There is a shortage adjudication of formal legal material in the settlement of
inheritance disputes. This poses a challenge to judges in the religious courts because they
need to provide legal bases and considerations to make rulings. They have to be creative in
their search for law in various ways. It is possible that judges consider and combine written
and unwritten laws, resulting in rulings that contain legal discretion.
This dissertation aims to identify forms and nature of judge discretion. In addition,
this research also seeks ideal discretion that satisfies a sense of justice, increases the benefit
and legal certainty in resolving inheritance disputes. It uses a normative legal approach,
analyzing the decisions of inheritance cases at the Religious Courts in South Kalimantan,
as well as related regulations and doctrines.
In this dissertation, two types of judge discretion are discussed. The first one is
fully free discretion, namely when a judge faces a case that has no legal reference in the
current law or that the existing legal basis is not applicable to it. The second one is partially
dependent discretion, namely when a judge deals with a case that has several legal
references, but he or she is not obligated to choose any one of them. Free discretion come
in such forms as: 1) will to give some portions of inheritance for ex-wives, 2) payment of
costs of performing religious rituals for the deceased, 3) distribution of inheritance based
on umanat (oral statements of the deceased during his or her lifetime in front of a witness),
and 4) equal distribution of inheritance for sons and daughters. Semi-independent
discretion are visible in such matters as: 1) giving portion of inheritance to children of
different religions based on will that is binding, 2) deciding on substitute heirs, 2) giving
the remaining of inheritance (radd) to relevant people based on sababiah (relations formed
due to marriages), and 3) determining joint assets from inheritance.
Religious judges include discreation in their rulings because the procedural
aspects are fulfilled and due to humane considerations. These are based on written and
unwritten laws, such as legal doctrines, theories, and principles as well as local customs.
The discreation was focused on achieveing the objectives of law, namely, legal certainty,
fairness and benefit. The ideal discretion is a progressive discretion that is legally-binding
(in krah), which is exercised out of the fully free discretion. The good examples are the
rulings that distribute the inheritance equally between sons and daughters, that instruct the
payment of the costs for the funeral and the related religious rituals, and that allocate
inheritance and heirloom based on the umanat of the deceased.