Al-Qadha : Jurnal Hukum Islam dan Perundang-Undangan

Maqasid al-Shariah in Contemporary Legal Systems: An Analysis of Digital Rights and Privacy Protection

2025-09-01T13:45:06+08:00

Maqasid al-Shariah, as the foundational framework of Sharia’s objectives, offers universal principles that remain highly relevant in addressing contemporary legal challenges. This article examines the application of Maqasid al-Shariah within modern legal systems, with a particular focus on the protection of digital rights and privacy—an increasingly urgent issue in the era of digital transformation. Specifically, this study explores how the objectives of preserving intellect (hifz al-aql) and property (hifz al-mal) intersect with current data protection and privacy regulations in digital environments. Employing a qualitative methodology grounded in literature review and legal analysis, the article finds that Maqasid al-Shariah offers a robust ethical framework capable of safeguarding both individual and collective interests in a balanced manner while upholding spiritual and moral values. The study also addresses the challenges of integrating Maqasid al-Shariah with secular legal systems, especially amid globalization and rapid technological advancement. The findings suggest that embedding Maqasid al-Shariah into digital privacy regulations could serve as a strategic approach to building legal systems that are more inclusive, adaptive, and just. Therefore, the article concludes by emphasizing the need to further elaborate the policy implications of this framework to enhance its practical relevance and academic contribution. Ultimately, Maqasid al-Shariah is demonstrated to be both relevant and applicable as an ethical foundation for confronting legal challenges in the digital age.

Taklif and the Fulfillment of the Rights of Persons with Mental and Intellectual Disabilities: An Islamic Legal Perspective

2025-08-28T23:30:24+08:00

It's so important to recognize that people with disabilities are an integral part of our multicultural society. As a Muslim community, they also have rights and obligations like other Muslim communities. However, there is still so much to be done to gain a more comprehensive understanding of taklif studies regarding legal construction for people with disabilities. This research is an exciting step forward in constructing the taklif of persons with disabilities in their capacity as legal subjects. This research uses qualitative literature methods, with the main data being the Koran and legal hadith. Secondary data is obtained through legal commentary books, articles, and others. A normative approach is used in this research to look at the legal aspect of the meaning of legal sources that are directly related to taklif for people with disabilities. This approach was also carried out to find out more about the position of taklÃ®f for people with mental and intellectual disabilities and the influence of mental and intellectual disabilities on Ahliyyah. The findings indicate that individuals with psychosocial and complex mental disorders are not inherently affected by taklÃ®f in terms of taklÃ®f and Ahliyyah. Another form of disabled individual is the mukallaf, who are subject to taklÃ®f obligations based on their skills. With regard to the right to practice religion, people with mental and intellectual disabilities can still complete zakat responsibilities as a guardian pays them. Individuals with mental and intellectual disabilities are prohibited from exploiting their assets, regardless of whether their condition is permanent or temporary. Consequently, they are subject to a guardianship system. With regard to marriage, those with modest mental and intellectual disabilities who have an ahliyah wujub and an ahliyah ada' kamilah are considered to have a lawful marriage status. Conversely, if the disability is moderate or severe and there is a need to marry, the marriage may be performed by a wali mujbir.

Islamic Law and the Constitution: Analyzing the Compatibility of Religion-Based Legislation in Indonesia

2025-08-29T09:30:26+08:00

This study explores the constitutional compatibility of religion-based legislation in Indonesia, particularly laws influenced by Islamic jurisprudence, within the framework of the 1945 Constitution. As a Muslim-majority nation that embraces both religious values and democratic pluralism, Indonesia faces ongoing tensions between the demands for the formalization of Islamic norms and the constitutional commitment to human rights, legal equality, and religious freedom. The expansion of Sharia-inspired by laws at the regional level and Islamic influences in national statutes underscore the urgency of addressing this legal-religious interplay. While existing scholarship has addressed the sociopolitical and administrative aspects of religion-based lawmaking, there remains a lack of doctrinal analysis focused on constitutional alignment. This study employs a legal research method, which focuses on the analysis of legal norms, statutory regulations, and constitutional principles as textual constructs. This research fills that gap by applying a juridical-doctrinal approach to evaluate whether such legislation adheres to principles enshrined in the Constitution, including legal certainty, non-discrimination, and constitutional supremacy. Through critical analysis of legislation and Constitutional Court decisions, the study demonstrates that while certain religious laws can coexist with Pancasila and constitutional values, many pose substantive challenges to Indonesia’s legal order. The findings contribute to broader debates on legal pluralism, constitutionalism, and the appropriate role of religion in legislation, offering normative guidance for aligning religious norms with democratic constitutional principles.

Towards Substantive Justice: Reforming Islamic Family Law Regarding the Division of Marital Property in Indonesia

2025-08-28T23:30:23+08:00

The division of marital property in marriage constitutes a complex issue within Islamic family law in Indonesia. The Compilation of Islamic Law (KHI) stipulates that, in the event of divorce, both former spouses are each entitled to 50% of the marital property. However, the principle of justice is not merely determined by numerical equality but also by considering each party’s contribution and socio-economic circumstances. This study focuses on formulating an ideal legal framework for the regulation of marital property in Indonesia to ensure justice for all parties involved. The primary aim of this research is to propose a legal model for the division of marital property that is more adaptive to social realities and capable of ensuring substantive justice. The study adopts Werner Menski’s triangular concept of legal pluralism, integrating normative, empirical, and philosophical approaches. It employs a qualitative method, combining library research with in-depth interviews with religious court judges. The findings reveal that although the KHI prescribes an equal division of marital property, in practice judges may exercise their ex officio authority to adjust rulings in order to achieve fairness. An ideal regulation should not rely solely on formal equality but must also take into account the actual contributions of each party in acquiring the marital property. A progressive legal approach is necessary for Islamic family law to become more responsive to societal developments and to guarantee substantive justice for the parties concerned.

Reconstruction of Nusyuz in the Compilation of Islamic Law from the Perspectives of Qira'ah Mubadalah and Rawls’s Theory of Justice

2025-08-28T23:30:23+08:00

The Compilation of Islamic Law in Indonesia gives the impression of marginalizing wives and does not regulate the possibility of nusyuz committed by husbands. The existing nusyuz norms in Indonesia still reflect gender dominance, which is contrary to the principles of justice and equality increasingly emphasized in modern society. This research seeks to address the legal gap by reconstructing the nusyuz norms in Articles 80, 84, and 149 of the Compilation of Islamic Law, drawing on the concept of Qiraah Mubadalah and John Rawls's theory of justice. This study employs legal research using legislative, historical, conceptual, case, and comparative approaches, with qualitative methods for analyzing legal materials. The findings reveal that the current nusyuz norms in the Compilation of Islamic Law still contain patriarchal bias and fail to fully realize the principle of relational justice. From the perspective of Qiraah Mubadalah, both husbands and wives have the potential to commit nusyuz, thus requiring fair legal treatment. The reconstruction of these norms should affirm the importance of reciprocity (mubadalah) in marital relationships, in which husbands and wives are not positioned hierarchically but as equal partners who fairly fulfill each other’s rights and obligations. Meanwhile, Rawls’s theory of justice suggests that legal norms should be drafted without gender bias, ensuring justice for all parties, particularly those in vulnerable positions. Therefore, the reconstructed nusyuz norms must recognize the mutual rights and obligations of both husband and wife in a fair and equal manner.

Judicial Guardianship in Marriage: A Comparative Study of Indonesia’s Shafi'i and Iran’s Ja'fari Schools from a Maqasid al-Shariah Perspective

2025-09-03T19:03:44+08:00

The concept of judicial guardianship in marriage is a significant issue in Islamic family law that highlights the fundamental differences between the Shafi‘i school in Indonesia and the Ja‘fari school in Iran. This distinction is not only juridical but also closely linked to the objectives of marriage (maqasid al-nikah), namely the preservation of religion (hifz al-din), lineage (hifz al-nasl), dignity (hifz al-ird), and family welfare. This study employs a qualitative-juridical approach with normative-comparative analysis. Data were drawn from classical fiqh texts, Indonesian and Iranian marriage regulations, and contemporary literature. The analysis proceeded in three stages: (1) identifying normative texts concerning guardianship and judicial guardianship in the Shafi‘i and Ja‘fari traditions, (2) comparing their conceptual and practical applications, and (3) evaluating their alignment with maqasid al-nikah, particularly in promoting benefits, preventing harm (mafsadah), and ensuring family continuity. The findings show that the Shafi‘i school regards the guardian as a prerequisite for valid marriage, with the judicial guardian acting as a substitute when a lineage guardian is absent or unqualified. By contrast, the Ja‘fari school allows adult women to contract marriage without a guardian, except under specific circumstances. These differences reflect the dynamic nature of Islamic legal thought in responding to social realities, yet both approaches ultimately aim to realize the maqasid al-nikah: legal certainty, protection of dignity, and household stability. The novelty of this research lies in integrating cross-sectarian comparative analysis with the framework of maqasid al-shariah, an approach still rarely applied in studies of Islamic family law, particularly in the Indonesian and Iranian contexts. The implications of this research are twofold: enriching comparative fiqh scholarship as a reference for academic discourse and providing practical insights for the formulation of marriage regulations that remain faithful to shariah while responsive to evolving social dynamics.

Harmonious Families from the Perspective of M. Quraish Shihab: Experiences of Muslim Converts in Bali, Indonesia

2025-09-22T16:10:41+08:00

A harmonious family can be understood as an ideal concept in the order of household life which is marked by the achievement of stable emotional and spiritual conditions, which include happiness, peace of mind, a sense of security, and physical and spiritual well-being for all its members. However, for converts who have just embraced Islam, the process of building a harmonious family is often faced with spiritual and cultural challenges, especially in minority environments such as Jembrana, Bali. This study aims to examine the spiritual transformation of convert couples in building a harmonious family and examine it through the perspective of M. Quraish Shihab in his work Pengantin Al-Qur'an . This study uses an empirical method with a qualitative approach. Data were collected through in-depth interviews, observations, and documentation of convert couples who have lived a family life. The results of the study indicate that the spiritual transformation of converts plays an important role in the formation of a harmonious family, marked by increased religious understanding, strengthening of Islamic commitment, and changes in behavior in household life. The principles put forward by M. Quraish Shihab, such as compassion ( mawaddah ), tranquility ( sakinah ), and mutual understanding ( rahmah ), are important foundations in this process. This study confirms that spirituality that grows gradually is able to strengthen the foundation of a harmonious family, even though it starts from a limited initial understanding of Islam.

The Implementation of E-Court at the Banten High Religious Court: Challenges, Barriers, and Prospects within Indonesia’s Legal System

2025-10-19T14:31:40+08:00

The main problems in the implementation of the e-Court system in the Religious Court are the limited information technology infrastructure, technical constraints, and low digital literacy of the parties to the case. This condition creates a gap between the goal of digitizing the judiciary and the reality of implementation in the field. This study aims to examine the implementation of the Supreme Court of the Republic of Indonesia Regulation Number 7 of 2022 concerning the administration of cases and electronic trials at the Religious Court under the jurisdiction of the Banten High Court of Religion. The method used is juridical-empirical with a qualitative approach, through data collection in the form of in-depth interviews and direct observation at six Religious Courts in the jurisdiction. The results of the study show that e-Court is able to improve the efficiency of administration and trial processes, but still faces obstacles in the form of limited infrastructure, lack of digital literacy of the parties, and lack of ongoing technical support. The contribution of this research lies in providing comprehensive strategy recommendations through strengthening infrastructure, increasing user capacity, and policy socialization so that the implementation of e-Court can be more equitable, effective, and support the realization of a fast, transparent, and fair judicial system.

Breaking Through Customary Domination for Child Protection: An Analysis of the Gerakan Anti-Merarik Kodeq (GAMAK) from the Perspective of Maqasid al-Shariah

2026-01-11T16:55:19+08:00

Underage marriage remains a serious challenge in many countries, including Indonesia, where it is complicated by the intersection of legal regulations and customary norms. In Lingsar District, this practice persists through the Merarik kodeq tradition, which is deeply embedded in local culture. Within this context, this study aims to explain the implementation of the Gerakan Anti-Merarik Kodeq (GAMAK) as a community-based prevention strategy and to analyze it through the framework of Maqasid al-Shariah. This qualitative research employed a fieldwork-based approach using methods such as observation, in-depth interviews with 14 key informants, and document analysis conducted over a seven-month period from March to September 2022. The findings reveal that GAMAK is not merely a technocratic policy but has evolved into a transformative social movement that redefines the relationship between custom, religion, and the state. Unlike legal-formal approaches, GAMAK successfully presents an alternative narrative that positions religious and customary leaders not as opponents of the law, but as agents of change who reform local values from within. By embedding anti-underage marriage messages in Friday sermons, women's forums (PKK), and even in village awiq-awiq (customary regulations), GAMAK demonstrates that collective behavioral change can be achieved through grounded and contextual approaches. Viewed through the lens of Maqasid al-Shariah, GAMAK upholds the protection of the five essential principles of Islamic law—religion, life, intellect, lineage, and property—while opening space for negotiation between customary norms and Islamic law in favor of public welfare. The findings show that preventing underage marriage requires transforming entrenched customary norms through collaboration between community leaders, religious authorities, and state institutions. This study contributes to the discourse on legal pluralism and Maqasid al-Shariah in child protection, while offering a practical model for policymakers to replicate in regions with strong customary traditions.

The Ideal Age of Marriage in Indonesian Family Law: An Integrative Analysis of Islamic and Positive Law

2025-10-19T21:55:32+08:00

The determination of the ideal age of marriage remains a critical issue in Indonesia, where child marriage persists despite the enactment of Law No. 16 of 2019, which raised the minimum marriage age to nineteen. This article aims to formulate an integrative model that combines procedural safeguards under positive law with the substantive readiness criteria of rusyd in Islamic jurisprudence. The study employs a normative-juridical method with comparative analysis, drawing on primary sources (the Quran, classical fiqh, and statutory law) and secondary empirical data from BPS, UNICEF, and religious court decisions. The comparative framework is structured across three dimensions: (1) legal objectives (maqasid al-shariah and child protection norms), (2) substantive indicators of marital readiness (psychological, financial, and emotional maturity), and (3) procedural instruments (statutory age thresholds and judicial dispensations). The findings reveal that while positive law provides procedural certainty through age limits, its effectiveness is weakened by frequent dispensations that rarely assess readiness. Conversely, Islamic law emphasizes rusyd as a holistic benchmark but lacks enforceable procedural mechanisms. This study proposes a dual-layered model in which statutory age serves as a procedural safeguard, while readiness assessments operationalize rusyd as substantive criteria. The originality of this research lies in the proposal of a readiness assessment instrument for religious courts, designed to standardize judicial discretion in marriage dispensation cases. By integrating doctrinal analysis with socio-legal evidence, the study not only advances family law scholarship but also offers concrete policy implications. In practice, the readiness assessment can serve as a tool for judges to evaluate applicants’ intellectual, emotional, and socio-economic maturity, thereby reducing the incidence of early marriages approved through dispensations. This approach strengthens family resilience, aligns judicial practice with the objectives of maqasid al-shariah, and ensures that legal reforms are translated into measurable improvements in child protection and community well-being.

A Juridical Examination of the Criminal Liability of Persons with Physical Disabilities in Sexual Violence Cases in Indonesia

2025-10-21T22:31:39+08:00

Sexual violence is a serious crime that produces multidimensional impacts, including physical, psychological, and social harm. The complexity increases when offenders are persons with physical disabilities. This article aims to analyze the criminal liability of such offenders through a normative review of court decisions and to propose normative solutions for achieving substantive justice. The research employs a normative legal method using statutory, conceptual, and case approaches, specifically examining Indonesian criminal law, applying the theories of John Rawls, Philipus M. Hadjon, and Roscoe Pound, and analyzing the Ambon District Court Decision No. 236/Pid.Sus/2024 and the Mataram District Court Decision No. 23/Pid.Sus/2025. The findings confirm that physical disability does not negate criminal liability since actus reus and mens rea remain fulfilled. However, disability has not been proportionally considered in sentencing, resulting in merely formal justice. The study recommends normative reform, technical guidelines for law enforcement, and disability-friendly correctional facilities to ensure proportionality, prevent discrimination, and uphold human rights. The research implications suggest that these recommendations can serve as a foundation for policymakers to strengthen legal frameworks, provide practical guidance for law enforcement officers in handling cases involving persons with disabilities, and encourage the development of more inclusive correctional institutions. Moreover, the findings highlight the importance of aligning national practices with international human rights standards, which may inspire further comparative studies and reforms in other jurisdictions.

Whistleblowers as Anti-Fraud in Banking Crimes from a Maslahah Perspective

2026-01-03T12:54:27+08:00

This research aims to examine the important role of whistleblowers in exposing banking crimes from the perspective of maslahah in Islamic law. The study employs a qualitative-normative approach using a literature review method based on positive legal regulations and scholarly works related to maslahah theory developed by maqasid scholars. The legal sources consist of primary legal materials such as the Corruption Crime Law, the Financial Services Authority, and the Law on the Protection of Witnesses and Victims, as well as secondary legal materials in the form of books, journals, and scientific articles. Since this research is normative, the main focus is on the study of positive legal norms rather than empirical field data. The analysis was conducted qualitatively through categorization and deductive reasoning. The results indicate that whistleblowers play a strategic role in detecting and exposing fraudulent practices due to their direct access to internal information that is not available to the public. The fraud in question includes various forms of legal and ethical violations that occur in the banking sector and may harm customers, financial institutions, and the overall stability of the economy. From the maslahah perspective, the existence of whistleblowers represents an effort to protect the public interest, particularly in maintaining honesty, justice, and property within the muamalah (social transaction) system. The study recommends strengthening legal protection mechanisms for whistleblowers to ensure their security and prevent potential threats, intimidation, or retaliatory actions. Furthermore, the study highlights the importance of establishing a reporting system that is both technically and institutionally secure, while also oriented toward public benefit by promoting civic participation in oversight and strengthening the effectiveness of law enforcement and transparent governance.

The Death Penalty for Terrorism Offenders in Indonesia: A Comparative Study of Criminal and Islamic Law

2025-12-19T16:44:20+08:00

This study presents a limited comparative analysis of Indonesian criminal law and Islamic law regarding the death penalty for acts of terrorism. The objective is to critically examine how the death penalty is regulated for individuals convicted of terrorism under both Indonesian criminal law and Islamic law, aiming to identify their similarities, differences, and implications for law enforcement. This normative legal research employs a comparative approach by analyzing legal texts, sources of fiqh and judicial interpretations, scholarly journals, and statutory laws related to the application of the death penalty. The findings reveal that, under Indonesian criminal law, the imposition of the death penalty for terrorism is governed by Law No. 5 of 2018 on the Eradication of Criminal Acts of Terrorism. In Islamic jurisprudence, terrorism is not explicitly discussed in traditional fiqh texts; however, it is often analogized to the concept of jarimah hirabah due to their similar characteristics. This analogy provides the legal and moral basis for imposing the death penalty on individuals convicted of terrorism. Both Islamic criminal law and Indonesia’s secular legal system categorize terrorism as an extraordinary crime that poses a serious threat to human safety, thereby justifying the potential use of the death penalty. Nevertheless, the two systems differ in their definitions of the crime’s legal elements. Islamic criminal law does not require that the consequences of the act be widespread, nor does it emphasize the perpetrator’s motive. In contrast, Indonesian criminal law stipulates that terrorism must involve widespread consequences to qualify under the statute. In addressing terrorism, the Indonesian government must carefully balance preventive measures with law enforcement actions. The death penalty should be regarded as a measure of last resort, applied with the utmost caution to ensure full compliance with human rights principles.

Between Islamic Morality and Legal Certainty: Political Compromise in Regulating Adultery and Non-Marital Cohabitation in Indonesia’s New Criminal Code

2025-12-19T17:25:26+08:00

The reformulation of articles concerning adultery and cohabitation in the new Criminal Code (Law No. 1 of 2023) raises fundamental questions regarding how Islamic values can be harmonized with national criminal law without undermining legal certainty and the protection of individual rights. This study aims to analyze the mechanisms for harmonizing Islamic values within the new Criminal Code, particularly in the articles on adultery and cohabitation, as well as to assess the relevance of legal politics in regulating public morality. The study employs a qualitative-descriptive approach with content analysis, relying on primary legal documents and secondary legal literature. The analysis is conducted thematically to evaluate the extent to which the new Criminal Code provides legal certainty, substantive justice, and protection of individual rights. The findings indicate the existence of a political compromise pattern reflected in the adjustment of sanctions, limitations in the scope of law enforcement, and interactions among legislators, law enforcement officers, and religious stakeholders. This study confirms that the new Criminal Code functions as an adaptive and proportional legal instrument, with significant implications for legal politics in Indonesia, particularly in harmonizing public aspirations, constitutional principles, and societal moral norms.

Marriage Financing in Islamic Law: A Maqasid al-Shariah Analysis of Wahbah al-Zuhaili’s Thought

2025-12-30T12:42:58+08:00

Islam regards marriage as an act of worship that guides believers toward a balance between simplicity and moral responsibility. However, in modern social practice, there is a growing gap between the Islamic principle of simplicity and the rising costs of marriage, such as expensive dowries and lavish wedding ceremonies, which shift the values of maqasid al-shariah toward a materialistic culture. This study aims to analyze Wahbah al-Zuhaili’s thought on the allocation of marriage expenses from the perspective of maqasid al-shariah and its relevance to contemporary social practices. This research employs a qualitative library-based approach with descriptive-analytical methods. The primary sources include the works of Wahbah al-Zuhaili, particularly al-Fiqh al-Islami wa Adillatuhu, along with relevant classical fiqh literature and contemporary studies. Data were analyzed using thematic analysis to identify the legal principles underlying marriage financing within the framework of maqasid al-shariah. The findings reveal that Wahbah al-Zuhaili’s legal framework makes a significant contribution to the development of contemporary Islamic jurisprudence by integrating maqasid al-shariah into the discourse on marriage financing. His emphasis on simplicity, justice, and public welfare provides a practical direction for developing an efficient marriage system through community support, the role of zakat institutions, and state facilitation. These findings imply the formulation of social guidelines and religious policy recommendations aimed at reducing the economic burden of marriage without neglecting its spiritual values.

The Application of Substitute Heirs in Indonesian Islamic Inheritance Law: The Interplay of Fiqh, Customary Law, and Civil Law

2025-12-31T13:16:24+08:00

The implementation of the concept of substitute heirs in the Indonesian Compilation of Islamic Law (KHI) has sparked significant debate, as this concept is not found in classical fiqh texts. Article 185 of the KHI stipulates that grandchildren, whose parents have passed away, can replace their parents’ position and inherit from their grandparents. While this concept is recognized in customary law and civil law, its application in religious courts is still influenced by varying interpretations. This study aims to analyze the implementation of Article 185 of the KHI regarding substitute heirs in legal practice in Indonesia, and to explore the juridical and philosophical foundations underlying it from the perspectives of fiqh, customary law, and civil law. The research method used is a normative legal approach with doctrinal analysis, examining relevant articles in the KHI and literature related to fiqh and civil law. Additionally, the study analyzes religious court rulings related to inheritance disputes involving substitute heirs. The findings of this study indicate that, while the provision regarding substitute heirs is recognized in the KHI, its application in religious courts is often debated, primarily due to differing interpretations and the influence of local traditions. Although the concept of substitute heirs is innovative, further clarification is needed to ensure greater justice. The implications of this research suggest the need for reform in the application of inheritance law regarding substitute heirs in Indonesia, so that it better aligns with the principles of social justice, family welfare, and the social realities of Indonesian society. Furthermore, integrating fiqh, customary law, and civil law principles more effectively in religious court practices could provide better protection for the inheritance rights of children who are left without parents.

Marital Property as Debt Collateral without Spousal Consent in Indonesia: Legal Validity, Execution, and Judicial Interpretation

2026-01-01T15:58:22+08:00

One of the issues frequently debated in family law concerns the legal status of marital property. Conceptually, property acquired during marriage constitutes marital property unless otherwise stipulated in a prenuptial or postnuptial agreement. Legal problems arise when marital property is used as collateral for debt without the consent of one spouse, particularly with regard to the validity of such collateralization, the enforceability of its execution, and the settlement of marital property execution in the event of divorce.This study aims to analyze the legal status and execution of marital property pledged as collateral for debt without spousal consent, with reference to Supreme Court Decision Number 209 K/PDT/2000. This research employs a normative juridical method using a statute approach and a case approach. The findings indicate that marital property used as collateral for debt without the consent of both spouses lacks legal validity and cannot be lawfully executed by creditors, as such actions violate the principle of joint ownership and involve third-party interests. The Supreme Court decision affirms that neither spouse may unilaterally perform legal acts over marital property for the purpose of debt settlement through execution. This study contributes to the development of family and property law by clarifying the legal consequences of unauthorized collateralization of marital property and by reinforcing the principle of joint ownership protection. The findings are expected to provide normative guidance for courts and creditors, while also encouraging regulatory reform to ensure legal certainty and fairness for all parties.

Toward an Islamic Functional Theory of Marital Assets: Bridging Classical Fiqh and Modern Legal Needs

2026-01-03T12:49:53+08:00

This study originates from the absence of a functional theory that systematically explains the legal status of joint marital property within the framework of Islamic law. Previous studies have predominantly focused on normative aspects such as shirkah (partnership), maintenance (nafaqah), and hibah (gifts), without conceptualizing joint property as an instrument for protecting the reciprocal rights of spouses. This theoretical gap raises critical questions regarding how Islamic jurisprudence can respond to the demands of modern legal systems that emphasize legal certainty, economic justice, and mutual protection within marriage. Accordingly, this research aims to formulate a Functional Theory of Joint Marital Property from an Islamic perspective through the integration of classical fiqh principles, social functionalist theory, and the local wisdom of the Indonesian archipelago (Nusantara). The study employs a library-based research method with normative analysis, utilizing approaches from usul al-fiqh, legal hermeneutics, and social systems theory. This multidimensional approach enables the identification of principles of reciprocity, public interest (maslahah), and rights protection embedded in classical fiqh texts, as well as their relevance to the Indonesian legal system. The findings indicate that joint marital property serves three primary functions: a protective function safeguarding the rights of both spouses; a stabilizing function ensuring the continuity and resilience of the household; and an integrative function that harmonizes Islamic jurisprudence with the requirements of modern legal frameworks. This functional theory of joint marital property constitutes a novel contribution to the development of Islamic family law in Indonesia and may serve as a foundational framework for regulatory reform, the formulation of jurisprudential guidelines, and the strengthening of rights-based protection mechanisms within marriage.

Islamic Legal Politics in Post-Reformation Indonesia: Sharia Legislation, Decentralization, and Democratic Dynamics

2026-01-11T17:05:54+08:00

The 1998 Reformism expanded democratic and decentralized spaces, yet scholarly engagement with sharia legislation often remains confined to normative or formal frameworks, leaving its intersections with electoral competition, identity politics, and shifting power configurations insufficiently examined. This study explores the development of Islamic legal politics in post-reform Indonesia, with particular attention to the dynamics of sharia legislation within a constitutional democracy. Employing a normative legal approach enriched by historical and conceptual perspectives, it analyzes secondary legal materials to assess implications for democracy, constitutionalism, and human rights. Findings reveal that post-reform sharia legislation is shaped by complex interactions among political elites’ electoral strategies, the mobilization of religious identity, and decentralized structures that facilitate symbolic regulation at the local level. While national laws on waqf, zakat, and sharia banking address substantive socio-economic needs, local morality regulations—such as dress codes or alcohol restrictions—frequently serve symbolic and populist functions. This study contributes a contextual and integrative framework for understanding Islamic legal politics, underscoring the importance of inclusive paradigms attentive to social plurality, constitutional principles, and gender justice in Indonesia’s multicultural society.

Clemency, Asset Restitution, and Islamic Law: Rethinking Justice for Corruption Offences in Indonesia

2026-01-17T12:46:17+08:00

The practice of granting clemency to corruption offenders who return misappropriated assets remains insufficiently examined within the framework of Islamic law, giving rise to an unresolved tension between humanitarian considerations and substantive justice. While existing studies have largely addressed clemency and asset recovery from the perspective of positive law, scholarly attention to their normative implications in Islamic law remains limited, particularly with regard to ghulul (the misappropriation of public wealth), the obligation of restitution (rad al-mazalim), and preventive sanctions (tazir). This article critically examines whether granting clemency to corrupt offenders who return assets can be justified under Islamic law, while also assessing its compatibility with Indonesia’s positive legal system. This study employs a juridical-normative approach by analysing primary legal materials, including presidential regulations on clemency and statutory provisions on corruption eradication, alongside classical and contemporary Islamic legal sources. The findings indicate that although clemency in positive law may function as a humanitarian and rehabilitative instrument, its legitimacy must be contingent upon full asset restitution and a careful evaluation of its socio-economic impact. From an Islamic legal perspective, sincere repentance (taubat nasuha) accompanied by restitution constitutes an absolute moral and legal obligation; however, it does not negate the necessity of tazir sanctions as a deterrent mechanism to safeguard the public interest and prevent the recurrence of similar offences. This article underscores the need to reconceptualise justice in the adjudication of corruption cases through the integration of Islamic legal principles into clemency and asset restitution policies, with the aim of establishing a more comprehensive and substantively just framework for corruption eradication in Indonesia.