al-syarī‘ah approach (the purpose of Islamic law). The results of the study concluded that first, monopoly is contrary to Law No. 5 of 1999. Second, monopoly is contrary to the purpose of Islamic Shari'ah in the form of safeguarding property. Third, the monopoly in Islamic criminal law is a form of criminal offense because it violates the provisions of Islamic law, due to elements of fraud, engineering requests (offers), hoarding, cooperating in criminal acts, and inhibiting other business actors. In addition to the sanctions of monopoly actors according to Law No. 5 of 1999 in the perspective of Islamic criminal law are as follows: (1) administrative sanctions are in accordance with muamalah fiqh rules and basic legal rules; (2) the main criminal sanctions are in accordance with Islamic sharia provisions, but the sanctions need to be added by paying CSR as a return on profits; (3) additional criminal sanctions are also in accordance with the provisions of Islamic law; and (4) prisons are additional sanctions, not sanctions of choice.</p> 2018-12-05T07:31:06+00:00 ##submission.copyrightStatement## HUKUM DENDA DALAM KEUANGAN PUBLIK ISLAM DI INDONESIA 2018-12-05T11:45:07+00:00 Fathul Aminudin Aziz <p style="margin: 0px 0px 0px 28.4px; line-height: normal;"><span style="margin: 0px; color: black; font-family: 'Times New Roman','serif'; font-size: 12pt;">Fines are sanctions or punishments that are applied in the form of the obligation to pay a sum of money imposed on the denial of a number of agreements previously agreed upon. There is debate over the status of fines in Islamic law. Some argue that fines may not be used, and some argue that they may be used. In the context of fines for delays in payment of taxes, in fiqh law it can be analogous to ta'zir bi al-tamlīk (punishment for ownership). This can be justified if the tax obligations have met the requirements. Whereas according to Islamic teachings, fines can be categorized as acts in order to obey government orders as taught in the hadith, and in order to contribute to the realization of mutual benefit in the life of the state. As for the amount of the fine, the government cannot arbitrarily determine fines that are too large to burden the people. Penalties are applied as a message of reprimand and as a means to cover the lack of the state budget.</span></p> 2018-12-05T07:52:06+00:00 ##submission.copyrightStatement## REKONSTRUKSI METODOLOGI FIKIH KONTEMPORER 2018-12-05T11:45:12+00:00 Ansori Ansori <p>One of the causes of underdevelopment of Muslims is when <em>fiqh</em> is positioned equivalent to <em>naṣṣ</em> (Holy Scripture). When <em>fiqh</em> is equated with <em>naṣṣ</em>, <em>fiqh</em> becomes sacred, there is no courage for people to criticize it, let alone make changes to existing <em>fiqh</em> provisions. As a product of reason (<em>ijtihād</em>), <em>fiqh</em> is not intended as a final legal provision. The <em>ijtihād</em> carried out by the generation after the death of the Prophet Muhammad must be made an important lesson for the need for the development of Islamic law (<em>fiqh</em>) to keep abreast of the times. Another important thing is that applying <em>fiqh</em> law must not only follow <em>fiqh</em> products, but also must understand the process. This means that knowing the methods used by jurists (<em>fuqahā’</em>) to process <em>fiqh</em> births should not be ruled out. Understanding the methods used by jurists (<em>fuqahā’</em>) will open the development of <em>fiqh</em> in the global era, so that <em>fiqh</em> products as a guideline for Muslims will remain relevant and responsive and able to solve contemporary problems.</p> 2018-12-05T08:05:47+00:00 ##submission.copyrightStatement##