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All Journal FITRAH:Jurnal Kajian Ilmu-ilmu Keislaman Mizan: Journal of Islamic Law
Hendra Pertaminawati
Universitas Islam Negeri Syarif Hidayatullah Jakarta
Religion Education Law, Crime, Criminology & Criminal Justice Social Sciences

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Maqasid-Based Comparative Jurisprudence: Synthesis of Capitalism, Socialism, and Islamic Economics in Indonesia's Dual Economic System Hendra Pertaminawati; Nisrina Mutiara Dewi; Teguh Prawiro
JURNAL ILMU SYARIAH Vol 13 No 2 (2025): Mizan: Journal of Islamic Law
Publisher : Universitas Ibn Khaldun

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.32832/mizan.v13i2.22617

Abstract

The purpose of this article is to compare legal systems in the concept of ownership (al-Milkiyyah) and examine the integration of Positive Law and Islamic Law in Strengthening Sharia financial institutions in Indonesia. Using a juridical-philosophical approach, this study examines the ontological, epistemological, and axiological aspects of each economic legal system. Ontologically, capitalism is rooted in individual freedom and private property rights; socialism in collectivity and structural equality; while Islam emphasizes the balance between private ownership, social responsibility, and distributive justice. Epistemologically, Western economic law is based on secular rationality and empiricism, while Islamic economic law is derived from revelation and maqāṣid al-syarī‘ah. From an axiological perspective, Islamic economic law prioritizes the values ​​of justice and welfare over material utility. The main findings of this study indicate that the Indonesian dual economic system model represents an epistemological synthesis between Western legal rationality and Islamic legal spirituality. National legal pluralism allows for the coexistence of two complementary economic systems, conventional and sharia, within the framework of equitable economic development. The theoretical implication is the need for a comparative model of economic law based on maqāṣid (maqāṣid-based comparative jurisprudence), while the practical implication is the importance of harmonizing positive legal regulations with sharia principles to achieve an efficient, ethical, and equitable national economic legal system. Keywords: Economic Law, Capitalism, Socialism, Islamic Economics, Dual Economic System, Maqāṣid al-Syarī‘ah.
Judicial Discretion and Joint Property Interpretation at Banten PTA: Analyzing Justice, Contribution, and Legal Adaptation Karmawan karmawan; Oneng Nurul Bariyah; Yahaya Niwae; Hendra Pertaminawati
FITRAH: Jurnal Kajian Ilmu-ilmu Keislaman Vol 11, No 2 (2025): 10 Articles, Pages 157-370
Publisher : UIN Syekh Ali Hasan Ahmad Addary Padangsidimpuan

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.24952/fitrah.v11i2.17265

Abstract

This study aims to analyze the role of judicial discretion in interpreting the division of joint property (gono-gini) in the Banten High Religious Court (PTA), with a focus on factors of fairness and contribution. Formal norms such as Article 97 of the Compilation of Islamic Law (KHI), which stipulates a 50:50 division, are often inadequate when faced with unequal economic and non-economic contributions, bad faith, and the socio-economic vulnerability of the weaker party. This study uses a content analysis method on appeal decisions from 2021-2025, supplemented by a review of Islamic law literature and Maqasid al-shari'ah. The results of the study indicate that judges use discretion to adjust the distribution proportion based on actual contributions, the child's best interests, and the principle of benefit. The maqāṣid al-sharī‘ah framework serves as a normative basis that binds deviations to remain proportional and oriented towards substantive justice. The findings also emphasize the need for interpretive guidelines, gender-friendly evidentiary standards, and strengthening mediation and prenuptial education to reduce disparities in decisions. This study concludes that judicial discretion is not merely a technical freedom, but a teleological instrument for realizing adaptive and inclusive justice in the Indonesian religious court system.
Co-Authors Karmawan Karmawan Nisrina Mutiara Dewi Oneng Nurul Bariyah Teguh Prawiro Yahaya Niwae