POLITIK HUKUM KONSTITUSIONALITAS PESANTREN (Studi Pembentukan Undang-undang Nomor 18 Tahun 2019 tentang Pesantren)

Faizal Basri, NIM.: 20103070083 (2025) POLITIK HUKUM KONSTITUSIONALITAS PESANTREN (Studi Pembentukan Undang-undang Nomor 18 Tahun 2019 tentang Pesantren). Skripsi thesis, UIN SUNAN KALIJAGA YOGYAKARTA.

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Abstract

Law Number 18 of 2019 concerning Islamic Boarding Schools (Pesantren Law) was enacted in response to the absence of adequate legal protection to regulate the existence of Islamic boarding schools within the national education system. Until now, Islamic boarding schools have only received partial recognition through Law Number 20 of 2003 concerning the National Education System, Government Regulation No. 55 of 2007 concerning Religious Education and Religious Instruction, and Minister of Religious Affairs Regulation No. 13 of 2014 concerning Islamic Religious Education, so that the historical, social, and cultural functions of Islamic boarding schools have not received constitutional legitimacy equal to that of other educational institutions. The birth of these laws cannot be separated from national political dynamics, including educational budget imbalances, weak recognition of the functions of da'wah and empowerment, and substantive debates regarding institutional autonomy and the position of the state. Based on this, this study formulates two main questions: what are the political dynamics in the process of formulating the Pesantren Law, and what is the review of the substance and normative implications of the Pesantren Law from the perspective of maslahah al-mursalah ? This study is a normative legal study with a legislative approach and a conceptual approach based on secondary data in the form of primary legal materials, secondary legal materials, and tertiary legal materials, which are then analyzed using a qualitative-prescriptive method. The analysis was conducted using a legal political framework that assesses the political configuration and character of legal products, as well as the maslahah al-mursalah theory used to assess the beneficial orientation of the Pesantren Law. The two theories were combined to test the alignment between the formation process and the normative benefits of the Pesantren Law with the objectives of sharia and the state. The results of the study show that the Pesantren Law was formed in a relatively democratic political configuration with a significant level of public participation and responsive content, but still leaves room for potential state control, including in the issues of curriculum formulation and pesantren funding. State control also has the potential to be realized through open-ended norms, such as in the phrase “moderate.” From the perspective of maslahah al-mursalah, the Pesantren Law is a means of realizing public interest through the protection of religious education, providing legal certainty for pesantren, and opening up equal access to rights for santri. However, this study also found risks of mafsadat in the form of the potential commercialization of Islamic boarding schools due to funding provisions and the potential for political intervention. Therefore, the implementation of the Islamic Boarding School Law requires oversight mechanisms, funding transparency, and the strengthening of institutional autonomy so that the resulting maslahah is maintained.

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