Browsing by Author "Muhammad Mufti"

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    Gender equality in Islamic marriage law through the maqāṣid al-sharī’a perspective : a study on woman-initiated divorce (cerai gugat) in Indonesia
    (Center for Gender and Child Studies, Institute for Research and Community Services (LP2M), Universitas Islam Negeri Walisongo Semarang, 2024-04-30) Muhammad Mufti
    The presence of gender equality issues in Islamic family law has already become a new challenge faced by Muslims to manifest and uphold the higher purpose of sharī’a (maqāṣid al-sharī’a). Thus, maqāṣid al-sharī’a as a theoretical framework should be able to accept adjustment depending on the circumstance. This article aims to discuss the notion of gender equality in maqāṣid al-sharī’ah perspective, which is focused on two research questions, namely what is the perspective of maqāṣid al-sharī’a on gender equality discourse, especially in Islamic marriage law, and how can the reform of Islamic marriage law in the practice of divorce support the realization of a new paradigm of maqāṣid al-sharī’a to achieve justice. Using woman-initiated divorce (cerai gugat) in recent Indonesia as a case study and incorporating a normative legal approach along with the Islamic feminism theory proposed by Amina Wadud, the article concludes that the maqāṣid al-sharī’a applied in the Muslim legal tradition demonstrates the flexibility of Islamic law in adapting to various demands and circumstances. In the context of Islamic family law in Indonesia, it can be proven by the presence of woman-initiated divorce (cerai gugat) which has never been done before. It became a manifestation of the ability of maqāṣid al-sharī’a to reconcile contemporary issues such as the notion of gender equality.
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    The legal position of children born out of wedlock (comparative study between classical Islamic jurisprudence and the modern Indonesia law)
    (Universitas Islam Internasional Indonesia, 2024) Muhammad Mufti; al-Marakeby, Muhammad
    The issue of the legal position of children born out of wedlock has become an exclusive discussion among Muslim jurists due to its complexity. The legal position of a child itself is essential and pivotal because it gives significant implications for the child’s rights within the family context. This thesis aims to explore the legal position of children born out of wedlock through a comparative study between classical Islamic jurisprudence and modern Indonesian law. On the one hand, classical Islamic jurisprudence has outlined specific principles governing the legal status of children born out of wedlock by restricting legal acknowledgement of children born out of wedlock including their associated civil rights upon their biological fathers. On the other hand, Islamic law which was previously adopted by modern Indonesian law has evolved by involving another legal system such as European law, particularly with the issuance of Constitutional Court Ruling Number 46/PUU-VIII/2010 which has allowed for children born out of wedlock to be attributed to their biological fathers. The research problem in this thesis is formulated into two main research questions as follows: 1) What is the legal position of children born out of wedlock according to Islamic jurisprudence and Indonesian modern law? 2) What made Islamic family law in Indonesia concerning the issue of children out of wedlock different compared to Islamic family law in classical Islamic jurisprudence? As part of library research, data in this thesis is collected from written sources either for primary data or secondary data. Subsequently, the collected data is analyzed using a descriptive-analysis method. The study finding indicates the existence of legal borrowing and legal hybridity of Islamic family law concerning the legal position of children born out of wedlock that has been formalized in Indonesian law with the involvement of biological fatherhood concept which originated from European law. This legal hybridity furthermore could lead to inconsistency, confusion, or even contradiction.