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All Journal Pena Justisia: Media Komunikasi dan Kajian Hukum Indonesian Journal of Humanities and Social Sciences
Zakaria Syafe’i
UIN Sultan Maulana Hasanuddin Banten
Religion Humanities Education Law, Crime, Criminology & Criminal Justice Social Sciences

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Pembatalan Hibah dalam Hukum Islam dan Perdata Indonesia dalam Teori Perikatan Zulkarnain; Deni Rusli; Zakaria Syafe’i
Indonesian Journal of Humanities and Social Sciences Vol. 4 No. 2 (2023): Indonesian Journal of Humanities and Social Sciences, July, 2023
Publisher : Universitas Islam Tribakti Lirboyo Kediri

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.33367/ijhass.v4i2.4182

Abstract

This article discusses the cancellation of grants from the perspective of Islamic law and Indonesian civil law with an engagement theory approach. A grant is a legal transaction that involves a voluntary transfer of ownership, but there are situations where the grantor or grantee can cancel a grant. The purpose of this study is to analyze the views of Islamic law and Indonesian civil law regarding the cancellation of grants and explore the similarities and differences between the two legal systems in this context. Through an engagement theory approach, this article analyses the legal basis and requirements for grant cancellation in both legal systems. In Islamic law, grant annulment can be carried out based on Sharia principles that regulate the concept of hijab and qabul and the legal requirements of grants. On the other hand, Indonesian civil law regulates grant cancellation through the norms contained in the Civil Code and related laws and regulations. A comparative analysis is also conducted to identify similarities and differences in the views of the two legal systems regarding the reasons, procedures, and consequences of grant cancellation. In this context, this research provides an in-depth insight into the convergence or divergence between Islamic law and Indonesian civil law in addressing the issue of grant cancellation. The results of this research provide a deeper understanding of the relevant legal aspects in the context of grant cancellation in Islamic law and Indonesian civil law. By understanding their perspectives, parties involved in grant transactions can make more informed decisions and minimize the risk of future disputes. In addition, this article also contributes to the legal literature by exploring a comprehensive comparison between the two legal systems in this specific aspect.
Challenges in Enforcing Surrogate Agreements and Surrogate Mothers in Indonesia Muhamad Wahyudin; Zakaria Syafe’i; Muhammad Ishom
Pena Justisia: Media Komunikasi dan Kajian Hukum Vol. 24 No. 1 (2025): Pena Justisia
Publisher : Faculty of Law, Universitas Pekalongan

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.31941/pj.v24i2.6512

Abstract

This study discusses the legal challenges in the practice of surrogacy in Indonesia from the perspective of positive law and maqāṣid syarī‘ah. The background to the issue stems from the increasing need of infertile couples for alternative reproductive technologies, while regulations in Indonesia still prohibit and have not comprehensively regulated this practice. Surrogacy is considered socially taboo and contrary to religious values, thereby creating a legal vacuum that poses risks to all parties, especially the child and the surrogate mother. The methodology used is a legal-normative and sociological approach, with the main theories being contract law, the principle of ijarah, and maqāṣid syarī‘ah. A comparison is made with Iran’s legal system, which regulates surrogacy through state-recognized contractual mechanisms, unlike Indonesia, which remains restrictive. The research findings indicate that the absence of explicit regulations in Indonesia creates legal uncertainty, opens the door to exploitation, and fails to guarantee the rights of children and surrogate mothers. Conversely, Iran has established strict yet clear legal and religious requirements, thereby providing legal certainty and better protection. The discussion addresses five research questions and demonstrates that the ban on surrogacy in Indonesia contradicts medical realities and societal needs. This study recommends a contract model based on maqāṣid syarī‘ah and the principle of ijarah, which is non-commercial in nature, to bridge the gap between positive legal requirements, religious values, and technological developments. In conclusion, Indonesia needs responsive, ethical, and religiously-based surrogacy regulations to prevent exploitation and ensure justice for all parties involved.
Co-Authors Deni Rusli Muhamad Wahyudin Muhammad ishom el-saha Zulkarnain