Definition of Fiqh JinayahCriminal jurisprudence consists of two words, namely jurisprudence and jurisprudence. The linguistic definition of fiqh comes from the word faqiha-yafqahu-fiqhan, which means to understand. While in terms presented by Abdul Wahab Khallaf:
Crime in language is:
A name for what one gains from evil and what it has earned
"The name of the result of a person's bad deeds and what he strives for."
While the crime in terms presented by Abdul Qadir Audah is:
Felony is a noun for an act that is forbidden by Sharia, whether the act is committed against a person, money or something else
" Crime is a term for an act that is prohibited by syara' whether the act involves life, property, or other things." from the arguments of Nash.
According to the Hanafi madhhab, the discussion of crimes is specialized for crimes against the soul and body parts, while problems related to crimes against property are arranged in their own chapter. As for other schools of thought, there is no separation between evil acts against the soul and body parts and crimes against property (theft, crimes against other property).[3]
The word jinayah is also used in the Egyptian Criminal Code, but the meaning is different from the meaning put forward by the Hanafi school. In the Egyptian Criminal Code, criminal acts are divided into three parts, namely jinayah, janhah, and mukhalafah.[4] The three types of criminal acts according to the Egyptian Criminal Code are called jinayah or jarimah in Islamic criminal law.[5]
Fiqh jinayah related to the term finger. Jarimah comes from the word (جرم) whose synonym (كسب وقطع) means to try and work. Effort here is focused on business that is not good or business that is hated by humans. Or it can be interpreted that jarimah is doing every act that deviates from the truth (sin), justice, and the straight path (religion). [6]
According to the term, the definition of jarimah put forward by Imam al-Mawardi:
Crimes are legal prohibitions that Allah, the Most High, has enjoined with a punishment or punishment
"Jarimah are actions that are prohibited by syara', which are punishable by had or ta'zir punishment."
The word finger is termed in positive law as a crime (delict) or violation.
The use of the word jinayah has a broader meaning, which is aimed at everything that has to do with human crime and is not aimed at a particular unit of sin (jarimah). Therefore, the discussion of fiqh which contains issues of crime, violations committed by humans, and punishments threatened for the perpetrators of the act is called fiqh jinayah, not fiqh jarimah.[7]
The definition of jarimah is almost in accordance with the understanding according to positive law (Indonesian criminal law). Jarimah in terms of Indonesian criminal law is defined as a criminal event. According to Mr. Tresna in his book Principles of Criminal Law, a criminal event is a series of human actions that are contrary to other laws or regulations, for which acts of punishment are carried out.[8]
Definition of jarimah according to syara'outwardly it turns out to be slightly different from the notion of jarimah or a criminal act according to positive law in relation to the problem of ta'zir. According to Islamic law, ta'zir punishment is a punishment that is not stated in the text or provisions in the Qur'an and as-Sunnah, with definite and detailed provisions. Meanwhile, according to positive law in the sense above, the punishment must be stated in the law.[9]
The Elements of Jarimah and the Object of the Study
1. Elements of Fingers
An act is considered as a crime if the elements have been fulfilled. Abdul Qadir Audah argued that there are three general elements of jarimah:
a. The formal element (الركن الشرعي) is the existence of texts (provisions) which prohibit actions and threaten them with punishment.
In this element there are five main problems:
The principle of legality in Islamic criminal law.
Sources of Islamic criminal rules.
The validity period of Islamic criminal rules.
The environment for the application of Islamic criminal rules.
The principle of the perpetrator or against whom the rules of Islamic criminal law apply.[10]
b. The material element (الركن المادي) is the existence of behavior that forms a finger, both in the form of real actions (positive) and inaction (negative) which are against the law.
This material element includes, among others:
1) Jarimah that has not been completed or is being tried.
2) Participate in doing jarimah.[11]
c. The moral element (الركن الادبي) is that the perpetrator is a person who is a mulatto, that is, a person who can be held accountable for a crime committed.
The discussion regarding this element of accountability revolves around two main issues:
1) Criminal liability.
2) Elimination of criminal liability.[12]
The elements above are general elements. This means that these elements are the same and apply to every type of finger (crime/delict). So in any finger, these three elements must be fulfilled.[13] For elements that can specifically be studied in each finger.
2. Finger Study ObjectThe main object of the study of criminal jurisprudence if it is linked to the elements of criminal acts or the arcan al-Jarimah, and the main object of study of criminal jurisprudence is closely related to the material element or al-Rukn al-Madi, then the main object of study of criminal jurisprudence covers three main problems:
Jarimah Qishash.
Jarimah Hudud.
Jarimah Ta'zir.[14]
C. Distribution of Fingerprints and the Scope of Discussion
Finger DistributionVarious kinds of jarimah can be seen from several aspects: [15]
Jarimah in terms of the severity of punishment.In terms of lightness of punishment, jarimah can be divided into three parts, namely:
Jarimah Hudud.
Jarimah Qishash and Diat.
Jarimah Ta'zir .
Jarimah in terms of intention.In terms of intention, jarimah is divided into two parts, namely:
1) Intentional jarimah.
According to Muhammad Abu Zahrah, what is meant by intentional fingering is a fingering that is done by someone on purpose and on his will and he knows that the act is prohibited and punishable.
In terms of Indonesian positive law, jarimah is in line with the dolus delict (containing an element of intent).[16]
2) Accidental Fingering.
Abdul Qadir Audah stated that unintentional fingering is fingering where the perpetrator accidentally (intends) to commit a prohibited act and the action occurs as a result of his negligence (his mistake).
This unintentional finger in terms of Indonesian positive law is called a culpa delict (mistake in the form of negligence).[17]
Jarimah in terms of time of arrest.In terms of the time of capture, the finger can be divided into two parts, namely:
1) Finger Caught Red-handed (جرائم المتلبس بها)
2) Finger Not Caught Red-handed (جرائم لاتلبس فيها)
Jarimah in terms of how to do it.In terms of how to do it, jarimah is divided into two parts:
1) Positive Jarimah (جرائم ايجابية)
Jarimah for carrying out prohibited acts. In positive law, this is known as commission offence.
2) Negative Jarimah (جرائم سلبية)
Jarimah for leaving the ordered actions. In positive law it is called delikta commissionis.
Jarimah in terms of its object.In terms of the object or target affected by the finger, the finger is divided into two parts:
1) Individual Finger (جرائم ضد الافراد)
Individual Finger is a finger where the punishment for the perpetrator is imposed to protect individual rights (individuals).
2) Community Fingerprint (جرائم ضد الجماعة)
Community Fingerprint is a finger in which the perpetrator is punished to protect the interests of the community.
Jarimah in terms of character or motive.In terms of character or character, it is divided into two parts:
1) Ordinary Jarimah (جرائم عادية)
Ordinary jarimah, namely jarimah carried out by someone without linking it to political goals.
2) Political Jarimah (جرائم سياسية)
According to Muhammad Abu Zahrah, political finger is a finger which is a violation of government regulations or government officials or against political lines that have been determined by the government.
2. Scope of Discussion of Fiqh JinayahThe scope of discussion of Islamic criminal law includes theft, adultery, qadzaf, drinking khamr, killing and/or injuring, destroying other people's property, carrying out disorderly movements and the like related to criminal law (jarimah).[18] Other literature mentions the scope includes the following:
Legality Principles ;
Fingers;
Punishment ;
Jarimah of adultery and accusations of adultery;
Finger theft and robbery ;
Jarimah drinks liquor;
Finger of murder;
Qishas;
Diyat;
Jarimah Ta'zir;
Islamic Criminal and Civil Law.[19]
[1] Ahmad Wardi Muslich, Introduction and Principles of Islamic Criminal Law; Fiqh Jinayah, cet.II, Jakarta: Sinar Graphic, 2006, p. 1
[2] Ibid.
[3] Rahmat Hakim, Islamic Criminal Law; Fiqh Jinayah, cet.2, Bandung: Pustaka Setia, 2000, p.13
[4] Jinayah is a crime punishable by death, lifelong hard work, temporary hard work or prison (article 10 of the Egyptian Criminal Code). Janhah is a crime punishable by imprisonment for more than one week or a fine of more than one hundred piesters (qirsy) (article 11). Mukhalafah is a criminal offense punishable by imprisonment of not more than one week or a fine of not more than one hundred piesters (qirsy) (article 12).
[5] Muslich,op.cit.hal.14
[6] Ibid. p.9
[7] Rahmat Hakim,op.cit.,p.15
[8] Muslich,op.cit.,p.10
[9] Ibid.p.11
[10] Ibid.p.29
[11] Ibid.hal. 59
[12] Ibid.p.74
[13] Rahmat Hakim, op.cit., p.53
[14] M. Nurul Irfan and Masyrofah, Fiqh Jinayah, cet.1, Jakarta: Amzah, 2013, p.3- 4
[15] Mushlich, op. cit., hal. 17-28
[16] Moeljatno, Principles of Criminal Law, ed. revision, Jakarta: Rineka Cipta, 2008, p. 82
[17] Moeljatno, op. cit.
[18] Zainuddin Ali, Islamic Criminal Law, cet.3, Jakarta: Sinar Graphic, 2012, p.9
[19] http://makmum-anshory.blogspot.com/2009/07/ruang-lingkup-fiqih.html (Accessed March 14, 2015;11:45 AM)
source: kingilmu