Perbandingan Analogi dalam Hukum Pidana Indonesia dan Hukum Pidana Islam

Abstract

ABSTRACT Annisa Hafizhah5 Madiasa Ablisar6 M. Ekaputra7 Mahmul Siregar8 The rapid development of the times makes it difficult for the law to meet the legal needs of the community even though judges may not refuse to examine a case on the grounds that the law does not exist or is unclear. Facing this situation, judges must make legal discoveries, one of which is by interpreting the law, including by using analogies. Unfortunately, the use of analogies in Indonesia is still prohibited on the grounds of preventing the arbitrariness of judges, which in fact will have the opportunity to cause many actions that should be punished to become imprisoned. In contrast to Indonesian criminal law, Islamic criminal law actually allowsthe use of analogies and makes them as a source of law so that Islamic criminal law can continue to follow the times. These differences are interesting to study further and see a comparison between the two. So, the problems in this thesis research are: 1) How is the analogy setting in Indonesian criminal law?; 2) How is the analogy setting in Islamic criminal law?; and 3) How do the analogies in Indonesian criminal law and Islamic criminal law compare? The objectives of this research are: 1) Knowing and analyzing analogous arrangements in Indonesian criminal law; 2) Knowing and analyzing analogous arrangements in Islamic criminal law; and 3) Knowing and analyzing the comparison of analogies in Indonesian criminal law and Islamic criminal law. This research method is a descriptive normative legal research using a statutory, comparative, and conceptual approach. The research data used is secondary data with primary, secondary, and tertiary legal materials. Data collection techniques were carried out by means of library research with data collection tools using documentation studies. Based on the results of the research conducted, it is known that the prohibition on the use of analogies in Indonesian criminal law is contained in Article 1 Paragraph (1) of the Criminal Code, although there is still debate among experts regarding the use of analogies in criminal law, including the difference between analogies and extensive interpretation which according to the author does not show a significant difference. In Islamic criminal law, analogy (qiyas) is used as a source of law which is carried out using reason (ra'yu). To use qiyas there are four pillars that must be fulfilled, namely al-asl, al-far', illat, and al-asl law which are the main differences between Indonesian criminal law and Islamic criminal law. Analogies have the potential to realize sustainable legal development because the use of analogies can guarantee current and future legal needs at the same time. Keywords: Analogy, Indonesian Criminal Law, Islamic Criminal Law, Qiyas.