Jarir, Abdullah (2024) Authority, Legal Reasoning and the Practice of Islamic Family Law: Fatwa as an Extended Legal Source of Indonesian Religious Court. Doktoral thesis, UIN Sultan Maulana Hasanuddin Banten.

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Abstrak

This dissertation is motivated by the hope to address the emergence of fatwa>s issued by the MUI as a legal basis for judicial decisions in the Religious Courts for several cases related to Islamic family law in Indonesia. These cases revolve around the legal status of children born out of wedlock and/or adopted, as well as inheritance from different religions and Ahmadiyah followers. In fact, the position of fatwa> in the Indonesian legal system is not binding and it is not, under the Indonesian Constitution, one of the recognized legal sources in the Indonesian legal system. Based on this, it is necessary to explore more deeply three important aspects of the position of fatwa> in religious courts in Indonesia, namely: why did judges refer to fatwa> in rendering decisions relating to the Islamic family law in Indonesian Religious Courts?; in what cases of family law have judges referred to the MUI fatwa>?; and what are their legal arguments for their referencing the MUI fatwa>, and to what extent have the status of the MUI fatwa> shifted from that legal opinion to legal sources? Regarding the authority of fatwa>, this dissertation refers to the opinion of Professor Wael B. Hallaq. According to him, there are three important elements forming modern Islamic Law, namely mufti>s who issue Fatwa>s, Islamic Court Judges, and Islamic Legal Scholars. Of these three elements, a fatwa> is the decisive element in the development of Islamic law in the Islamic world, because of its open nature, free from binding rules, accessible to all parties for ijtihad in accordance modern developments. According to Hallaq, however, fatwa>s still is and have long been used as bases for consideration by judges, in addition to other sources of law. To address the importance and role of Fatwa>s, this dissertation builds on the opinions of William Walker Atkinson who divides legal reasoning into two major parts, inductive and deductive legal reasoning. While related to the representation of fatwa>, this dissertation recognizes the theories of J.N.D Anderson related to legal pluralism and legal reform. This research can be generally classified as qualitative research, focusing on a set of interpretive, material practices that illuminate this area of law. The qualitative research relies on literature reviews of both primary and secondary sources. In addition, to gain a sociological perspective, empirical research was employed to evaluate the impact on parties to relevant cases and Islamic scholars who have offered their opinions on adopted children and children born out of wedlock, interfaith inheritance, and Ahmadiyah followers. These sources provided information on how the law has been and is currently applied “on the ground” so to speak. Through this research, this dissertation has identified three significant findings: the first, the authority of MUI Fatwa> has succeeded in preserving Islamic authority and preserving the sense of Islamic law. It can be seen in four aspects, namely fatwa> as a legal source for Indonesian Religious Courts, fatwa> as an alternative source of law, fatwa> as an additional source of law in general, and fatwa> as the principle of Islamic personality. The second, regarding the legal reasoning used by judges in determining the law in religious courts, it can be conveyed that they use deductive legal reasoning, which is an approach that prioritizes logical reasoning in fact finding. This method begins by taking three steps or processes, namely determining axioms or major premises, determining minor premises, and drawing conclusions as the last step or process. The methods of interpretation used by judges are through a mixed method. It can be seen from the research that religious court judges have not completely considered the social interests in their decisions, taking a conservative approach. The third, recognizing the increasing importance of Fatwa> from the MUI in religious court decisions, such Fatwa> must be diligently scrutinized to allow for a changing world and the role of Islamic law in that world. In addition, this dissertation also identified the role of judges as the actor in exercising ijtihad.

Tipe Item/Data:	Skripsi/Tesis/Disertasi (Doktoral)
Kata Kunci (keywords):	Adopsi, fatwa MUI, anak di luar nikah
Subjek:	2x4 Fiqh > 2x4.3 Hukum Perkawinan / Munakahat > 2x4.39 Aspek munakahat lainnya
User Penyetor:	S.S.I FN H
Tanggal Disetorkan:	05 Mei 2025 09:30
Perubahan Terakhir:	05 Mei 2025 09:30
URI:	http://repository.uinbanten.ac.id/id/eprint/16757

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