Politik Hukum dan Positivisasi Hukum Islam di Indonesia [Studi Tentang Produk Hukum Islam dalam Arah Kebijakan Hukum Negara]

Abstract

Legal policies that do not consider aspirations of the people have led to inconsistencies in the application of laws because of differences between the will of the people and the legal provisions in the form of legislation. This study specifically examines states legal policies in terms of the application of Islamic law in Indonesia, which is reflected in the Law No. 1/1974 on Marriage and the Law. No 7/1989 on Religious Courts (and its amendment the Law No. 3/2006). The political situation that characterizes the formation of the Marriage Law and the Law on Religious Court very clearly showed the direction and tendency of the states policies towards national laws. It can be seen from the political aspects of the legal establishment, the political aspect of the content of the laws (principle and rule of laws), and political aspects of law enforcement. All three of these aspects have made Islamic laws practiced by Indonesian Muslim society as the living laws have legal problems with formal legal rules defined by the state. The problems of laws can be seen in the Marriage Act article 2 paragraph (1), article 7 paragraph (1), article 31 paragraph (3) and article 34 paragraph (1) and (2), and articles 42 and 43 paragraph (1). While the legal provisions in the Law on Religious Court that could lead to a legal problem is Article 50 of Law No. 7/1989 and Article 50 paragraph (1) and (2) of Law No. 3/2006 (amendment of the same article of the Law no. 7/1989