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Modernization, Tradition and Identity

Modernization, Tradition and Identity: The Kompilasi Hukum Islam and Legal Practice in the Indonesian Religious Courts

Euis Nurlaelawati
Copyright Date: 2010
Pages: 296
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  • Book Info
    Modernization, Tradition and Identity
    Book Description:

    Modernization, Tradition and Identity: The Kompilasi Hukum Islam and Legal Practice in the Indonesian Religious Courts looks at the extent to which the judges of the Indonesian religious court have referred to the Kompilasi Hukum Islam as a close or legislated code in resolving the cases. The book stresses the role of judges at the religious courts and shows how a different perspective can produce different pictures and how the main actors in what other legal scholars portray as the success story of Indonesia's legal system, if depicted from a different angle, suddenly become weak and powerless figures, lacking strong weapons. Using Weber's approach on legal rationalization, the book investigates important dynamics in the history of Islamic justice and portrays the shift of legal awareness among Muslims in the country.

    eISBN: 978-90-485-0814-3
    Subjects: Anthropology, Law

Table of Contents

  1. Front Matter
    (pp. 1-4)
  2. Table of Contents
    (pp. 5-8)
  3. List of Tables
    (pp. 9-10)
  4. Notes on Transliteration and Translations
    (pp. 11-12)
  5. Acknowledgements
    (pp. 13-14)
  6. Preface
    (pp. 15-18)
  7. Introduction
    (pp. 19-30)

    The twentieth-century Muslim world witnessed a phenomenal development in the codification of Islamic family law. Initiated by the Turkish Government which issued the Ottoman Law of Family Rights (Qānūm Qarār al-Ḥuqūq al-‘Ā’ilah al-Uthmāniyya) in 1917, the trend towards codification was soon adopted by other Muslim countries. In 1920 Egypt ratified Law No. 25, which was followed by Law No. 25 of 1929. The ratification of these two laws introduced some fundamental reforms in various aspects of Islamic family law, particularly divorce1. Iran followed Egypt by issuing the Marriage Law codifying rules of marriage and divorce in 1931, which was later...

  8. I The Indonesian Religious Courts: Institutional and Judicial Developments
    (pp. 31-64)

    The enactment of thekompilasicannot be dissociated from the very existence of the religious courts in Indonesia. There are currently 331 first instance and twenty-five appellate religious courts across the country. The former have been established at regency level, and the latter at provincial level. Administratively, these courts used to fall under the Ministry of Religious Affairs, but were judicially the responsibility of the Supreme Court. Since 30 June 2004, they have fallen both administratively and judicially under the control of the Supreme Court. Their competency covers such familial issues as marriage, inheritance, and endowment. This relatively wide competence...

  9. II The Making of the Kompilasi Hukum Islam
    (pp. 65-94)

    The issue of the Presidential Instruction on the socialization of theKompilasi Hukum Islamin 1991 was a crucial event in the dynamics of Islam and the religious courts in Indonesia. Despite the fact that Indonesia is the largest Muslim country in the world, it is not an Islamic state in the sense that it has not adopted thesharÅ‘aor the Islamic judiciary system. Its constitution and legal system are secular in nature, though some elements of Islam are integrated into their bodies.¹ One of the consequences of this is that the demands for the application of thesharÅ‘a...

  10. III Debates on the Kompilasi Hukum Islam
    (pp. 95-130)

    TheKompilasi Hukum Islamconsists of three chapters: marriage, inheritance, and endowment, which are presented in 229 Articles. The chapter on marriage rules on nineteen issues, including the foundation of marriage, engagement, requirements and conditions for a marriage, a dowry, prohibitions in marriage, agreements in marriage, marriage during pregnancy, polygyny, the cancellation of a marriage, the annulment of a marriage, rights and privileges of spouses, property in marriage, child care, guardianship, dissolution of a marriage, consequences of dissolution of a marriage, reconciliation, and the waiting period (iddah). The chapter on inheritance deals with five issues, including heirs, portions of heirs,...

  11. IV Between the Kompilasi and the Fiqh Texts
    (pp. 131-160)

    One of the main objectives in creating thekompilasiwas to unify the legal reasoning used by judges in Indonesian religious courts in order to achieve legal certainty for Indonesian Muslims seeking resolution of familial problems. Since the issuing of this Presidential Instruction, judges in the religious courts have indeed been required to base their judgments on thekompilasi, which presents a systematization orrationalizationof the material law offiqh. This was intended to prevent reliance on two different rulings in deciding two cases of the same nature, a situation which had frequently occurred in the judicial practices of...

  12. V The Kompilasi and the Need for Religious Legitimacy
    (pp. 161-180)

    In the previous chapters, the discussion has concentrated on the role of thefiqhtexts in the judicial practices of judges in the Indonesian religious courts, even after they had thekompilasiavailable to them. Presenting a number of cases, I have also discussed to what extent the judges have used thekompilasias the basis of their legal decisions, and at the same time discovered the motives behind the judges’ preference for maintaining thefiqhtexts. Nevertheless, a fundamental question remains unanswered. Why do they feel it necessary to continue referring to thefiqhbooks in rendering judgments on...

  13. VI Judges, ‘Ulamā’, and the State: Legal Practices of Society
    (pp. 181-216)

    The fact that, despite the very existence of thekompilasi, thefiqhtexts remain central to the judicial practice of judges in Indonesian religious courts seems to constitute a reflection of the ambivalence of Indonesian Muslims about accepting the results of the institutionalization of Islamic law initiated by the State. On the one hand, they believe that Islamic law is a sacred law whose domain is beyond State control, and consider the authority of the ‘Ulamā’ on the interpretation of Islamic law to be exclusive. The ‘Ulamā’ are regarded as the guardians of Islamic law, the people by whom actual...

  14. Conclusion
    (pp. 217-224)

    The issuing of thekompilasiis inextricably related to the fact that, although there were several attempts to ban it, the institution of Islamic justice in Indonesia survived and evolved. Over the course of time, it has even gained more legal standing within the national legal system. The issuing of the Islamic Judicature Act in 1989 was one instance which proved that thekompilasihas gained more formal and legal recognition. The Act unified the competence, structure, and legal procedures of the religious courts across Indonesia. More importantly, the Act put an end to the superiority of the civil court...

  15. Notes
    (pp. 225-256)
  16. Appendices
    (pp. 257-278)
  17. Bibliography
    (pp. 279-288)
  18. Index
    (pp. 289-294)
  19. Back Matter
    (pp. 295-296)