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All Journal Jurnal Ilmiah Ahwal Syakhshiyyah (JAS) An-Nur : Jurnal Studi Islam
Asasriwarni
Universitas Islam Negeri Imam Bonjol Padang
Religion Humanities 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
Islamic Law in the Islamic Sultanates of Indonesia: Historical Patterns and Legal Transformations Fakhriyah Annisa Afroo; Asasriwarni; Ikhwan
AN NUR: Jurnal Studi Islam Vol. 17 No. 02 (2025): An-Nur: Jurnal Studi Islam
Publisher : Institut Ilmu Al-Qur'an (IIQ) An-Nur Yogyakarta Komplek PP An Nur Ngrukem PO BOX 135 Bantul 55702 Yogyakarta Tlp/Fax (0274) 6469012. http://jurnalannur.ac.id/

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.37252/annur.v17i02.2155

Abstract

This article examines the characteristics and transformations of Islamic law in the Islamic sultanates of Indonesia through a historical-normative approach combined with comparative analysis. The study aims to identify patterns of Islamic law implementation and to analyze its dynamic relationship with customary law (adat) and political authority during the pre-colonial period. Data were collected through library-based research, including legal manuscripts, royal chronicles, customary texts, and relevant scholarly literature. The findings demonstrate that Islamic law in the Islamic sultanates of Indonesia did not develop as a uniform or rigid system, but rather evolved in diverse, contextual, and adaptive forms. Four main models of Islamic law implementation are identified: normative-social, normative-formal, integrative adat–sharia, and legal codification models. These variations were shaped by local social structures, political authority, and indigenous legal traditions within each sultanate. The study further reveals that from its early development, Islamic law in Indonesia operated within a framework of legal pluralism through continuous processes of negotiation and accommodation. This research contributes to a deeper historical understanding of the foundations of contemporary Islamic law in Indonesia.
Co-Authors Adi Harmanto Fakhriyah Annisa Afroo Ikhwan Ikhwan Juliani Syafitri