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Segitiga Hukum Internasional, Municipal dan Islam: Memahami Kompetisi, Interaksi dan Resolusi Hukum di Malaysia Ratno Lukito
Asy-Syir'ah: Jurnal Ilmu Syari'ah dan Hukum Vol 49, No 1 (2015)
Publisher : Faculty of Sharia and Law - Sunan Kalijaga State Islamic University

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.14421/ajish.2015.49.1.161-191

Abstract

As one of the Asian countries substantiating Islam as the official state religion, Malaysia always faces a dilemma in its encounter with international law, amid the dominance of municipal (national) and Islamic laws. Until now, many norms of international law seem to be apprehensively accepted. In fact, the existence of Islamic law, constitutionally recognized as having an equal position with Common Law, often works as a barrier to the influence of international norms. Here, the segregation between British Common Law and Islamic law has played a major role in building the country's behavior in facing international law. Particularly, in redressing hard cases, international legal norms (such as international human rights law) are still difficult to get in and provide a positive influence in the national legal system. This paper focuses on the interaction between these three legal traditions of international, municipal and Islam in the face of rising Islamic conservatism supported by Malaysian Islamic parties in recent decades. Because legal segregation and compartmentalization between British common law and Islamic law had been chosen as the framework of legal pluralism in this country, the redress of the hard cases involving the meeting among the three laws --such as the case of apostasy, divorce due to apostasy, purdah etc.--, more often than not has led to the marginalization of international norms. This brings the consequence of the need to review the pattern of legal pluralism in this country, where relationship between different legal traditions is analyzed using bottom-up and non-state oriented perspectives. And it can only be done if the jurisprudence of legal pluralism in Malaysia can benefit the principles of Higher Law in its legal orientation; namely, the principles of universal justice, morality, and fairness, and not in the mere proximity to the character and the logic of official state law.
Sharī’ah and the Politics of Pluralism in Indonesia Ratno Lukito
Studia Islamika Vol 14, No 2 (2007): Studia Islamika
Publisher : Center for Study of Islam and Society (PPIM) Syarif Hidayatullah State Islamic University

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.15408/sdi.v14i2.545

Abstract

Keeping in mind the Indonesian Government's policy regarding legal pluralism, this article will take a closer look at how the Government deals with the existence of both Islamic law and customary law (adat). The adoption of "state law pluralism", especially by the New Order regime since 1970s, has had an evident impact on the way the state handles the institution of adat and Islamic law (shari'ah). The question is what is the motive behind employing this strategy? This is a question that necessitates more a socio-political approach in the study of comparative law, drawing on a number of regulations and acts related to adat and Islamic law as the primary sources.DOI: 10.15408/sdi.v14i2.545