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All Journal Hukum Inovatif : Jurnal Ilmu Hukum Sosial dan Humaniora An-nisa: Journal of Islamic Family Law
Ikbal, Muchamad
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Religion Law, Crime, Criminology & Criminal Justice Social Sciences Other

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Early Marriage in the Islamic Legal System, the Continental and Anglo Saxon European Legal Systems Ikbal, Muchamad; Ah. Fathonih; Fauzan Ali Rasyid
An-Nisa: Journal of Islamic Family Law Vol. 2 No. 2 (2025): Juni
Publisher : Yayasan Cendekia Gagayunan Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.63142/an-nisa.v2i2.292

Abstract

Child marriage is a violation of human rights that has a systemic impact on aspects of reproductive health, education, economy, and social participation. This article conducts a comparative-critical analysis of the construction of child marriage law in three dominant legal systems: Islamic Law (based on maslahah mursalah), Continental European Law (codification-based), and Anglo-Saxon Law (precedent-based), using the theoretical framework of legal pluralism Santos (1987) and the concept of best interest of the child (CRC 1989). The research method combines a normative-doctrinal approach with a critical discourse analysis of primary legal texts and court decisions in 15 representative countries. The findings reveal three paradigms: (1) Contemporary Islamic law has undergone a transformation from classical fiqh through the reinterpretation of maqashid shari'ah with an age limit of 18 years (Law No. 16/2019 in Indonesia and the Child's Rights Act 2003 in Nigeria); (2) The Continental European System implements legal paternalism through the harmonization of EU Directive 2019/51 with the minimum age standard of 18 years without dispensation; (3) The Anglo-Saxon system developed judicial activism through progressive precedents (the Re Marriage Act 2015 in the UK and Obergefell v. Hodges in the US). This study contributes to the theory of global legal convergence by recommending an integrated legal reform model that synthesizes the legal certainty of the European system, Anglo-Saxon flexibility, and Islamic maslahah values.
Keabsahan Pelimpahan Porsi Haji melalui Wasiat Wajibah dan Transformasi Hukumnya terhadap Hukum Islam Ikbal, Muchamad; Mukhlas, Oyo Sunaryo; Saebeni, Beni Ahmad
Hukum Inovatif : Jurnal Ilmu Hukum Sosial dan Humaniora Vol. 2 No. 4 (2025): Oktober: Hukum Inovatif : Jurnal Ilmu Hukum Sosial dan Humaniora
Publisher : Lembaga Pengembangan Kinerja Dosen

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.62383/humif.v2i4.2668

Abstract

This study discusses the discourse of fiqh al-nawāzil which is rooted in the fundamental disparity between Islamic Family Law (classical inheritance and will law) and Contemporary Law (Hajj queue regulation Law No. 8 of 2019 and fiat of the transfer of one person to the Director General of PHU No. 130 of 2020). This background raises a normative dilemma when the right to worship (al-haq al-'ibādi) is threatened with forfeiture because classical instruments clash with the principle of lā waṣiyyata li wārith and the limits of al-thuluth. The main purpose of this research is to propose a Mandatory Will as a transformative solution of Islamic Law to provide a fair and strong sharia foundation for the existing state administrative policies. The method used is Fiqh al-Nawāzil with the approach of Istislah (Maslahah Mursalah) and Qiyās Istiḥsānī, which places the portion of Hajj as an obligation that must be fulfilled (al-wājib al-waṣiyyah) equivalent to debt, so that it can methodologically neutralize the limitation of classical inheritance. The conclusion shows that the Obligatory Will has succeeded in bridging this conflict, providing a Legal Impact in the form of modernizing Islamic Family Law, and affirming the ability of Islamic Law to realize maqāṣid al-sharī'ah (ḥifẓ al-dīn and ḥifẓ al-māl) in the contemporary era. The recommendation urges that amendments to the Compilation of Islamic Law (KHI) and hajj regulations (including the strengthening of Kepdirjen 130/2020) be immediately carried out to institutionalize the Obligatory Will, accompanied by the DSN/MUI Fatwa to prevent the commercialization (tadāwul) of the hajj portion and ensure substantive justice for the heirs.
Co-Authors Ah. Fathonih Fauzan Ali Rasyid Mukhlas, Oyo Sunaryo Saebeni, Beni Ahmad