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Telaah Kritis Ketentuan Hukum Bagian Hak Waris Sepertiga Bagi Ayah pada Pasal 177 Kompilasi Hukum Islam

Norhayati, Norhayati (2023) Telaah Kritis Ketentuan Hukum Bagian Hak Waris Sepertiga Bagi Ayah pada Pasal 177 Kompilasi Hukum Islam. Disertasi, Pascasarjana.

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The Compilation of Islamic Law (KHI) in the section of inheritance has made several new provisions on inheritance law that are different from inheritance law in faraidh. One of them is contained in Article 177 KHI which stipulates that the father gets a third of the inheritance rights if the heir (wife) does not have children and the her father inherits along with her husband and mother. This legal provision is different from what has been determined by the Qur'an and al-Hadith and which has been agreed by the majority of Ulama that in this case the father inherits as ashabah. The research focus is to examine the origin of the legal provision of the third inheritance rights for fathers in Article 177 KHI, a review of Islamic legal theories on the material in Article 177 of the KHI and the critical review of the material in Article 177 KHI. This research is a doctrinal legal research with historical and normative juridical approaches. The primary data of this research is the legal material in Article 177 KHI and SEMA No. 2 of 1994. While the secondary data of this research are Kitab, books, and journal articles on fiqh (Islamic law), the fiqh of Mawarits, the methodology of Islamic law (ushul al-fiqh), and the Compilation of Islamic Law. The analytical method of this research is descriptive-critical analysis. The findings of this study are: 1) Legal history, the provision of Article 177 KHI is influenced by the thought of reforming Islamic law in Indonesia. The emergence of the provision did not originate from four lines of KHI data collection, namely: book studies, interviews with Ulama, reports on religious court jurisprudence, and comparative studies with Middle Eastern Muslim countries. The origin of this provision is an attempt to adopt Hazairin's bilateral Islamic inheritance law thought by the KHI project implementation team which eliminates the ashabah institution as a group of heirs. 2) In terms of Islamic law, the legal provision in Article 177 KHI are not in line with the theory of the creed and the authority of Islamic law which requires that all provisions of Islamic law must be sourced from the Al-Qur’an, Hadith and Ijtihad. The renewal of the inheritance law in Article 177 KHI was not carried out with correct ijtihad and did not meet the requirements of ijtihad and was carried out outside of the collective ijtihad work of the KHI drafting team. In addition, these provisions are not in line with the objectives of Islamic law, both mashlahah and maqashid. The provision do not at all meet the three criteria of mashlahah daruriyyah, qathiyyah and vii kulliyah, and do not maintain the five basic principles of maqashid, namely the maintenance of religion (din), soul (nafs), reason (‘aqal), offspring (nasab), and property (mal). On the other hand, this provision brings harm (mudharat) among Muslims. 3) The results of a critical review of the provisions on inheritance rights for fathers contained in Article 177 KHI found that these provisions contradict the Koran, Hadith and Ijma' Ulama. This provision is also not in line with Hazairin's theory of bilateral inheritance law which, although in theory there is no ashabah, there is dzu al-qarabah, both ashabah and dzu al-qarabah have the same function to take the remaining inheritance. The verses of the Koran and Hadith regarding asabah are also very clear. Father getting the ashabah share is also found in the gharawain problem. This critical review offers a reformulation of the legal provisions on the one-third inheritance right for the father to become an ashabah.

Item Type: Disertasi
Subjects: K Law > K Law (General)
Date Deposited: 21 Aug 2023 00:21
Last Modified: 21 Aug 2023 00:21
URI: http://idr.uin-antasari.ac.id/id/eprint/24871

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