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All Journal Journal of Islamic Law Journal of Mujaddid Nusantara
Cecep Soleh Kurniawan
Universiti Islam Sultan Sharif Ali, Brunei Darussalam
Religion Humanities Economics, Econometrics & Finance Law, Crime, Criminology & Criminal Justice Social Sciences

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Conservatism on Islamic Legal Maxims: Judicial Interpretation of Polygamous Marriage at the Religious Courts of Mojokerto, Indonesia Mukhammad Nur Hadi; Latifatul Islamiyah; Cecep Soleh Kurniawan
Journal of Islamic Law Vol 4 No 2 (2023): Journal of Islamic Law
Publisher : Institut Agama Islam Negeri (IAIN) Pontianak

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.24260/jil.v4i2.1637

Abstract

This article explores religious judges’ interpretations of Islamic legal maxims through a content analysis of 30 verdicts that granted permission for husbands’ polygamous marriages issued by the Religious Court of Mojokerto in Indonesia from 2020 to 2022. Despite governmental efforts to restrict polygamous marriage practices due to potential negative consequences, religious judges often grant permission to husbands, considering a balance between maṣlaḥah (public good) and mafsadah (harm). Employing a normative-philosophical approach, this article identifies two recurring Islamic legal maxims consistently applied by judges: “dar’u al-mafāsid muqaddamun ‘alā jalb al-maṣāliḥ” and “idhā taʼārada mafṣadaṭānī rūʼiya aʼẓamuhumā ḍararan bi al-’irtikābi akhaffihimā.” However, their legal interpretations regarding maṣlaḥah and mafsadah reinforce the husband’s interest in the case of polygamous marriage. Thus, the authors argue that the interpretations of these legal maxims in practice reflect a conservative perspective that strengthens patriarchal hierarchies. These findings highlight that Islamic legal maxims as legal principles within Islam have not yet effectively functioned as an instrument of protection for vulnerable groups, especially women and children.
Exploring Discrepancies in the Utilization of Joint Marital Assets: A Normative-Sociological Analysis Fazlon Umar; Cecep Soleh Kurniawan
Journal of Mujaddid Nusantara Vol. 1 No. 2 (2024): Journal of Mujaddid Nusantara June, 2024
Publisher : Institute of Education and Social Research

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.62568/jomn.v1i2.131

Abstract

Joint assets in marriage encompass all assets acquired after marital status is established through a legal union and are jointly owned by both spouses or held in joint names acquired simultaneously during marriage. Indonesian Positive Law, including Law no. 16 of 2019 concerning Marriage, the Compilation of Islamic Law, and the Civil Code (KUHP), governs the utilization of joint property in marriage, ensuring equal rights for both parties. However, discrepancies exist between legal provisions and public understanding regarding the use of joint marital assets. This study, conducted in Trienggadeng Pidie Jaya, employs qualitative methods to explore the community's comprehension of joint property using Indonesian Positive Law as an analytical framework. It adopts a normative-sociological approach, treating Indonesian Positive Law as the basis for analyzing societal perceptions and behaviors related to collective property. The research reveals discrepancies between normative rules and public understanding of the regulations governing the use of joint marital assets.
Co-Authors Fazlon Umar Latifatul Islamiyah Mukhammad Nur Hadi