Al-Mawaddah: Jurnal Studi Islam dan Hukum Keluarga (Ahwal Al-Syakhsiyyah)
Al-Mawaddah: Jurnal Studi Islam dan Hukum Keluarga (Ahwal Al-Syakhsiyyah) is a peer-reviewed journal that focuses (not limited) on critical studies of Islamic studies and family law. Contains research results, surveys, academic works and focuses on the development of studies on family law issues. This journal is published by the Institute for Research, Development and Community Service (LP3M) Sekolah Tinggi Agama Islam At-Tahdzib (STAIA), Rejoagung, Ngoro, Jombang, East Java, Indonesia. Published every June and December in one year as a scientific responsibility and the embodiment of the Tri Dharma of Higher Education. e-ISSN 3063-1793 p-ISSN 3063-430X
Sekolah Tinggi Agama Islam At-Tahdzib Jombang
Childfree in Muslim Families: A Comparative Study of Maqaṣid al-Syari’ah and Modern Reproductive Rights
The discourse of childfree, a conscious decision by married couples to remain childless throughout their marriage, has shifted from a mere private choice to a global ideological movement challenging traditional family structures, including within the Muslim family landscape. This study aims to comparatively dissect the dialectic between the concept of childfree in Muslim families through two conflicting paradigms: Maqaṣid al-Syarī’ah (specifically the pillar of ḥifẓ al-nasl ) and the doctrine of Modern Reproductive Rights (bodily autonomy). The research method used is a juridical-normative approach with a comparative approach and a philosophical approach. The results of the study indicate a deep epistemological gap. Modern Reproductive Rights places individuals as the absolute owners of their bodies (anthropocentric), thus giving rise to absolute freedom to refuse procreation. In contrast, Maqaṣid al-Syarī’ah views reproduction within a theocentric framework, where the body and offspring are divine trusts oriented towards the public good (maṣlaḥah ‘ammah) and the preservation of civilization. This study concludes that the concept of voluntary childfree without medical excuse is rejected by the consensus of Maqaṣid al-Syarī’ah because it reduces the main essence of marriage, but in the corridor of positive law, it is in the area of ​​​​the unavailability of formal sanctions (rechtsvacuum), so its enforcement rests on strengthening the legal culture of Muslim society.
Copyright (c) 2026 Ahmad Khotim https://creativecommons.org/licenses/by-sa/4.0
Praktik Menunda Perkawinan Sebab Menuntut Ilmu Perspektif Maslahat dan Mafsadah
This study aims to examine the practice of delaying marriage among santri (Islamic boarding school students) at Pesantren At-Tahdzib Jombang through the lens of Islamic law. This phenomenon arises from the students’ conscious choice to prioritize the pursuit of knowledge—both formal and informal—before entering marital life. The research employs a qualitative approach with a case study method. Data were collected through in-depth interviews with eight unmarried santri aged 21 to 28, and analyzed using the Islamic legal principles of maslahat (benefit) and mafsadah (harm). This research employs a qualitative approach using a case study method. The study was conducted at Pesantren At-Tahdzib Jombang. Data were collected through in-depth interviews with eleven selected santri and pesantren administrators aged 21 to 28 who were unmarried. Participants were purposively chosen based on their experience in delaying marriage for the sake of pursuing religious education. The data were analyzed descriptively using the Islamic legal principles of maslahat (benefit) and mafsadah (harm). The study concludes that delaying marriage for the sake of seeking knowledge is justifiable in Islamic law, provided it is based on sincere intentions and accompanied by self-discipline. Such postponement is a conscious effort to achieve greater long-term benefits, both personally and socially.
Copyright (c) 2025 Ahmad Masruh Syaifuddin, Hanik Latifah https://creativecommons.org/licenses/by-sa/4.0
Reconstruction of Marriage Dispensation Regulation in the Ethic Perspective of Care
This study aims to reconstruct the regulation of marriage dispensation in Indonesia through the perspective of Ethic of Care which emphasizes the value of care, empathy, and moral relationships in legal decision-making. The marriage dispensation regulation contained in Law Number 16 of 2019 concerning Amendments to Law Number 1 of 1974 and Supreme Court Regulation (Perma) Number 5 of 2019, basically seeks to protect children from the practice of early marriage. However, in practice, many dispensation decisions are still oriented towards legal formalism and socio-economic considerations alone, not in the best interest of the child. Through the Ethic of Care approach, this research offers a new paradigm that places affective, relational, and moral aspects as the basis for consideration by judges and policymakers in determining the marriage dispensation. This approach is expected to strengthen child protection while building a more humanistic and contextual legal policy. Thus, this study concludes that the Ethic of Care can be a new ethical and philosophical foundation for family law reform in Indonesia, especially in the context of marriage dispensation. This paradigm places law not just as a system of state orders, but as a means of maintaining life (caring justice). Care-based reconstruction will strengthen the protective function of the law against girls, who have often been victims of early marriage practices due to cultural or social pressures. Finally, the implementation of Ethic of Care in the regulation of marriage dispensation is expected to be able to give birth to a family law system that is more substantive justice, responsive to human values, and morally civilized. This paradigm not only corrects the weaknesses of legal formalism, but also restores the function of law as an instrument that hears, understands, and cares for human lifeso that every legal decision is not only juridically valid, but also ethically and humanly correct.
Copyright (c) 2025 Yayat Dimyati https://creativecommons.org/licenses/by-sa/4.0
Islamic Personality Principles in Religious Justice
Religious courts in Indonesia were established to serve the legal needs of Muslims, especially in family and inheritance matters. The application of the principle of Islamic personality is the main principle in determining the jurisdiction of the Religious Court, which means that it only applies to individuals who are Muslim. This article analyzes the normative basis, history of formation, and application of the principle of Islamic personality in the practice of religious justice in Indonesia. The research method used is juridical-normative through literature study and analysis of laws and regulations such as Law Number 7 of 1989 concerning Religious Courts and its amendments, the Compilation of Islamic Law, and Supreme Court jurisprudence. The results of the study show that this principle provides legal certainty and protection for the applicability of Islamic law for Muslims. Nevertheless, challenges remain in the context of legal pluralism and dual citizenship status that require further harmonization.
Copyright (c) 2026 Mely Khoironi Syafaat https://creativecommons.org/licenses/by-sa/4.0
The Basic Concept of Proceedings in Religious Courts: Sharia Perspectives and Positive Law
This research examines the fundamental concepts of legal proceedings in Indonesian religious courts through the perspectives of sharia and positive law. The main issue studied is how to harmonize these two legal systems in religious court practice. The research method uses a normative juridical approach with comparative analysis of Islamic legal sources and Indonesian legislation. The research findings show that the concept of legal proceedings from a sharia perspective is based on the principles of justice (‘adl), transparency (syafāfiyyah), and public interest (maṣlaḥah) sourced from the Qur’an and Hadith. Meanwhile, Indonesian positive law applies the principles of contradictory proceedings, publicity, and dispositional nature sourced from Herziene Indonesisch Reglement (HIR) and the Rechtsreglement voor de Buitengewesten (RBg). Although there are similarities in the principles of justice and evidence procedures, fundamental differences are found in legal sources, philosophical approaches, and procedural flexibility. Harmonization is achieved through the adoption of peace principles (islah) and sharia evidence systems within the civil procedural law framework. This research recommends the need for reformulation of religious court procedural law that integrates sharia values with the national legal system to achieve legal certainty and substantive justice.
Copyright (c) 2025 Fatimatuz Zahroil Batul https://creativecommons.org/licenses/by-sa/4.0
Similarities and Differences: Inheritance Distribution in Balinese Customary Law Perspective of Islamic Law
In the context of plurality of laws in Indonesia, Islamic inheritance law and Balinese customary inheritance law show fundamental differences but also interesting meeting points to study. Balinese customary laws rooted in traditional values and patrilineal kinship systems tend to place men as the primary heirs. Meanwhile, Islamic inheritance law which is sourced from the Qur’an and Hadith emphasizes the principles of justice, balance, and legal certainty that give rights to all legal heirs, including women. In a society that continues to undergo social change, the interaction between these two legal systems creates complex dynamics, especially in terms of the implementation of inheritance distribution. This article aims to identify and analyze the similarities and differences between Balinese customary inheritance law and Islamic inheritance law, both in terms of basic principles, inheritance structure, and practice in the field. The research method used is a qualitative approach with a literature study, which includes analysis of primary and secondary legal sources. The results of the study show that although there are significant differences in terms of the hereditary system and the position of women as heirs, they have similarities in upholding family values and social responsibility. I hope that the results of this writing can contribute to the development of national inheritance laws that are responsive to cultural diversity and religious norms in Indonesia, as well as encourage the creation of a harmonious, fair, and contextual legal system for multicultural societies.
Copyright (c) 2025 Mely Khoironi Syafaat https://creativecommons.org/licenses/by-sa/4.0
Matrilineal Marriage Tradition: A Study of the Customary Law of “Women Buying Men” in Padang Pariaman
Bajapuik is one of the traditions of women buying men, the marriage practice of the Minangkabau people who adhere to the matrilineal kinship system, especially in the Padang Pariaman area. Women’s traditions have a dominant role, in the economic aspect and the determination of the social status of the family. This study aims to examine the existence of customary law that governs these practices, as well as how local cultural values are maintained amid the influence of modernity. Through a descriptive qualitative method approach by interviewing directly from relevant sources who have implemented the custom, this study found that the practice is still carried out with certain adaptations, and has implications for social relationships, inheritance rights, and family structure. The results of this study show that the law of adat in Padang Pariaman is dynamic and able to adapt without abandoning the core values of matrilineal culture.
Copyright (c) 2025 Kurniawan Agung Fadilah https://creativecommons.org/licenses/by-sa/4.0
Principles of Ownership and Distribution of Mining Products in the Perspective of Islamic Law: A Historical Review of the Time of the Prophet Muhammad SAW
This study examines the ownership and management of mines during the era of the Prophet Muhammad SAW. The method used in this study is qualitative by analyzing literature from Islamic historical sources, such as book documents, articles published in journals, texts of verses and hadiths of Islamic teachings, and others. The findings of this study indicate that the Prophet Muhammad SAW established basic steps in natural resource management, including mining, which are based on the principles of justice, benefits for society, and environmental protection. The summary of this study is that the mining management policy during the time of the Prophet Muhammad SAW can be a reference in sustainable and fair natural resource management today.
Copyright (c) 2025 Ahmad Khotim https://creativecommons.org/licenses/by-sa/4.0
Relevance of ‘urf to Mahar: The Marriage Traditions of the Buton Tribe
The tradition of determining the dowry in traditional Butonese marriage reflects the strong relationship between local cultural values ​​and the application of Islamic Law. Custom (‘urf) in determining the amount of dowry are often influenced by social class. The relationship between the traditional practice of determining the amount of the dowry and social class is studied from the perspective of Ushul Fiqh, especially rules of ‘urf shahih and maqāṣid al-syarī’ah. Data was obtained from literature study and analysis of customary norms. The results of the study show that the application of dowry adjustments according to social status can be justified as long as it does not conflict with the principles of justice and does not cause harm. ‘Urf functions as a source of contextual law and can strengthen sharia values ​​if it is regulated by taking into account benefits. The results of the study are discussed in the context of preserving cultural traditions in Buton which is in accordance with the main objectives of Islamic Law.
Copyright (c) 2025 Adri Maulana https://creativecommons.org/licenses/by-sa/4.0
Philosophy and Greek Philosophy on Marriage Dispensation: Normativity and Historicity
The study examines the relationship between Islamic and Greek philosophy to understand the concept of marriage dispensation, with an interdisciplinary approach that emphasizes two main aspects: normativity and historicity. Marriage dispensation is understood as a form of legal exception that allows marriage below the ideal age based on considerations of welfare. Marriage dispensation is not just a legal policy, but a reflection of the meeting between rationality, ethics, and responses to social reality. Greek philosophy, especially in the thoughts of Plato and Aristotle, views marriage as part of a social structure that plays an important role in achieving moral virtue and social order. Marriage is based on the principles of natural law and teleology. Everything is directed to achieve noble and rational goals. Marriage in Islamic philosophy, especially according to Al-Farabi, Ibn Sina, and Al-Ghazali, adopts many aspects of Greek philosophy, but by integrating elements of revelation, spiritual values, and the framework of sharia into thought. One of the main pillars in Islamic legal philosophy that is the meeting point between rationality and religious norms is maqāṣid al-syarīʿah, namely the theory of the objectives of Islamic law which include protection of religion, soul, mind, descendants, and property. Marriage dispensation can be seen as an effort to fulfill the objectives of Islamic law when ideal conditions are not met. Through a historical approach, this study traces the path of intellectual transmission from Greece to the Islamic world and how philosophical thought was transformed in the context of Islamic law. While normatively, this study shows that Islamic philosophy does not only passively inherit Greek ideas, but actively adapts them to divine values. The results of this study confirm that the philosophical approach to marriage dispensation has great potential in strengthening Islamic legal reform to be more adaptive, rational, and ethical amidst contemporary social dynamics.
Copyright (c) 2025 Yayat Dimyati, Hanik Latifah https://creativecommons.org/licenses/by-sa/4.0
Validity of Biological Father Marrying Daughter Resulting from Adultery: Perspective of Nahdlatul Ulama and Muhammadiyah
This study explores the validity of marriage between a biological father and his illegitimate daughter according to the two largest Islamic organizations in Indonesia: Nahdlatul Ulama (NU) and Muhammadiyah. NU’s marriage opinion uses Shafi’i jurisprudence that a biological father has no blood relationship with a child from an extramarital affair, so marriage is permissible. However, they withdrew this practice in the bahtsul masail decision because it is contrary to the public interest, and the principle of harm related to children. On the other hand, Muhammadiyah firmly rejects the validity of marriage on the grounds that there is a biological kinship relationship. This gives rise to a mahram relationship. Muhammadiyah also base their opinion on the maqasid sharia and legal recognition in the Constitutional Court Decision No. 46/PUU-VIII/2010. This study uses a normative juridical method with a conceptual and descriptive-analytical approach. The findings of this study indicate a lack of specific and fair regulations aimed at fulfilling the rights of illegitimate children within the framework of family law in Indonesian Islamic law.
Copyright (c) 2025 Moh. Subhan https://creativecommons.org/licenses/by-sa/4.0
Ruwat sukerta: Strengthening Muslim Family Resilience Through Preserving Local Culture
The purpose of this study was to reveal the wisdom value of ruwat sukerta in the Javanese marriage tradition that still survives today. Ruwat sukerta is still believed to be able to prevent married couples from bad luck and is able to create a harmonious family. The subjects of the study were the semi-urban Muslim community in Sampangagung Village, Kutorejo, Mojokerto. The research analysis used Clifford Geertz’s symbolic interpretation theory and Zainab al-’Alwani’s Muslim family resilience theory. This field research used a qualitative approach with descriptive data presentation. The results of the study: (1) Ruwat sukerta in the Javanese Muslim community is still practiced and has shifted from traditional rites to religious ceremonies in the form of a walimah procession (a wedding celebration held after the marriage contract), wedding reception, thanksgiving and joint prayer; (2) The practice of ruwat sukerta still represents local wisdom that can encourage the realization of Muslim family resilience in strengthening the legal basis of marriage, economic resilience, psychological resilience, and socio-cultural resilience of the family.
Copyright (c) 2025 Nashrun Jauhari, Ratna Suraiya, Vierda Anggraini Wandoyo https://creativecommons.org/licenses/by-sa/4.0
Criminal Sanctions Against Perpetrators of Sirri Marriage Article 143 of the Draft Law on Material Law of Religious Courts in the Field of Marriage in the Concept of Maslahat of Sheikh Ramadhon Al-Buthy
This study analyzes the criminal sanctions for sirri marriages (unregistered marriages) as regulated in Article 143 of the Draft Bill on Substantive Law for Religious Courts using Syekh Ramadhan al-Buthy’s concept of maslahat. Employing a juridical-philosophical method, this research examines legal regulations normatively and links them to Islamic values in maqashid syariah. The findings reveal that criminal sanctions for sirri marriages aim to maintain social order through marriage registration, which aligns with the protection of lineage and property. Analysis based on al-Buthy’s five criteria of maslahat demonstrates that the sanctions fall within the scope of maqashid syariah, without conflicting with the Qur’an, sunnah, qiyas, or higher maslahat. However, implementing these sanctions faces social resistance due to adherence to classical fiqh views. Educational approaches and administrative incentives are necessary to encourage marriage registration as a legal safeguard. In conclusion, the criminal sanctions against sirri marriages under Article 143 of Rancangan Undang-Undang Hukum Materil Peradilan Agama Bidang Perkawinan align with maslahat principles and can provide societal benefits if implemented wisely.
Copyright (c) 2024 Dzin Nun Naachy https://creativecommons.org/licenses/by-sa/4.0
Analysis of Marriage Dispensation Factors
A marriage dispensation is an exception to the rules or law that is given to an applicant to enter into a marriage. In this research the author examines the decision on requests for marriage dispensation in the Jombang religious court. The focus of the research problem formulation is: 1. What is the level of requests for marriage dispensation in the Jombang religious court. 2. What is the background for submitting the application for marriage dispensation? 3. What are the judge’s considerations in determining the application for marriage dispensation in the Jombang religious court? The type of research is descriptive analysis research. This descriptive characteristic is to get a good, clear picture, and can provide as thorough an analysis of the data as possible about the object under study. The results of this research show that the factors behind the request for marriage dispensation are internal and external factors. The judge’s legal consideration in granting marriage dispensation is that there is Article 7 paragraph 2 of Law No. 1 of 1974 concerning deviations from the age limit for marriage. Court or other official appointed by both parents of the man and woman.
Copyright (c) 2024 Yayat Dimyati https://creativecommons.org/licenses/by-sa/4.0
Implementation of Law Number 35 of 2014 concerning Child Protection in the Tarbiyatus Shibyan Putri Dormitory, Pesantren Attahdzib
This study examines the implementation of Law Number 35 of 2014 Article 9 Paragraph 1a concerning child protection in Pesantren Attahdzib, particularly at Tarbiyatus Shibyan Female Dormitory. The research focuses on how the pesantren enforces child protection against physical and verbal abuse through religious values and psychological approaches. The study employs a descriptive qualitative method with data collection techniques including interviews, observations, and documentation. Key informants include coordinators, mentors, and students directly involved in the mentoring process. The findings reveal that mentoring in Pesantren Attahdzib integrates principles of compassion, discipline, and assertive communication in student management. Supporting factors include parental collaboration, a conducive pesantren environment, and mentors’ role modeling. However, challenges such as mentors’ lack of experience and suboptimal communication with guardians persist. In conclusion, the pesantren successfully fosters a safe educational environment that supports students’ spiritual, social, and psychological development in line with the law’s mandates.
Copyright (c) 2024 Hanik Latifah, Charisna Binti Rofidatul Izzah https://creativecommons.org/licenses/by-sa/4.0
Marriage without Parental Blessing from the Perspective of Islamic Family Law
Marriage without parental consent from the perspective of Islamic family law is a complex issue, involving various legal, social, and moral considerations. In Islamic law, parental or guardian consent is essential to ensure the validity of a marriage, and without such consent, a marriage can be considered invalid. The research method used in this study is a qualitative approach, with data collection through in-depth interviews with couples who married without parental consent, as well as interviews with Islamic family law experts and community leaders. The principle of maslahah (benefit) is a reference in protecting the interests of individuals, families, and society. Although Islamic family law provides space for individual freedom in choosing a life partner, it still emphasizes the importance of complying with religious and moral norms. The absence of parental consent can result in serious social and psychological impacts, including conflict within the family, social isolation, and emotional tension. Therefore, this issue needs to be analyzed in depth to understand its implications in the context of law and society.
Copyright (c) 2024 M. Habi Hendarso, A. Kumedi Ja'far https://creativecommons.org/licenses/by-sa/4.0
Kyai and Nyai’s Views on the Right to Ijbar in the Jombang Islamic Boarding School Community: A Legal Philosophy Perspective
In legal philosophy there are principles of morality, justice and human rights for each individual in regulating human ethics with in-depth reflection regarding the laws that exist in society. This means that women also need to pay attention to their role in choosing their life partner. However, the practice of ijbar rights in marriage is currently still found in the Islamic boarding madzhab community in Jombang, so the voice of the Kyai and Nyai is needed to express their opinion because they are figures who play an important role and are embraced by the Islamic boarding madzhab community. The research carried out to answer the above questions, the author used a qualitative field research method consisting of main data, namely legal philosophy and interviews with several Kyai and Islamic boarding madzhab caregivers in Jombang. While secondary data is classical jurisprudence books, journal articles and others. The results of the research are (1) according to the views of the Kyai and jiai, the right of ijbar or mujbir guardian may be carried out on girls provided that there is a benefit between the child and the parents (guardian), but it is better not to carry out ijbar. (2) In legal philosophy with the views of Kyai and Nyai regarding the right to ijbar, there is a binding relevance where the views of Kyai and Nyai, although guided by fiqh law, still provide principles of legal philosophy including the right of women to choose their partners.
Copyright (c) 2024 Zaidatur Rofiah; Sirojul Azmin https://creativecommons.org/licenses/by-sa/4.0
Waris Pengganti Perspektif Kompilasi Hukum Islam
This study intends to analyze the background of determining the substitute inheritance as well as to map the philosophical meaning and maslahah contained in the law of replacement inheritance as regulated in the Islamic Law Compilation. This is a research study and types of literature data that revolve around the basics of a law to collect data, to analyze the author using deductive and descriptive methods. The results of this study indicate that the background for determining replacement inheritance law in the Islamic Law Compilation is based on justice and mutual benefit and in accordance with the needs of the Indonesian people. The stipulation of the law also does not violate Islamic law (Maslahah Mursalah), which is good deeds according to society but is not regulated in the text nor is there any prohibition from the texts. Meanwhile, the philosophical meaning of the determination of the substitute inheritance law in the Islamic Law Compilation is the achievement of family welfare, especially the successor heirs, who have been left by their parents. Thus, no party will be harmed and persecuted. And Maslahah contained in the law of substitute inheritance is the benefit that can be obtained from a substitute heir, so as to avoid the dangers that will befall in the form of poverty and poverty due to his parents having died first.
Copyright (c) 2024 Iklil Hasbiyallah, Yayat Dimyati https://creativecommons.org/licenses/by-sa/4.0
Kewenangan Mengadili Lembaga Peradilan di Indonesia Dan Titik Singgung Pengadilan Umum Dengan Pengadilan Agama
The court as an officially legitimate (legitimate) state institution is given the authority to examine, adjudicate, decide and resolve every dispute submitted to it. The Court's authority, practical and theoretical, is divided into two, namely absolute authority (absolute competency) and relative authority (relative competency, jurisdiction). The method used is literature review, which is a systematic, explicit and reproducible method for identifying, evaluating and synthesizing research works and ideas that have been produced by researchers and practitioners. The type of research that researchers used in preparing this article is research. Qualitative, this kind of research is descriptive and tends to use analysis with an inductive approach. This type of qualitative research is in the form of library research. As far as current practical experience is concerned, the authority of district courts and religious courts often experiences points of contact. Apart from historical factors, incomplete factors and lack of clear explanations in the law give rise to different interpretations regarding the authorities in certain cases. Moreover, the absolute authority of religious courts is based on the principle of Islamic personality, which means that submission to the provisions of Islamic law is the basis for the legitimacy of the authority of religious courts in certain cases. Submission to Islamic provisions as the basis for the meaning of Islamic personality no longer only means formal Muslims (based on legal identity), but also non-Muslims who submit themselves to the provisions of Islamic law. Below are several points regarding the authority of the District Court and the Religious Court.
Copyright (c) 2024 Moh. Zunaidi Halimi https://creativecommons.org/licenses/by-sa/4.0
Implementasi Pasal 31 Kompilasi Hukum Islam Tentang Penetapan Jumlah Mahar
This study explores the determination of the dowry amount in marriages within the Attahdzib Pesantren housing community. Using a normative-philosophical approach and sociological impact analysis, this research highlights the application of simplicity and ease principles in KHI (Compilation of Islamic Law). The methodology includes field observations and interviews with married couples. The results show that a simple yet meaningful dowry supports social stability and strengthens women's position in marriage. These findings suggest that applying Islamic principles on dowry can create harmonious and socially stable family relationships.
Copyright (c) 2024 Hanik Latifah, Dzin Nun Naachy https://creativecommons.org/licenses/by-sa/4.0
Kehujjahan Maslahah Mursalah Dalam Perspektif Imam Al-Ghazali Dan Najm Al-Din Al-Tufi
This study examines the authority of maslahah mursalah according to Imam Al-Ghazali and Najm al-Din al-Tufi, two scholars with differing views on applying the concept of public interest in Islamic law. Al-Ghazali is known for his conservative approach, while Al-Tufi is more flexible and progressive. The research uses the library research method. Data were collected from primary sources, namely the works of Al-Ghazali and Al-Tufi, as well as relevant secondary literature. Descriptive-qualitative and comparative analysis techniques were used to evaluate and compare the views of both scholars. The study found that Al-Ghazali requires maslahah to align with maqasid al-shariah and not contradict nash. Al-Tufi, on the other hand, emphasizes flexibility in prioritizing maslahah, especially when dealing with nash dzanni. Both scholars contribute significantly to the understanding and application of the concept of maslahah in contemporary Islamic law.
Copyright (c) 2024 Bustanul Arifin https://creativecommons.org/licenses/by-sa/4.0
Relevansi Pemikiran Imam Syafi’i Tentang Mafqud Terhadap Perceraian Ghaib
In the mind of Imam Shafi'i there are those who argue that if the husband or wife who mafqud must wait for four years. and according to the Law and Compilation of Islamic Law is to wait with a period of 2 years. The period between these two opinions is very long if compared. This is because the sophisticated transportation and information systems present in the modern era provide a quick opportunity to find out the existence of the mafqud. Unlike the past who still do not know the transportation and information system. So here see which is more relevant to follow between the thoughts of Imam Shafi'i or the Law and Compilation of Islamic Law. In this thesis examines the Relevance of Imam Shafi'i's Thoughts on Mafqud Against Divorce Ghaib Case Study in Jombang Religious Court. This research aims to find out the opinion of Imam Shafi'i about mafqud and the ruling of the Jombang Religious Court regarding mafqud divorce. In this study, the authors used descriptive research methods that seek to describe and analyze problems in as much detail as possible. The type of research used is library research by tracing theories contained in libraries and fields. The results showed that there is no one proposition of the Qur'an and hadith that mentions the deadline for the determination of the time of missing persons, which there is only the opinion of a friend, Umar bin Al-Khatab. But Umar's opinion was only for wives who lost husbands. In addition, it can also be known the consequences of mafqud that can occur to people around or his heirs and he becomes a demand to solve it. Based on the study of the authors conducted, in this study it can be concluded that the Author hopes that ijtihad is carried out by mujtahids at any time such as judges. Because the law is dynamic will change over time following the changing era of times.