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80 J.L. Pol'y & Globalization 126 (2018)
The Feasibility of Implementing Islamic Law in Distribution System of Civil Servants' Inheritance

handle is hein.journals/jawpglob80 and id is 127 raw text is: Journal of Law, Policy and Globalization www.Lsten. ISSN 2224-3240 (Paper) ISSN 2224-3259 (Online) Vol.80, 2018 The Feasibility of Implementing Islamic Law in Distribution System of Civil Servants' Inheritance Muhsin Aseri, Ahmadi Hasan, Krisnadi Nasution Universitas 17 Agustus 1945 Surabaya *E-mail of the corresponding author: muhsin.aseriAvahoo.co.id Abstract Muslim in Indonesia faces dualism of law derived historically from the advent of Islam and national law as a form of combination during the age of colonialism. The legal law of inheritance does not represent Islamic law hitherto. Therefore, this research aims at analyzing the clash of laws and its' distribution specifically on Muslim civil servant inheritance in Indonesia. Identifying principles and legal norms approach to inheritance, this research covers philosophical, statue, and conceptual. Legal material sources which are based on normative- prescriptive are this research's primary, secondary and tertiary materials. Thus, it employs juridical qualitative analysis based on legal interpretation, reasoning, and argumentation. Finally, the wealth sourced from savings/stoppage of civil servants is inheritance that should be divided in accordance to the law of community property and Islamic inheritance law or Faraidh. Keywords: Islamic Law, Distribution of inheritance, Muslim civil servant, Indonesia 1. Introduction Muslims in Indonesia are confronted with the dualism of national law in which positive law and Islamic law might be the same or might be different. One of differences of positive law (regulations/legislations) and Islamic law is about distribution of Muslim civil servants' inheritance. Muslim civil servants' inheritance is already regulated by positive law, but on the other side, Islamic law also regulates the distribution of Muslim civil servants' inheritance as regulated in Compilation of Islamic Laws (KHI) Article 176 to Article 191). There are differences between positive law and Islamic law in the distribution of inheritance. The distribution of Muslim civil servants' inheritance to their heirs is not equally given (Budiono, 2006, p.37). In other word, not all of heirs will get the inheritance. The distribution of Muslim civil servants' inheritance is given by using a hierarchy system. If the first heir is still alive, the second heir and the other heirs will not get the retirement savings. If the first heir is already passed away, the second heirs will get the retirement savings and so on. Islamic inheritance law does not recognize the rules governing, that inheritance is only given to one heir and arranged in hierarchy (Law Number 11 Year 1969). The position of each heir is already regulated in detail. The norm of positive law regulating the inheritance of Muslim civil servant shows that inheritance will be given to one or more heirs. Ignoring other heirs is essentially incompatible with philosophical and juridical perspectives. Philosophically, the regulation of the ones entitled to receive the inheritance of Muslim civil servant is still not fair (Budiono, 2006, p. 36). Legal norms regulating the ones entitled to receive the inheritance of Muslim civil servant have already given legal certainty. Yet, there is uncertainty whether the legal certainty is correct, certain, and sufficient for all parties in an inheritance sharing or not. Nieuwenhuis cited in Herlien Budiono also states that it is questionable because a threat toward certainty is regarded as an unpredictable attitude from human beings (het toekomstig gedrag van zjn medemens) (Nieuwenhuis dalam Budiono 2006, p. 210). Legal certainty does not always results injustice. In Islamic inheritance law, the right of the heirs is already arranged without prioritizing one heir and nullifying other heirs. The heirs in Islam are divided into two kinds: nasabiyah and sababyah (Sarmadi, 2013). Philosophically, several legal norms stated in legislations and government regulations are unable to regulate and to solve problems that might arise in the community (among the heirs) whereas the function of law is essentially to serve the interests of society (Friedman, 1975, p. 17-18). Legal norm must have the aspect of legal certainty and must also meet the need for justice. 126

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