Pola Kaderisasi Gerakan Islam Puritan: Studi Kritis Terhadap Sistem Pengkaderan Persatuan Islam

Abstract

The Kompilasi Hukum Islam (abbreviated KHI in Indonesia) or Compilation of Islamic Law was an applied law in the religious court but has a weak position because it was in the form of a Presidential Instruction (Instruksi Presiden abbreviated INPRES in Indonesia). INPRES was not a source of law and order in Indonesia legislation. This study aimed to analyze the argument behind the application of KHI in the religious court to decide a disputed case and to analyze its execution on verdict for parenting right case. Another aim was to develop a new concept that was in line with the accumulative goal of the law enforcement. This research utilized a case study to analyze the decision of the South Jakarta Religious District Court which appealed to the DKI Jakarta Religious High Court in 2010-2013. The research could be categorized as normative, empirical, and historical juridical approach with a descriptive critical analysis. The findings were analyzed using the Theory of Judges' Decisions, Theory of Execution, Theory of Legal Justice, The Theory of Maslahah al Mursalah and The Theory of Legal Certainty. The results showed that the judges of the South Jakarta Religious District Court have used KHI as an applied law, even though it was in the form of INPRES. The head of the South Jakarta Religious High Court also used it in the execution of the verdict in the parenting right (hadhonah) case, even though the object was a person (child) not an object. However, the application of this decision focused only on legal certainty, without considering the benefits and justice that were the essence of legal objectives. This research proposed a solution in the form of the Accumulation of Legal Purpose Theory which guarantee justice, benefit, and legal certainty as the goal of law that could be achieved simultaneously at the same time.