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All Journal ISNU Nine-Star Multidisciplinary Journal (INS9MJ) Jurnal Sahabat ISNU SU
Shafiyah Sabrina
Universitas Islam Negeri Sumatera Utara
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Reconstructing Maqaṣid al-Shariah in Modern Legislation: An Analysis of the Application of Maqaṣid in National Lawmaking and the Integration of Public Welfare Values with the Positive Legal System Shafiyah Sabrina
ISNU Nine-Star Multidisciplinary Journal Vol. 3 No. 2 (2026): ISNU Nine Star September
Publisher : ISNU Sumatera Utara

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Abstract

This article examines how the concept of Maqāṣid al-Sharīʿah, classically intended to guide individual juristic reasoning (ijtihād), has been reconstructed to fit modern, institutional, codified, and procedural legislative processes. The issue is significant given Indonesia's plural legal system, in which Islamic legal values coexist with national positive law, often generating tension between formal legality and substantive justice. The study employs a normative doctrinal legal method with statutory, conceptual, comparative, and philosophical approaches, drawing on primary, secondary, and tertiary legal materials gathered through library research and analyzed qualitatively through legal interpretation and comparative-conceptual analysis. The findings show that the modern reconstructions of Ibn ʿĀshūr and Jasser Auda have transformed Maqāṣid from a basis for individual rulings into a systemic framework applicable across three stages of national lawmaking: legislative preparation, norm formulation, and regulatory evaluation. This approach is examined in three empirical domains, namely Islamic family law, comparative Islamic criminal law, and Islamic financial regulation, each reflecting a distinct pattern of institutionalizing Maqāṣid-based reasoning. The study also identifies key design challenges, namely the risk of rigid literalism on the one hand and unaccountable discretion on the other, and proposes a normative convergence between Maqāṣid and Pancasila as a bridge for integrating the value of maṣlaḥah into the positive legal system without undermining legal certainty. The article recommends strengthening transparent procedural mechanisms, including a dedicated Maqāṣid impact assessment within academic papers accompanying bills, along with interdisciplinary collaboration in the legislative drafting process.
Reconstructing Maqasid al-Shariʿah for Modern Legislation: A Procedural Model for Integrating Public Welfare into Indonesian Lawmaking Achyar Zein; Shafiyah Sabrina
Jurnal Sahabat ISNU SU Vol. 3 No. 2 (2026): Vol.3 No.2 (2026): ISNU Sahabat September 2026
Publisher : ISNU Sumatera Utara

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.70826/jsisnu.v3i2.1927

Abstract

This article examines how maqāṣid al-sharīʿah, classically designed to guide the individual reasoning (ijtihād) of jurists, can be reconstructed to fit modern legislative processes that are institutional, codified, and procedural. The question is significant in Indonesia's plural legal system, in which Islamic legal values coexist with national positive law and frequently generate tension between formal legality and substantive justice. The study applies normative legal research with statutory, conceptual, comparative, and philosophical approaches to the Law on the Formation of Legislation, decisions of the Constitutional Court, the Marriage Law, the Compilation of Islamic Law, Islamic financial regulation, and classical and contemporary uṣūl al-fiqh literature. The findings show that the reconstructions of Ibn ʿĀshūr and Jasser Auda have shifted maqāṣid from a basis for case-specific rulings to a systemic framework applicable to three stages of lawmaking: planning, norm formulation, and post-enactment evaluation. Analysis of family law, comparative Islamic criminal law, and Islamic financial regulation reveals three distinct patterns of institutionalisation. The central challenge lies in two opposing risks: rigid literalism and unaccountable discretion. The article proposes a Maqāṣid Impact Assessment model embedded in the academic paper (naskah akademik), meaningful public participation, and regulatory evaluation, and it positions the normative convergence between maqāṣid and Pancasila as a bridge for integrating public welfare into positive law without sacrificing legal certainty.
Co-Authors Achyar Zein