%0 Thesis
%9 Masters
%A Ibnu Akbar Maliki, S.H., NIM.: 222030120001
%B FAKULTAS SYARI’AH DAN HUKUM
%D 2024
%F digilib:65997
%I UIN SUNAN KALIJAGA YOGYAKARTA
%K Perkawinan Beda Agama, Marjinalisasi Hukum Islam, Penetapan Pengadilan
%P 188
%T MARJINALISASI HUKUM ISLAM DALAM PENETAPAN PERKAWINAN BEDA AGAMA (ANALISIS TERHADAP DISPARITAS PENETAPAN PENGADILAN NEGERI, MAHKAMAH AGUNG, DAN MAHKAMAH KONSTITUSI)
%U https://digilib.uin-suka.ac.id/id/eprint/65997/
%X Islamic law explicitly states the prohibition of interfaith marriage for Muslims. In the Indonesian context, the prohibition of interfaith marriage can be found in MUI Fatwa 4/MUNAS VII/MUI/8/2005, the Compilation of Islamic Law, and the arguments of the mufassir. In addition, the Marriage Law also bases the validity of marriage on religious law as affirmed in Article 2 paragraph (1). Thus, interfaith marriage is prohibited for Muslims in Indonesia based on the provisions of Islamic law. However, at the practical level in court, there are still many applications for interfaith marriages that are granted. Islamic law is marginalised and replaced by the universality of human rights principles contained in the 1945 Constitution. On the other hand, judges do not include the prohibition of interfaith marriages affirmed by Islamic law as a legal consideration in their decisions.  This type of research is library research with a juridical-empirical approach. The theoretical framework used to answer the research questions is Lawrence Friedman's Legal System Theory and Gijssels' Theory of Critique of Legal Ideology. The data used is secondary data consisting of primary legal materials in the form of interfaith marriage decisions issued by the District Court, Supreme Court, and Constitutional Court. Meanwhile, primary legal materials consist of written sources and scientific references related to the research topic. The data was collected using documentation techniques and analysed using qualitative data analysis techniques.  This research reveals that the effort to marginalise Islamic law in the decision on interfaith marriage is carried out by the judge through his legal considerations and the applicants through their petition. There are three forms of marginalisation of Islamic law. First, substantial-structural marginalisation, namely the marginalisation of Islamic law textually and contextually in District Court and Supreme Court decisions that are not subject to the jurisprudence of the Constitutional Court as a decision that is erga omnes. Second, the marginalisation of personal exclusion, namely the non-compliance of judges and petitioners who are Muslims with the prohibition of Islamic law on interfaith marriage. Third, cultural-conception marginalisation, which is an attempt to distort the concept of tolerance in interfaith marriage that overrides Islamic norms. The three factors behind the marginalisation of Islamic law are sectoral ego in judicial competence, nationalist ideology of judges, and legal centralisation.
%Z Pembimbing: Prof. Dr. Khoiruddin Nasution, M.A.