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Hakamain: Journal of Sharia and Law Studies
Published by Yayasan Lembaga Studi Makwa
ISSN : -     EISSN : 29629241     DOI : -
Core Subject : Social,
Law, Crime, Criminology & Criminal Justice
The Hakamain: Journal of Sharia and Law Studies is a scientific journal that examines legal and Islamic issues. The focuss Hakamain: Journal of Sharia and Law Studies is to provide readers with a better understanding of Islamic Law, Civil Law and Islamic Economic Law and current developments through the publication of articles and book reviews. The Hakamain published by Yayasan Lembaga Studi Makwa (Makwa Foundation)
Arjuna Subject : Ilmu Sosial - Hukum
Articles 158 Documents
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Legal Implications of Constitutional Court Decision 168/PUU-XXI/2023 on Employment Termination within Islamic Political Jurisprudence Kanaya Tabita; Khalid Khalid; Maulidya Mora Matondang
Hakamain: Journal of Sharia and Law Studies Vol. 4 No. 1 (2025): HAKAMAIN: Journal of Sharia and Law Studies
Publisher : Yayasan Lembaga Studi Makwa

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.57255/hakamain.v4i1.1368

Abstract

This research examines the legal implications of Constitutional Court Decision No. 168/PUU-XXI/2023 on employment termination, analysed through the framework of Islamic political jurisprudence (siyasah dusturiyyah). The primary objective is to explore how the decision aligns with constitutional protections for workers while reflecting core Islamic governance principles. Using a qualitative normative-juridical approach, the study combines statutory interpretation, doctrinal analysis, and a comparative review of classical and contemporary Islamic legal thought. Data sources include Constitutional Court documents, national labour legislation, and scholarly works on Islamic political law. The findings reveal that the decision reinforces due process in employment termination, curtails arbitrary dismissals, and upholds constitutional guarantees of justice and equality. From the perspective of siyasah dusturiyyah, these outcomes correspond to foundational principles such as justice (al-‘adl), public interest (maslahah), and the prevention of harm (dar’ al-mafasid), thereby harmonising state authority with moral and religious imperatives. The study concludes that the Court’s reasoning, although grounded in constitutional law, implicitly supports Islamic political values that emphasise balanced protection for both employers and employees while safeguarding human dignity in the workplace. The academic contribution lies in offering a conceptual model for integrating constitutional adjudication with Islamic political jurisprudence in labour law reform. This integration provides a theoretical basis for policymakers and legal practitioners to develop regulatory frameworks that are both constitutionally compliant and consistent with Islamic governance ethics, thus advancing the discourse on the convergence of national and religious legal systems in the protection of workers’ rights.
Islamic Political-Legal Analysis of the Misuse of Night Entertainment Licensing in Medan City Muhammad Farhan Akbar; Khalid Khalid
Hakamain: Journal of Sharia and Law Studies Vol. 4 No. 1 (2025): HAKAMAIN: Journal of Sharia and Law Studies
Publisher : Yayasan Lembaga Studi Makwa

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.57255/hakamain.v4i1.1370

Abstract

This study provides an Islamic political-legal analysis of the misuse of night entertainment licensing in Medan City, with a focus on the failure of regulatory enforcement under Mayor Regulation Number 3 of 2017. Although authority has been delegated to the Investment and One-Stop Integrated Services Office (DPMPTSP), the proliferation of unlicensed venues and ineffective oversight reveal systemic weaknesses in governance. Using an Empirical Legal Studies (ELS) approach, the research integrates statutory analysis, a living case study, and Islamic constitutional theory (Siyasah Dusturiyyah) to examine the intersection between legality and moral responsibility. The findings demonstrate that administrative complexity, poor inter-agency coordination, and intentional regulatory evasion have contributed to widespread non-compliance. From the perspective of Islamic governance, such violations constitute tamarrud (rebellion) against legitimate authority and a failure to uphold the principles of al-‘adalah (justice) and maslahah (public welfare). Drawing on the works of Al-Mawardi, the study argues that the state possesses both legal and religious legitimacy to enforce public regulations in the interest of community welfare. This research contributes to the broader discourse on Islamic public law by offering a normative framework for integrating religious ethics into modern regulatory systems. It recommends the development of digital licensing mechanisms, strengthened oversight, ethical governance, and engagement with religious institutions to ensure policy compliance. Ultimately, the study affirms that effective regulation in Muslim-majority societies must harmonize state law with Islamic values to safeguard justice, legitimacy, and social stability.
Transforming Matrilineal Traditions: The Role of Ulama in Reforming Minangkabau Customary Inheritance Law Nabila Inita Zahra; Miswardi Miswardi; Nabila Fitri Gunawan; M. Doni; M. Yusuf Iskandar
Hakamain: Journal of Sharia and Law Studies Vol. 4 No. 1 (2025): HAKAMAIN: Journal of Sharia and Law Studies
Publisher : Yayasan Lembaga Studi Makwa

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.57255/hakamain.v4i1.1373

Abstract

This article investigates the evolving role of ulama as pivotal agents in the reform of inheritance norms within Minangkabau society, particularly amid tensions between Islamic legal principles and matrilineal customary law (adat). Situated within the broader dynamics of legal pluralism and global cultural transformation, this study employs a qualitative ethnographic methodology, incorporating field observations, semi-structured interviews with religious leaders and adat authorities, and textual analysis of sermons, deliberative forums, and locally issued fatwas. The findings indicate that ulama do not operate in antagonism to tradition but strategically embed Islamic inheritance principles (faraid) within the local moral universe through culturally resonant methods—such as cultural preaching, participatory musyawarah, and the reinterpretation of foundational axioms like adat basandi syarak, syarak basandi Kitabullah. These efforts have produced a hybrid inheritance model that distinguishes between pusaka tinggi (ancestral property), retained under matrilineal logic, and pusaka rendah (acquired assets), increasingly subject to faraid distribution. The study reveals that ulama, by leveraging their dual authority as religious scholars and cultural insiders, facilitate normative convergence between syariah and customary law, generating legal syncretism that is both context-sensitive and ethically grounded. This convergence is particularly visible in urban and diasporic communities, where exposure to global Islamic discourses and structural changes in kinship systems have intensified the demand for codified and equitable inheritance practices. Conclusively, the research underscores the capacity of local religious actors to drive legal transformation from within, offering an empirical contribution to scholarly debates on Islamic legal anthropology, indigenous legal change, and the adaptive resilience of customary systems in plural societies.
Violation of Airspace Transit Rights by U.S. Military Aircraft in Indonesia's Archipelagic Sea Lanes Khairuddin Alwi Fajar P; Suhaidi Suhaidi; Sutiarnoto Sutiarnoto
Hakamain: Journal of Sharia and Law Studies Vol. 4 No. 1 (2025): HAKAMAIN: Journal of Sharia and Law Studies
Publisher : Yayasan Lembaga Studi Makwa

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.57255/hakamain.v4i1.1381

Abstract

This study aims to examine the legal conformity of United States military aircraft operations within Indonesia’s Archipelagic Sea Lanes (ALKI) under the regime of archipelagic sea lanes passage as established by the 1982 United Nations Convention on the Law of the Sea (UNCLOS), and to determine the juridical criteria for identifying violations of airspace transit rights in this context. The research employs a normative juridical method based on statutory, conceptual, and case approaches, analyzing relevant UNCLOS provisions, Indonesia’s domestic regulations, doctrinal interpretations, and documented state practices related to military overflight. The findings indicate that while UNCLOS guarantees the right of continuous and expeditious overflight through designated archipelagic sea lanes, such rights are not absolute and must be exercised in normal mode, in good faith, and with due regard to the security interests of the archipelagic state. Ambiguities surrounding the interpretation of “normal mode” for military aircraft and the absence of detailed operational parameters create legal grey areas that may lead to differing perceptions between user states and Indonesia regarding alleged violations. The study concludes that clearer interpretative standards and cooperative mechanisms are necessary to prevent legal uncertainty and diplomatic friction. Academically, this research contributes to the development of international maritime and air law scholarship by bridging doctrinal analysis of UNCLOS with contemporary Indo-Pacific security practices, and by proposing a balanced legal framework that reconciles international navigation freedoms with the sovereign rights of archipelagic states.
Implementation of the Prohibition on Withholding Diplomas and Personal Documents by Companies in Indonesia Fadli Januaris
Hakamain: Journal of Sharia and Law Studies Vol. 5 No. 1 (2026): HAKAMAIN: Journal of Sharia and Law Studies
Publisher : Yayasan Lembaga Studi Makwa

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.57255/hakamain.v5i1.1394

Abstract

This study aims to analyze the implementation of the Circular Letter of the Minister of Manpower No. M/5/HK.04.00/V/2025 concerning the prohibition on withholding diplomas and personal documents by companies, focusing on its implications for the protection of workers’ rights and industrial relations in Indonesia. The research employs a juridical-empirical approach, combining a normative review of labor regulations with empirical data gathered through in-depth interviews and field observations in both formal and informal sector companies. The findings show that the policy strengthens the legal basis to prevent document retention practices, which have often been used as a form of control over workers. However, its implementation still faces challenges, including employer resistance, limited managerial understanding of the regulation, weak government supervision, and low worker awareness of their rights. These issues indicate that the effectiveness of the policy depends not only on legal provisions but also on stakeholder awareness and participation. The study concludes that the circular letter has strong potential to transform industrial relations toward a more balanced and trust-based partnership. Nevertheless, this requires continuous policy dissemination, improved enforcement mechanisms, and stronger involvement of labor unions. The academic contribution of this study lies in providing a comprehensive understanding of the interaction between labor regulation and industrial practices, while offering strategic recommendations to enhance the implementation of similar policies in the future. Keywords: Penahanan Ijazah, Menteri Ketenagakerjaan, Perlindungan Pekerja    
The Existence of Customary Criminal Justice in Resolving Moral Offenses in Mentawai Hidayatul Azizah; Helfi Helfi; Hamdani Hamdani; Larasati Khoirunnisa; Sahrizal Sahrizal
Hakamain: Journal of Sharia and Law Studies Vol. 4 No. 1 (2025): HAKAMAIN: Journal of Sharia and Law Studies
Publisher : Yayasan Lembaga Studi Makwa

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.57255/hakamain.v4i1.1452

Abstract

This study investigates the existence and practice of customary criminal justice in resolving moral offenses within the Mentawai community. Using a field research design with a qualitative approach, primary data were collected through direct observation, in-depth interviews with customary leaders (sikerei), village elders, and community members, as well as focus group discussions conducted in several Mentawai villages. Secondary data were also gathered from local records, case documentation, and previous studies to provide supporting evidence. The findings indicate that the Mentawai customary justice system remains actively practiced and widely trusted by the community, particularly in cases involving sexual harassment, adultery, and premarital relations. Sanctions applied through tulou emphasize reconciliation, compensation, and restoration of social harmony rather than strict punishment. Observations show that these customary mechanisms are perceived as more accessible, effective, and socially relevant compared to the formal criminal justice system, which is often viewed as distant and bureaucratic. The research also highlights the processes, interactions, and roles of community members, demonstrating how customary justice functions as a practical, community-based mechanism for resolving moral disputes. Field evidence reveals the enforcement procedures, decision-making practices, and participation of key actors in the customary process. The study contributes empirically by documenting the ongoing use and social acceptance of indigenous legal practices in Mentawai. Its findings provide valuable insights into how customary criminal justice operates in everyday life, offering data-driven perspectives for understanding the functioning, resilience, and social legitimacy of local legal institutions.
Restorative Justice in Rantau Prapat District Court for Oil Palm Theft Cases Dwi Prayetno; Ach. Tahir; Andalan Siregar
Hakamain: Journal of Sharia and Law Studies Vol. 4 No. 2 (2025): HAKAMAIN: Journal of Sharia and Law Studies
Publisher : Yayasan Lembaga Studi Makwa

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.57255/hakamain.v4i2.1472

Abstract

This study examines the implementation of restorative justice in resolving oil palm theft cases at the Rantau Prapat District Court, Indonesia. The research is grounded in the increasing application of restorative approaches within Indonesia’s criminal justice system, particularly following regulatory reforms encouraging diversion and mediation in minor property crimes. Employing a normative-empirical method, this study combines statutory analysis with field data derived from court decisions, interviews with legal practitioners, and relevant secondary literature. The objective is to evaluate how restorative justice principles—such as victim-offender dialogue, restitution, community involvement, and proportional accountability—are applied in practice and to assess their effectiveness in achieving substantive justice. The findings reveal that restorative justice mechanisms in oil palm theft cases prioritize compensation, reconciliation, and social harmony over punitive imprisonment. In several cases, settlement agreements facilitated by judges and prosecutors resulted in restitution payments and formal apologies, leading to case dismissal or reduced sentencing. This approach has contributed to reducing case backlogs and prison overcrowding while promoting community-based conflict resolution. However, challenges remain, including inconsistencies in procedural standards, limited institutional guidelines, and disparities in judicial discretion. Additionally, concerns arise regarding power imbalances between plantation companies and economically vulnerable defendants. The study concludes that restorative justice at the Rantau Prapat District Court reflects a progressive shift toward a more humanistic and efficient criminal justice model. Strengthening regulatory clarity, institutional capacity, and safeguards for vulnerable parties is essential to ensure fairness, transparency, and sustainability in the application of restorative justice for property-related offenses in Indonesia.
Intellectual Property Rights Violations in Illegal Cigarettes in Indonesia from an Interlegality Perspective Lutfiadi Lutfiadi; Win Yuli Wardani; Noer Dini Camelia; Gabriel Aprilia; Toillah Iskandar
Hakamain: Journal of Sharia and Law Studies Vol. 4 No. 2 (2025): HAKAMAIN: Journal of Sharia and Law Studies
Publisher : Yayasan Lembaga Studi Makwa

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.57255/hakamain.v4i2.1534

Abstract

This study analyzes the philosophical, theoretical, constitutional, and international foundations underlying the inappropriateness of granting legal protection to trademarks attached to illegal products, particularly non-excise (illicit) cigarettes. From the perspectives of natural law, positivism, utilitarianism, and social-function theory, intellectual property rights (IPR) are recognized as legitimate rights but are always constrained by morality, public order, and social interests. Constitutional analysis shows that although the 1945 Constitution acknowledges IPR, Article 28J affirms limitations based on public interest and public order, rendering trademarks on illegal products ineligible for protection.National positive law, through the Trademark Law and the Excise Law, explicitly precludes the possibility of granting trademark protection to products that violate the law. Within the philosophical framework of Pancasila, protecting trademarks for illegal cigarettes contradicts the values of morality, humanity, national interest, democracy, and social justice. Meanwhile, international law—through TRIPS, the Paris Convention, and global health regimes such as the FCTC—provides explicit grounds for states to exclude IPR protection on the basis of morality, public order, and the protection of public health. Using a normative legal research method, this study concludes that trademark protection for illegal cigarettes cannot be justified conceptually or normatively. IPR is not absolute; it embodies a social function, and the state has an obligation to reject or revoke protection for trademarks that support unlawful practices in order to realize social justice and uphold the integrity of the national legal system.
Housing Rights for Wives After Divorce: A Comparative Analysis of Islamic Law and the Marriage Law Putri Ayu Agustina; Jumni Nelli
Hakamain: Journal of Sharia and Law Studies Vol. 4 No. 1 (2025): HAKAMAIN: Journal of Sharia and Law Studies
Publisher : Yayasan Lembaga Studi Makwa

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.57255/hakamain.v4i1.1658

Abstract

The phenomenon of increasing divorce rates in Indonesia raises serious issues regarding the protection of women's rights, especially the right to housing after divorce, which is still often neglected in legal practice. Although a number of previous studies have discussed aspects of alimony, child custody, and division of joint property, there is still a gap in studies that specifically examine housing rights from a comparative perspective between Islamic law and Indonesian positive law. This study aims to analyse in depth the concept and implementation of housing rights for wives after divorce based on the Compilation of Islamic Law (KHI), the principles of maqāṣid al-syarī‘ah, and Law No. 1 of 1974 on Marriage, as well as to assess the extent to which the two legal systems can be harmonised. The method used is a qualitative approach with a comparative-normative method, through content analysis and legal literature review of legislation, Supreme Court decisions, and scientific works indexed by Sinta and Scopus. The results of the study show that Islamic law places the wife's right to housing as part of the protection of life and honour within the framework of maqāṣid al-syarī‘ah, while positive law interprets this right through the division of joint property as determined by the court. However, the lack of synchronisation in interpretation and implementation in the field has led to legal uncertainty, particularly in cases where the house is in the husband's name. Theoretically, this research broadens the understanding of the integration of Islamic values into the national family law system, while practically providing recommendations for policymakers and judicial institutions to formulate regulations that are more gender-responsive and based on substantive justice. These findings emphasise the urgency of harmonising Islamic law and national law in order to strengthen the protection of women's rights after divorce and ensure social justice in the Indonesian family law system
Reconstruction of the Function of Takhsis in Ushul Fiqh in Contemporary Muslim Society Upi Sopiah Ahmad; Mhd. Syahnan; Nisful Khoiri; Dhiauddin Tanjung
Hakamain: Journal of Sharia and Law Studies Vol. 4 No. 2 (2025): HAKAMAIN: Journal of Sharia and Law Studies
Publisher : Yayasan Lembaga Studi Makwa

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.57255/hakamain.v4i2.1672

Abstract

This study aims to reconstruct the function of takhsis in ushul fiqh within contemporary Muslim society by critically examining its conceptual role and practical application in modern Islamic legal reasoning. The research employs a qualitative normative methodology through textual and analytical approaches, focusing on classical ushul fiqh literature, contemporary scholarly works, and selected fatwa and legal discourses that reflect current socio-legal realities. Data are analyzed by comparing classical formulations of takhsis with contemporary interpretations to identify patterns of continuity, shift, and methodological tension. The findings indicate that the function of takhsis in contemporary practice tends to be applied in a limited and formalistic manner, often emphasizing textual restriction while neglecting broader contextual, social, and purposive considerations. This condition results in interpretive rigidity and difficulties in responding effectively to social change, legal pluralism, and new legal problems faced by Muslim societies today. The study finds that takhsis requires functional reconstruction by repositioning it not merely as a textual limiting tool, but as a dynamic methodological instrument that operates in harmony with contextual analysis and the objectives of Islamic law. The study concludes that such reconstruction is essential to maintain the relevance and adaptability of ushul fiqh in contemporary contexts. Academically, this research contributes to the development of ushul fiqh studies by offering a systematic reinterpretation of takhsis that bridges classical legal theory and contemporary legal challenges, and by enriching ongoing discussions on Islamic legal methodology, reform, and contextual interpretation.

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