IJoMaFiM: Indonesian Journal of Maqasid and Fiqh Muqaran

DISTRIBUTION OF JOINT PROPERTY IN MARRIAGE

2024-12-17T18:46:46+08:00

Joint property in marriage is a custom that has been in effect in Aceh since the Aceh Darussalam Sultanate. The community divides the assets based on the roles of husband and wife in providing for the family's living costs. However, the Mahkamah Syar'iyah Aceh tends to split it in half in all cases for reasons of legal certainty. Considering that it can compromise society's sense of justice, the author examines variations in distribution between husband and wife in the opinion of Ulama Dayah and MPU Aceh. The subjects of this research are the figures representing the sense of justice of the Acehnese people and understanding the ins and outs of Islamic law. This study is empirical legal research that aims to discover unwritten laws. The author hypothesizes that legal certainty can realized if there is a positive law regarding the details of variations in distribution based on the role portions of husband and wife. Researchers found that Ulama Dayah and MPU supported the sharing pattern of joint property that prevailed in society, even though they divided it into thirds. If the wife worked harder than the husband, she gets two-thirds. Vice versa, a similar distribution applies to the husband. This study concludes that determining variations of the amount based on the roles of husband and wife is possible because the workload portion can be detailed.

TUMA'NĪINAH AS AN ELEMENT OF THE ACT OF SALAH PRAYER

2024-12-20T11:25:51+08:00

According to Ḥanafyyah scholars, ṭuma'nīnah is sunnah, so it is valid to perform Salah without it. On the other hand, Syāfi'iyyah scholars state that ṭuma'nīnah is a pillar of Salah, so the prayer without ṭuma'nīnah is invalid. Based on fiqh literature, this issue falls into the category of hukm al-waḍ‘ī, where differences of opinion occur due to different patterns of reasoning. Therefore, the author examines it by formulating two research problems: (1) What do Ḥanafiyyah and Syāfi'iyyah ulemas think about ṭuma'nīnah as an element of legal action in prayer? (2) How do Ḥanafiyyah and Syāfi'iyyah ulemas apply logical reasoning in this case? It found that the ulemas of Ḥanafī school of thought adhered to direct textual knowledge that a priori ('ilm ḍarūrī) because the right of Allah must established based on definite arguments (qaṭ'ī). The Ḥanafiyyah ulemas only used verses from the Qur'an as evidence for the pillars of prayer and abandoned the Hadith Ahad because the Hadith Ahad did not produce 'ilm ḍarūrī. Meanwhile, Syāfi'iyyah ulemas consider that direct textual knowledge resulted from the ijtihad process, so it is a posteriori ('ilm muktasab). Therefore, in determining tuma'nīnah as the pillars of the Salah prayer, the Syāfi'iyyah ulemas use the Hadith Ahad to explain the Qur'anic verses. It found that the verses of the Qur'an do not textually determine the pillars of the Salah prayer because the words qiyam, qira'ah, rukuk, and sujud refer to the whole of Salah. It concluded that the legal status of tuma'nīnah as a legal act is determined based on the Al-Qur'an and Hadith.

QIYĀS MA‘A AL-FĀRIQ PADA HARTA BERSAMA DALAM PERKAWINAN DI INDONESIA

2025-01-21T08:19:00+08:00

Even though Muslim communities in Indonesia have implemented joint property in marriage, the Qoran and Hadith do not explicitly explain this. Likewise, there is no confirmation that the wife has ownership rights to the asset acquired by the husband during married life. Therefore, Indonesian ulemas made legal findings but did not confirm the methods in their ijtihad. Some researchers claim that ulemas carried out legal findings through analogy methods. Unfortunately, there is an analogical fallacy because partnerships in the household are different from business partnerships. This claim inspired the author to research the appropriate legal findings method in joint property law from the perspective of analogy with differences (qiyās ma‘a al-fāriq). This perspective sees the potential for ambiguity between the direct inference method and al-qiyās as indirect inference. This study is normative legal research with a uṣūl al-fiqh approach. The author collected the data using the library method and then analyzed it through the deductive method. The author found that the ulama did not apply the analogy for two reasons: 1) there are differences because the joint property field is in Fiqh Munakahat, while the business partnerships are in the field of Fiqh Muamalah; 2) the law of syirkah al-abdān is rationally determined so that it does not enough conditions for analogy. The author concludes that the ulama uses a direct inference method. Uṣūliyyūn calls this the negation of differences method (nafy al-fāriq).