Hasil (
Bahasa Indonesia) 1:
[Salinan]Disalin!
A. Relations between Islamic law and Indonesian legal systemState of Indonesia is not an Islamic State, so it does not apply Shari'a or referred by the Khilafah state which fully execute Islamic law. Although the majority of Indonesian citizens of Islamic religion, it would be irrelevant if the Shari'ah of Islam serve as the State ideology. Why is that? Because Indonesia is the country that are heterogeneous, when used as the ideology of Islamic Shari'ah State then citizens of non-Muslims will be incorporated into a second-class citizen environment, and people are sensible or non-religious ideologies, such as nationalists and socialists, nor will acquire a respectable position in the country (read: my Islamic, your islam, islam us). From here, we will see some differences between Islamic law and positive law, including the following: 1. positive law from God that brought by the Prophet saw. Is Ma'shum, while God is all knowing what is required by His servants that He memberian law which can realize any benefit and happiness in this world and the hereafter for them. God does not need to be with His servants, 2. That Islamic law governs the relationship between God and His servants on the basis of religion, which is based the calculation of the profit ukhrawi and deeds Zahir and mind. As for the positive law does not have all of it, no strings attached except calculation and looks only and relate to others. So, no filter is associated with a conscience. 3. Islamic law ordered the good and forbidding evil. He covers all forms ebaikan and motivated, forbidding evil and cautioned wantinya. As for the positive law only solve the problem of damage (negative result) and suppose that there is good, it is only a logical consequence.
4. sometimes positive law legalizing unlawful on the grounds of human benefit. While Islamic law does not like it because God is all knowing all the good even if people do not know.
But in this case it's not that positive law does not have the advantages that gave birth to a benefit though made by a human being exactly the Romans. But we also can't say, that the system of positive law which we know now this is fully reflected his hallmark. This legal system began to appear in the thirteenth century and has since undergone developments, changes, or short words undergo an evolution. During the evolution of these he evolved, that adjust to the demands and needs of a changing society. Therefore we cannot equate granted this positive legal system with Roman law, although he is indeed a continuation of the law. In its evolution that positive law then many entered by elements from outside Roman law including Islamic law participate contribute.
Not with standing the positive law has many advantages, but it is not at once can be equated with an increase in the quality of Justice, but only concerns the form only. In addition, the use of positive law does not immediately eliminate the works of Islamic law who is better known as a tradition in Indonesia. Therefore we can indeed talk about the passage of two forms side by side order, i.e. Islamic law can work discreetly. Below the surface of positive law which is official. The sociological approach allows us to observe it.
B. The Contribution of Islamic law in the Development of Indonesian legal system
Renewal of positive law in Indonesia evolved over the two viewpoints are embraced, namely: the law serves as a devotion (dienende functie) and the berorentasi into the future. (ius constituendum) . Two way of looking is very influential on the technique of making legislation up on aspects of methodology in analyzing case law.
Two viewpoints are very influential on the contribution of Islamic law against the concrete form of the positive law of Islam in Indonesia. Some legislation which reflects "the spirit of the Islamic Shari'ah" has been diakomodir to such a degree as proof positive law enacted specifically for the muslim community in Indonesia. In line with the development of the formation of laws that cannot be disclaimed warranties based on the political and social model formation of Islamic law in Indonesia legally formalized.
The formal juridical recognition about the enforcement of Islamic law can be appointed to be a source of law is reflected in the regulations as: Drt No. 1 ACT 1951 Article 5 paragraph (3) of subsection (b) jis. Article 14 paragraph (1) and article 27 of ACT No. 14 of 1970 jis. Article 1 paragraph (3) the concept of the new CRIMINAL CODE. One of the fundamental things that can be held by judges in judging a matter is a healthy feeling of community consideration.
Another method that can be done by judges in the application of the Shariah of Islam is to interpret and construct social reality above the law happen through court rulings. Various ways to interpret in real legal science studies into methods in the discovery of the law by judges. This is the creativity Freedom Gold Bridge for Islamic Shari'ah is growing and growing in order of positive law.
The process of which connect it can take very influenced by the sejauhmana level of concern and knowledge of the judge against the Islamic Shariah in the corridors is referred to as the "unwritten law" be able to become a quality reference and position themselves as "written law".
In the social phenomena that interact with the law society, the factual cases that occur cannot be solved only on the basis of consideration of the law is not written. Law enforcement or related parties (stake holders) who work daily in the field of law in the bureaucracies of the justice system in Indonesia is still guided by the framework of the legal system thought of continental (continental law system/civil law system) is characterized by, among others: bersendikan codification as a source of primary law, unification of law and doktrins res judicata (the judge's decision is only binding on those who dispute only).
Legal certainty in this respect be the size for a lawsuit in process or not. The principle of legality (nullum delictum nulla poena sine pravia legi poenali ") is still practised in the legal system in Indonesia be an absolute condition (conditio sine qua non). Puts the real legal certainty can be equated with the principles of justice are procedural (procedure justice) and it is contrary to justice subtantif (subtantive justice) which is the hallmark of the Common Law System or legal system of the Anglo-Saxons. Common Law System grows and develops through judicial practice in the form of the creation of the law by the judge (judge made law). Faced with the question of the contradiction between the principle of legal certainty and the principle of fairness in examining, menganalsis and decide the case law then more judges give precedence to the principle of fairness (subtantif) rather than the certainty of the law (justice procedures).
The transformation of the Shari'ah of Islam which was originally the "unwritten law" into "law" is a social engineering activity against the law (Law as a tool of social engineering) as the demands of law enforcement changes that put the Shari'ah of Islam into the aras rule of law. The judge's activity is not a legal method to fill the void as the Islamic Shari'ah is used if no other alternative or no laws regulating (ultimium remedium). The definition of symbolically embraced by peers the group worth scrutinized so that insights more expanded and not stuck in a dikothomi das and das sein sollen.
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