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All Journal Hukum Inovatif : Jurnal Ilmu Hukum Sosial dan Humaniora Dialog Legal: Jurnal Syariah, Jurisprudensi dan Tata Negara
Saebeni, Beni Ahmad
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Law, Crime, Criminology & Criminal Justice Social Sciences

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Child Marriage in Malaysia and Indonesia in Legal Anthropology Perspective: Between Local Traditions and Islamic Legal Regulation Wahyudi, Wahyudi; Abdulah Pakarti, Muhammad Husni; Mukhlas, Oyo Sunaryo; Saebeni, Beni Ahmad; Arif Zakaria, Mohd Radhuan
Dialog Legal: Jurnal Syariah, Jurisprudensi dan Tata Negara Vol. 2 No. 1 (2026): Januari
Publisher : Sekolah Tinggi Ilmu Syariah Wal Aqidah Ash-Shofa Manonjaya

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.64367/dialoglegal.v2i1.105

Abstract

Child marriage remains a crucial issue in Indonesia and Malaysia even though both countries have laws restricting it. This study aims to analyze the dynamics of child marriage in the perspective of legal anthropology, focusing on the interaction between local traditions and Islamic legal regulations. Through a qualitative approach and literature study, this study found that the root of the problem of child marriage lies not only in economic and educational factors, but also in the strong influence of old-fashioned social, cultural, and religious norms that are often dialectic with formal law. In Indonesia, the existence of Law No. 16 of 2019 has not been fully effective due to the high number of marriage dispensation applications and the strong practice of elopement such as merariq. In Malaysia, state autonomy in Islamic family law creates regulatory variations and complexities in handling child marriage. This study concludes that a holistic approach through strengthening the role of religious courts, economic empowerment, inclusive education, and campaigns involving religious and customary leaders are key in breaking the chain of child marriage.
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 Arif Zakaria, Mohd Radhuan Ikbal, Muchamad Muhammad Husni Abdulah Pakarti Mukhlas, Oyo Sunaryo Wahyudi Wahyudi