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All Journal Jurnal Ilmiah Ahwal Syakhshiyyah (JAS) HUMANISMA : Journal of Gender Studies
Adi Harmanto
Universitas Islam Negeri Imam Bonjol Padang
Religion Humanities Environmental Science Law, Crime, Criminology & Criminal Justice Social Sciences

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‘URF AS AN EPISTEMOLOGICAL FRAMEWORK FOR VALIDATING LIVING LAW: A CRITICAL READING OF ARTICLE 2 OF INDONESIA'S 2023 CRIMINAL CODE Adi Harmanto; Asasriwarni; Ikhwan; Juliani Syafitri
JAS : Jurnal Ahwal Syakhshiyyah Vol 8 No 1 (2026): Jurnal Ilmiah Ahwal Syakhshiyyah (JAS)
Publisher : Fakultas Agama Islam UNISMA

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.33474/jas.v8i1.25461

Abstract

Article 2 of Law No. 1 of 2023 on the Criminal Code recognizes “living law” as a basis for criminal punishment but does not provide adequate criteria to distinguish customary norms that deserve penal force from those that risk reproducing injustice. The core problem is epistemic incompleteness in validating customary norms, which risks institutionalizing injustice, as reflected in discriminatory local policies and gender‑asymmetric customary sanctions. This normative legal study employs a comparative‑epistemological approach, operationalizing the doctrine of ‘urf in uṣūl al‑fiqh as its analytical framework. Three main findings emerge. First, the epistemology of ‘urf offers a structured mechanism for validating norms through the ‘urf ṣaḥīḥ–‘urf fāsid distinction and its corrective function. Second, reading Article 2 through this lens reveals three structural alignments and five epistemological tensions, with the absence of a corrective function as the most fundamental weakness. Third, four verification standards social, substantive, temporal, and authoritative are formulated as an operational framework for the derivative regulations mandated by Article 2(3). The article thus positions Islamic law as an epistemological partner that transcends the formalization marginalization dichotomy and frames decolonization of criminal law as an epistemological transformation of the sources, limits, and legitimacy of punishment. Keywords: 'urf epistemology; living law; criminal code; legal pluralism; corrective function
Gendered Customary Sanctions in the Same-Clan Marriage Prohibition: A Maslahah Mursalah Perspective from Kuantan Singingi Alzekrillah Syaf; Adi Harmanto
HUMANISMA : Journal of Gender Studies Vol. 10 No. 1 (2026): June 2026
Publisher : Universitas Islam Negeri Sjech M. Djamil Djambek Bukittinggi

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.30983/humanisma.v10i1.11089

Abstract

This study examines the gender dimension of the prohibition against marriage within the same clan in the matrilineal community of Kuantan Singingi, Riau, a norm upheld across generations based on the principle of adat basandi syarak, syarak basandi Kitabullah, even though it is not explicitly prohibited by Islamic law. Unlike previous studies, which tended to be normative-anthropological and rarely distinguished prohibitions from their sanctions, this study highlights the gendered burden of these customary sanctions. By integrating Berger’s social construction theory and Schutz’s phenomenology to trace the formation of the norm, Bourdieu’s concept of symbolic violence to analyze its enforcement, and the principle of maslahah mursalah to evaluate its sanctions, this qualitative study of 30 informants (traditional leaders, religious scholars, KUA officials, and community members) across five subdistricts found that this norm is accepted as a preventive mechanism to maintain clarity of lineage and social harmony. However, its punitive sanctions fall under the category of maslahah mulghah because they cause disproportionate harm: permanent ostracism and stigma passed down to children, which structurally burdens women through their maternal roles within the clan, limited agency within male-dominated traditional institutions, and the stigma attached to their descendants, thereby creating layered injustice. This study recommends a shift toward restorative mechanisms based on iṣlāḥ: customary mediation, social education, symbolic sanctions, and the elimination of stigma against children.
Co-Authors Alzekrillah Syaf Asasriwarni Ikhwan Ikhwan Juliani Syafitri