Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy

Contemporary Political Philosophy: An Introduction

Allah SWT hates divorce the most even though He still allows us to do it. If the repudiation (talaq) has been conducted three times, the husband and wife should not reconcile unless the ex-wife marries another man ( muḥallil ) and has been divorced by her second husband after having an intercourse as a husband and wife. In contrast, there is an obligation for married couples who have been separated because of the third talaq to remarry in Nagari Binjai. This obligation is based on the belief that this is a religious obligation that must be followed by the tradition. The separation because of the third talaq is believed to bring disaster to the village and the subjects will suffer in present life and will not smell the heaven aroma in the hereafter. Even though kawin maupah tradition is maslahah and permissible by some Islamic scholars, it still requires the husband and wife to conduct intercourse prior to the divorce. The maslahah of the kawin maupah is contrary to the Prophet’s guidance, since there is no sexual intercourse in this payment-ordered marriage. Therefore, the practice of kawin maupah by the Nagari Binjai community does not fulfill the qaṣd al-Syâri’ and maqâṣid al-aṣliyah which should be actualized in the maqâṣid al-syari'ah’s theory.

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Kawin Maupah: an Obligation to Get Married After Talak Tiga in the Tradition of Binjai Village in Pasaman District: a Maqasid al-Shari’ah Review

In the concept of Islamic community development, welfare is an ideal condition for any social life. Efforts to create prosperity in Bulutellue Village also received attention from the Muhammadiyah education group . They invite the community, especially those from the rich to provide sustainable assistance to groups of the poor and orphans as a form of mainstreaming al-Ma’un theology. This study aims to describe the implementation of al-Ma’un theology in alleviating poverty in Bulutellue Village, Sinjai Regency. This study employed a qualitative method. The data were collected through observation and interviews. The results indicate that al-Ma’un theology was introduced by the educated group of Muhammadiyah Higher Education to the community of Bulutellue Village. This doctrine is accepted and implemented by the community in this village even though they are not registered as official members of the Muhammadiyah organization as an effort to make their income a way of gaining happiness and getting blessings from Allah SWT towards mutual benefit.

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Implementation of al-Ma’un Theology: The Movement of Muhammadiyah Educated Groups in Poverty Alleviation in Bulutellue Village, Sinjai Regency

A report of the information from non-profit organization, Communication and Broadcasting Technology, namely the Indonesian Telematics Society (Mastel) in 2019, are based on the results of a survey. It is conducted with 34.60% respondents who receive hoax news every day. Not only to ordinary people, but hoaxes also has come to the educated circles. In Islamic shari'ah, all aspects of life are regulated based on the Al-Quran and Sunnah so that it creates benefit for its adherents and cannot be separated in delivering and receiving the news. Speaking through the benefits, it seems that, it has referred to the purpose of Islamic shari'ah, in which the language of religion is called maqashid syari'ah. This paper focuses on the hoax phenomenon on social media using maqashid syari'ah. This paper aims to further examine the maqashid syari'ah as a news filter on the internet. This study employs a qualitative research type of library research. The data obtained from books, journals, and articles related to maqashid syari'ah and hoaxes. After the data were obtained, the data were presented in a descriptive narrative and were analyzed by using analysis techniques, namely data reduction, data presentation, and data verification. The results show that the five divisions of maqashid syari'ah are able to answer religious previous and contemporary problems of hoaxes. Meanwhile, Maqashid syari'ah can be employed as a filter for every news broadcasted and accepted by the community.

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Maqashid syari’ah as a filter of hoax through al-quran perspective

This paper examines empirical facts of market failure and government failure to improve people’s welfare; capitalism and neo-liberalism do not provide a space for states to implement policies for social justice. With regard to the failure of the welfare state to bring the citizen to fair welfare, this paper offers the formulation of a welfare state based on Maqa>s}id Al-Shari>‘ah. This study employs Maqa>s}id Al-Shari>‘ah developed by Imam Al-Juwaini, Izzu al-Din bin ‘Abd al-Salam, Abu Ishaq al-Shatibi and Al-Tahir Ibn ‘Ashur as the methodological framework. It formulates welfare state of maqa>s}id al-shari>‘ah, which is built through the fulfillment of the three levels of individual needs (citizens) (al-D}aru>ri>yah, alha> ji>yyah and al-tahsi>ni>yah; primary, secondary and suplementary rights), public needs (equal distribution; al-ha>jah al-‘ammah), protection or assurance (alismah), and law enforcement (al-fit}rah (order), equality (al-musa>wah), freedom (al-h}urri>yah), magnanimity (al-samh}ah)). The morality-spirituality-religiosity and transcendence principles develop the formulation. The maqa>s}id al-shari>‘ah should be the “soul” of every policies and rules or laws. The development of the formulation of welfare state based on Maqa>s}id al-Shari>‘ah will build Islamic man/religious man (citizen), who is prosperous spiritually and materially. Artikel ini mengkaji kenyataan empiris mengenai kegagalan pasar (market failure) dan kegagalan negara (government failure) dalam meningkatkan kesejahteraan rakyat, kapitalisme dan neo-liberalisme tidak memberikan tempat bagi negara untuk melakukan kebijakan demi keadilan sosial. Berdasarkan kegagalan negara kesejahteraan menghantarkan warga negara menuju kesejahteraan yang berkeadilan maka tulisan ini menawarkan formulasi negara kesejahteraaan berdasarkan Maqa>s}id al- Shari>‘ah. Kajian ini mempergunakan Maqa>s}id al-Shari>‘ah sebagai kerangka metodologis yang dikembang oleh Imam Al-Juwaini, Izzu al-Din bin ‘Abd al-Salam, Abu Ishaq al-Shatibi dan Al-Tahir Ibn ‘Ashur. Kajian ini memformulasikan negara kesejahteraan berdasarkan maqa>s}id al-shari>‘ah yang dibangun melalui pemenuhan kebutuhan individu (warga negara) berdasarkan tingkatannya; al-D{aru>ri>yah, al-h}a>ji>yyah dan al-tah}si>ni>yah (hak primer, sekunder dan suplementer), kebutuhan publik, (al-h}u>jah al-‘as} mmah) terealisasi pendistribusian yang merata, adanya proteksi atau jaminan (al-is}mah) dan tegaknya hukum melalui, al-fi>rah (ketertiban), equality (al-musa>wah) kesetaraan, freedom (al-h}uri>yah) kebebesan, magnanimity (alsamh} ah) toleransi. Formulasi tersebut dibangun dengan landasan moral-spritual - religius dan transendental. Menjadikannya “roh” pada setiap kebutuhan dalam membuat kebijakan, peraturan-peraturan atau perundang- undangan. Dengan terwujdnya formulasi negara kesejahteraaan berdasarkan Maqa>s}id al-Shari>‘ah akan melahirkan islamic man/manusia religius/karakter (warga negara) yang beriman atau pribadi yang memiliki karakter, sejahtera secara batin (spritual) dan lahir (material).

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The formulation of welfare state: the perspective of Maqāṣid al-Sharī‘ah

Al-Ta‘āruḍ wa al-tarjīḥ is a methodology offered by al-Syāṭibī to overcome problems that often arise in fiqh issues faced by the people. This study is a descriptive literature study (library research) aims to determine how the concept of al-Ta‘āruḍ wa al-tarjīḥ offered, with fahm al-naṣṣ methods that exist in its al-Muwāfaqāt. To al-Syāṭibī, no at-ta‘āruḍ (contradiction) in texts but there is a contradiction among mujtahids (Muslim jurists) in understanding the texts. Then, the mujtahids (jurists) should not be in a hurry to do istinbāṭ al-ḥukm (taking out the law) which originated from the ẓāhir contradictory arguments. A depth and universal study toward contradictive postulates seems needed by mujtahid both using their precision and intelligence. Because of the precision and intelligence mujtahids are varying, it causes the appearance of a conflict between mujtahids in looking at the arguments. To find a solution to the problem, the offer is the use of tarjīḥ method, looking for the most powerful arguments, and then serving them as the basis to take a single istinbāṭ al-ḥukm.

The Concept of Al-Syatibi's al-Ta'arud wa al-Tarjih: Scientific Faith and Methodology Solution to Legal Istinbat

Indonesia is characterized by a plurality of values that inspire the formation of the state and its constitution. The democratization after the reformation made some religious communities desire to express their teachings openly. For instance, they desired to implement religious norms, resulting in laws and regional regulations with religious nuances. This study aimed to examine the convergence of Islamic norms and norms of other religions into positive law. It also intended to examine the prospects for converging these norms amid religious plurality. Using a historical and normative approach model, the practice of converging Islamic norms and norms of other religions was found from the formation to the promulgation of Law No. 1 of 1974 concerning Marriage. However, this law often receives judicial reviews, especially concerning interfaith marriages. The latest product of legislation relating to the application of religious norms into positive law is Aceh Qanun No. 6 of 2014 concerning Jinayat. The Qanun is interesting in the study of the convergence of norms of Islam and other religions in Indonesia. Although the formation and promulgation involved only followers of Islam, the Qanun accommodated the teachings of other religions. Therefore, non-Muslims prefer submitting to the Qanun rather than voting for the Criminal Code. These two examples show the prospect of converging open religious norms in various legislations.

Farkhani Farkhani

Papers

The formulation of welfare state: the perspective of Maqāṣid al-Sharī‘ah

The Concept of Al-Syatibi's al-Ta'arud wa al-Tarjih: Scientific Faith and Methodology Solution to Legal Istinbat

Converging Islamic and religious norms in Indonesia’s state life plurality