The legal position of children born out of wedlock (comparative study between classical Islamic jurisprudence and the modern Indonesia law)

Abstract

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.