Reconstructing the Sighat ta’liq in the compilation of Islamic law: A preventive approach to gender-based violence

Indonesia is a constitutional state that integrates three distinct legal systems: customary law, Western law, and religious law. Among these, religious law particularly Islamic law serves as a pivotal source in shaping national legislation. This study seeks to examine the influence of Law No. 1 of 1974 on Marriage and the Compilation of Islamic Law (KHI) on the development of Islamic family law in Indonesia. Furthermore, it explores the role of these legal instruments in facilitating the integration of Islamic law within the broader national legal framework, and how their enactment reflects the evolution of Islamic legal politics in the country. Employing a qualitative methodology through library-based research, the study finds that the promulgation of Law No. 1 of 1974 and the KHI represents a significant milestone for the Muslim community in Indonesia, effectively curtailing the predominance of customary law in regulating Islamic marital affairs. The KHI, as a uniquely Indonesian fiqh, not only provides legal certainty in matters of Islamic family law but also underscores the state’s formal acknowledgment of Islamic law, particularly during the New Order period, thereby reinforcing the harmonization of religious and national legal systems.

Islamic Family Law consists of fundamental nationalities that always live and develop along with the development of society in the life of the nation. The configuration of national life interests is an instrument contested by the nation's components in these interests in the path of the state constitution, thus gaining a place of legitimacy in the process of constructing a national legal order. The history of national legal legislation has included the Compilation of Islamic Law as one of the country's alignments with the process of Islamic family law into National law. At the same time, the recovery of the development of Islamic Family Law is increasingly lively as the process of finding answers to Islamic problems in the archipelago's insight, how: Compilation of Islamic Law accommodates changes in the application of Islamic family law in Indonesia?The description that can be obtained in this study shows that based on the history of beginning, the Compilation of Islamic Law is present as meeting the needs of the Islamic community as well as filling in the gaps that occur in the Religious Courts whose authority is regulated in Law No. 7 of 1989. However, in its journey, a number of studies and studies explained that the Compilation of Islamic Law contained a variety of potential criticisms, in which the Compilation of Islamic Law was deemed to be no longer sufficient in resolving various complex complexity problems. Therefore it is necessary to reconstruct the Compilation of Islamic Law by paying attention to the principles of equality (al-muswah), brotherhood (al-ikhâ`), and justice (al-`adl), as well as basic ideas for the formation of civil society, such as pluralism, gender equality , Human rights, democracy, and egalitarianism, so that the needs of Islamic family law can be fulfilled in several such as Constitutional aspects, Content aspects (Material / Content and Ideas), Aspects of Islamic Law Enforcement (rule of law) in the Indonesianness frame.

This study discusses the mainstreaming of gender equality in Islamic family law. As it is known, gender equality and Islamic law have axiological links in realizing family household that practices the universal values such as justice, literature, peace, love, compassion, etc. This research is a qualitative study with a gender perspective linked to Islamic law. The discussion showed that a number of opportunities were found as normatively affirmed in the Qur'an which has the same spirit as the mainstreaming of gender equality in Islamic family law. Likewise, legal rules such as the Compilation of Islamic Law and the development of Islamic studies caused the normative theological understanding to support gender equality. However, it cannot be denied that the understanding of theological texts has begun to erode in the context of the implementation of Islamic family law. For the challenges, there were several aspects that hinder the mainstreaming of gender equality in Islamic family law, namely marginalization of women, community stereotypes against women, subordination of women, double burden on women, and violence against women.

The absorption of Islamic law into national law in Indonesia is the result of a compromise between sharia principles and the prevailing positive legal system. One form of this is Law No. 1 of 1974 concerning Marriage and the Compilation of Islamic Law (KHI), which regulates the legal aspects of marriage for Muslims. However, the implementation of these two regulations in various regions show variations, especially in determining the rights and obligations of husband and wife, including in terms of joint property. Cultural diversity and different legal interpretations often affect the application of this law, so an in-depth analysis is needed regarding the extent to which Islamic law has been absorbed into national law. This study aims to examine the implementation of Law No. 1 of 1974 and KHI in the context of Islamic marriage law, with a focus on the dynamics of the application of joint property. This study uses a qualitative method with a statute approach, a case approach, a comparative approach, and a conceptual approach. The results of the study show that although Islamic law has been accommodated in the national legal system, its application still faces challenges, especially related to differences in interpretation by judges and the community in judicial practice. In addition, social and cultural factors also influence the implementation of provisions regarding joint property in marriage. In conclusion, although Law No. 1 of 1974 and the KHI have adopted the principles of Islamic law, harmonization and uniformity of application are still challenges that need further attention to create better legal certainty.

Objective: This article analyzes the Islamic Law Compilation (KHI) as a manifestation of state engagement with Islamic law, utilizing a state typology framework for analysis. Methods: Employing both doctrinal and socio-legal methodologies, the research elucidates how the political-religious dynamics in Indonesia influence the codification and reform of Islamic family law. Results: The study illustrates that Indonesia occupies a unique position among Muslim-majority nations, embodying a synthesis of secular regulation and religious accommodation. Three key findings emerge from this analysis: (1) the KHI occupies an ambiguous status within Indonesia's legal hierarchy, which constrains its enforcement capabilities; (2) recent rulings from the Constitutional Court have redirected the trajectory of Islamic family law reform, frequently circumventing formal legislative procedures; and (3) a more adaptive approach to reforming Islamic family law necessitates a methodological transition from a textual-normative interpretation to a contextual-substantive interpretation. Conclusion: The article concludes that future reforms in Islamic family law in Indonesia must strike a balance among religious values, constitutional principles, international human rights standards, and local wisdom to ensure sociological legitimacy while striving for legal certainty and justice.

Inheritance law is a part of civil law and is part of family law in particular. Inheritance law is closely related to human life, because every human being will experience a legal event, namely death. These legal events will cause legal consequences regarding the continuation of the rights and obligations of a person who has died and also in relation to his family or other people who have rights to their property. The purpose of this research is to know and understand the rights and position of grandchildren in the system of replacing the heirs in Islamic Inheritance Law and Compilation of Islamic Law and to know and understand the legal protection of grandchildren as heirs in the Islamic Inheritance Law and Compilation of Islamic Law. Based on the research, it can be concluded that the position of grandchild as a substitute heir in Islamic inheritance law is not listed in the Al-Quran and Hadith, only recognized through the Ijtihad conducted by the scholars. But in the Islamic Law Compilation the existence of grandchildren is recognized as a substitute for the parents who have died beforehand from the heirs and legal protection against grandchildren as successor heirs through the Compilation of Islamic Law which gives recognition of the position of substitute heirs through confirmation of the existence of heirs substitutes get full legalization where the provisions are not contained in the classic Islamic inheritance law. In addition, most Religious Judges in considering their decisions in terms of inheritance also see the arrangements contained in the Compilation of Islamic Law as a guide.

Eclecticism in the Compilation of Islamic Law (KHI) is evident through the incorporation of various opinions from different schools of Islamic jurisprudence, including the Shafi‘i school as the dominant madhhab in Indonesia, as well as the Hanafi, Maliki, and Hanbali schools, alongside several modern approaches. This method reflects an effort to reconstruct Islamic law so that it aligns with social needs and the national legal system. This study employs a library research method. The primary sources consist of the official text of the KHI, classical fiqh works from the four major schools (Hanafi, Maliki, Shafi‘i, and Hanbali), and contemporary literature on Islamic family law in Indonesia. The analytical techniques used include document study, article content analysis, and tracing the compatibility of madhhab opinions with the norms adopted in the KHI, supplemented by a sociological approach to assess the implications of its implementation in practice. The findings indicate that the application of eclecticism in Book I of the KHI is grounded in (a) social plurality; (b) the sustainability of the national legal system; (c) the values of justice; and (d) legal adaptability. The procedural steps of madhhab-based eclecticism in the KHI involve: (a) identifying issues of Islamic law to be compiled, (b) examining textual evidences and madhhab opinions, (c) selecting the most beneficial view (maslahah), (d) harmonizing it with the national legal system, and (e) conducting academic validation and social feasibility testing.

INDONESIAN JURISPRUDENCE: ISLAMIC LAW TRANSFORMATION IN LAW SYSTEM OF INDONESIA.: This study discusses about the idea of Islamic law renewal in Indonesia, as well as the figures, and it makes the term of Indonesian Jurisprudence and its formalization into the law system of Indonesia. The purpose of this study is to find the answer of these following points: Firstly, the interpretation or definition of Indonesian Jurisprudence concept; secondly, the figures who proposed Indonesian Jurisprudence and the result of their thoughts; and the third, the formalization of Jurisprudence concept with Indonesian nuance in the law system Indonesia. This study was a library research with a content analysis method. The results of this study are: (1) Indonesian Jurisprudence could be interpreted as a Jurisprudence concept that is more Indonesian local-based; (2) Hasbi As-Shiddiqi and Hazairin are two figures who proposed Indonesian Jurisprudence model, apart from other intellectuals. Hasbi is one of modernists who offered his ideas comprehensively, started from his “Indonesian Jurisprudence” concept until the law renewal including its principle and method. Meanwhile Hazairin offered the development of a new heritage system which interpreted and elaborated based on Al-Qur’an scriptural perception and Sunnah which is not a patrilineal system but bilateral (family model); and (3) formalization of Indonesian Jurisprudence concept produces some ordinance regulation products which are important formally and materially, such as Ordinance of Islamic Marriage Law, and also other rules under the Ordinance, such as Government Law, President Instruction, and Supreme Court Law, as well as Islamic Law Compilation and Sharia Economic Law Compilation

This research will critically examine the reform process in the Compilation of Islamic Law and find the need for legal reform in the Compilation of Islamic Law in Indonesia. This research is a normative legal research which seeks to examine the need for reform in the Compilation of Islamic Law in Indonesia and the process of legal reform in the Islamic Law Compilation and its relevance to the principles of reforming Islamic law. In its discussion, this research is nature descriptive-analytical in, which describes the factors that cause the need for reform of Islamic law, the process and output of legal reform which is contained in the Compilation of Islamic Law and then analyzes its relevance to the principles of reforming Islamic law. This research uses a conceptual approach, a statute approach and a historical approach. Theories Supporting Islamic Law Reform: the theory of the rule of law, the theory of sociological jurisprudence (Eugen ehrlich), the theory of qaul qadim and qaul jaded Imam Syafi'I, Ibnul Qayyim al-Jauziyah's theory of changes in Islamic law due to changes in time, place and circumstances, theory Maqashid al-syari'ah from al-syatibi and the theory of utilitarianism from Jeremy Bentham. The findings of this study are that Islamic law reform in Indonesia is very necessary because substantially Islamic law has a transformative and dynamic character throughout its history, and socially Islamic law which generally has Middle Eastern nuances needs to be adapted to the social conditions of Indonesian society so that Islamic law continues to exist and is worthy of being national legal materials in our country. The objectives and process of legal reform in the Compilation of Islamic Law are generally relevant to the principles of Islamic law reform (ushul-fiqh theory) regarding legal reform, with some notes regarding Article 185 concerning replacement of heir positions (plaatvervulling) and Article 209 concerning mandatory wills. for adopted children and adoptive parents.

The Practice of Underage Marriage in Bathin VIII District Positive Legal Perspectives and Islamic Law

Indonesian national law derived from western law, customary law and Islamic law. Given the efforts to establish the institution of Islamic law in Indonesia experienced many challenges and Religious Courts institutions is still lacking in authority. Prof. Dr. H. Busthanul Arifin, SH continue to think seriously to make Islamic law as an integral part of the national legal system. In the end, he can implement his ideals. Based on the above background of this study revealed three issues, namely First, Is Arifin Busthanul contribute ideas about the institutionalization of Islamic law in the national legal system. Second, Is Arifin Busthanul thinking about the authority of the Religious Courts in the national legal system. Third, How implications Arifin Busthanul thinking on the institutionalization of Islamic law and the authority of the Religious Courts in the national legal system to the development of Islamic law in Indonesia. The purpose of this study was that Muslims know the figures that played a major role behind the enactment of Law Number. 7 Year 1989 regarding the enactment of the Religious and Islamic Law Compilation (KHI).Theoretical studies in this research is the theory of the formation of the institutionalization of Islamic law, the theory of the relation between religion and state law and political theory. This research is a research study of character with the historical approach, the approach of the Act, the conceptual approach, and the comparative approach and data analysis techniques using inductive method. The results of this study explains that Islamic law referred to and determined by the legislation can apply directly without going through traditional law, the Republic of Indonesia (the Government) can set something of a problem in accordance with Islamic law, all the settings that apply only to the followers of Islam and results Busthanul Arifin contribute ideas about the institutionalization of Islamic law are: 1. draft Law on Religious Courts, 2. draft Compilation of Islamic Law. Privileges Religious Courts under Act Number. 3 2006 was in the field of civil law include: marriage, inheritance wills, grants, endowments, alms, charity, donation and sharia economy. Implications of thought Busthanul Arifin against the Islamic law in Indonesia is the emergence of legislation that comes from Islamic law, for example the Law on Hajj, Zakat, Infak, Endowments, Economic Regulation Based Regional Shari’ah and religion.

This research examines the existence of Islamic Law and Customary Law in Indonesia's national legal system which reflects legal pluralism in a country with high cultural and religious diversity. The purpose of the research is to explore the role and integration of Islamic Law and Customary Law within the national legal framework, particularly in the context of the application of sharia principles and the recognition of customary law communities. This research utilizes a qualitative descriptive method with analysis of documents, legal literature, and relevant legislation, as well as a historical approach to understand theories of legal acceptance such as Receptie and Receptie in Complexu. The results of the analysis show that Islamic Law has gained significant legitimacy, especially through the Compilation of Islamic Law (KHI) which regulates family law and inheritance. Meanwhile, Customary Law is also recognized in Article 18B of the 1945 Constitution as an important part of the national legal system, although its implementation faces modernization challenges. This research finds that the interaction between these two legal systems produces not only challenges but also opportunities to build a national law that is adaptive and responsive to the needs of society. Thenovelty of this research lies in the comprehensive analysis of the dynamics of harmonization of Islamic Law and Customary Law amidst the social and political complexities in Indonesia. This research emphasizes the importance of an inclusive and contextual approach in building a just and sustainable legal system, which accommodates local religious and cultural values.

Abstract. Islamic inheritance law is a set of rules that regulate the transfer of property rights or property from a person who dies to his heirs in accordance with Islamic law. The ulama's agreement regarding the inability to inherit between Muslims and non-Muslims was adopted in the Compilation of Islamic Law (KHI). Even though Islamic inheritance law and the Compilation of Islamic Law explain that the condition for heirs and heirs to be able to inherit each other's inheritance is that they must both be Muslim, in practice the Supreme Court of the Republic of Indonesia issued Jurisprudence in 2018 which gives the share of assets of Muslim heirs to Muslim heirs. non-Muslim heirs through a mandatory will. The aim of this research is to find out the arrangements for Wajibah Wills for Non-Muslims. To explain how Islamic Law analyzes the Supreme Court Jurisprudence Number. 1/Yur/Ag/2018 concerning Mandatory Wills for Non-Muslims. The method used by the author is juridical-normative. The type of research data is qualitative data and the research data collection technique is carried out by means of literature study. The granting of inheritance assets by the Supreme Court to non-Muslim parties does not exceed the maximum limit for granting mandatory wills as regulated in the Compilation of Islamic Law. However, it is felt that this decision does not fulfill a sense of justice because the judge indirectly equalizes the position of Muslim heirs in Islamic law. In other words, the mandatory will given in the judge's decision seems to confirm that non-Muslim heirs have the same share as Muslim heirs in the inheritance. Abstrak. Hukum kewarisan Islam adalah seperangkat aturan yang mengatur perpindahan hak kebendaan atau harta dari orang yang meninggal dunia kepada ahli waris sesuai hukum Islam. Kesepakatan ulama tentang ketidakbolehan saling mewarisi antara muslim dengan non muslim ini diadopsi dalam Kompilasi Hukum Islam (KHI). Meskipun dalam hukum kewarisan Islam dan Kompilasi Hukum Islam menjelaskan bahwa syarat antara pewaris dan ahli waris untuk bisa saling mewarisi harta warisan adalah harus sama-sama beragama Islam, namun pada praktiknya Mahkamah Agung Republik Indonesia mengeluarkan Yurisprudensi tahun 2018 yang memberikan bagian harta dari pewaris muslim kepada ahli waris non muslim melalui wasiat wajibah. Tujuan penelitian ini adalah Untuk mengetahui pengaturan Wasiat Wajibah bagi Non-Muslim. Untuk menjelaskan bagaimana analisis Hukum Islam terhadap Yurisprudensi Mahkamah Agung Nomor. 1/Yur/Ag/2018 tentang Wasiat Wajibah bagi Non-Muslim. Metode yang digunakan oleh penulis adalah yuridis-normatif. Jenis data penelitiannya adalah data kualitatif dan teknik pengumpulan data penelitian dilakukan dengan cara studi kepustakaan. Pemberian harta warisan oleh Mahkamah Agung kepada pihak non muslim memang tidak melebihi dari batas maksimal pemberian wasiat wajibah yang telah diatur dalam Kompilasi Hukum Islam. Namun putusan ini di rasa belum memenuhi rasa keadilan karena hakim secara tidak langsung menyamakan kedudukan ahli waris yang beragama muslim dalam hukum Islam. Dengan kata lain wasiat wajibah yang diberikan dalam putusan hakim tersebut seolah-olah membenarkan ahli waris non muslim sama bagiannya dengan ahliwaris muslim terhadap harta warisan.

This study discusses the analysis of the position of joint property in Islamic law and the compilation of Islamic law articles 96 and 97. The purpose of this study is to determine the position of joint property based on the view of Islamic law and compilation of Islamic law articles 96 and 97 as well as the similarities and differences in the position of joint assets according to Islam law and compilation of Islamic law. The author uses a type of library research, which is to become library material as the main data source, by writing, clarifying, and reducing data, especially those related to joint property, both in the study of compilations of Islamic law and Islamic law. The results showed that 1). The position of joint property based on the view of Islamic law can be understood that joint property is syirkah in the sense that it is a form of cooperation or partnership between husband and wife. Syirkah in joint property is a form of cooperation between husband and wife to build a sakinah, mawaddah, warahmah family, including property in marriage. Regarding this joint property, the husband or wife can act to do something or not to do something on the joint property through the agreement of both parties. 2). The position of joint property based on the view of the compilation of Islamic law articles 96 and 97 can be understood that ownership of property in marriage determines the balance between husband and wife in married life. Because they are still married. They have the same rights to the joint property. 3). Equality in the position of joint property according to Islamic law and compilation of Islamic law lies in the distribution of property, in the event of a divorce, the distribution of joint property can be carried out in peace. The division of joint property according to Islamic law and compilation of Islamic law is not absolute because in principle the philosophy in the distribution of joint property is a value that can be achieved by deliberation based on the principles of faith, justice, balance, legal protection, deliberation and compassion. While the difference lies in the concept of joint property. Islamic law does not recognize the name of joint property, Islam views that the wife gets good protection regarding physical, spiritual, moral, material, housing, maintenance costs, and the education of children is the full responsibility of the husband as the head of the family. Meanwhile, according to the compilation of Islamic law, it is explained that joint property is property obtained during marriage as joint property.

This research aims to analyze the reform of Islamic inheritance law in Indonesia, with a particular focus on government policies supporting this reform. The study examines legal doctrines in the Compilation of Islamic Law, jurisprudence, Supreme Court guidance letters for religious courts, and fatwas from the Indonesian Ulema Council. Employing a historical and Islamic legal political (fiqh siyasah) approach, it explores the background and dynamics of these reforms. The reform process involves updating legal concepts, norms, and techniques, driven primarily by the executive and judiciary, while legislative bodies are constrained by their inability to pass laws. Non-governmental institutions, particularly the Indonesian Ulema Council, also play a pivotal role. Scientifically grounded methods, such as ijtihad intiqa'i tarjihi and ibda'i insha'i, serve as the foundation for these reforms. The government’s strategies within the Islamic legal-political framework (fiqh siyasah) are (1) developing Islamic inheritance law in line with societal practices, (2) codifying it into legislative products, (3) compiling it into unified legal texts, (4) enacting legal products such as presidential instructions, fatwas, and jurisprudence, (5) involving scholars, officials, and judges in shaping reforms, (6) creating regulations for non-litigious inheritance distribution based on Islamic law, and (7) engaging the community in inheritance practices. This research’s novelty lies in its comprehensive analysis of both governmental and non-governmental roles in reforming Islamic inheritance law through integrative legal-political strategies. Additionally, it highlights the innovative application of ijtihad intiqa'i tarjihi and ibda'i insha'i, contributing to the modernization and contextualization of Islamic inheritance law in Indonesia. The contribution of this research is its exploration of the interplay between legal reform and societal practices, providing a new understanding of the mechanisms that shape Islamic law in contemporary Indonesia. Furthermore, it offers valuable insights into the role of both religious scholars and government authorities in the legal reform process, offering a model for integrating Islamic law with modern legal systems.