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All Journal Eksekusi: Jurnal Ilmu Hukum dan Administrasi Negara
Mohammad Husni Mubarok
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Law, Crime, Criminology & Criminal Justice Social Sciences

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Konstruksi Dar’u al-Mafasid dalam Putusan Hakim pada Perkara Perceraian Akibat Perselisihan Terus Menerus Ahmad Ihksaludin; Yudi Wahyudin; Mumu Fahmudin; Abdul Kodir Alhamdani; Mohammad Husni Mubarok
Eksekusi : Jurnal Ilmu Hukum dan Administrasi Negara Vol. 3 No. 1 (2025): Eksekusi: Jurnal Ilmu Hukum dan Administrasi Negara
Publisher : Sekolah Tinggi Ilmu Administrasi (STIA) Yappi Makassar

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.55606/eksekusi.v3i1.2638

Abstract

The high rate of divorce due to continuous disputes in Religious Courts has prompted judges to use the jurisprudential maxim dar'u al-mafasid muqaddamun 'ala jalb al-mashalih as the normative basis for their legal considerations. However, the application of this maxim in judicial practice is often carried out disproportionately and without measurable standards, potentially producing decisions that are inconsistent with the objectives of Islamic law. This study aims to analyze the construction of the dar'u al-mafasid maxim in judges' decisions on divorce cases due to continuous disputes, evaluate its proportionality from the perspective of maqasid al-syari'ah, identify its construction patterns, and formulate an ideal and measurable construction model. This research employs a normative legal research method with statutory, conceptual, case, and philosophical-hermeneutic approaches. Legal materials were collected through documentation studies and analyzed qualitatively using content analysis, descriptive-analytical, comparative, and normative-evaluative techniques. The findings reveal that the construction of the dar'u al-mafasid maxim in judges' decisions is built through three stages: identification of mafsadat and maslahat, weighing (muwazanah) between them, and establishing priorities (awlawiyat); however, significant inconsistencies and disproportionality exist across various court levels. Three construction patterns were identified: fact-based, irreconcilability-based, and maqasid al-syari'ah-based. This study formulates an ideal construction model through five integrative stages: comprehensive fact verification, optimal reconciliation efforts, measurable mafsadat identification and assessment, proportional weighing integrating four dimensions of moderate jurisprudence, and maqasid al-syari'ah-based decision-making. This model is expected to serve as a guideline for Religious Court judges in producing substantively just decisions aligned with the objectives of Islamic law.
Kebijakan Formulasi Hukum Pidana terhadap Praktik Nikah Siri dan Poligami Tanpa Izin Berdasarkan Undang-Undang Nomor 1 Tahun 2023 Muhamad Ramdhan; Abdul Kodir Alhamdani; Yudi Wahyudin; Mumu Fahmudin; Mohammad Husni Mubarok
Eksekusi : Jurnal Ilmu Hukum dan Administrasi Negara Vol. 3 No. 1 (2025): Eksekusi: Jurnal Ilmu Hukum dan Administrasi Negara
Publisher : Sekolah Tinggi Ilmu Administrasi (STIA) Yappi Makassar

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.55606/eksekusi.v3i1.2639

Abstract

The practice of unregistered marriage (nikah siri) and polygamy without court permission remains a persistent legal problem in Indonesia, causing serious consequences for the legal protection of women and children. This study aims to analyze the criminal law formulation policy against nikah siri and unauthorized polygamy practices based on Law Number 1 of 2023 on the new Criminal Code (KUHP), compare it with the formulation under the old Criminal Code, and evaluate its alignment with the objective of legal protection for women and children. This research employs a normative legal research method with statutory, conceptual, and comparative approaches, analyzing primary and secondary legal materials qualitatively. The results reveal three main findings: first, the formulation policy under the old Criminal Code contains structural weaknesses, including the absence of explicit criminal sanctions in the Marriage Law, the complaint-based nature of the offense that limits prosecution, inconsistent interpretation of Article 279 among law enforcement officers, and the misapplication of criminal provisions against perpetrators of secret polygamy; second, Law Number 1 of 2023 brings significant reforms through a more comprehensive reformulation of marriage offenses, more precise elements of criminal acts, a more flexible sanction system, and the integration of restorative justice principles; third, the formulation policy still requires strengthening in terms of protecting the rights of women and children, as criminal approaches alone are insufficient without synergy with administrative policies and community empowerment. This study concludes that the criminal law formulation policy in the new Criminal Code must be understood as an instrument for achieving substantive justice oriented toward the protection of life, lineage, and property as required by the principles of maqashid syari'ah.
Co-Authors Abdul Kodir Alhamdani Ahmad Ihksaludin Muhamad Ramdhan Mumu Fahmudin Yudi Wahyudin