ANTARA NORMATIVITAS DAN REALITAS SOSIAL: MENINJAU KEMBALI HUKUM ISLAM MELALUI PERSPEKTIF SOSIOLOGI AGAMA

Rifqi Khairul Anam (Institut Ahmad Dahlan Probolinggo)
Ubaidila Ubaidila (Institut Ahmad Dahlan Probolinggo)

USRAH: Jurnal Hukum Keluarga Islam
Vol. 5 No. 1 (2024): April

The relationship between Islamic law and social reality in Indonesia cannot always be adequately explained through a direct opposition between religious norms and state law. Conceptual distinctions among nasab (juridico-religious lineage), biological paternity, civil legal relationships, and marital status often result in legal instruments with different objects and institutional mandates being interpreted as though they were mutually contradictory. This article examines the normative construction of child protection through Constitutional Court Decision No. 46/PUU-VIII/2010, Indonesian Council of Ulama (MUI) Fatwa No. 11 of 2012, and Supreme Court Circular Letter (SEMA) No. 3 of 2018 by integrating doctrinal legal analysis with the sociology of religious authority. The study employs normative legal research using statutory and conceptual approaches, complemented by document-based socio-legal interpretation. The analysis draws on Max Weber’s typology of legitimacy, Pierre Bourdieu’s concept of the juridical field, and a limited evaluative application of maqāṣid al-sharīʿah. The findings demonstrate that the three legal instruments do not address entirely identical legal objects. The Constitutional Court decision concerns civil legal relationships established through evidentiary mechanisms; the MUI fatwa maintains the doctrinal distinction concerning the nasab of children born as a result of zina while simultaneously prescribing protective responsibilities; and SEMA No. 3 of 2018 restricts the route of itsbat nikah for unregistered polygamous marriages while identifying the determination of a child’s origin as a possible procedural avenue. The article contributes a Negotiated Legal Authority Framework (NLAF), consisting of a sequential examination of authorization, classification, procedural translation, and protection, together with corresponding indicators and limits of application. The framework enables a distinction between genuine normative conflicts and differences in institutional competence without equating the establishment of biological paternity with the full juridical consequences of nasab. The findings are conceptual in nature and do not establish the empirical effectiveness of judicial mechanisms.