POLITIK HUKUM KEPAILITAN SYARIAH DI INDONESIA: DARI EKLEKTISISME PRAGMATIS MENUJU EKLEKTISISME PRISMATIK

Muhamad Nasrudin, NIM.: 22300015026 (2026) POLITIK HUKUM KEPAILITAN SYARIAH DI INDONESIA: DARI EKLEKTISISME PRAGMATIS MENUJU EKLEKTISISME PRISMATIK. Doctoral thesis, UIN SUNAN KALIJAGA YOGYAKARTA.

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Abstract

This 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.

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