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El-Faqih : Jurnal Pemikiran dan Hukum Islam
Published by Institut Agama Islam Faqih Asy'ari Kediri
ISSN : 24433950     EISSN : 2503314X     DOI : https://doi.org/10.29062/faqih
Core Subject : Religion, Humanities, Education, Social,
Religion Humanities Education Law, Crime, Criminology & Criminal Justice Social Sciences
El-Faqih, Jurnal Pemikiran dan Hukum Islam, ISSN, 2503-314X ( Online) and 2443-3950 (Print) is a peer-reviewed journal published by the Faculty of Sharia, IAI Faqih Asyari Kediri. This scholarly periodical specializes in the study of Islamic law and seeks to present the various results of the latest research, both conceptual-doctrinal and empirical, in the field. The editors welcome contributions in the form of articles to be published after undergoing a manuscript selection mechanism, peer-review, and editing process. The journal is published twice a year in April and October. It is now a fully online journal, and it only accepts manuscript submissions written in Indonesia, English, and Arabic.
Arjuna Subject : Ilmu Sosial - Hukum
Articles 221 Documents
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Positivisasi Hukum Islam dalam Sistem Peradilan Iran Azmardi Elkisra; Asasriwarni; Zulfan; Rudi Hartono
El-Faqih : Jurnal Pemikiran dan Hukum Islam Vol. 12 No. 2 (2026): EL FAQIH
Publisher : Institut Agama Islam (IAI) Faqih Asy'ari Kediri, , Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.58401/faqih.v12i2.3448

Abstract

This study aims to analyze the positivization of Islamic law within Iran’s judicial system, particularly through constitutional, institutional, and legislative mechanisms. It employs library research with a normative juridical approach. The research data were obtained from the Constitution of the Islamic Republic of Iran, legislation, books, scholarly journals, and other relevant literature. The data were analyzed descriptively and analytically using the theory of Islamic law positivization and a legal system perspective. The findings indicate that the positivization of Islamic law in Iran operates through three main mechanisms: constitutionalization, institutionalization, and juridification. Constitutionalization establishes the formal position of Islamic principles within the constitution, institutionalization is reflected in the role of state institutions in supervising and implementing the law, and juridification involves incorporating Islamic legal norms into binding legislation. These processes are evident in the authority of the Guardian Council, the structure of judicial institutions, and the application of law in the settlement of legal disputes, particularly in family law and personal status matters. Furthermore, Islamic legal sources may still be used in certain circumstances when written legislation does not explicitly regulate a case. Nevertheless, Iran’s judicial system continues to face challenges concerning judicial transparency and independence. This study concludes that the positivization of Islamic law in Iran constitutes a process of institutionalizing Islamic norms through constitutional and state mechanisms, thereby giving them formal legal status and binding force as part of the national legal system.
Profesionalisme Advokat dalam Perspektif Hukum Islam dan Kode Etik Advokat Indonesia Asrizal; Rahimah; Alfitra; Gilang Fadjar Gunawan
El-Faqih : Jurnal Pemikiran dan Hukum Islam Vol. 12 No. 2 (2026): EL FAQIH
Publisher : Institut Agama Islam (IAI) Faqih Asy'ari Kediri, , Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.58401/faqih.v12i2.3449

Abstract

Advocate professionalism is an essential factor in realizing a fair and integrity-based legal system. As one of the law enforcement officers, advocates are required to perform their profession based on competence, responsibility, integrity, and compliance with legal norms and professional ethics. This study aims to analyze advocate professionalism from the perspectives of Islamic law and the Indonesian Advocate Code of Ethics. The research employs a normative legal research method with a qualitative approach through library research. Data were collected from legislation, the Indonesian Advocate Code of Ethics, books, academic journals, and other relevant literature. The findings indicate that advocate professionalism in Islamic law is grounded in the values of trustworthiness (amanah), honesty (shidq), justice (al-'adalah), and responsibility (mas'uliyyah). Meanwhile, the Indonesian Advocate Code of Ethics serves as a behavioral guideline governing advocates' relationships with clients, fellow advocates, courts, and society. The study also reveals that advocate professionalism faces several challenges, including the increasing complexity of legal issues, professional competition, technological developments, and the declining integrity of some legal practitioners. Therefore, the integration of Islamic legal values and the Indonesian Advocate Code of Ethics is necessary to strengthen advocate professionalism in promoting a fair, ethical, and integrity-based judicial system.
Rechtsvinding in Divorce Cases Arising from Non-Fulfillment of Wife's Maintenance: Judicial Reasoning and the Protection of Women's Rights Risanna Aulia Adha Lubis; Fatahuddin Aziz Siregar; Putra Halomoan Hsb
El-Faqih : Jurnal Pemikiran dan Hukum Islam Vol. 12 No. 2 (2026): EL FAQIH
Publisher : Institut Agama Islam (IAI) Faqih Asy'ari Kediri, , Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.58401/faqih.v12i2.3485

Abstract

This study examines how Religious Court judges construct legal discovery (rechtsvinding) when a divorce suit is filed because of the husband's failure to fulfil his maintenance obligation - a question that earlier research has predominantly approached from a normative angle, without tracing how judges translate the abstract duty of maintenance into a legal ground for divorce. The object of study is Decision Number 164/Pdt.G/2023/PA.Pspk of the Padangsidimpuan City Religious Court, analysed through a normative juridical approach with a case study design that combines document analysis (primary, secondary, and tertiary legal materials) with interviews with court officials as key informants, processed qualitatively by content analysis and descriptive juridical analysis. The central finding is that the judge does not build an autonomous legal ground out of the maintenance obligation itself: through the qualification of facts and the interpretation of Article 19 letter (f) of Government Regulation Number 9 of 1975 in conjunction with Article 116 letter (f) of the Compilation of Islamic Law, the neglect of maintenance is absorbed into the concept of syiqaq, while the resulting harm is weighed against the fiqh maxim dar'u al-mafāsid muqaddam 'alā jalb al-maṣāliḥ. This construction shows that rechtsvinding in this case operates not in a legal vacuum but as a constructive interpretation within norms that already exist - a finding that enters the debate on how judicial reasoning distributes legal certainty and protects the maintenance rights of wives in Indonesian Islamic family law.
Sirri Marriage as a Strategy to Evade Marriage Dispensation: An Empirical Legal Perspective on Legal Culture and the Effectiveness of Child Protection Miskah; Ikhwanuddin Harahap; Nur Saniah Dasopang
El-Faqih : Jurnal Pemikiran dan Hukum Islam Vol. 12 No. 2 (2026): EL FAQIH
Publisher : Institut Agama Islam (IAI) Faqih Asy'ari Kediri, , Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.58401/faqih.v12i2.3509

Abstract

The 2019 amendment to Indonesia's Marriage Law set the minimum age of marriage at nineteen and required younger couples to obtain a dispensation from the Religious Court. This article examines how families in Batang Toru District, South Tapanuli Regency, responded to that requirement between 2024 and 2025. Drawing on empirical legal research, namely in-depth interviews, observation, and documentation, it identifies twenty-two couples who contracted sirri marriage rather than apply for dispensation, together with the reasons they gave: procedural complexity, litigation cost, the distance to the court, fear that an application would be refused, low legal literacy, and the conviction that a marriage valid under Islamic law needs no state registration. The stricter age limit, designed to protect children, has instead pushed part of these families into a marriage beyond the reach of the court. The article concludes that the effectiveness of a legal rule is decided finally by the legal culture through which the community reads it, and that legislation which disregards that culture will not deliver the protection it promises.
Peran KUA dalam Penanganan Pernikahan Tidak Tercatat: Efektivitas Kelembagaan, Kepatuhan Hukum, dan Perlindungan Hak Perempuan dan Anak Siska Yani; Misran; Shabarullah
El-Faqih : Jurnal Pemikiran dan Hukum Islam Vol. 12 No. 2 (2026): EL FAQIH
Publisher : Institut Agama Islam (IAI) Faqih Asy'ari Kediri, , Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.58401/faqih.v12i2.3535

Abstract

Unregistered marriage (nikah siri) persists in Indonesia despite the statutory registration requirement, leaving wives and children without legal certainty. Earlier studies describe the role of the Office of Religious Affairs (Kantor Urusan Agama, KUA) mostly through outreach and rarely ask why people do not comply. This article analyzes how the KUA of Krueng Barona Jaya, Aceh Besar, handles unregistered marriage, what drives the practice, and how isbat nikah protects women and children. It uses an empirical juridical method with a qualitative approach. Data came from interviews with the Head of the KUA and the village head (keuchik) of Meunasah Baktreing, Family Card (Kartu Keluarga) documents, KUA isbat nikah records, and literature on statutory regulations and Islamic law, and were analyzed thematically. Four Family Cards carried the status “Kawin Belum Tercatat”, and isbat nikah petitions fluctuated between 2021 and 2023 (two, one, and four couples). Registration at the KUA is free, yet unregistered marriages often cost more than registered ones. This paradox suggests that low legal compliance and awareness outweigh economic constraints, although low education and unstable work contribute in some cases. Other drivers are the wish to avoid administrative procedures, polygamy without permission, and underage marriage. The KUA responds with legal outreach, guidance for village leaders, remarriage (akad ulang), and facilitation of isbat nikah. The findings suggest that registration depends on legal culture as much as on regulation and service access, within the limits of one subdistrict and a few Family Cards.
Dual Role of Wives, Patriarchal Culture, and Domestic Harmony: An Islamic Family Law Analysis of Contemporary Muslim Families Nur Haidah Siregar; Ibrahim Siregar; Muhammad Arsyad Nasution
El-Faqih : Jurnal Pemikiran dan Hukum Islam Vol. 12 No. 2 (2026): EL FAQIH
Publisher : Institut Agama Islam (IAI) Faqih Asy'ari Kediri, , Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.58401/faqih.v12i2.3547

Abstract

Drawing on field research in Padang Bolak District, North Sumatra, this article analyses the dual role of wives under patriarchal culture and its bearing on domestic harmony from the perspective of Islamic Family Law. Data were gathered through observation and in-depth interviews with 27 informants drawn from 22 families, and analysed using the patriarchal theory of Sylvia Walby alongside the interactive model of Miles, Huberman, and Saldaña. The findings reveal an ambivalent pattern. On the one hand, wives' participation in the public sphere strengthens the economic independence of the family; on the other, domestic labour remains disproportionately theirs, producing physical and emotional exhaustion and latent marital conflict. Eighteen of the 22 households studied fell into the conflicted category, whereas the four households in which husbands shared domestic work and decision-making remained harmonious. Islamic Family Law thus offers a transformative framework rather than a justification of the existing arrangement: qiwāmah is a responsibility bounded by justice, and household order must be realised through mu'āsyarah bil ma'rūf and ta'āwun.
Malojongkon Boru in Angkola Batak Community: An Analysis of 'Urf and the Validity of Marriage in Islamic Law Erni Sulhati Roudho Siregar; Fatahuddin Aziz Siregar; Uswatun Hasanah
El-Faqih : Jurnal Pemikiran dan Hukum Islam Vol. 12 No. 2 (2026): EL FAQIH
Publisher : Institut Agama Islam (IAI) Faqih Asy'ari Kediri, , Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.58401/faqih.v12i2.3549

Abstract

The study of Angkola marriage, dispute resolution through customs, the position of the marriage guardian, and the concept  of 'urf has tended to develop separately, while the practice  of Malojongkon Boru has not been studied empirically in the perspective  of classical and contemporary 'urf theory  . This study integrates empirical legal studies with the concepts  of 'urf ṣaḥīḥ and 'urf fāsid, and analyzes them through the perspective  of maqāṣid al-syarī'ah. The research was conducted in Padang Bolak Tenggara District, North Padang Lawas Regency, using an empirical approach and qualitative methods through interviews, observations, and documentation of traditional leaders, religious leaders, couples who have lived traditions, and their families. The findings show that the practice is driven by a variety of factors, including economic disparities, differences in social status, social sanctions, and women's consent formed under conditions of pressure, in addition to the problem of family rejection and high levels of synmomot. Malojongkon Boru still functions as a mechanism for resolving marital conflicts, but its implementation places customary authority ahead of the contract and delays the involvement of the marriage guardian, thus creating social conditions when the couple has not yet obtained formal recognition of the marriage. Based on these characteristics, this practice is closer to the category of 'urf fāsid, although its function of reconciliation still has social value. This research provides an empirical basis for assessing customary practices from the perspective of Islamic family law contextually.
Negotiating Qiwāmah: Legal Pluralism, Women’s Agency, and the Reconstruction of Islamic Family Adjudication in Indonesia Lina Nur Anisa
El-Faqih : Jurnal Pemikiran dan Hukum Islam Vol. 12 No. 2 (2026): EL FAQIH
Publisher : Institut Agama Islam (IAI) Faqih Asy'ari Kediri, , Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.58401/faqih.v12i2.3574

Abstract

Qiwāmah is often treated as a stable doctrine of male authority, yet in Indonesian Muslim family law its legal meaning is continually renegotiated across religious, state, customary, and judicial norms. This article argues that qiwāmah is better understood as a negotiated legal category whose legitimacy is increasingly conditioned by provision, protection, reciprocity, and substantive justice. Using a qualitative library-based normative-doctrinal design, it analyzes Qur’anic exegesis, fiqh, the Marriage Law, the Compilation of Islamic Law, Supreme Court policies, published religious-court decisions from 2021–2025, and relevant scholarship through doctrinal-documentary and thematic analysis. Its novelty lies in tracing qiwāmah across three levels that are usually studied separately: normative interpretation, women’s strategies for negotiating marital authority, and judicial reasoning. The analysis shows a shift from gender-based hierarchy toward functional and reciprocal responsibility, while also identifying persistent constraints created by economic dependence, social stigma, evidentiary asymmetries, inconsistent findings of nushūz, default judgments, and weak enforcement of post-divorce rights. By linking legal pluralism, women’s agency, and adjudication, the study reframes qiwāmah as an arena in which legal meaning is produced through interaction among norms, actors, and institutions. It concludes that more consistent gender-responsive reasoning and enforceable remedies are necessary for substantive protection of women and children.
Menakar Hukuman Mati dan Perampasan Aset Koruptor melalui Maqāṣid al-Syarī‘ah Moh Mahfud Ali Amari Sya’roni; Ali Yusuf Muzaki; Muh. Fatihuddin; Mohamad Anang Firdaus
El-Faqih : Jurnal Pemikiran dan Hukum Islam Vol. 12 No. 2 (2026): EL FAQIH
Publisher : Institut Agama Islam (IAI) Faqih Asy'ari Kediri, , Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.58401/faqih.v12i2.3590

Abstract

Corruption can damage public finances, undermine institutional trust, and impair public services. In Islamic criminal law, however, corruption does not correspond automatically to a single classical offence; its legal characterization depends on the conduct, the property involved, and how it was obtained. This article examines the possible use of ta‘zīr against exceptionally harmful corruption and the limits of asset confiscation through Maqāṣid al-Sharī‘ah. It employs normative legal research and library-based analysis of Islamic legal concepts, Indonesian legislation, judicial decisions, and relevant scholarship. The analysis indicates that ghulūl, bribery, misappropriation, and unlawful appropriation may illuminate different forms of corruption, but should not be treated as interchangeable categories or as automatic grounds for applying ḥudūd penalties. The death penalty as ta‘zīr requires a separate, carefully evidenced argument; seriousness of the offence or a general appeal to public welfare is insufficient by itself. Asset recovery must distinguish proven proceeds of crime and compensation for established losses from lawfully acquired property unrelated to the offence. The analysis also notes that the National Criminal Code (Law No. 1 of 2023) has been in force since 2 January 2026, so the applicable provisions depend on the time of the offence. The article proposes assessing severe sanctions through legality, evidentiary safeguards, proportionality, protection of property, and public welfare. The positive-law discussion distinguishes the statutory conditions for a death sentence from a concrete first-instance judgment on replacement money; neither is presented as a corruption conviction imposing the death penalty
Penguatan Kesadaran Muzaki melalui Strategi Kelembagaan Zakat: Kontribusi terhadap Teori Maqāṣid al-Syarī‘ah dalam Tata Kelola Zakat Modern Sapri Ali; Achmad Asfi Burhanudin; Tahta Himayatir R
El-Faqih : Jurnal Pemikiran dan Hukum Islam Vol. 12 No. 2 (2026): EL FAQIH
Publisher : Institut Agama Islam (IAI) Faqih Asy'ari Kediri, , Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.58401/faqih.v12i2.3601

Abstract

Zakat is an obligatory act of worship whose social function depends on the awareness of those who pay it (muzaki) and on the institutions that collect it. Law No. 23 of 2011 designates the National Board of Zakat (BAZNAS) as the authorized institution but does not oblige muzaki to pay through official channels, so institutional strategy matters. This article analyzes how a district-level BAZNAS builds muzaki awareness and formulates a contribution to maqāṣid al-sharī‘ah theory in zakat governance. It uses a qualitative single-case study based on documentary data from 2023 to November 2025, analyzed with the interactive model of Miles, Huberman, and Saldaña and interpreted through a maqāṣid framework. The documents show four strategies: discipline of Zakat Collection Units (UPZ), transparent reporting, digital payment services, and alignment of distribution programs. Reported collection of zakat, infak, and sedekah rose from IDR 4.5 billion in 2023 to IDR 7.4 billion in 2024, above the 30% projection, and reached IDR 7.6 billion in January–November 2025 against a target of IDR 4.6 billion. Muzaki awareness is built through legal-structural legitimacy, institutional trust, ease of access, and perceived benefit, which can be read as the institutional operationalization of ḥifẓ al-māl and ḥifẓ al-dīn. The study offers a maqāṣid-oriented model of zakat governance; the documentary design and single case limit generalization.  

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