The Reflections of judge’s position in the dynamics of islamic law positivization in Indonesia

Saifullah, Saifullah (2017) The Reflections of judge’s position in the dynamics of islamic law positivization in Indonesia. Presented at The 1st Biennial International Conference on the moderat Islam in Indonesia, 27-29 March 2017, Vrije University Amsterdam.

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Abstract

The positivisation of Islamic Sharia Law is the contribution of Islamic Sharia on exclusivity arrangement of Moslems mundane setting in Indonesia in which it has experienced a socialization problem in legislation structure. Such Islamic Sharia contribution has laid a great foundation for the settlement of domestic legal issues.The position of judge in the ongoing exploration by developing Ijtihad methods in Islamic law in Indonesia is authentic evidence that Islamic Sharia is the best choice in solving legal problems. In so doing, the judge interprets, finds and refines the law, and legal construct of existing social reality in the form of a verdict. Transformation of Islamic law in positive law made by judges is an attempt to bridge the formal judicial recognition as a form of judge’s creativity. The result and phenomenon developed from those three basis of legal form clarify that legal substance and culture are the most dynamic basis un developviung legal system.The hope for implicating sharia in Indonesia will grow, run and develop well through living law in society. Problems in implicating sharia in national law system are: (1) Religion control in state corridor usually causing both horizontal and vertical conflict if it’s not designed holistically by the government (2) Religion control are written in the holy book, government’s regulation will cause primary problem if it try to regulate it specifically, because both from heterogeneous into homogenous nor from inductive into deductive can not be codified universally in line (3) Moslem’s contribution on sharia implication in Indonesia can be developed significantly, especially on moral value that internalized in legal substance and legal culture (4) Void of Law which regulate legal interaction among inter-religion brings society behavior into legal smuggling and artificial subjugation. I.e., society will find their own juridical legality (5) State/government let these cases happened and giving full settlement to the dynamic of society (6) State/government can study further that not all public aspiration are brought to a formalistic matter. National legal system that based on pluralism also participates in building the existence of Islamic law in Indonesia today.

Item Type: Conference (Paper)
Subjects: 22 PHILOSOPHY AND RELIGIOUS STUDIES > 2204 Religion and Religious Studies > 220403 Islamic Studies
Divisions: Faculty of Sharia and Law > Department al-Ahwal al-Syakhshiyyah
Depositing User: Mufid Mufid
Date Deposited: 21 Jan 2020 18:41

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