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Muhammad Zainuddin Sunarto
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Hakam : Jurnal Kajian Hukum Islam dan Hukum Ekonomi Islam
Published by Universitas Nurul Jadid Paiton Probolinggo
ISSN : 28295803     EISSN : 25808052     DOI : https://doi.org/10.33650/jhi
Core Subject : Religion, Social,
Religion Law, Crime, Criminology & Criminal Justice
Hakam : Jurnal Kajian Hukum Islam dan Hukum Ekonomi Islam adalah jurnal ilmiah yang mengkaji tentang persoalan - persoalan hukum dan keislaman. Jurnal ini diterbitkan secara berkala setahun dua kali, yaitu setiap bulan Juni dan Desember oleh Program Studi Hukum Keluarga Islam, Fakultas Agama Islam, Universitas Nurul Jadid Paiton Probolinggo. Redaksi menerima naskah ilmiah ataupun hasil penelitian dalam bahasa Indonesia, bahasa inggris maupun bahasa arab. Di samping itu, Tim Redaksi juga berhak untuk mengedit dan menyempurkan naskah ilmiah yang akan diterbitkan tanpa menghilangkan esensi dan makna tulisan.
Arjuna Subject : Ilmu Sosial - Hukum
Articles 154 Documents
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DECOLONIZATION OF ISLAMIC FAMILY LAW IN INDONESIA: TRACING TRANSFORMATION AND CONTINUTIY Hadi, Mukhammad Nur; Wahib, Moh.; Irfan, Moh.; Riyadi, Abdul Kadir
JURNAL HAKAM Vol 10, No 1 (2026)
Publisher : Universitas Nurul Jadid

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.33650/jhi.v10i1.14413

Abstract

This article aims to explore the process of decolonization of Islamic family law in Indonesia by tracing its historical transformation, policy changes, and the continuity of its legal practices from the colonial period to the post-reform era. Through a conceptual, historical, and legislative approach, this article analyzes how the colonization of Islamic family law took place in Indonesia. This article argues that the decolonization of Islamic family law in Indonesia did not occur in a single manner, but instead in two primary forms. First, accommodative decolonization, which was realized through post-independence state policies, such as the theories of receptie exit and receptio a contrario, the Religious Court Law, the Compilation of Islamic Law, and various policies of the Supreme Court and the Ministry of Religious Affairs, which negotiated fiqh traditions with the need for modern legal protection, especially for women and children. This pattern aligns with Khaled Abou El Fadl's view, which regards legal reform as an inherent part of the Islamic legal tradition. Second, conservative decolonization is reflected in fatwas and classical fiqh discourse developed by Islamic boarding schools and religious organizations, in line with Wael B. Hallaq's criticism of colonial legal modernity. This article argues that the decolonization of Islamic family law in Indonesia is an ongoing process involving the state and religious scholars, and that it does not merely aim to erase the colonial legacy but also to create a contextual, just, and responsive Islamic family law system for vulnerable groups.
RETHINKING ISLAMIC DIVORCE LAW IN INDONESIA THROUGH JASSER AUDA’S SYSTEMS APPROACH Assulthoni, Fahmi
JURNAL HAKAM Vol 10, No 1 (2026)
Publisher : Universitas Nurul Jadid

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.33650/jhi.v10i1.14501

Abstract

The rising rate of divorce in Indonesia reveals a widening gap between normative legal regulations and the evolving social realities of Muslim families. Islamic family law, which aims to preserve marital harmony, is often perceived as overly formalistic and insufficiently responsive to contemporary social and gender dynamics. This study examines Islamic divorce law in Indonesia through the systems theory developed by Jasser Auda within the broader framework of maqasid al-shari‘ah. Using a normative legal approach with qualitative analysis of statutory regulations, the Kompilasi Hukum Islam, Supreme Court regulations, and selected judicial decisions, the study operationalizes the six features of Auda’s systems theory cognitive nature, wholeness, openness, interrelated hierarchy, multidimensionality, and purposefulness to analyze the structure and implementation of divorce law. The findings reveal several systemic weaknesses, particularly in the effectiveness of mediation, the enforcement of post-divorce financial obligations, and the legal protection of women and children. These issues indicate that divorce regulation operates within a complex interaction between legal norms, judicial practices, and changing social conditions. The study therefore argues that Islamic divorce law in Indonesia should be understood as an open and evolving legal system rather than a purely doctrinal framework. By applying Auda’s systems perspective, this research contributes to extending maqasid analysis beyond normative interpretation toward a systemic evaluation of contemporary Islamic family law.
PEMBAHARUAN HAK WARIS PEREMPUAN DI TURKI DALAM THE TURKISH CIVIL CODE PASAL 495 PERSPEKTIF MAQASID SYARI’AH Rizqiyah, Viqi Fadilatur; Sa’adah, Sri Lumatus; Busriyanti, Busriyanti
JURNAL HAKAM Vol 10, No 1 (2026)
Publisher : Universitas Nurul Jadid

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.33650/jhi.v10i1.14608

Abstract

The reform of family law in Muslim countries often encounters tensions between classical Islamic legal norms and the demands of modernity, particularly concerning gender equality in inheritance law. Turkey represents one of the most significant examples of legal reform through the enactment of the Turkish Civil Code in 1926, which replaced the Islamic family law system with a modern civil law framework. Article 495 of the code establishes the principle of equal inheritance rights between men and women without gender discrimination. This study aims to analyze the reform of women’s inheritance rights in Turkey under Article 495 of the Turkish Civil Code from the perspective of maqasid al-shari’ah, while examining the dialectic between normative Islamic legal texts and the socio-historical context underlying the reform. This research employs a qualitative method using a normative-juridical approach combined with historical and conceptual approaches. Data were collected through library research on relevant primary and secondary legal sources. The findings indicate that although Article 495 formally differs from the distributive formula of classical Islamic inheritance law, the reform can be understood as a reinterpretation of distributive justice within the framework of maqasid al-shari’ah, particularly in terms of the protection of property (hifz al-mal) and social justice. The reform reflects an effort to adapt inheritance law to the changing social responsibilities of men and women in modern society. Therefore, the reform of inheritance law in Turkey may be viewed as a form of contextual ijtihad within modern family law policy aimed at achieving public welfare, gender equality, and substantive justice.
RECONSTRUCTION OF DISABILITY-FRIENDLY NATIONAL FIQH: A PARADIGM TRANSFORMATION FROM RUKHSHAH TO ÁZIMAH Syamsuri, Syamsuri
JURNAL HAKAM Vol 10, No 1 (2026)
Publisher : Universitas Nurul Jadid

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.33650/jhi.v10i1.14414

Abstract

This article examines the reconstruction of disability-friendly fiqh kebangsaan (national Islamic jurisprudence) through a paradigmatic shift from the rukhsah (legal concession) approach to ‘azīmah (normative obligation) within the context of the Indonesian nation-state. Prevailing discourses on disability in classical Islamic jurisprudence predominantly frame persons with disabilities as recipients of individual dispensations, resulting in a charity-based approach that inadequately addresses systemic discrimination embedded in public policy, employment, and social institutions. Employing a normative-critical analysis of classical fiqh texts, legal maxims, national regulations, and international human rights instruments—particularly the Convention on the Rights of Persons with Disabilities (CRPD)—this study argues that the rukhsah paradigm must be transformed into an ‘azīmah-oriented framework that positions the state as an active duty-bearer in guaranteeing disability rights. The findings reveal three major insights: first, legal maxims such as al-mashaqqah tajlib al-taysīr and al-ḍarar yuzāl should not be narrowly interpreted as individual exemptions but rather as normative mandates for inclusive public policies; second, classical Islamic political jurisprudence has implicitly articulated state responsibility toward vulnerable groups, although this dimension has not been systematically developed in contemporary fiqh discourse; and third, the integration of fiqh kebangsaan with principles of social justice and international human rights law produces a jurisprudential model oriented toward empowerment rather than benevolence. This article concludes that the ‘azīmah approach is more contextually relevant to Indonesia and aligns with both maqāṣid al-sharī‘ah and substantive justice. Policy recommendations include strengthening derivative legislation of the Disability Law, allocating inclusive public budgets, and enhancing the institutional authority of the National Disability Commission.
THE EVOLUTION OF THE MAQĀṢID AL-SHARĪ‘AH PARADIGM: FROM A CONCEPT IN USHUL AL-FIQH TO A METHODOLOGICAL APPROACH IN ISLAMIC LAW Kamaluddin, Imam; Sahidin, Amir; Lahuri, Setiawan bin; Muslih, Mohammad
JURNAL HAKAM Vol 10, No 1 (2026)
Publisher : Universitas Nurul Jadid

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.33650/jhi.v10i1.14512

Abstract

Maqāṣid al-sharī‘ah has not only been understood as a normative concept within ushul al-fiqh, but has also undergone a paradigmatic evolution into a methodological approach for addressing contemporary legal and social issues. This article aims to examine the evolution of the maqāṣid al-sharī‘ah paradigm from both historical and systematic perspectives, beginning with its conceptual roots in the classical tradition of ushul al-fiqh, its emergence as an independent scholarly discipline, and its subsequent transformation into a methodological framework in the development of modern Islamic law. This study employed a qualitative method using a library research approach, drawing upon primary and secondary sources from both classical and contemporary literature. Data analysis was conducted through descriptive-analytical, historical, and conceptual methods. The findings indicate that maqāṣid al-sharī‘ah has developed gradually, reaching its peak of systematic formulation in the thought of Imam al-Shatibi, and later expanding significantly in the modern era through the contributions of contemporary scholars. The paradigmatic evolution of maqāṣid al-sharī‘ah has proceeded through four principal stages: its implicit presence in scriptural texts (nusūs) and in the understanding of the early Muslim generations (al-salaf); its integration into the studies of fiqh and ushul al-fiqh; its establishment as an independent scholarly discipline; and its application as an approach to addressing various contemporary issues. The conclusion of this article affirms that the transformation of maqāṣid al-sharī‘ah from a concept within ushul al-fiqh into a methodological approach strengthens its relevance as an instrument for the renewal of Islamic law, making it responsive to contemporary challenges.
FORMULATION OF CHILD-FRIENDLY BANTENGAN ARTS POLICY BASED ON MAQASID SYARIAH IN MALANG REGENCY Al Kaswy, Titi Rusydiyati; Ch, Mufidah; Musataklima, Musataklima
JURNAL HAKAM Vol 10, No 1 (2026)
Publisher : Universitas Nurul Jadid

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.33650/jhi.v10i1.14746

Abstract

Children’s involvement in the preservation of Bantengan art is part of the implementation of children’s rights to participate, but on the other hand, it can raise concerns that contradict other children’s rights such as the right to education, worship, and rest. Meanwhile, the Child Protection Law emphasizes the obligation to maintain the physical, psychological, and social well-being of children, but the Cultural Advancement Law does not explicitly integrate child protection principles into it. Studies on Bantengan mostly focus on cultural symbolism, community identity, or socio-economic aspects, thus leaving a normative gap regarding how cultural preservation policies can be aligned with the protection of children’s rights. Furthermore, the application of maqasid shari’ah as a normative framework for formulating operational regulations governing children’s participation in preserving Bantengan art is still under-explored in legal studies. This research is a socio-legal field study that uses a statute, conceptual, and disciplinary approach from legal anthropology and sociology of law. Data were collected through interviews, observations, and literature review. Then, it was analyzed using qualitative analysis, resulting in prescriptive legal recommendations. The findings of this study propose a procedural policy framework based on maqasid shari’ah especially the principle of al-daruriyyat al-khams that ensures the preservation of a child-friendly culture, including the protection of children from physical and psychological violence; age limits and children’s roles; the right to education and rest time; parental supervision; educational and inclusive cultural performances; and enhancing the capabilities of Bantengan community. This study contributes theoretically by integrating the sharia of maqasid shari’ah into the formulation of cultural policies and practically by offering a normative framework for local regulations that balance cultural preservation with child protection.
BETWEEN LEGAL REFORM AND JUDICIAL PRACTICE: THE PARADOX OF MARRIAGE DISPENSATION AND CHILD RIGHTS PROTECTION IN INDONESIAN RELIGIOUS COURTS Halim, Abdul
JURNAL HAKAM Vol 9, No 1 (2025)
Publisher : Universitas Nurul Jadid

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.33650/jhi.v9i1.11753

Abstract

Indonesia’s amendment of Law No. 16 of 2019, which raised the minimum marriage age for women from 16 to 19 years, represents a landmark legal reform aimed at eradicating child marriage and upholding the best interests of the child. However, the persistence of marriage dispensation petitions (dispensasi kawin) filed before Indonesian Religious Courts (Pengadilan Agama) reveals a profound paradox: legislative reform has not translated into proportional judicial protection of child rights. This article critically examines the tension between the spirit of legal reform and entrenched judicial practice in marriage dispensation proceedings. Drawing on a normative-empirical legal research approach, this study analyzes judicial decisions, court statistics, and doctrinal frameworks through the lens of child rights theory and progressive law theory. Findings reveal that despite reformative legislative intent, Religious Courts continue to grant the overwhelming majority of dispensation petitions, frequently citing pregnancy, social pressure, and economic hardship as justifying grounds without adequately weighing the long-term developmental rights of the child. The article argues that this paradox is produced by a confluence of factors including interpretive conservatism among judges, structural gaps in procedural law, insufficient multi-sectoral child protection infrastructure, and the unresolved tension between Islamic family law norms and international child rights standards. The study concludes by proposing a rights-based judicial methodology, enhanced judicial training, and interdisciplinary court-annexed support mechanisms as pathways toward substantive convergence between legal reform and judicial practice.
TYPOLOGY OF EX-WIFE’S RESPONSE IN SIWALAN PEKALONGAN: SOCIO-LEGAL ANALYSIS OF POST-DIVORCE CHILD SUPPORT
JURNAL HAKAM Vol 10, No 1 (2026)
Publisher : Universitas Nurul Jadid

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.33650/jhi.v10i1.14545

Abstract

This study examines the phenomenon of abandonment of post-divorce child support in Siwalan District, Pekalongan Regency, which is contrary to Law No. 1 of 1974 and Islamic law. Although regulations expressly impose maintenance obligations on fathers, empirical reality shows that there is a default that has a significant impact on the welfare of children. This qualitative research with a field research approach aims to formulate the typology of ex-wife's response and analyze the sociological implications caused. Data were collected through in-depth interviews, observations, and documentation of single mothers at the study site. The results of the study classified the response of ex-wives into three typologies: 1) Legalistic-Active (ex-wives have a conscious and firm attitude to the point of using state instruments to force the fulfillment of child support rights); 2) Adaptive-Independent (the legal awareness and culture of ex-wives tend to be low, take a pragmatic attitude based on economic independence, and avoid social stigma); 3) Negotiative-Persuasive (Ex-wives use social capital and family relationships to claim child support rights). This variation in response is influenced by legal awareness, social support, and pragmatic rationality. The implications of this typology suggest that financial independence increases the double burden for mothers, while dependence on ex-husbands creates uncertainty. The legal route provides certainty but risks escalating family conflicts. Fundamentally, this irregularity of livelihood hinders children's growth and development both physically, educationally, and socially. A balance between financial support and emotional stability is key in minimizing the negative impact of post-divorce. This research contributes to mapping the legal behavior of communities at the rural level regarding child support. Through the formulation of three response typologies (Legalistic-Active, Adaptive-Independent, and Negotiable-Persuasive), this study offers a new perspective for family law enforcement that is more responsive to social realities and the best interests of the child
ANALYSIS OF THE ROLE AND POTENTIAL OF THE PENTAHELIX IN EFFORTS TO PREVENT DIVORCE Faisol, Ahmad Jalaluddin; Yaqin, Ainol; Taufiq, Muhammad
JURNAL HAKAM Vol 10, No 1 (2026)
Publisher : Universitas Nurul Jadid

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.33650/jhi.v10i1.14902

Abstract

This study examines the role and potential of the pentahelix model in preventing divorce in Pamekasan, as well as the forms of assistance provided by the Ministry of Religious Affairs in fostering keluarga sakinah. The research employs an empirical legal approach with a qualitative case study design. Data were collected through in-depth interviews, observations, and document analysis involving key stakeholders, including government institutions, academics, community leaders, media, and the private sector. The findings reveal that divorce prevention efforts are dominated by government and community actors, particularly through premarital guidance, counseling, and mediation conducted by the Ministry of Religious Affairs and KUA. Meanwhile, the roles of academia, media, and the private sector remain limited and not yet fully integrated. The Ministry of Religious Affairs implements both preventive and curative programs, such as Bimbingan Perkawinan (Bimwin), family counseling, religious outreach, and sakinah family development. These efforts have contributed to improving legal and religious awareness and enhancing family resilience. However, the effectiveness of these programs remains suboptimal, as indicated by fluctuating divorce rates. This study concludes that the lack of synergy among pentahelix actors is the main challenge in divorce prevention. Strengthening collaborative and integrative approaches is essential to enhance the effectiveness of family resilience programs.
NEGOTIATING SAKINAH IN THE DIGITAL ERA: MARRIAGE PRACTICES OF GENERATION Z IN LEPELLE VILLAGE ROBATAL DISCTRICT
JURNAL HAKAM Vol 10, No 1 (2026)
Publisher : Universitas Nurul Jadid

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.33650/jhi.v10i1.14963

Abstract

This study examines the marriage practices of Generation Z in realizing a sakinah family in Lepelle Village, Robatal District, within the context of digital transformation. Using a qualitative approach with an empirical socio-legal perspective, data were collected from 15 informants through interviews, observation, and documentation, and analyzed using thematic analysis. The findings reveal a growing trend of early-age marriage driven by socio-religious norms and digital influence, diverse interpretations of the sakinah family combining religious and modern values, and multidimensional challenges, particularly economic, psychological, and socio-digital factors. Digital media plays an ambivalent role, acting as both a source of guidance and pressure. This study proposes the concept of “negotiated sakinah family formation,” highlighting that family realization is shaped by the interaction of normative, structural, and digital dimensions. The study contributes to bridging normative Islamic family law and empirical social realities in the digital era.

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