20 J.L. Pol'y & Globalization 56 (2013)
The Position of Decedent's Sibling in Inheritance Based on Compilation of Islamic Law

handle is hein.journals/jawpglob20 and id is 62 raw text is: 



Journal of Law, Policy and Globalization                                                         wVwjiste or
ISSN 2224-3240 (Paper) ISSN 2224-3259 (Online)
Vol.20, 2013                                                                                          11[


        The Position Of Decedent's Sibling In Inheritance Based On

                               Compilation Of Islamic Law
                Anang Setio Budis°, Thohir Luth1, A. Rachmad Budiono 82, Gatot Dwi Hendro W.83
The research is financed by National Education Departement of Indonesian Republic, under post graduate
fellowship program
Abstract
The position of decedent's brother in Compilation of Islamic law regulates in article 181 and article 182, which
are arranged the proportion of the maternal brother and sibling brother together inherit with paternal sibling.
Compilation of Islamic law which formed in President Instruction still need many interpretation in its existence
and substance, in which regulation should have given complete and sufficient regulation, and it will avoid the
existence of verdict disparity by religion court judge.
The type of this research is normative research; there are five approaches to use, which are: philosophical
approach, conceptual approach, statute approach, case approach and historical approach.
Based on this fact, the substance of Compilation of Islamic law is not as complete as in Fiqh, so that this
condition will lead to related problems to analyze:
1. The existence of legal vacuum that regulates the position of decedent sibling who inherit together with
     decedent's sibling , paternal and maternal sibling in Compilation of Islamic law
 2. Difference of existence in decedent sibling that inherit together with decedent's sibling brother, paternal
     and maternal sibling in Compilation of Islamic law
 3. The existence of vague condition of related regulation related with decedent sibling that inherit together
     with decedent's sibling brother, paternal and maternal sibling in Compilation of Islamic law
Keywords: decedent's sibling their position in inheritance


1. Introduction
One's effort to evaluate and to learn Islamic inheritance law, which called faraid,84 also means an effort to
evaluate half of the knowledge earned by human being that continuously alive in the middle of Muslim
community, by the time of the Islam beginning, until the medieval era, modern era and contemporary era and in
the future.85
For Indonesian Muslim community, Allah rules related with inheritance has been used as positive law in
Religion Court to deciding splitting case and dispute related with inheritance. Therefore, Islamic people who
solved the problem through religion court has fulfill Allah law in handling inheritance, apart from fulfill
observance in conducting Allah rule, and in the same time they also fulfill their obligation to the State.86 This
condition is different with the Arabic Law before Islam came, in which law show that decedent their position
goes to the one's brother who goes to war,87 in the condition where heirs did not leave a grown up boy.
However, there are problems faced by religion court is the issue of material law and its appliance, which is
positive law that must applied by religion court to solve cases of decedent that submit to them
Materially, it is allowed for religion court judges to use 13 Syafi'i scholar books, that are : Al-Bajuri,Fat-hul
Mu'in, Syarqawi ala' al-tahrir, al- Mahalli, Fath al-Wahab, Tuh-fah, Targhib al-Musytaq, Qowawin al-Syar'iyyah
Utsman ibn Yahya, Qawawin al-Syar'iyyah Shadaqah Dhi'an, Syamsuri fi al-Faraidh, Bughat al-Murtasyidi,
al-Fiqh ala al- Madzabin al-Arba' ah, dan Mughni al-Muhtaj.88


80 Student of Doctorate Programme of Law, Faculty of Law, Brawijaya University Email: anangsetiobudi@gmail.com.
81 Promoter, Lecturer of Program of Jurisprudence Doctor, Brawijaya University
82 Co-promoters, Lecturer of Program of Jurisprudence Doctor, Brawijaya University
83 Co-promoters, Lecturer of Program of Jurisprudence Doctor, Brawijaya University
84 Amir Syarifuddin, Hukum Kewarisan Islam, (Jakarta,Prenada Media Group,2008), hlm. 5.
85 J.N.D. Anderson, Hukum Islam di Dunia Modern, terj.Machnun Husein (Surabaya, Amarpress,1991),hlm.66.
86 Amir Syarifuddin, Op. Cit.,hlm. 4.
87 Ismuha, Penggantian Tempat Dalam  Hukum  Waris, Menurut KUH  Perdata, Hukum Adat, Dan Hukum
  Islam,(Jakarta,Pustaka Bulan Bintang,2004), hlm.28.
88 Jaenal Aripin, Peradilan Agama dalam Bingkai Reformasi Hukum di Indonesia, cet.1,( Jakarta, Kencana,2008), hlm.274.

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