HUKUM PERKAWINAN SEDARAH DAN AKIBATNYA TERHADAP STATUS HAK WARIS ANAK MENURUT ‘ABD AR-RAḤMĀN AL-JAZĪRĪ

RESKA ISMAYNI, NIM : 18203010127 (2021) HUKUM PERKAWINAN SEDARAH DAN AKIBATNYA TERHADAP STATUS HAK WARIS ANAK MENURUT ‘ABD AR-RAḤMĀN AL-JAZĪRĪ. Masters thesis, UIN SUNAN KALIJAGA YOGYAKARTA.

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Abstract

This study examines abd Ar-Raḥmān Al-Jazīrī's opinion on the law of incest and its implications on the status of the child and his inheritance. It is well known that same-sex marriage is a contemporary problem where there is a difference in legal settlement between the realm of classical and contemporary fiqh. this difference is unique in seeing the legal opinion of Al-Jazīrī because on the one hand he is a classical fiqh cleric who refers to the opinion of very conservative scholars of the sect, while on the other hand examines contemporary issues of a very dynamic and kasuistic nature. To be able to explain and answer it can be narrowed down to several issues, namely how the legal status of incest and how the inheritance of children according to Al-Jazīrī. This type of research is a library research as well as the study of figures who are approached with the philosophy of Islamic law in examining the side of al-Jazīrī's legal thinking on incest and its implications in the form of child marriage and its inheritance. The authors used the theoretical framework of legal purposes according to Gustav Radbruch as a benchmark in analyzing the findings of the study. The results of this study found that Al-Jazīrī divided the law of incest based on intentionality or accidental occurrence, if intentional then follow the legal opinion of the scholars of the sect that is unlawful marriage and the child born from the marriage only has nasab to his mother as qiyas against adulterous children. If it is not intentional then the contract of the marriage is considered valid as long as it fulfills its pillars so that the position of the child from the marriage is nasab status to both parents. Furthermore, both intentional and unmarried blood must be abolished and or annulled and its implications follow the determination of the law as mentioned above. Then concerning the right of inheritance of the child in an accidental marriage following the prevailing Islamic inheritance system, but it is different from the child in a deliberate marriage that is given to him a will as a form of responsibility of a father for the maintenance of his child even though it has been abolished nasabnya. The findings of this study if analyzed using the theory of legal objectives show the location of harmony with the value of legal justice, namely the form of distibutif justice against the law of incest, status and rights of children, while the value of legal certainty and the value of legal benefit in the legal opinion of al-Jazīrī both concerning incest and the status and rights of children are said to be responsive because in accordance with the development of the times that demand the protection of children's rights in the wild especially in marriages whose parents made mistakes.

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