eprintid: 66457
rev_number: 10
eprint_status: archive
userid: 12460
dir: disk0/00/06/64/57
datestamp: 2024-08-13 01:59:08
lastmod: 2024-08-13 01:59:08
status_changed: 2024-08-13 01:59:08
type: thesis
metadata_visibility: show
contact_email: muh.khabib@uin-suka.ac.id
creators_name: Muhammad Lutfi Hakim, NIM.: 19300016152
title: HAK NON-MUSLIM DALAM PUTUSAN PENGADILAN
AGAMA DI INDONESIA: PENGETAHUAN HUKUM, MOTIVASI DAN INTERPRETASI
HUKUM HAKIM
ispublished: pub
subjects: 347.07
divisions: IHPSI_S3
full_text_status: restricted
keywords: Hak Asuh Anak, Hak Waris, Motivasi, Non-Muslim, Pengadilan Agama
note: Promotor: Prof. Dr. H. Khoiruddin Nasution, M.A. dan Dr. Suhadi, S.Ag., MA.
abstract: Non-Muslims have unequal rights compared to Muslims in the
legal norms and religious justice practices in Indonesia. This can be
seen in several regulations regarding the rights of non-Muslims in the
family, such as custody of children born in Islamic marriages and
inheritance rights from Muslim testators. Article 105 of the
Compilation of Islamic Law (KHI) grants mothers the right to custody
of children under 12 years of age (mumayyiz), regardless of their
religious affiliation. Article 171 KHI requires that heirs must be
Muslim and not be legally prevented from becoming heirs. Based on
these provisions, non-Muslim relatives are not entitled to a share of
the inheritance of Muslim decedents. The divergence in legal attitudes
of religious judges regarding these two cases involving non-Muslim
rights is particularly noteworthy. This is due to several factors that
suggest a potential shift in the judges’ perspectives, particularly
concerning religious interpretation, social change, and human rights
considerations. In light of this, this dissertation aims to analyze the
variation in religious judges’ knowledge and motivations when
interpreting legal provisions in these cases: child custody between
interfaith parents and inheritance rights between heirs of different
religions.
This dissertation employs a socio-legal approach, combining
empirical research with a meticulous analysis of primary data: twentyfour
religious court decisions on child custody and inheritance cases
involving interfaith families (nine from lower courts and fifteen
reaching cassation). These decisions were obtained from the Directory
of Supreme Court Decisions, relevant religious courts, and various
research findings. The analysis utilizes the interpretive sociological
theory of Alfred Schütz (1899-1959).
This dissertation identifies three key findings. First, the
ambiguity of state law (official law) governing child custody and
inheritance rights between interfaith families creates space for
religious judges to draw on various Islamic legal sources beyond
official law. These unofficial references include religious texts, ulama
opinions, Islamic legal maxims, and fatwas. Second, religious judges’
legal reasoning in these cases is driven by two primary motivations:
theological and social. Dominant theological justifications often lead
to denying child custody to non-Muslim parents, while dominant
social considerations can influence granting inheritance rights to non-
Muslim relatives. Third, the variation in religious judges’ motivational preferences significantly impacts their interpretive discretion. This
results in the construction of two distinct models of interpretation:
conservative and progressive. Conservative interpretation prioritizes a
literal application of the law, while progressive interpretation involves
a broader interpretation, even if it contradicts traditional fiqh
principles. Building on these three findings, this dissertation argues
that the divergence in religious judges’ legal approaches to these cases
stems from the interplay of theological and social motivations. These
motivations shape how judges select legal references and exercise
interpretive discretion. This interplay, with motivation at its core,
offers a novel theoretical framework to rationalize the disparities in
judicial decisions concerning non-Muslim rights in religious courts.
By analyzing these decisions as social actions by judges, this
dissertation contributes to legal theory by proposing “intersubjective
interpretation” as a term for the interconnectedness of these three
aspects in judicial practice.
date: 2024-07-10
date_type: published
pages: 291
institution: UIN SUNAN KALIJAGA YOGYAKARTA
department: PASCASARJANA
thesis_type: doctoral
thesis_name: other
citation:   Muhammad Lutfi Hakim, NIM.: 19300016152  (2024) HAK NON-MUSLIM DALAM PUTUSAN PENGADILAN AGAMA DI INDONESIA: PENGETAHUAN HUKUM, MOTIVASI DAN INTERPRETASI HUKUM HAKIM.  Doctoral thesis, UIN SUNAN KALIJAGA YOGYAKARTA.   
document_url: https://digilib.uin-suka.ac.id/id/eprint/66457/1/19300016152_BAB-I_IV-atau-V_DAFTAR-PUSTAKA.pdf
document_url: https://digilib.uin-suka.ac.id/id/eprint/66457/2/19300016152_BAB-II_sampai_SEBELUM-BAB-TERAKHIR.pdf