PERBUATAN MELAWAN HUKUM DALAM SENGKETA EKONOMI SYARIAH (Studi Putusan-Putusan Perkara Ekonomi Syariah Di Wilayah Hukum Pengadilan Tinggi Agama Jawa Tengah Dari Tahun 2018 Sampai Dengan Oktober 2021)

Mukhamad Hasan, NIM.: 19303012009 (2024) PERBUATAN MELAWAN HUKUM DALAM SENGKETA EKONOMI SYARIAH (Studi Putusan-Putusan Perkara Ekonomi Syariah Di Wilayah Hukum Pengadilan Tinggi Agama Jawa Tengah Dari Tahun 2018 Sampai Dengan Oktober 2021). Doctoral thesis, UIN SUNAN KALIJAGA YOGYAKARTA.

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Abstract

There are two types of Sharia economic disputes: disputes arising from agreements or contracts, known as breaches of contract, and disputes related to existing legal rules or norms, referred to as unlawful acts. This dissertation explores the resolution of unlawful acts in Sharia economic disputes, focusing on the decisions in Sharia economic disputes within the jurisdiction of the Central Java Religious Courts. The choice of this theme is driven by the significant number of Sharia economic cases handled by the Religious Courts in the jurisdiction of the Central Java High Religious Court. Between 2018 and 2019, 518 Sharia economic cases were resolved, including two cases involving unlawful acts that were accepted by the panel of judges. The panel of judges differed in their understanding of the concept of unlawful acts in their decisions, primarily due to the absence of applicable material legal sources defining how unlawful acts are conceptualized in Sharia economic disputes. The issues addressed in this dissertation include: What is the concept of unlawful acts in Sharia economics? Why do judges have varying interpretations when deciding cases involving unlawful acts in Sharia economics? What legal considerations guide judges in deciding cases of unlawful acts in Sharia economics? And, how do judges' decisions in disputes involving unlawful acts in Sharia economics align with principles of justice and benefit? This research is a field study, and the data is based on interviews with judges from the Pekalongan Religious Court and the Brebes Religious Court, as well as the analysis of decisions in cases of unlawful acts in Sharia economic disputes using the theories of justice and maqasid syari‘ah. The research findings are as follows: First, the concept of unlawful acts in Sharia economic disputes is interpreted as actions that contravene the law, leading to accountability, specifically, arbitrariness or negligence in exercising rights (alta‘ assuf fi isti‘mal al-haqq). Second, there are still differences among judges in religious courts regarding their understanding of unlawful acts in Sharia economic disputes. Religious court judges still use the concept of the Dutch Civil Code (BW) and have limited literature on the Concept of Unlawful Acts in Sharia Economics. Third, the diversity of opinions among judges is attributed to the presence of various rules and the absence of an operational definition related to unlawful acts in the context of Sharia economics that is applicable and outlined in material legal sources. Fourth, from the perspectives of justice and maqasid syari‘ah, the decisions of the panel of judges in case number 0395/Pdt.G/2018/PA.Pkl and case number 360/Pdt.G/2018/PA.Bbs, which accepted the contrarian's lawsuit, reflected the achievement of justice and benefit for the parties involved, considering both the elements of unlawful acts and the legal objectives, and the legal reasoning of the judge.

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