Analogy in Criminal Law: Contrasting Approaches in Indonesian and Islamic Legal Frameworks

DOI

10.2991/978-2-38476-303-0_94How to use a DOI?

Keywords

Analogy; Indonesian Criminal Law; Islamic Criminal Law

Abstract

In Indonesian criminal law, the prohibition on using analogy to resolve cases is intended to prevent judicial arbitrariness, but may inadvertently result in certain acts going unpunished despite their criminal nature. Conversely, Islamic criminal law permits the use of analogy (qiyas), making it a fundamental source of law and ensuring its relevance in evolving contexts. This study aims to elucidate the contrasting approaches to analogy in Indonesian and Islamic criminal law. Using a normative legal research method with a comparative approach, all secondary data was collected through a literature review. The study concludes that in Islamic criminal law, qiyas is a recognised source of law that is applied through rational judgement (ra'yu). The application of qiyas requires the fulfilment of four pillars: al-asl (the original case); al-far’ (the new case); illat (the common cause); and hukum al-asl (the decision of the original case). This is a key difference from Indonesian criminal law, which lacks clear boundaries or procedures for the use of analogy in legal reasoning. The study highlights the potential of analogy to contribute to the sustainable development of criminal law by addressing current and future legal needs.

Copyright

© 2024 The Author(s)

Open Access

Open Access This chapter is licensed under the terms of the Creative Commons Attribution-NonCommercial 4.0 International License (http://creativecommons.org/licenses/by-nc/4.0/), which permits any noncommercial use, sharing, adaptation, distribution and reproduction in any medium or format, as long as you give appropriate credit to the original author(s) and the source, provide a link to the Creative Commons license and indicate if changes were made.

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TY  - CONF
AU  - Annisa Hafizhah
AU  - Topo Santoso
AU  - Marlina Marlina
AU  - Utary Maharany Barus
AU  - Detania Sukarja
PY  - 2024
DA  - 2024/12/11
TI  - Analogy in Criminal Law: Contrasting Approaches in Indonesian and Islamic Legal Frameworks
BT  - Proceedings of the 4th International Conference on Social Sciences and Law (ICSSL 2024)
PB  - Atlantis Press
SP  - 1058
EP  - 1066
SN  - 2352-5398
UR  - https://doi.org/10.2991/978-2-38476-303-0_94
DO  - 10.2991/978-2-38476-303-0_94
ID  - Hafizhah2024
ER  -