Tahegga Primananda Alfath
Universitas Narotama Surabaya, Jawa Timur, Surabaya

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The Notary's Obligation to Read Deeds Between Fiqh al-Tawthiq and Positive Law: A Maqasid al-Shariah Analysis of Normative Ambiguity in Article 16 of the Indonesian Law on Notary Position Johan Eko Cahyono; Tahegga Primananda Alfath; Khusnul Yakin
JURNAL ILMU SYARIAH Vol 10 No 1 (2026): Mizan: Journal of Islamic Law
Publisher : Universitas Ibn Khaldun

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.32832/mizan.v14i1.24276

Abstract

The documentation of legal transactions occupies a distinctive place in Islamic law: Qur'an, Surah Al-Baqarah (2): 282, commands believers to record debts in writing through a just scribe (katib bi al-'adl), a command that classical fiqh literature on tawthiq (authentication) and shurut (legal formulae) developed into an elaborate doctrine of documentary certainty long before the emergence of the modern civil-law notariat. This study examines the Indonesian notary's statutory obligation to read authentic deeds under Article 16 of the Law on Notary Position (Law Number 2 of 2014) against this Islamic legal-documentary tradition, alongside the secular jurisprudential lenses of Hans Kelsen's hierarchy of norms and Gustav Radbruch's principle of legal certainty. Article 16 exhibits an internal disharmony: paragraph (1) letter (m) imposes a mandatory reading obligation reflecting the fiqh requirement that a just scribe ensure the parties' informed consent, paragraph (7) permits an exception based on the appearers' bare declaration, and paragraphs (8) and (9) retain sanctions, including degradation to a private deed, for procedural non-compliance. Using normative legal research combined with a maqasidi-usuli approach, this study treats the Qur'anic mudayanah verse and classical tawthiq literature as an Islamic primary source parallel to Indonesian positive legislation, and analyzes both through statutory, conceptual, and case approaches. The analysis shows that, viewed through usul al-fiqh, paragraph (7) functions as a nass mujmal (an ambiguous legislative text) that has never received the bayan tafsiri (explanatory clarification) needed to reconcile it with the sanction provisions in paragraphs (8) and (9) — a diagnosis that converges strikingly with Kelsen's finding of an unresolved validity conflict between a derivative exception-norm and its parent obligation. Because Indonesian notarial deeds are also the principal instrument for documenting Sharia-compliant contracts (akad syariah) such as murabahah, ijarah, and hibah, this disharmony carries direct consequences for the legal certainty of Islamic commercial and family-law transactions, not only for secular civil transactions. The study proposes a clause-referenced verification standard and an explicit burden-of-proof rule for Article 16 paragraph (7), justified simultaneously under maslahah mursalah and the positive-law objective of legal certainty. Keywords: Notary; fiqh al-tawthiq; Maqasid al-Shariah; hierarchy of norms; legal certainty; deed reading obligation.
Personal Data Protection in the Digital Era: A Maqasid al-Shariah Perspective on Contemporary Legal Challenges Kukuh Pandu Wicaksana; Tahegga Primananda Alfath; Heru Kuswanto
JURNAL ILMU SYARIAH Vol 10 No 1 (2026): Mizan: Journal of Islamic Law
Publisher : Universitas Ibn Khaldun

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.32832/mizan.v14i1.24363

Abstract

Personal data has become one of the most valuable assets in the digital era, yet its extensive collection and processing by digital platforms, corporations, and government institutions have created significant risks of misuse, unauthorized disclosure, and violation of individual privacy. While Indonesia has responded through Law Number 27 of 2022 concerning Personal Data Protection, positive law alone provides limited ethical grounding for evaluating why such protection matters and how far it should extend, particularly in the face of emerging challenges such as algorithmic profiling and automated decision-making. This study examines personal data protection through the lens of Maqasid al-Shariah, the objectives of Islamic law, to identify the extent to which Islamic legal reasoning can complement and, in certain respects, extend the normative foundations of positive data protection law. Using normative legal research with statutory, conceptual, and comparative approaches, this study analyzes primary legal materials, including Qur'anic verses, authentic hadith, and Indonesian data protection legislation, alongside secondary materials drawn from classical and contemporary Maqasid al-Shariah scholarship. The analysis employs qualitative content analysis, categorizing findings according to the dimensions of hifzh al-din, al-nafs, al-'aql, al-nasl, al-mal, and the contemporary extension of hifzh al-'irdh. The findings show that core principles of Law Number 27 of 2022, namely lawfulness, transparency, purpose limitation, and accountability, are substantively consistent with the Islamic principles of taradhi (mutual consent), amanah (trustworthiness), 'adl (justice), and dar' al-mafasid (prevention of harm). However, the analysis also identifies areas where Maqasid al-Shariah offers a broader ethical horizon than current positive regulation, particularly regarding the algorithmic manipulation of human reasoning (hifzh al-'aql) and the moral, rather than merely administrative, character of data trusteeship. This study concludes that harmonizing Islamic legal objectives with positive data protection law can produce a more comprehensive, ethically grounded framework for digital governance in Muslim-majority societies such as Indonesia. Keywords: personal data protection; Maqasid al-Shariah; digital privacy; Islamic law; Law Number 27 of 2022.