ADMINISTRATIVE TRANSGRESSION AND JUDICIAL DISCRETION FOR THE SAKE OF CITIZENS’ RIGHTS The Legalisation of Unregistered Marriages in Indonesia

Abstract

This article addresses how the legalization of unregistered marriages works in Indonesian day-to-day practices. It understands people’s strategies to legalize their unregistered marriage and examines the state activities of granting legalization. It seeks to answer in what ways the legal validity of a marriage is important to Muslim citizens. The data in this paper results from the observation of marriage registration documents in a marriage registration office and the examination of legal reasoning used by Islamic judges in marriage legalization (isbat nikah) cases. This essay emphasizes that state recognition of a marriage cannot entirely substitute community-based legal norms. It also shows the importance of administrative transgression and judicial discretion played by street-level bureaucrats. By so doing, they have grounds to accord legalization. They apply a lenient approach towards marriage rules that is key to providing state recognition of unregistered marriages.