QIYĀS MA‘A AL-FĀRIQ PADA HARTA BERSAMA DALAM PERKAWINAN DI INDONESIA

Studi terhadap Metode Penemuan Hukum

Abstract

Even though Muslim communities in Indonesia have implemented joint property in marriage, the Qoran and Hadith do not explicitly explain this. Likewise, there is no confirmation that the wife has ownership rights to the asset acquired by the husband during married life. Therefore, Indonesian ulemas made legal findings but did not confirm the methods in their ijtihad. Some researchers claim that ulemas carried out legal findings through analogy methods. Unfortunately, there is an analogical fallacy because partnerships in the household are different from business partnerships. This claim inspired the author to research the appropriate legal findings method in joint property law from the perspective of analogy with differences (qiyās ma‘a al-fāriq). This perspective sees the potential for ambiguity between the direct inference method and al-qiyās as indirect inference. This study is normative legal research with a uṣūl al-fiqh approach. The author collected the data using the library method and then analyzed it through the deductive method. The author found that the ulama did not apply the analogy for two reasons: 1) there are differences because the joint property field is in Fiqh Munakahat, while the business partnerships are in the field of Fiqh Muamalah; 2) the law of syirkah al-abdān is rationally determined so that it does not enough conditions for analogy. The author concludes that the ulama uses a direct inference method. Uṣūliyyūn calls this the negation of differences method (nafy al-fāriq).