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POLEMIK PERATURAN POLIGAMI NEGARA TURKI: RESPONS ULAMA TURKI TERHADAP PASAL 93 THE TURKISH CIVIL CODE 1926
Turkish family law was amended several times since the Ottoman Dynasty, which still used the Hanafi school of law until 1917, and became the Republic of Turkey, which was inaugurated in 1926. Turkey was the first country to reform family law. This was evident with the birth of the 1926 Turkish Civil Code, adopted from the Swiss Civil Code. The reform of several regulations brought Turkey into a secular state. Until now, regulations regarding polygamy are absolutely prohibited, whereas previously it was still permitted, and if there are people who practice polygamy, they will be subject to sanctions written in the Turkish Criminal Code. This raises a major question for researchers regarding how scholars responded to the issue of the emergence of discourse until the ratification of polygamy regulations. In addition, with the ratification of polygamy regulations based on the agreement of several figures, researcher questioning on how if the agreement is analyzed from the perspective of sadd dzari'ah considering that several figures who approved the reform had certain reasons and objectives, both from a historical, social, and legal perspective. This research is library research and is descriptive-analytical research, describing the results of research or observations on the research object in narrative form. This normative juridical research uses a historical approach, namely legal research that identifies the development of a law in relation to influencing factors, one of which is through the history of its formation. The data used in this study include historical literature by scholars such as Badiuzzaman Said Nursi and Elmalılı Muhammed Hamdi Yazır, as well as regulations regarding polygamy in Turkish civil law, namely Article 93 of the Turkish Civil Code of 1926, sources of Islamic law, and related literature. The theory used is sadd dzari'ah, that related to the benefits and harms that arise in social reality. The results of this study indicate that the responses of scholars during the reform of Turkish family law were divided into several groups: those who supported secularization, mostly intellectuals studying Western sciences, members of the Young Turks, and muftis who played roles in political parties. Then there is the group that opposes secularization, comprised of religious scholars who still strive to uphold Islamic principles and values. Finally, there is the neutral group in responding to Turkey's secularization, comprised mostly of scientists and intellectuals with their own perspectives from various fields, viewing the prohibition of polygamy. This scientific field is presented from the perspective of human rights, culture, and law. The response of Turkish scholars who approve of the country's secularization is based on several aspects, like historical, social, and legal. The ratification of the Turkish polygamy regulation refers to several realities that were occurring in Turkey at the time and was the result of a majority vote in favor of the ban on polygamy. Prohibiting something that is fundamentally permissible, or sadd dzari'ah, as applied to Article 93 of the Turkish Civil Code of 1926, is a form of safeguarding the public interest because avoiding harm in the form of depriving human rights, especially women, is a priority.
FAKULTAS SYARIAH DAN HUKUM, UIN SUNAN KALIJAGA YOGYAKARTA
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297.577 Hukum Keluarga Islam, Bimbingan Pernikahan, Poligami, Perceraian, Iddah, Pengasuhan Anak)