Judges' legal reasoning on child protection: Analysis of religious courts' decisions on the case of child parentage

Abstract

This paper examines four religious courts' decisions on child legal status, especially child parentage, after Constitutional Court's decision on the legal status of child born out of wedlock. The Constitutional Court's decision has triggered controversy on the rights of child born out of wedlock due to lack of explanation concerning term 'civil legal relationship with the biological father'. To study the decisions, the author uses legal philosophy approach, both in legal science and Islamic law, focused on legal reasoning used by judges in decisions on child parentage. As the result, the author finds two types of legal reasoning employed by judges of religious courts in dealing with cases of child parentage, doctrinal-deductive legal reasoning and maslaba based legal reasoning. It argues that the employment of doctrinal-deductive legal reasoning by the judges has not benefitted children and therefore the protection of child's rights has not been optimally made nd that the employment of maslaba based legal reasoning by the judges has led to the better protection of child's rights.