POLITIK HUKUM KEPAILITAN SYARIAH DI INDONESIA: DARI EKLEKTISISME PRAGMATIS MENUJU EKLEKTISISME PRISMATIKNIM.: 22300015026Muhamad NasrudinauthorThis research is motivated by legal anomalies in the form of a
legal vacuum and legal loopholes in the field of Sharia bankruptcy in
Indonesia, resulting from the contestation between the conventional
bankruptcy regime and the Sharia economic/Religious Courts regime
within the framework of legal pluralism. The conventional regime
(Law No. 37 of 2004) adopts a creditor-oriented paradigm. When the
Commercial Court adjudicates Sharia bankruptcy cases, an
epistemological conflict arises through the recharacterization of
complex contracts (akad) as monolithic debt, which tends to disregard
Sharia principles and the principle of pacta sunt servanda.
Consequently, justice and legal certainty have yet to be achieved.
This dissertation examines how and why norms–actors
contestation occurs in responding to legal anomalies in the field of
Sharia bankruptcy within the Commercial Court field and the policy
field, in efforts to positivize Sharia bankruptcy law in Indonesia. This
dissertation employs qualitative research using a socio-legal approach
that combines the study of judicial decisions with legal-political
analysis. Data analysis was conducted through the deconstruction of
Commercial Court decisions, the tracing of policy documents,
including Academic Papers (Naskah Akademik) for draft legislation,
and in-depth interviews with fatwa authorities, policymakers, and the
judicial bureaucracy of the Supreme Court. The analytical framework
of this research draws upon a layered constellation of theories: critical
legal pluralism and legal eclecticism as grand theories; legal politics,
prismatic law, and the juridical field as middle-range theories; and
strategic choice theory as the applied theory.
The research findings demonstrate that the contestation
between actors and norms is driven by the nature of pragmatic
eclecticism in pursuit of short-term functional targets (short-term
utility). At the judicial field, collective de-Sharia-ization occurs
through epistemic consensus and defensive opportunism. Sharia
entities voluntarily abandon Sharia considerations when acting as
creditors in pursuit of capital efficiency, yet subsequently mobilize
Sharia as a legal shield when acting as distressed debtors. This
pragmatism is validated by Commercial Court judges through
mechanistic simplified evidentiary procedures and dual jurisdictional
standards.
The nature of pragmatic eclecticism and the asymmetry of
modalities also drive the contestation of norms and actors within the
policy field. The counter/status quo group maintains the doxa of
paritas creditorum through simple-proof test in pursuit of the Ease of
Doing Business (EoDB) index. Meanwhile, the pro-Sharia group
pursues creeping jurisdiction and institutional layering in order to
expand sectoral authority. Strategies and norms are selected tactically
and pragmatically, resulting in the absence of a universal point of
convergence between conventional bankruptcy and mu’āmalah
māliyyah (Islamic financial transactions)/taflīs (Islamic bankruptcy or
insolvency).
As a resolution, this research offers a novel contribution in the
form of the paradigm of prismatic eclecticism, based on a prismatic
ratio legis (the underlying legal rationale), to reconstruct future law by
engaging four layers of the philosophy of science. (1) Ontological:
affirming the inclusive nature of mu’āmalah māliyyah and
synchronizing the definitions of bankruptcy (pailit), taflīs, and al-hajr
(legal restriction on a person’s capacity to dispose of property). (2)
Epistemological: adopting the principle of balanced protection and
genuine debt forgiveness. (3) Methodological: implementing a
substantive insolvency test, an objective sharia compliance filter based
on the Sharia Supervisory Board (Dewan Pengawas Syariah/DPS) as
an authoritative expert witness, mediation, and the institutionalization
of a prismatic connected-jurisdiction judicial system. (4) Axiological:
guaranteeing the right to basic human subsistence (al-kifāyah alaṣliyyah)
and establishing a centralized post-bankruptcy cash safetynet
fund administered by the Heritage Assets Office (Balai Harta
Peninggalan/BHP) and BAZNAS, with the aim of transforming the
bankruptcy system from an instrument of liquidation into an
instrument of economic restoration informed by the principles of
social justice under Pancasila.297.272 Islam dan Ilmu Politik, Politik Islam, Fundamentalisme2026-09-25UIN SUNAN KALIJAGA YOGYAKARTA;PASCASARJANAThesis