Izzuddin Alfarid, Teguh Dwi Cahyadi

Maintaining Nasab in the Flow of Legal Reform: An Analysis of Saddu Dzariah and the Inheritance Rights of Children from Unrecorded Marriage in Indonesia

Introduction

Maintaining nasab in the flow of legal reform: an analysis of saddu dzariah and the inheritance rights of children from unrecorded marriage in indonesia. Explores challenges of nasab & inheritance for children from unrecorded marriages in Indonesia. Analyzes Constitutional Court decision, saddu dzariah, and Islamic law integration for a just system.

Abstract

Marriages that are not officially registered (sirri) cause problems in the national legal system, especially regarding the determination of the nasab and inheritance rights of children born. The Constitutional Court Decision No. 46/PUU-VIII/2010 grants civil recognition to out-of-wedlock children against their biological fathers, which juridically expands legal protection. However, this provision creates normative tension with the principles of Islamic law that emphasize the importance of clarity of nasab through legal marriage. This study aims to analyze the relevance and application of the concept of saddu dzariah in the context of the distribution of inheritance for children from unrecorded marriage. The method used is qualitative with a normative and descriptive-analytical approach. Data was collected through literature studies that included court decisions, laws and regulations, classical fiqh books, and contemporary legal literature as primary, secondary, and tertiary sources. The results of the study show that the concept of saddu dzariah plays a preventive mechanism in maintaining the clarity of the nasab and preventing the social harm (mafsadah) caused by the practice of unrecorded marriage. Although national law prioritizes substantive justice, this principle remains relevant as a moral and spiritual basis in the formation of Islamic inheritance norms that are in line with the main purpose of sharia (maqasid sharia). These findings underscore the importance of integration between positive law and Islamic law principles in building a fair and sustainable inheritance law system.

Review

This paper addresses a highly pertinent and complex issue within the Indonesian legal landscape: the inheritance rights and *nasab* (lineage) of children born from unrecorded marriages (*sirri*), especially in light of the Constitutional Court Decision No. 46/PUU-VIII/2010. The study effectively navigates the tension between national legal reforms aiming for substantive justice and the foundational principles of Islamic law. Its primary contribution lies in analyzing the relevance and application of *saddu dzariah* as a preventive mechanism to maintain clarity of *nasab* and mitigate social harm stemming from unregistered unions. This is a timely and critical examination for a country with a dual legal system like Indonesia. The methodology employed is qualitative, utilizing a normative and descriptive-analytical approach, which is well-suited for a study of this nature, drawing extensively from legal texts, court decisions, and classical and contemporary Islamic jurisprudence. The research effectively demonstrates how the concept of *saddu dzariah* serves as a crucial framework for understanding the intricacies of inheritance distribution for children from unrecorded marriages. The abstract clearly articulates the normative tension arising from the Constitutional Court's recognition of civil rights for out-of-wedlock children against their biological fathers, while simultaneously emphasizing how *saddu dzariah* provides a moral and spiritual basis to uphold *nasab* clarity and prevent societal *mafsadah*. The findings successfully underscore the principle's role in guiding the formation of Islamic inheritance norms aligned with *maqasid sharia*. Overall, the paper offers a valuable and nuanced perspective on integrating positive law with Islamic legal principles, crucial for building a fair and sustainable inheritance law system in Indonesia. By highlighting *saddu dzariah*'s role, the authors provide a compelling argument for maintaining traditional safeguards within a modernizing legal framework, offering a pathway for reconciling seemingly divergent legal philosophies. The insights garnered from this study have significant implications for policymakers, legal practitioners, and Islamic jurists seeking to bridge the gap between legal reform and religious adherence. This work represents a significant scholarly contribution, illuminating complex legal and social challenges and proposing a conceptual framework for their resolution.

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