Papers by Alfitri Alfitri
SAMI Law Review, Mar 1, 2025
Distributing inheritance in the Duri area, Enrekang Regency, South Sulawesi, is unique because it... more Distributing inheritance in the Duri area, Enrekang Regency, South Sulawesi, is unique because it is carried out when the property owner is still alive to avoid conflicts between heirs later. In fact, according to Islamic legal norms, the distribution of inheritance should be carried out when the owner of the property has passed away. This study aims to analyze the compatibility of the inheritance distribution tradition of the Duri people with Islamic inheritance law. This research includes normative-empirical legal research, with qualitative data collection methods and Islamic law analysis of the practice of inheritance distribution. This study found that distributing assets to the Duri community was carried out with grants and wills. The implementation is by donating and bequeathing property. At the same time, the parents are still alive, such as donating property to children who are married first or bequeathing a portion of the property for each child to be carried out when the parents have died. This practice is then compatible with Islamic Law, and some are not.
Ulumuna Journal of Islamic Studies, 2024
This article probes whether methods of validating unregistered polygamy in Indonesian Religious C... more This article probes whether methods of validating unregistered polygamy in Indonesian Religious Courts have honored the due process of law. Judges have adopted two different methods in validating unregistered polygamy: first, by ordering concerned parties to apply for the issuance of a retroactive marriage certificate (isbat nikah), and second, by advising them to submit a polygamy permit application. Using the sociolegal approach in examining Ratio Legis and selected cases on unregistered polygamy validation across Indonesia, it finds that the existing methods have impacted protecting women's and children's rights and marriage law objectives. Opting for isbat nikah means perpetuating violations of the marriage law provisions and objectives, which restrict polygamy through court proceedings to be orderly administration and protect women's and children's rights. Meanwhile, requiring unregistered polygamists to remarry by applying for a polygamy permit could impact wives' rights who are married without registration and their children's. The 2018 Supreme Court's Circular prohibiting the Religious Court from accepting applications for isbat nikah of unregistered polygamy shows its tendency to the formal application of the marriage law provisions. Even so, judges adopt the contentious isbat nikah to legalize unregistered polygamy, mainly when the parties involved accept their polygamy and live peacefully. This bottom-up approach arguably better meets the principles of fairness because all legal rights owed to concerned parties are respected.
Jurnal Tana Mana, 2023
Kajian ini bertujuan untuk menggali pemahaman mengenai konflik suami istri perspektif Al Qur'an. ... more Kajian ini bertujuan untuk menggali pemahaman mengenai konflik suami istri perspektif Al Qur'an. Penelitian ini difokuskan pada ayat Al Qur'an dengan tema nusyuz dan syiqaq, sebagai bentuk konflik rumah tangga dalam Al Quran. Penelitian ini merupakan penelitian kepustakaan dengan menggunakan metode kualitatif. Penelitian ini menggunakan data primer beberapa ayat Al Qur'an data sekunder berupa kitab-kitab tafsir. Teknik analisis data dalam penelitian ini adalah teknik analisis isi (content analysis). Dari penelitian ini dihasilkan, bahwa di antara konflik suami istri perspektif Al Qur'an, yaitu Nusyuz dan Syiqaq. Konflik yang bersumber dari istri penyelesaiannya sesuai dengan kandungan ayat Al Qur'an surah An Nisa ayat 34. Konflik yang bersumber dari keduanya (suami istri) penanganannya sebagaimana yang dijelaskan dalam Al Qur'an surah An Nisa ayat 35. Konflik yang bersumber dari suami jalan keluarnya sebagaimana disebut dalam Al Qur'an surah An Nisa ayat 128.
Fiat Justisia Jurnal Ilmu Hukum, 2022
The hearsay evidence is still debated as valid witness evidence in Indonesian civil procedural la... more The hearsay evidence is still debated as valid witness evidence in Indonesian civil procedural law. Consequently, there is a disparity in judges’ decisions in handling religious civil cases when the evidence is from “hearsay witnesses.” A case in point is the decision on the application for marriage legalization issued by the Samarinda Religious Court, which received hearsay evidence, and the Samarinda Religious High Court, which rejected it. This paper intends to examine the judge’s considerations in accepting or rejecting hearsay evidence in marriage legalization applications to understand whether these considerations have used appropriate legal arguments per the principles of justice and legal certainty. As a normative-doctrinal legal study, this paper uses case law, statutory, and conceptual approaches in its discussion. It shows that the Samarinda Religious Court accepted hearsay evidence because they considered the exceptional circumstances of the marriage event that they wanted to prove. On the other hand, the Samarinda Religious Higher Court rejected the hearsay evidence because a “hearsay witness” could not be used in a contentious case. Even so, the two decisions have not provided clear legal arguments in accepting or rejecting the hearsay evidence. The development of procedural law jurisprudence in Indonesia opens up opportunities for its use in the evidentiary process to create justice and legal certainty for justice seekers.
Indonesian Journal of Islam and Muslim Societies
The great Islamic mass rally which well known as “Aksi Bela Islam (Defending Islam action) 212” i... more The great Islamic mass rally which well known as “Aksi Bela Islam (Defending Islam action) 212” in Indonesia has always been claimed as the triumph of Islamic activism. This action continue to be voiced through social media such as Facebook, Twitter, Instagram, and so forth with the jargon “ 212 spirit “. The voluminous actions of “Aksi Bela Islam 212” sound like an authoritative propaganda jargon which are exhaled to spread the Islamic identity through the internet. Along with the proliferation of online Islamic activism, some major questions emerge about: (1) whether online religious discourse is an authoritative source that gives Muslim society an authority in religious propaganda; (2) to what extent the proliferation of online Islamic activism has shaped the new Islamic propaganda authority? The objective of this article is to examine the discourse of Islamic activism in the online public sphere which makes the internet and online social media as a new vehicle in the transformat...
Mazahib
This article seeks to analyse the role of Religious Courts' (Pengadilan Agama or PA) Judges in th... more This article seeks to analyse the role of Religious Courts' (Pengadilan Agama or PA) Judges in the formation of Islamic law in Indonesia. As part of the civil legal system, PA Judges are bound by legal provisions in handling legal disputes in court. They must apply the applicable legal provisions to decide upon a case. This condition can also be understood from the aspect of appointment of judges in Indonesia, including PA Judges, which is conducted not through professional career path as in the common law system. Thus, they are appointed from a new graduate of law/sharia faculty and then trained, inter alia, to apply and/or interpret applicable laws (legislation); and not to make the law itself. However, on the basis of secondary data analysis, studies on the ijtihad of PA Judges reveal that they are no longer only fixated on the provisions of statutes in deciding cases. They also make laws, cases in point are the Compilation of Islamic Law (KHI) and the Compilation of Sharia Economic Law (KHES), do ijtihad on the books of fiqh which became the basis for the drafting of Islamic legislation in Indonesia. Some of them even do direct ijtihad from Sharia sources, namely the Qur'an and Hadith. This condition is arguably more in accordance with the character of judges (qadis) in Islamic history which on a certain level similar to the role of judges in common law system.
Asian Journal of Comparative Law, 2015
This article examines the history of the evolution of Islamic legal authority in Indonesia and pr... more This article examines the history of the evolution of Islamic legal authority in Indonesia and provides an account of how it is contested and negotiated in contemporary Indonesia, using the history of family law reform as an example. There is a plurality of sources of authority for Islamic law as they operate within the domain of family law. The case studies reveal tensions between continuity and change in the development of Islamic legal principles and the strategies that different actors employ to advance their preferred version of Islamic legal norms: while the state has adopted a synthetic approach in order to accommodate these multiple legal authorities and increase the efficacy of its own statutes, the ulama persistently insist on the authority of fiqh as the immutable point of reference in resolving legal problems faced by Muslims. These conflicts ensure that the statutes will continue facing challenges as a legitimate interpretation of Islamic law in Indonesia.
Corporate zakat-obligatory alms giving payable by business entities-have been studied by some com... more Corporate zakat-obligatory alms giving payable by business entities-have been studied by some companies in Indonesia despite its ambiguous status in both Islamic jurisprudence and Indonesian law. This paper aims at exploring how the corporate community in Indonesia views the legitimacy of regulating corporate zakat. It will focus on compliance with corporate zakat in Indonesian Islamic Banks in. It will also identify whether ethical, religious or secular values that have prompted the banks comply with corporate zakat in order to find out how Islamic charity and corporate social responsibility may converge in sharia business sector in Indonesia. Using a case study as research method and thus multiple sources of evidence from structured interviews and archives (annual, financial, and good corporate governance reports) for triangulation, I will conduct detailed contextual analysis of each bank's experience when deciding to pay or not to pay their zakat. This study finds that the Islamic Commercial Banks' view on legitimacy of regulating corporate zakat in Indonesia is influenced by a combination of two to three factors: their type of business (i.e. as Sharia-related industry), their attitude toward the principles of zakat in Islam, their size (i.e. amount of profit considered eligible to pay zakat), and benchmarking to other competitors. A combination of factor number one and two become the most significant factors.
Mazahib Jurnal Pemikiran Hukum Islam, 2021
The Constitutional Court seems inconsistent when examining the same legal issue, i.e., the consti... more The Constitutional Court seems inconsistent when examining the same legal issue, i.e., the constitutionality of the minimum married age limit for women, but with different decisions. In the 2014 decision, the Court rejected the petition, while in the 2017 decision, the Court accepted it. This paper analyzes the considerations of constitutional judges in deciding the case to understand whether women's constitutional rights have been protected in both decisions. Using the case and statutory approach, this article concludes that the 2014 decision rejecting the petition to increase the minimum married age limit for women does not fulfill women's constitutional rights. Sixteen years old as the minimum age limit for women and nineteen years for men is discriminatory and deprives girls' rights to health and education. The judges' consideration in the 2017 decision, which granted the petition, was that determining the minimum married age limit is a legal policy. Still, if the policy contradicts the 1945 Constitution, citizens can challenge its constitutionality. The Marriage Law is a past product, so it needs to be adapted to developments and the 1945 Constitution's norms. The difference in the Constitutional Court's decisions on examining the same issue is due to different interpretations and efforts to protect the constitutional rights of citizens.
Ulumuna Journal of Islamic Studies, 2020
The state has given de-jure recognition of the Council of Indonesian Ulama's (MUI) authority in e... more The state has given de-jure recognition of the Council of Indonesian Ulama's (MUI) authority in establishing sharīʿa principles for the running of Islamic financial service in Indonesia. Given this extensive design, does MUI then expand this authority into other Islamic law fields, and if so, why and how MUI does that. This paper aims to examine MUI's policy to bureaucratize fatwā by making its Fatwa Commission the single institution, administratively and substantively, for fatwā production in Indonesia. It considers this issue in light of secondary data gathered through the documentation of Ijtima Ulama resolutions. It examines their inclusion or exclusion into the MUI's official fatwā compilation employing both normative-doctrinal and socio-legal analysis. As its formal role in the state system for the administration of Islamic legal traditions has been acknowledged, MUI continues expanding its authority by enabling its Fatwa Commission like a legislature, which will further review the Ijtima Ulama resolutions before promulgating them as a fatwā. Therefore, some of the resolutions that do not pass the review cannot/are not promulgated as a fatwā. MUI adopts this measure to increase the efficacy of its fatāwā by polishing the collective ijtihād resolutions of Ijtima Ulama which are assumed to represent all ulama in Indonesia.
Studia Islamika, 2020
Despite the enactment of a specific law on domestic violence, the elimination of violence in the ... more Despite the enactment of a specific law on domestic violence, the elimination of violence in the household is still an elusive target in Indonesia. For example, according to the National Commission on Anti Violence Against Women, a large number of Muslim divorces in the Religious Courts have involved domestic violence. This article discusses the opportunities and challenges for eliminating domestic violence in Indonesian Muslim society. Employing both normative and socio-legal analysis, it finds that the state is unable to resolve the existing conflict between the requirements of the Law – which oblige the state to amend conflicting legislation – and the provisions of both civil and Islamic marriage laws, which create the potential for violence against women in the household. These include gender role stereotypes, the fuzziness of the obedience concept (nushūz) and linking maintenance to a wife’s obedience, and the ambiguity of marriage validity. This necessitates the reformation of Indonesian marriage laws.
Mazahib Jurnal Pemikiran Hukum Islam, 2018
This article is based on the fact that there is still the disparity of decisions among the Religi... more This article is based on the fact that there is still the disparity of decisions among the Religious Court Judges on heirs, especially a child (walad), when handling the inheritance disputes. This is because there is a general provision of the meaning of walad contained in the Indonesian Compilation of Islamic Law (KHI) in which it includes both a son and a daughter. In addition, there is no obligation for Religious Court Judges to use the KHI as the basis for legal considerations, allowing for some Religious Court Judges to use the classical Islamic Jurisprudence (fiqh) as the legal basis in deciding a case. This article aims to investigate the impact of the general concept of walad (a child) and measures should be taken the Government to accommodate the legal reference material for Religious Court Judges, especially the KHI and the classical Islamic Jurisprudence (fiqh). It employs normative legal research which primarily examines the decisions of the Religious Courts in East Kalimantan, specifically Samarinda, Tenggarong and Tanah Grogot. The findings reveal that since there is no obligation for the Judges to use the KHI, referring to the classical Islamic Jurisprudence when giving legal considerations and deciding cases of inheritance is not against the procedural law in Indonesia. Yet, this measure potentially creates the disparity of decisions in the Religious Courts since the fiqh differs in determining who the walad is: merely sons or include both sons and daughters. This has frustrated the objective of the KHI as the codification of Islamic Law in Indonesia which unites the differences of opinions in the fiqh and, thus, assures legal certainty in resolving the disputes. Hence, the government should enact the KHI as a Law in Indonesia in order to end the forum of choice for the Judges in basing their decisions so that the disparity of decisions in the Religious Court minimized and legal certainty assured for the justice seekers.
Asian Journal of Comparative Law, 2018
This article investigates the extent of state intervention in the administration of Islam in Indo... more This article investigates the extent of state intervention in the administration of Islam in Indonesia. The 1945 Constitution of Indonesia does not explicitly recognize or privilege any particular religion. Yet, the boundaries of religion-state relations in the country are often unclear and complex, especially in light of policies and laws that regulate religious life and appear to privilege the dominant religion and its adherents. In this article, I demonstrate the ways in which the state has increasingly interfered in the administration of Islam in Indonesia by focusing on two case studies: the management of Hajj and zakat. However, it is observed that the vague constitutional arrangements on religion in Indonesia provide avenues for interpretations (especially by the Ministry of Religious Affairs) that the state has a constitutional obligation to interfere in the administration of religion and implement religious doctrines; and in the case of Islam, to ‘bureaucratize’ the shariah. This further complicates the exercise of distinguishing between religious doctrines that require state intervention for implementation and those that do not.
Authors in the related fields of Islamic Law are invited to submit papers for the upcoming June a... more Authors in the related fields of Islamic Law are invited to submit papers for the upcoming June and December 2018 edition of Mazahib Jurnal Pemikiran Hukum Islam (Mazahib Journal of Islamic Legal Thoughts, Volume 17, Issue 1 and Volume 17, Issue 2).
Subject areas of Islamic Law include, but not limited to, the results of empirical or normative-doctrinal legal research on Islamic jurisprudence (fiqh); Islamic Legal Theory (Usul al-Fiqh); Islamic Law in Modern Muslim World; Comparative Law, Law & Religion, or Law & Society which intersects with Islamic Law.
The editor receives manuscripts written in English or Arabic that have not been published previously or be under consideration for publication elsewhere. For paper format details, see Author Guidelines.
Submit your paper now using the online submission system. Authors without a Mazahib Jurnal Pemikiran Hukum Islam account are required to create an account first before submitting. Deadline submission is 31 March 2018 for June 2018 edition, and 30 September for December 2018 edition.
This article aims to provide an analysis about the relationship between religion and state in Isl... more This article aims to provide an analysis about the relationship between religion and state in Islamic perspective, with critical observation on Islamic, ideal-moral of politics and its historical reality. For that, this article tries to discuss the Islamic precepts of politics in the Koran and Prophet traditions, let alone their practice in Islamic history. After that, an effort of political dialectics in Islam being mapped. Finally, they are reflected in order to sum a conclusions. Having discussed this theme, it is clear that it is not easy to reach a final and absolute conclusion about ideal relationship between Islam and state in the modern era. Whether Islam is being practiced as its formal form or substantive form, always become controversy since its origins. But the most important thing, to answer the question is Islamic response of political problem must describe universal-humane-long-term solutions, instead.
Artikel ini adalah untuk membahas status perempuan dalam teks-teks agama Islam, terutama ayat-aya... more Artikel ini adalah untuk membahas status perempuan dalam teks-teks agama Islam, terutama ayat-ayat Quran dan Hadis teks yang dianggap "misoginis." Ada kebutuhan mendesak untuk membaca kembali teks-teks agama Islam karena mereka digunakan oleh ulama klasik untuk menghasilkan fikih mereka. Fikih klasik tadi, bersama-sama dengan teks, diadopsi oleh umat Islam kontemporer di luar konteks dan, kadang-kadang, telah digunakan untuk mengabadikan ketidaksetaraan gender dalam kehidupan sosial. Contoh kasusnya antara lain adalah kritik, dan bahkan penolakan, terhadap reformasi hukum keluarga yang diusulkan oleh negara. Artikel ini berpendapat bahwa nilai-nilai universal yang terkandung dalam teks-teks agama Islam yang mempromosikan keadilan dan, dengan demikian, menghormati hak-hak perempuan serta bertujuan untuk mencapai kesetaraan di antara diferensiasi gender dalam kehidupan sosial perlu disosialisasikan. Pemahaman sensitif gender ini terhadap teks-teks agama Islam disosialisasikan untuk lebih meningkatkan kesadaran masyarakat terhadap hak-hak womens dan isu-isu kesetaraan gender dalam Islam.
Wacana tentang tertutupnya pintu ijtihad telah menjadi isu sentral dalam diskusi hukum Islam, kar... more Wacana tentang tertutupnya pintu ijtihad telah menjadi isu sentral dalam diskusi hukum Islam, karena berkait dengan eksistensi hukum Islam dalam kehidupan: apakah hukum Islam itu statis sehingga pengikutnya harus menerima begitu saja apa yang telah dirumuskan oleh para fuqaha (ahli hukum Islam) di abad pertengahan lalu? Atau hukum Islam itu bersifat fleksible sehingga ia mampu untuk memainkan peran vital di segala kondisi dan situasi? Jawaban terhadap pertanyaan ini berkaitan erat dengan pemahaman konsep mazhab hukum dalam sejarah hukum Islam itu sendiri. Setelah muncul mazhab hukum, pemikiran hukum Islam dianggap telah mapan dan tidak diperlukan lagi pemikiran baru. Anggapan ini yang kemudian melahirkan ide pintu ijtihad telah tertutup. Kenyataannya pintu pemikiran bebas tidak pernah tertutup dalam Islam. Keberanian untuk mengemukakan pendapat berbeda terhadap para imam mazhab besar, serta orisinalitas pendapat tetap bisa dijumpai pada setiap tahapan sejarah hukum Islam. Kondisi ini seharusnya memberikan jalan bagi pengkaji hukum Islam di era modern untuk berani mengkritisi materi hukum Islam yang mereka pelajari dari kitab-kitab fiqh klasik, agar supaya hukum Islam tidak kehilangan peran vitalnya dalam kehidupan.
This study focuses on the development of concept and practice of corporate zakat (obligatory alms... more This study focuses on the development of concept and practice of corporate zakat (obligatory alms under Islamic law payable by business entities) in Indonesia. The key issues are: who has the authority to (1) interpret and (2) impose corporate zakat in Indonesia; whether (3) the creation of this corporate obligation is viewed as legitimate by the corporations that become its target, and, thus, have prompted them to comply with it. This study is qualitative research that uses a case study of Islamic commercial banks in Indonesia as the main method of inquiry. It finds, first, the Council of Indonesian Ulama (MUI) has become the leading Islamic authority in Indonesia and it exercises its authority by making its Fatwā Commission the single door for fatwā production in Indonesia and, thus, acting as a reviewer of other ulama’s resolutions. Second, despite the MUI’s reluctance to issue a fatwa (religious edict) on corporate zakat, the Zakat Law of 1999 and 2011 proceeded without controversy. The state does not see itself in the position to enforce religious obligations and, hence, adopts the approach of voluntary payments in zakat administration in Indonesia. Third, making legal entities subject to zakat could have triggered resistance from the business sector because sharīʿa states that only natural persons are subject to zakat. Despite this, corporate zakat imposition through the Zakat Law has not triggered controversy within the business sector. The voluntary nature of zakat collection may have offset potential negative reactions. The lack of enforcement by the government may serve to reinforce ignorance towards the concept of corporate zakat. From the Islamic banking sector case study, it was found that the reasons why they comply with corporate zakat duty even though they are not legally compelled to are affected by a combination of two or three factors: (1) the type of business; (2) their attitudes towards the principles of zakat; (3) the size of the company and (4) benchmarking against other competitors. A combination of factors number one and two emerges as the most significant driver for Islamic commercial banks in Indonesia that choose to pay corporate zakat.
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Papers by Alfitri Alfitri
Subject areas of Islamic Law include, but not limited to, the results of empirical or normative-doctrinal legal research on Islamic jurisprudence (fiqh); Islamic Legal Theory (Usul al-Fiqh); Islamic Law in Modern Muslim World; Comparative Law, Law & Religion, or Law & Society which intersects with Islamic Law.
The editor receives manuscripts written in English or Arabic that have not been published previously or be under consideration for publication elsewhere. For paper format details, see Author Guidelines.
Submit your paper now using the online submission system. Authors without a Mazahib Jurnal Pemikiran Hukum Islam account are required to create an account first before submitting. Deadline submission is 31 March 2018 for June 2018 edition, and 30 September for December 2018 edition.
Subject areas of Islamic Law include, but not limited to, the results of empirical or normative-doctrinal legal research on Islamic jurisprudence (fiqh); Islamic Legal Theory (Usul al-Fiqh); Islamic Law in Modern Muslim World; Comparative Law, Law & Religion, or Law & Society which intersects with Islamic Law.
The editor receives manuscripts written in English or Arabic that have not been published previously or be under consideration for publication elsewhere. For paper format details, see Author Guidelines.
Submit your paper now using the online submission system. Authors without a Mazahib Jurnal Pemikiran Hukum Islam account are required to create an account first before submitting. Deadline submission is 31 March 2018 for June 2018 edition, and 30 September for December 2018 edition.
The book argues that the dynamics of sharīʿa interpretation, imposition, and compliance in Indonesia are too complex to be defined using the binaries of the religious versus the secular, public versus private, or tradition versus modernity. The corporate zakat context has revitalized the existing governance strategy in Islamic legal tradition and created a shared Islamic law vision between Islam and the state. Consequently, this fusion generates a mixed legal and religious consciousness toward corporate zakat.
Addressing broader discussions on Islamic law and modernity, the book will be of interest to academics working on Asian and Comparative Law, sociolegal studies, anthropology of Indonesia, business studies of the Islamic world, Islamic/sharīʿa economics, Islamic law and politics, Islamic legal studies, Muslim society and Islam in Southeast Asia.