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All Journal Masalah-Masalah Hukum YUDISIA : Jurnal Pemikiran Hukum dan Hukum Islam
Asep, Mohamad
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Religion Law, Crime, Criminology & Criminal Justice Social Sciences

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Exploring Legal Istinbāt̩h in the Construction of Disability Fiqh : Insights from Nahdlatul ‘Ulama Advisory Board (LBMNU) Asep, Mohamad
YUDISIA : Jurnal Pemikiran Hukum dan Hukum Islam Vol 15, No 1 (2024): YUDISIA : Jurnal Pemikiran Hukum dan Hukum Islam
Publisher : Program Studi Hukum Keluarga Islam

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.21043/yudisia.v15i1.22103

Abstract

The aim of this article is to analyze and uncover the legal istinbāt̩ methodology used by the Nahdlatul ‘Ulama Advisory Board (LBMNU) in constructing the book of disability jurisprudence. To the best of the author's knowledge, there has been no prior article discussing this matter. This discourse is highly significant for discussion, as the book serves as a reference for Muslim individuals with disabilities in the field of jurisprudence, encompassing matters of worship, transactions, and law. The methodology employed in this research is library research, utilizing a content analysis approach. The research findings indicate that LBMNU constructs disability jurisprudence using three methodologies: Qouliy, Ilḥaqiy, and Manhajiy, with some fatwas found to employ a collaborative (mixed) method. The Qouliy method remains the most frequently utilized, followed by the Manhajiy, collaborative, and Ilḥaqiy methods. These three methodologies stem from the decisions of the National Assembly of Islamic Scholars and the National Conference of NU in Bandarlampung regarding the legal decision-making system in the Nahdlatul Ulama Advisory Board. Thus, in formulating the book of disability jurisprudence, LBMNU continues to utilize these three methods, while still considering the welfare of individuals with disabilities.
RETHINKING WALI ADHAL PROCEEDINGS: THE ROLE OF AUDI ET ALTERAM PARTEM IN ADVANCING PROCEDURAL FAIRNESS Rosyadi, Imron; Asep, Mohamad
Masalah-Masalah Hukum Vol 54, No 3 (2025): MASALAH-MASALAH HUKUM (in press)
Publisher : Faculty of Law, Universitas Diponegoro

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.14710/mmh.54.3.2025.296-313

Abstract

This study analyzes the procedural reconstruction of wali adhal cases in Indonesian Religious Courts, which are currently resolved through voluntary petitions (voluntair). In practice, a guardian who refuses without legitimate grounds is replaced by a judicial guardian (wali hakim) through a court decree; however, this procedure undermines procedural fairness by excluding the guardian's formal right to present objections. The research employs a normative juridical methodology, utilizing both legislative and conceptual approaches. The legislative approach critically examines the statutory regulations governing wali adhal cases, particularly the Marriage Law and the Compilation of Islamic Law. The conceptual approach is used to propose a procedural shift from voluntair to contentiosa, grounded in the principle of audi et alteram partem, which requires equal opportunities for all parties to be heard. Such reclassification is expected to ensure balanced judicial outcomes, protect the bride’s right to marry, and proportionately safeguard the guardian’s legal position. This study contributes to the development of more equitable judicial procedures within Religious Courts, ensuring procedural justice for both parties involved in wali adhal cases. The proposed shift would foster fairness in the legal process, allowing both the guardian and the bride equal legal standing, evidence presentation, and the right to challenge decisions, ultimately enhancing the legitimacy and fairness of judicial decisions.
Co-Authors Imron Rosyadi