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Smart: Journal of Sharia, Tradition, and Modernity

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Published by Universitas Islam Negeri Raden Intan Lampung

ISSN : - EISSN : 28078268 DOI : https://doi.org/10.24042/smart.v1i2.10965

Core Subject : Religion, Social,

Religion Law, Crime, Criminology & Criminal Justice Social Sciences

SMART: Journal of Sharia, Tradition, and Modernity adalah jurnal peer-review, open-access yang diterbitkan oleh Prodi Hukum Keluarga Program Doctor Pascasarja Universitas Islam Negeri (UIN) Raden Intan Lampung. Jurnal ini bertujuan untuk mempublikasikan temuan penelitian yang berkaitan dengan studi hukum Islam, hukum keluarga Islam, Sejarah dan Pemikiran hukum Islam, Norma, Perilaku, dan Praktik Sosial Budaya di Indonesia pada khususnya dan Dunia pada umumnya, serta dimaksudkan untuk menerbitkan temuan penelitian asli dan isu-isu terkini tentang subjek tersebut.

Arjuna Subject : Ilmu Sosial - Hukum

Articles 29 Documents

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LEGAL PROTECTION OF CHILD VICTIMS OF SEXUAL VIOLENCE AS A CONTINUOUS PROTECTION MEANS (Islamic Law Studies and Psychoanalytic Psychological Theories) S. Sulastri; S. Suharto; Z. Zuhraini; Siti Nurjanah
SMART: Journal of Sharia, Traditon, and Modernity Vol 1, No 2 (2021): SMART: Journal of Sharia, Tradition, and Modernity
Publisher : SMART: Journal of Sharia, Traditon, and Modernity

Child protection is a right that must be obtained by children as it has become their rights as stated in the law. Child protection is a guarantee for its part to be upheld because in the constitution there is a guarantee of human rights, especially if you have been a victim of sexual violence. This article aims to find out how legal protection is for Child Victims of Sexual Violence and from the point of view of Islamic law and psychoanalytic psychology theory, which in the end can become sustainable protection. As a country that has various religions, there is Islam which plays a role in providing enlightenment, which is described in Islamic law with various theories. In addition, psychological impacts occur for children, will affect development so it is necessary to know how efforts must be made in terms of Psychoanalytic Psychology theory for this is an ongoing protection given to children as victims of sexual violence. This study uses a qualitative method with subjects AM (14 years) and MT (12 years) who are victims of sexual violence and stepfather perpetrators. The results of the research are: Legal protection must still be obtained, even though there has been a statement of forgiveness by the child as a victim inasmuch as this is clearly influenced by the psychological energy of anxiety caused by him getting wrong treatment from people who must provide protection to him. Islamic law exists so that children get their rights, including protection, education rights, custody rights, housing rights, the right to make choices, the rights of opinion and rights as children who are the hope of the nation.Keywords: Legal Protection, Child Victims Of Sexual Violence, Continuous Protection Means, Islamic Law, Psychoanalytic Psychological Theories

APPLICATION OF CONTRA LEGEM IN JUDGE DECISIONS (Critical Study of Iddah Alimony Rights in Divorce Cases) Endang Ali Maksum; S. Suharto; K. Khairuddin; Z. Zuhraini; Is Susanto
SMART: Journal of Sharia, Traditon, and Modernity Vol 1, No 1 (2021): SMART: Journal of Sharia, Tradition, and Modernity
Publisher : SMART: Journal of Sharia, Traditon, and Modernity

The subject of this study is based on article 149 letters (b) Compilation of Islamic law which reads: ex-husband must provide maintenance, maskan, and kiswah to ex-wife during the iddah, unless the ex-wife has been granted talaq bain or nusyuz and is not pregnant. There are two barriers for an ex-wife to earn a living during the period of iddah, namely because the wife is divorced ba'in and or because the ex-wife is nusyuz. In general, the wife filed for divorce in court because she could no longer stand her husband's treatment of her. As a result of the law, if the wife who filed for divorce sues the Court, then the panel of judges will issue a divorce. Unless the husband violates the talaq. In the context of the wife falling into the act of nusyuz, generally as a result of the treatment and conduct of the husband towards the wife. If this is returned to the sound of the law then it will be very felt the injustice received by the wife (ex-wife). This study seeks to find the answer from the formulation of the problem "Why is contra legem important for the judge in deciding the case (inconcritoplaintiff) divorce with the decision of talaq ba'in and or proven in court nusyus wife's arbitrary because of the husband treatment of his wife? Materials and data are obtained by methods library research, the nature of the research is normative research. The goal to be achieved is to provide an alternative solution in providing justice and legal protection to women (ex-wives) who do not get iddah alimony because of filing a lawsuit or nusyus with a theory approach contra legem. Positive law in practice is not sufficiently able to accommodate the legal facts revealed in the Court, in another narrative it can be said that positive law always lags behind social reality. So in the legal system in Indonesia, the judge's ijtihad to deviate and or find the law is accommodated by the principle of Contra legemin order to provide justice and benefits to the community seeking justice, the judge needs to do contra legem.Keywords: Contra Legem; Iddah Livelihood; Divorce Lawsuit; Judge's Decision

REFLECTION OF A DECADE OF PRE-MARRIAGE GUIDANCE ON FAMILY RESILIENCE IN INDONESIA Muhammad Irfan; Damrah Khair; Habib Shulton Asnawi; Linda Firdawaty
SMART: Journal of Sharia, Traditon, and Modernity Vol 1, No 2 (2021): SMART: Journal of Sharia, Tradition, and Modernity
Publisher : SMART: Journal of Sharia, Traditon, and Modernity

The implementation of premarital guidance is based on the fact that so many divorces occur not only among families who have been married for a long time but also experienced by new couples. The state's attention to the integrity and resilience of the household is clearly stated in Law Number 1 of 1974 article 1. This research uses a qualitative (descriptive) method with the type of library research, with a socio-historical and philosophical approach. The analytical method used is qualitative data analysis, while drawing conclusions using deductive thinking. The results of this study indicate that the substance of premarital guidance is to provide basic direction and knowledge for the realization of a sakinah, mawaddah, warahmah family so that integrity and resilience in the household are achieved. The principle of premarital marriage guidance is as an effort to prevent divorce by upholding the mandate of Law no. 1 of 1974 as a representative of the holy book al-Qur'an with the aim of marriage to achieve a happy and eternal family based on God Almighty. Premarital marriage guidance has had an effect on household resilience but still needs to be maximized due to the fact that the divorce rate from year to year has increased. Keywords: Marriage Guidance, Pre-Marriage, Family Resilience.

COMPARATIVE STUDY ON MARRIAGE PROMISES IN INDONESIA AND JORDAN IN OVERVIEW OF MASLAHAT Mahmudin Bunyamin; Agus Hermanto; Iman Nur Hidayat
SMART: Journal of Sharia, Traditon, and Modernity Vol 1, No 1 (2021): SMART: Journal of Sharia, Tradition, and Modernity
Publisher : SMART: Journal of Sharia, Traditon, and Modernity

The development of Islamic family law (al-Ahwal al-Syakhshiyah) in modern Islamic countries can be said to be a new format that accommodates the ideas of reforming Islamic law thought, including the position of marriage vows. The new thing in family law can be seen from the transition from fiqh law to positive law in the form of legislation in Muslim countries. Indonesia and Jordan, are one of the few Muslim countries that legalize marriage vows in legislation. The problem is how the form of marriage vows legislation in each of these countries. This study aims to determine the philosophical meaning and model of its renewal in each of these countries. The concept of maslahat that is applied in the legislation on marriage vows in Indonesia and Jordan is the concept of achieving a goal of Islamic law itself, to achieve a legal benefit and reject harm or with the principle of preserving an existing law or rule that is considered good, and developing it by law, or more beneficial rules. The formation of marriage vows legislation in Indonesia and Jordan cannot be separated from the local wisdom possessed by each of these countries, so that the concept of maslahat applied in marriage covenant legislation in each country has its own characteristics, each country makes taklik talak a promise. marriage that must be obeyed by both parties.Keywords: Comparative, Marriage Promise, Indonesia, Jordan

THE MARRIAGE PRACTICES OF INDIGENOUS PEOPLES OF LAMPUNG SEBATIN FROM THE PERSPECTIVE OF ISLAMIC FAMILY LAW IN INDONESIA I. Idham; Liky Faizal; Abdul Qohar; H. Hanif
SMART: Journal of Sharia, Traditon, and Modernity Vol 1, No 1 (2021): SMART: Journal of Sharia, Tradition, and Modernity
Publisher : SMART: Journal of Sharia, Traditon, and Modernity

This study analyzes the problems related to the existence of Lampung Sebatin Indigenous Marriages. Where the Lampung indigenous people Sebatin started a new life order in marriage combining custom and Islamic law. Marriage is divided into two ways, namely Nyakak/ Jujokh and Semanda marriages. The traditional marriage procedures have values and norms or rules. The problem in this research is how the practice of marriage and how the description of the relationship between customary law and Islamic law as well as positive law in Indonesia in the marriage of the indigenous community of Lampung Sebatin. The purpose of this study was to obtain information about: first, the practice of marriage traditional Lampung Sebatin procedures; and Second, positive law and Islamic law in the traditional marriage customs of Lampung Sebatin. This study uses the qualitative research method with a sociological legal approach that focuses on the process of implementing marriage based on Islamic law and customary law with predetermined objectives. The research data were obtained using the interview method conducted on the object of research or respondents. The findings of this study indicate that first, the practice of marriage traditional Lampung Sebatin in its implementation uses Islamic law, but there are several processions such as pre-marriage and after-marriage. Marriage Lampung traditional customs are Sebatin divided into two, namely Nyakak/ Jujokh and Semanda with the traditional stages before, the implementation customary stages and the customary stages after marriage and the pattern of settling after marriage. Second, the law of marriage in the teachings of the Islamic religion with the law on marriage, in the procedure of marriage, in Nyakak/ Jujokh and Semanda is general it can be said that line, in practice it is in accordance with the basis and reference, namely the law on marriage is al-Quran, al-Sunnah, Qaidah Fighiyah and Consensus (Ijma) of Muslims in Indonesia.Keywords: Marriage, Tradition, Lampung, Sebatin, Islamic Law

RECONSTRUCTION OF NUSYÚZ CONCEPT IN COMPILATION OF ISLAMIC LAW IN INDONESIA (Gender Equality Perspective Analysis) Al Fitri; A. Alamsyah; S. Sadari; Is Susanto
SMART: Journal of Sharia, Traditon, and Modernity Vol 1, No 2 (2021): SMART: Journal of Sharia, Tradition, and Modernity
Publisher : SMART: Journal of Sharia, Traditon, and Modernity

Nusyúz is a classical conception codified as a standard law written in Qs. an-Nisáa’ verses 34 and 128. The conventional fiqh perspective of nusyúz connotes the wife’s disobedience to her husband, because it is influenced by the patriarchy of pre-Islamic Arab culture. Presidential Instruction Number 1 of 1991 concerning the Compilation of Islamic Law in Indonesia mentions nusyúz in Articles 80, 84 and 125, only regulates the wife’s nusyúz and its legal sanctions, while the husband’s nusyúz is not mentioned. There is ambivalence, ambiguity and legal injustice for the wife. The focus of this research is the concept of nusyúz in KHI from a gender perspective and its correlation with the development of family law in Indonesia. This type of research is library research with a gender equality analysis approach. The results of this study indicate that it is necessary to rearrange the concept of nusyúz in the KHI, including the modern era understanding of nusyúz and adding the husband's concept of nusyúz and its legal sanctions in KHI.Keywords: Nusyúz Modern Era, Gender Perspective, Justice.

MARRIAGE CONTRACT THROUGH VISUALIZATION OF ONLINE VIDEO CALL COMMUNICATION MEDIA ACCORDING TO MARRIAGE LAW AND ISLAMIC LAW IN INDONESIA F. Faisal; Ahmad Isnaeni; Moh. Bahrudin; N. Nasruddin
SMART: Journal of Sharia, Traditon, and Modernity Vol 1, No 1 (2021): SMART: Journal of Sharia, Tradition, and Modernity
Publisher : SMART: Journal of Sharia, Traditon, and Modernity

Talks about marriage always attract attention, not because it contains discussions about sexuality, but because marriage is a sacred event in religious teachings. Not only as a civil bond between individuals in general, but a bond that has to worship values, and is the longest worship practice in Islamic history. Marriage is valid if the pillars and conditions are met, one of which is ijab and qabul. The problem point arises when the ijab and qabul pledged by the parties are not in the same assembly, but in different places remotely through online communication media video call. To solve this problem, this study uses approach normative theological and normative juridical. Data analysis was carried out qualitatively, and conclusions were drawn using deductive thinking. The results of this study are that the marriage contract through online communication media video call has basically fulfilled the pillars and requirements for a valid marriage and does not conflict with the compilation of Islamic law. However, scholars differ on the validity of the marriage contract through online communication media video calls. This difference of opinion is caused by different understandings of the meaning of “Ittihad al-majlis”. One group of scholars defines it in a physical sense and another group in a non-physical sense.Keywords: Marriage Contract, Online Video Call Communication Media, Marriage Law, Islamic Law.

THE PARADIGM OF JUDGE'S THOUGHTS IN THE SETTLEMENT OF ISLAMIC INHERITANCE CASES AND THEIR IMPLICATIONS ON FAMILY LAW RENEWAL IN INDONESIA (Study on Supreme Court Decision Number 721 K/Ag/2015, Supreme Court Decision Number 218 K/Ag/2016, and Supreme Court Decision Number 331/K/AG/2018) Hervin Yoki Pradikta; F. Faisal; Erina Pane; Evi Muafiah
SMART: Journal of Sharia, Traditon, and Modernity Vol 1, No 2 (2021): SMART: Journal of Sharia, Tradition, and Modernity
Publisher : SMART: Journal of Sharia, Traditon, and Modernity

Judges do not only act as mouthpieces of the law and carry out normative and procedural laws and regulations, but also promote a sense of justice in the community. Several Supreme Court decisions such as Supreme Court Decision Number 721 K/Ag/2015, Supreme Court Decision Number 218 K/Ag/2016, and Supreme Court Decision Number 331/K/AG/2018, have illustrated the existence of progressive ijtihad that does not only adhere to positivistic legal reasoning but also to progressive legal reasoning by using the legal discovery method in the form of legal interpretation with a philosophical, empirical and juridical approach. In practice, the decisions mentioned above can be used as permanent jurisprudence by judges in all judicial bodies. The legal values contained in jurisprudence can be used as legal rules in upholding justice and legal certainty. The judge's decision has two important dimensions. First, the decision is a solution for solving Islamic inheritance cases for the disputing parties and outside the parties. Second, as a legal regulation for the future (ius constituendum). Keywords: Judge's Decision, Ijtihad, Progressive, Jurisprudence.

THE EPISTEMOLOGY OF ISLAM NUSANTARA JURISPRUDENCE AND ITS CONTRIBUTION IN FAMILY LAW REFORM IN INDONESIA Moh. Fahimul Fuad; Moh. Mukri; A. Alamsyah; A. Akla
SMART: Journal of Sharia, Traditon, and Modernity Vol 1, No 1 (2021): SMART: Journal of Sharia, Tradition, and Modernity
Publisher : SMART: Journal of Sharia, Traditon, and Modernity

The term Islam Nusantara has sparked and caused polemics, pros, and cons that are quite warm in Indonesia since 2015 until now. As happened in the West Sumatra MUI environment. Islam Nusantara is interpreted as a religious pattern that exists in the archipelago, both at the level of religious practice and how to preach it. The level of amaliyah is interpreted as religious behavior that exists in the archipelago, especially in relation to fiqh which originates from its religious understanding. The problem is: What is the source of knowledge used in formulating Islamic fiqh in Nusantara? What is the validity and method of understanding the sources of knowledge used in formulating Islamic jurisprudence in Nusantara? How is the contribution of Islam Nusantara jurisprudence in reforming family law in Indonesia? This study aims to find answers to the epistemological formulation of Islamic jurisprudence in the archipelago and its contribution to reforming family law in Indonesia. To answer the questions above, the author uses qualitative research methods, types of literature research, the theory of ijtihad with the ushul fiqh approach. This means that the study of the concept of Islam Nusantara is carried out using the framework of ushul fiqh knowledge, especially regarding the concept of ijtihad. At the level of research work, the stretching of thinking to produce fiqh concepts that are unique to the archipelago is seen as part of ijtihad activities. The findings of the research are: (a) The source of knowledge used in formulating Islamic jurisprudence in the archipelago is a source of knowledge commonly known in the study of fiqh and ushul fiqh, both the mujma ’alaih and the mukhtalaf fih, (b) the source of knowledge as said to be valid. By giving a large enough portion to 'urf, and a benefit-oriented understanding, (c) Islam Nusantara’s fiqh can be used as an alternative law in the context of reforming family law in Indonesia.Keywords: Islam Nusantara, Jurisprudence, Epistemology, Legal Reform

DOWRY FUNCTION IN PERSPECTIVE OF MUBADALAH Siti Zulaikha; Siti Nurjanah; Mu'adil Faizin; Agus Salim Ferliandi
SMART: Journal of Sharia, Traditon, and Modernity Vol 2, No 1 (2022): SMART: Journal of Sharia, Tradition, and Modernity
Publisher : SMART: Journal of Sharia, Traditon, and Modernity

Dowry is a gift from a husband to his wife which is done at the time of the marriage contract. Dowry is something that is not included in the conditions and pillars of marriage, but it must exist. Meanwhile, mubadalah is an approach used to understand the verses in the Qur'an which are general in form but at first glance, they seem to be biased towards one gender, or specifically for men where women are not addressed, and specifically women and men have not been addressed. so that the main message of the text can then be applied to the two sexes. This paper aims to examine the function of dowry using a young perspective which will use the literature study method, with data sources from all literature discussing dowry and mubadalah. The analysis will be carried out using qualitative methods with deductive thinking. In the discussion, it is known that dowry in the perspective of mubadalah is a provision that is set to strengthen the position of women. So it can be concluded that the dowry is actually to uphold the honor of women, so that the higher the appropriateness of the dowry given voluntarily, it can be considered as an indicator that the husband is committed and can prove his promise of sincerity. Keywords: Dowry, Mubadalah, Level of Appropriateness

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Is Susanto

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issusanto@radenintan.ac.id

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+6281279555711

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Jl. Z. A. Pagar Alam Labuhan Ratu, Kedaton, Kota Bandar Lampung, Lampung

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Lampung

INDONESIA

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Home Page

OAI Link

Editorial Team

Contact

Reviewer

Google Scholar

Contact Name Is Susanto

Contact Email issusanto@radenintan.ac.id

Phone +6281279555711

Journal Mail Official smart_submission@radenintan.ac.id

Editorial Address Jl. Z. A. Pagar Alam Labuhan Ratu, Kedaton, Kota Bandar Lampung, Lampung

Location Kota bandar lampung, Lampung INDONESIA

Abstract

Abstract

Abstract

Abstract

Abstract

Abstract

Abstract

Abstract

Abstract

Abstract

Contact Name
Is Susanto

Contact Email
issusanto@radenintan.ac.id

Phone
+6281279555711

Journal Mail Official
smart_submission@radenintan.ac.id

Editorial Address
Jl. Z. A. Pagar Alam Labuhan Ratu, Kedaton, Kota Bandar Lampung, Lampung

Location
Kota bandar lampung,

Lampung

INDONESIA