Muslihun, Muslihun (2018) Legal positivism, positive law, and the positivisation of islamic law In Indonesia. Ulumuna: Jurnal of Islamic Studies, 22 (1). pp. 77-95. ISSN (P) 1411-3457, (E) 2355-7648

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ENDLISH This study elucidates the legal positivism and critically compares it with other schools of philosophy of law. Debates on the legislation of Islamic law in Indonesian can be traced back to the discursive practice of legal philosophy such as legal positivism. Indonesia as a law-based state (rechtsaat) adopts to a considerable degree legal positivism. However, it cannot be said that pure legal positivism, as it is promoted by its thinkers such as John Austin and Hans Kelsen, is applied because the Indonesian legal system accept morality such as religious and customary norms as the ground of legislation. By examining the postivisation of Islamic law, that is the legislation of Islamic law into the state legal system, this study argues that morale, ethics or norms derived from religion and customs are accepted to the state law. They can be used as the source of justice while justice in the positivists’ view refers to the code and statute endorsed by those who are in authority or power to do that. It thus denies the view of legal positivists who reject ethics or norms beyond the state law as non-law.

Item Type: Article
Uncontrolled Keywords: legal positivism; philosophy of law; justice; positivisation; Islamic law
Subjects: 18 LAW AND LEGAL STUDIES > 1801 Law > 180104 Civil Law and Procedure
18 LAW AND LEGAL STUDIES > 1801 Law > 180108 Constitutional Law
18 LAW AND LEGAL STUDIES > 1801 Law > 180119 Law and Society
22 PHILOSOPHY AND RELIGIOUS STUDIES > 2204 Religion and Religious Studies > 220403 Islamic Studies > 22040304 Fiqh, Ushul Fiqh, Islamic Jurisprudence, and related science
Divisions: Program Pascasarjana > Program Studi Magister Ekonomi Syariah
Depositing User: Syahrul Gunawan Adita, S.E
Date Deposited: 02 Nov 2022 03:36
Last Modified: 03 Feb 2023 00:30

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