Al-Qadha: Jurnal Hukum Islam dan Perundang-Undangan Vol.
No.
December 2025, .
https://doi.
org/10.
32505/qadha.
https://journal.
id/index.
p-ISSN 2356-1637 | e-ISSN 2581-0103 Judicial Guardianship in Marriage: A Comparative Study of IndonesiaAos ShAfi and IranAos Jafar Schools from a MaqAsid alSharah Perspective Thoat Stiawan1*.
Salman Al Farisi2.
Hisam Sidqi3.
Agil Laksamana4 1,2Universitas Muhammadiyah Surabaya.
Indonesia 3,4Ahlul Bayt International University Tehran.
Iran *Email: thoatstiawan@um-surabaya.
*Corresponding Author Submitted: July 26, 2025 Accepted: August 23, 2025 Published: September 03, 2025 How to Cite (Chicag.
: Stiawan.
Thoat.
Salman Al Farisi.
Hisam Sidqi, and Agil Laksamana.
AuJudicial Guardianship in Marriage: A Comparative Study of IndonesiaAos ShAfi and IranAos Jafar Schools from a MaqAsid al-Sharah PerspectiveAy.
Al-Qadha: Jurnal Hukum Islam Dan Perundang-Undangan 12 .
, 396-413.
https://doi.
org/10.
32505/qadha.
Abstract The concept of judicial guardianship in marriage is a significant issue in Islamic family law that highlights the fundamental differences between the ShAfi school in Indonesia and the Jafar school in Iran.
This distinction is not only juridical but also closely linked to the objectives of marriage .
aqAsid al-nikA.
, namely the preservation of religion .
ifz al-d.
, lineage .
ifz al-nas.
, dignity .
ifz al-ir.
, and family welfare.
This study employs a qualitative-juridical approach with normative-comparative analysis.
Data were drawn from classical fiqh texts.
Indonesian and Iranian marriage regulations, and contemporary The analysis proceeded in three stages: .
identifying normative texts concerning guardianship and judicial guardianship in the ShAfi and Jafar traditions, .
comparing their conceptual and practical applications, and .
evaluating their alignment with maqAid al-nikAu, particularly in promoting benefits, preventing harm .
, and ensuring family The findings show that the ShAfi school regards the guardian as a prerequisite for valid marriage, with the judicial guardian acting as a substitute when a lineage guardian is absent or unqualified.
By contrast, the Jafar school allows adult women to contract marriage without a guardian, except under specific circumstances.
These differences reflect the dynamic nature of Islamic legal thought in responding to social realities, yet both approaches ultimately aim to realize the maqAid al-nikAu: legal certainty, protection of dignity, and household stability.
The novelty of this research lies in integrating crosectarian comparative analysis with the framework of maqAid al-sharah, an approach still rarely applied in studies of Islamic family law, particularly in the Indonesian and Iranian The implications of this research are twofold: enriching comparative fiqh scholarship as a reference for academic discourse and providing practical insights for the formulation of marriage regulations that remain faithful to sharah while responsive to evolving social dynamics.
Keywords: Comparative Law.
Islamic Family Law.
Judicial Guardianship.
Maqashid alNikah Creative Commons Attribution-Noncommercial 4.
0 International (CC BY-NC 4.
Abstrak Konsep perwalian hakim dalam pernikahan merupakan isu penting dalam hukum keluarga Islam yang menyoroti perbedaan mendasar antara mazhab SyAfi di Indonesia dan mazhab Jafar di Iran.
Perbedaan ini tidak hanya bersifat yuridis, tetapi juga terkait erat dengan tujuan pernikahan .
aqAid al-nikA.
, yakni menjaga agama .
ifz al-d.
, keturunan .
ifz alnas.
, kehormatan .
ifz al-ir.
, dan kesejahteraan keluarga.
Penelitian ini menggunakan pendekatan kualitatif-yuridis dengan analisis normatif-komparatif.
Data diperoleh dari teksteks klasik fiqh, regulasi pernikahan Indonesia dan Iran, serta literatur kontemporer.
Analisis dilakukan dalam tiga tahap: .
mengidentifikasi teks normatif terkait perwalian dan perwalian hakim dalam tradisi SyAfi dan Jafar, .
membandingkan penerapan konseptual dan praktis keduanya, dan .
mengevaluasi kesesuaiannya dengan maqAid al-nikAu, khususnya dalam memajukan kemaslahatan, mencegah kerusakan .
, dan menjaga keberlangsungan keluarga.
Temuan penelitian menunjukkan bahwa mazhab SyAfi memandang wali sebagai syarat sah pernikahan, dengan wali hakim berfungsi sebagai pengganti ketika wali nasab tidak ada atau tidak memenuhi syarat.
Sebaliknya, mazhab Jafar memperbolehkan perempuan dewasa menikah tanpa wali, kecuali dalam kondisi Perbedaan ini mencerminkan sifat dinamis pemikiran hukum Islam dalam merespons realitas sosial, namun keduanya pada akhirnya bertujuan mewujudkan maqAid al-nikAu: kepastian hukum, perlindungan kehormatan, dan stabilitas rumah tangga.
Kebaruan penelitian ini terletak pada integrasi analisis komparatif lintas mazhab dengan kerangka maqAid al-sharah, sebuah pendekatan yang masih jarang diterapkan dalam kajian hukum keluarga Islam, khususnya dalam konteks Indonesia dan Iran.
Implikasi penelitian ini ada dua: memperkaya khazanah komparatif fiqh sebagai rujukan akademik, serta memberikan wawasan praktis bagi perumusan regulasi pernikahan yang tetap setia pada sharah sekaligus responsif terhadap dinamika sosial yang berkembang.
Kata Kunci: Perbandingan Hukum.
Hukum Keluarga Islam.
Perwalian Hakim.
Maqashid alNikah Introduction Marriage in Islam is not only a civil contract, but also a social institution that contains the purpose of maintaining the progeny, honor, and stability of society.
One of the important aspects of marriage is the existence of guardians, especially when there are differences of opinion between sects.
In the ShAfi madhhab, which is the basis of family law in Indonesia, guardianship is a condition for the validity of the contract, so that without a guardian the marriage is declared invalid.
In contrast, the Jafar school, which is practiced in Iran, gives greater room for women of puberty and intellect to marry themselves, while the role of the guardian is considered mustahabb .
1 These epistemological differences have significant legal and social implications, particularly related to women's protection and the certainty of marital status.
The phenomenon of child marriage and the practice of forced marriage that still occurs in Indonesia and Iran shows how important it is to review the concept of guardian 2 Data from the Indonesian Central Statistics Agency shows that although the average Akif Tahiiev.
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Syawaluddin Hanafi.
AuLegal Politics of Changes to Marriage Laws in Indonesia,Ay Al-Qadha: Jurnal Hukum Islam Dan Perundang-Undangan .
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Muhamad Kholid et al.
AuPreventing Child Marriage Thoat Stiawan.
Salman Al Farisi.
Hisam Sidqi.
Agil Laksamana Judicial Guardianship in MarriageA age of first marriage has increased, the dispensation of child marriage is still high, with more than 50 thousand applications submitted to religious courts.
3 A UNICEF report .
also records thousands of cases of child marriage in Iran every year.
4 This condition confirms that the role of guardian judges, both in Indonesia and Iran, cannot only be understood as a legal formality, but must be positioned as a social protection mechanism within the framework of maqAid al-nikAu.
In general, the previous literature in Indonesia generally highlighted the guardian judge in the context of marriage dispensation or guardianship due to wali 'asl, but it was still descriptive-normative and lacked emphasis on maqAid analysis.
5 On the other hand, research in Iran focuses more on the social issues of early marriage and the legal status of children, without examining in depth the concept of wali in the perspective of Jafar jurisprudence or its comparison with the ShAfi madhhab.
6 This indicates a significant research gap, namely the lack of studies that explicitly compare the concept of the guardian judge in the ShAfi and Jafar schools through the analytical framework of maqAid al-nikAu.
This research is directed to provide a comprehensive understanding of the concept of guardian judges in Islamic marriage law by conducting a comparative analysis between the ShAfi and Jafar schools.
In particular, this study examines how the concept is practiced in the Islamic family law system in Indonesia, which adheres to the ShAfi school, and in Iran which is based on the Jafar school.
This comparative analysis is expected to be able to reveal fundamental similarities and differences in the views of the two schools regarding the urgency, position, and role of the guardian judge in ensuring the validity of the marriage In addition, this study also aims to evaluate the function of guardians of judges through the perspective of maqAid al-nikAu.
The maqAid approach emphasizes the substantial purpose of marriage, such as the protection of the soul .
ife al-naf.
, honor .
ife al'ir.
, and offspring .
ife al-nas.
Thus, the existence of guardians is not only understood as a formal legal tool to replace guardians who are impaired, but also as an instrument of protection for women and children from the practice of forced marriage, child marriage, and other forms of vulnerability.
Furthermore, this study seeks to offer a conceptual reformulation model of the role of guardian judges that is more adaptive to contemporary socio-legal dynamics.
This reformulation emphasizes the need for a balance between the normative authority of Islamic in Indonesia: An Analysis of Government Policies.
Institutional Challenges, and Strategic Efforts,Ay Al-Qadha : Jurnal Hukum Islam Dan Perundang-Undangan 12, no.
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BPS (Central Statistics Agenc.
AuIndonesian Marriage Statistics Womens First Marital Age AllStats Search,Ay August https://searchengine.
id/search?mfd=0000&q=Indonesian Marriage Statistics Wome ns First Marital Age&content=all&page=1&title=0&from=all&to=all&sort=relevansi.
Nina.
AuTowards Ending Child Marriage,Ay Unicef Data.
October Https://Data.
Unicef.
Org/Resources/Towards-Ending-Child-Marriage/.
Mardi Candra et al.
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1 (March 2.
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Ladan Rahbari.
AuMarriage.
Parentage and Child Registration in Iran: Legal Status of Children of Unmarried Parents,Ay Social Sciences 11, no.
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org/10.
3390/socsci11030120.
law, the certainty of state law, and the human values that are at the core of maqAid alsyar'ah.
The resulting model is expected to be a reference in designing Islamic family law policies that are more progressive, inclusive, and responsive to the principles of gender To achieve this goal, this study uses a qualitative-comparative method.
This method combines a doctrinal approach by examining classical and contemporary fiqh texts of the ShAfi and Jafar schools as well as normative juridical analysis of laws and regulations in Indonesia and Iran.
This study was also strengthened by in-depth interviews with religious justice practitioners in Indonesia and scholars in Iran to obtain empirical and contextual With this combination, this study not only uncovers normative constructions, but is also able to capture real socio-legal practices, thus providing a complete picture of the role of guardian judges in two different legal contexts.
The novelty of this research lies in the effort to integrate the analysis of comparative fiqh across sects with the framework of maqAid in the context of two contemporary Muslim countries, namely Indonesia and Iran.
If previous studies have emphasized normative or social aspects more in isolation, this study offers a synthesis that assesses guardian judges as a legal instrument responsive to the protection of women and children.
Thus, the results of this study not only enrich the academic discourse of Islamic family law, but also provide normative and practical recommendations for policymakers in reformulating the regulation of guardian judges in the modern era.
From this methodological framework, the research proposes the main argument that the guardian judge, when understood and applied through the maqAid al-nikAu approach, has the potential to become a more flexible, progressive, and equitable instrument of Islamic This approach allows for the strengthening of the substantial dimension of sharia that is oriented towards protection and benefit, and is able to bridge the tension between classical fiqh norms and the demands of social justice in the context of contemporary Muslim societies, such as Indonesia and Iran.
In this perspective, guardians do not merely function as a substitute for guardians, but as agents of legal protection for vulnerable groups, especially women and children, as also developed within the framework of gender reform in Islam by thinkers such as Amina Wadud.
The Concept of Judicial Guardianship in the ShAfi and Jafar Schools In the context of marriage jurisprudence, the role of the guardian is an important component based on the texts and ijtihad of scholars.
One of the main arguments that is a reference for the role of the guardian in marriage is the word of Allah SWT in QS.
AlBaqarah .
: 232:
a a AIEI eaOaN acI uaa aO O Ia NI aEeIA A aaN aII aE aI aII aE eIA a AOA a AOA aaEA a AaEa aN acI aE a eA a aAE OA a aAEA a a a a e aAON acI aI OA a AaOuaa Eac eCa aI EI aa a Eae aI A a e a a ea e a a AacEEa Oa eEa aI aOaIa eI aE a eEa aIO aIA ca AacEEa aOEeOa eOaI eE a a aaEa aE eI eaaE aO Ea aE eI aOae aN a aOA ca aAOa eaI aI A Meaning: If you divorce your wives and their iddah period has expired, then do not prevent them from marrying .
their future husbands, if there is agreement between them in a good way.
Amina Wadud.
Inside the Gender Jihad: WomenAos Reform in Islam, with Internet Archive (Oxford:
Oneworld, 2.
: 310, http://archive.
org/details/insidegenderjiha0000wadu.
Thoat Stiawan.
Salman Al Farisi.
Hisam Sidqi.
Agil Laksamana Judicial Guardianship in MarriageA This verse implicitly mentions the role of the guardian in the context of not preventing women from marrying, indicating the involvement of the guardian in the marriage process.
Hadith of the Prophet SAW:
A uaacaE aaOaOEA a AaE I aEA Meaning: Marriage without a guardian is not valid.
(HR.
Abu Dawud.
At-Tirmidzi.
Ibn Majah.
considered authentic by most scholars of hadit.
This hadith is the main basis of the majority school of thought .
that the presence of a guardian is a valid requirement for marriage.
This role is not only administrative, but also a form of social protection for women.
ShAfi School: Protection through the Authority of the Guardian The ShAfi school places a guardian as one of the pillars of marriage, so that without a guardian, the marriage contract is considered invalid.
A legitimate guardian must come from the lineage .
uardian of lineag.
and his order cannot be skipped.
If the guardian of lineage is absent or does not meet the requirements .
or example, an infidel, not mature, or refuses without a sharia reaso.
, then only the guardian judge can replace his role.
Imam ShAfi emphasized the importance of a guardian to maintain the honor of women and order in marriage:
ca aA a a aO Ee aOAUA aa a UE aeI a aaIA e au eI Ia aE aA a AE eaO aEe Oa eA a A AaEI aEAUA Ee aI eaa aE aOaOEA Meaning: If a woman marries without a guardian, then her marriage is void according to us, whether the guardian approves or not.
l-Umm, by Imam Syafi'.
In this context, a guardian judge is not the main option, but rather a substitute who has legal legitimacy, usually appointed by the state .
eligious judge, marriage registra.
to represent women who do not have a legal guardian.
The ShAfi school of thought firmly places a guardian as one of the absolute pillars of marriage that must be fulfilled so that the marriage is considered valid according to sharia.
8 This means that the existence of a guardian is not only administrative, but is an essential element in the formation of a marriage contract.
In the ShAfi view, a lineal guardian, namely a guardian who comes from the woman's family lineage .
uch as a father or brothe.
, has the main priority to carry out the guardian's This assertion is rooted in the principle that the guardian acts as a protector of women in the marriage process, in order to ensure that the marriage is carried out with consideration of the benefit and avoids harm.
The role of the guardian judge in the ShAfi School is only activated in very limited situations, namely when the guardian of the lineage is absent or refuses to carry out the guardian's obligations without a valid sharia reason.
The guardian judge is a substitute figure who is tasked with protecting the interests of women in emergency conditions or when there is no guardian of the lineage, so this mechanism is a guarantee of continued protection in order to prevent harm to women.
The limitation of the role of the guardian Imam Muhammad b.
Idris al-ShAfi.
Imam ShafiAos Kitab al-Umm .
judge shows the caution of the ShAfi School in regulating authority and authority in the marriage contract so that it is not misused.
The main basis of the guardian's position as a pillar of marriage and the limitation of the role of the guardian judge is the emphasis on the aspect of protecting women.
The ShAfi school of thought considers that the limitation of women's authority in terms of marriage is not merely to limit freedom, but rather as an effort to protect women's interests from potential losses and wrong decisions that can arise due to social or emotional pressure.
Thus, the guardian's rule functions as a safeguard that protects women from falling into a marriage that is not in accordance with their interests.
In the context of maqAid al-sharAoah, this characteristic reflects the ShAfi SchoolAos priority on uife al-nal .
rotection of lineag.
and uife al-nafs .
rotection of lif.
through the mechanism of marriage guardianship.
This approach emphasizes that the protection of women and the preservation of social stability are primary objectives, thereby necessitating that the governance of guardianship in the marriage contract be firmly regulated.
Jafar School: Women's Autonomy and Legal Flexibility The Jafar School (Shia Imamiya.
has a more autonomous approach to women's authority in marriage.
A woman of maturity, of sound mind and the status of a virgin .
r wido.
has the right to marry herself without a guardian, especially if there is no coercion or An important reference from Jafar fiqh states:
a a AA a aa a AOA cU Aa aA a Aac aEaO aaEA a aAEe aI eaa EeaEaa Ee aCEaa aOA e Ua a AEA a A aI UcO eaO A e A aI aEe OaUAO aaEa a eI aIeE a Ia eA a aN aOI u eI Ee aOaaEA Meaning: A rational adult woman may marry without the permission of a guardian if it does not cause social or family harm.
In the Islamic fiqh tradition of the Ja' fari school (Shia Imamiya.
, the position of the guardian in marriage has a conceptually different approach than the Sunni school, especially in terms of the autonomy of adult women in determining their marriage contract.
Unlike the ShAfi school which requires the presence of a guardian as a pillar of marriage, the Ja' fari school views that women who have reached puberty, are of sound mind, and are not under duress .
have full rights to marry themselves without requiring the consent of a This principle is based on the understanding that the marriage contract is a sociolegal contract .
between two parties who agree with each other, and not merely a matter of family or guardians.
Therefore, adult women who have legal capacity ('Aqilah, bAligha.
Nurul Fikri Ilham Pratama.
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Thoat Stiawan.
Salman Al Farisi.
Hisam Sidqi.
Agil Laksamana Judicial Guardianship in MarriageA can perform the marriage contract themselves, as long as it does not cause mafsadah or negative social impacts.
Thus, the guardian judge does not occupy a central position in the marriage structure as in the Sunni fiqh system.
The guardian judge in Jafar's view is only relevant in special conditions, such as when a woman is in a state of not having legal capacity .
hayr Aqila.
, has not reached puberty, or there is a real protective need due to social or economic This means that the role of the guardian judge is more contingent than structural, and its existence is intended as a form of legal intervention to maintain greater Although guardianship is not considered a pillar of marriage, it does not mean that the Jafar school of thought ignores the protection of women.
In fact, through the maqAid al- shar'ah approach , the position of the guardian judge can be understood as part of an optional and contextual protection instrument, in accordance with the principles of: uife alnafs .
rotection of the life and safety of women from social dangers or exploitatio.
, uife al -' aql .
espect for the rationality and legal autonomy of wome.
, and uife al -' ird .
aintaining the honor and reputation of women in societ.
Thus, the application of guardianship in the Jafar school of thought is not directed at limiting women's authority, but as a preventive measure in emergency or incapacity This concept is consistent with contemporary maqAid thinking that emphasizes legal flexibility for the benefit and protection of vulnerable groups.
As emphasized by contemporary Islamic legal thinkers such as Jasser Auda and Mohammad Hashim Kamali, maqAid is not merely a normative framework, but also a method of Islamic legal reform that allows for the reinterpretation of legal authority based on the social context and the objectives of the shari'a.
14In this regard, the understanding of the guardian judge in the Jafar school shows the potential for a more egalitarian and contextual reconstruction of law, while still maintaining the principles of justice and public This study found that there are significant differences in the concept and application of the guardian judge between the ShAfi and Jafar schools, which are not only based on textual evidence, but are also influenced by the social and legal contexts that apply in Indonesia and Iran.
The ShAfi school, which is the main reference in Indonesia, emphasizes the importance of the marriage guardian as the party who is obliged and authorized to represent the prospective bride in marriage, except in certain conditions where the guardian is absent or refuses without a sharia reason, so that the guardian judge can take over the 15 This view is based on the principle of protecting women's rights and legal certainty in the marriage contract.
16 In contrast, the dominant Jafar school in Iran treats the AuBuku Pernikahan - Al-Khoei.
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14 Jasser Auda.
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15 Wahbah al-Zuhayli.
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16 Azyumardi Azra.
Reformist Islam in Indonesia: From Nurcholish Madjid to Abdurrahman Wahid (Paramadina, 2.
guardianship of judges with a more restrictive approach, where the role of the guardianship of judges is usually intervened by state authorities or religious courts directly, as part of a legal system that is more integrated with the Islamic state .
ilayah al-faqi.
The role of the guardianship of judges in this school emphasizes the administrative aspects of supervision and approval, given the Iranian legal context that places the state as a strict guardian of This difference has a direct impact on how marriage cases, especially those involving age dispensation, are addressed and decided in each country.
In Indonesia, a guardian judge tends to be the legal solution if the legal guardian refuses without a justifiable reason, while in Iran, this authority is more monopolized by religious courts and state officials, who then consider the maqAid al- nikAu aspect.
18 The maqAid al-nikAu approach, which emphasizes the objectives of protecting life, mind, and honor, is an effective analytical tool to assess the effectiveness and justice of the role of the guardian judge in both schools of This study shows that despite structural differences, both schools of thought are in principle aligned in promoting the protection of women and justice in marriage, provided that the practice of the guardian judge is interpreted contextually and not merely textually.
Tabel.
1 The Difference Between the Guardians of the ShAfi School and the Jafar School Aspects Mazhab SyafiAoi (Indonesi.
Mazhab Jafar (Ira.
Position of Guardian The guardian is the legal pillar of marriage, without a guardian, the marriage contract is invalid.
The Role of the Guardian Judge The guardian judge functions to replace the guardian of the nasab if there is none, does not meet the requirements, or refuses without sharia reasons.
The state is authorized to appoint a guardian judge .
hrough the KUA or an official religious officia.
to ensure the validity of the marriage.
Women, even though they are puberty, still need a guardian in the marriage contract.
Emphasizing the protection of the nasab and clarity of legal status, guardian control.
The guardian is not a legal requirement for marriage for women of puberty and reasonableness, its existence is mustahabb .
The concept of guardian judges does not occupy a central position, the state plays more of a role in the administration of marriage, not as a substitute for guardians.
The state acts through the religious Judiciary .
amily cour.
to record and certify marriages, not to replace the guardian.
State Authority Women's Position Implikasi MaqAid al-NikAu Mature and sensible women have the full right to marry themselves.
Emphasizing women's autonomy and freedom of choice of partners.
Said Amir Arjomand.
The Rule of Law.
Islam, and Constitutional Politics in Egypt and Iran (New York, 18 Ahmad Hidayat.
AuThe Role of Wali Hakim in Indonesian Marriage Law,Ay Jurnal Hukum Islam 7, no.
: 45Ae47, https://journal.
id/index.
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19 Abdullahi Ahmed An-NaAoim.
Islam and the Secular State (Harvard University Press, 2.
Thoat Stiawan.
Salman Al Farisi.
Hisam Sidqi.
Agil Laksamana Judicial Guardianship in MarriageA This finding is in line with previous studies by Hallaq .
who emphasized the need to adapt Islamic law to contemporary social realities without ignoring sharia principles, as well as Azra .
who underlined the importance of integrating maqAid in the interpretation of fiqh in Indonesia in order to promote social justice.
Implementation of MaqAid al-NikAu in the Protection of Women's and Children's Rights in Indonesia and Iran The results of the study show that the application of maqAid al-nikAu, namely the noble goals in marriage, such as protection of the soul .
ife al-naf.
, reason .
ife al - 'aq.
, descendants .
ife al-nas.
, and dignity.
plays a central role in determining the policies and practices of guardianship judges in Indonesia and Iran.
This approach offers a paradigm of interpretation of Islamic law that is more humanistic and adaptive to current social needs, especially in terms of preventing child marriage practices and protecting women's rights.
In Indonesia, the concept of maqAid al-nikAu has begun to be integrated into marriage policies, particularly in the context of Law No.
16 of 2019 concerning Amendments to the Marriage Law which raises the minimum age for marriage to 19 years.
21 This affirmation reflects the awareness that psychological and physical readiness and protection of reproductive rights are fundamental aspects in the validity and sustainability of marriage.
The approach of the guardian judge as an institution tasked with safeguarding the welfare, not just a legal formality, has also received support in practice in Religious Courts which now prioritize the principle of protection for children and women.
Meanwhile in Iran, maqAid al-nikAu becomes the philosophical basis for strict regulation and strict supervision by the state through religious courts and authorized state The state views marriage not only as a social bond, but as a trust that must be maintained in order to achieve its goals, including the protection of women and children from exploitation.
23On the other hand, there are real challenges in adapting legal practices to modern needs, especially in cases of early marriage dispensation which still often occurs due to social and economic pressures.
This difference in approach actually shows the universal dimension of maqAid al-nikAu which can be a bridge between Middle Eastern traditions and the Indonesian social context.
The maqAid approach allows for dynamic legal interpretation, accommodating social, economic and health developments, as suggested by contemporary Islamic scholars such as Mohammad Hashim Kamali and Khaled Abou El Fadl.
Wael B.
Hallaq.
ShariAoa: Theory.
Practice.
Transformations (Cambridge University Press, 2.
21 Law No.
16 of 2019 Concerning Amendments to Law No.
1 of 1974 Concerning Marriage.
State Gazette of the Republic of Indonesia .
22 Nur Rofiah.
AuLegal Protection for Women in the Religious Court System in Indonesia,Ay Journal of Law and Justice 9, no.
: 178Ae182 23 Mohammad H.
Faghfoory.
The Role of the Judiciary in Contemporary Iran (Routledge .
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, 2.
24 Fatemeh Sadeghi.
AuEarly Marriage and Its Social Impacts in Iran,Ay Iranian Journal of Social Studies 12, no.
: 54Ae60.
25 Mohammad Hashim Kamali.
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com/work/shariah-law/.
In addition, this approach supports efforts to harmonize religious norms and state law, which according to Azyumardi Azra is important to strengthen the social and religious legitimacy of policies to protect the rights of women and children.
26 This is also an instrument in advocating for the protection of women's rights in marriage, rejecting practices that contradict the principles of justice and humanity regulated in the maqAid al-shar'ah.
The difference in the views of the ShAfi and Jafar schools on the concept of guardian hakim substantially affects the way in which maqAid al-nikAu is realized, although both still lead to the same goal.
Thus, despite the fundamental differences in mechanisms, both still strive to maintain the main purpose of marriage in Islam, which is to protect religion, posterity, honor, and the welfare of the family.
These differences are more appropriately understood as variations in strategies in achieving maqAid al-nikAu.
The application of maqAid al-nikAu is a strategic solution to adjust the role of guardians in a legalistic and moral manner, which not only meets the formal needs of the law, but also upholds social justice and human rights in the realm of Islamic marriage, both in Indonesia and Iran.
Construction of Guardian Judges between the Syafi'i and Jafar Schools: Study of MaqAid in the State Context This study found a principal difference between the ShAfi and Jafar schools of thought in viewing the role and urgency of a guardian judge, especially in the marriage of adult women without a guardian lineage.
In the ShAfi school of thought, as is predominantly practiced in Indonesia, the presence of a guardian is an absolute requirement .
in marriage.
A guardian judge can act if there is no guardian lineage, or the guardian refuses to marry without a sharia reason.
This view refers to the hadith Marriage without a guardian is not valid (HR.
Abu Dawu.
27 In the framework of maqAid al-nikAu, the position of the guardian is understood as a protector of the welfare of women, not merely a formal control over their rights.
In contrast, the Jafar school of thought, which is the official school of thought in Iran, allows mature and sane women to marry without a guardian, as long as they are not virgins and there is no element of coercion.
However, practice in the field shows that the role of guardians still exists, especially through court and state institutions.
29 This shows that in practice.
Iran functionally applies the role of state guardians as regulators of boundaries and protection for women a concept similar to the guardian judge in the ShAfi system.
Azyumardi Azra.
Reformist Islam in Indonesia: From Nurcholish Madjid to Abdurrahman Wahid.
Hlm.
27 AuSunan Abi Dawud-Marriage (Kitab Al-Nika.
Sunan Abu Dawud.
Book 12.
Hadith 2085- AE EIEA - Sunnah.
Com - Sayings and Teachings of Prophet Muhammad (A)AEO NEE EON O EIA,Ay accessed August 19, 2025, https://sunnah.
com/abudawud:2085? 28 Yulmitra Handayani.
AuHukum Perkawinan Islam Di Ruang Digital: Bias Gender Dalam Wacana Hukum Perkawinan di Instagram,Ay Al-Ahwal: Jurnal Hukum Keluarga Islam 14, no.
: 112Ae132, https://doi.
org/10.
14421/ahwal.
29 Ziba Mir-Hosseini.
Marriage on Trial: A Study of Islamic Family Law (Bloomsbury Publishing, 2.
30 Haider Ala Hamoudi.
AuThe Role of the Judge in the Jafar Legal Tradition,Ay Journal of Islamic Law and Society 21, no.
: 210Ae232.
Thoat Stiawan.
Salman Al Farisi.
Hisam Sidqi.
Agil Laksamana Judicial Guardianship in MarriageA In terms of maqAid, both schools of thought have similarities in making marriage a means of ensuring peace, protection of rights, and continuity of offspring.
However, the Jafar school of thought provides greater space for the autonomy of adult women.
In the context of a modern state, this becomes important to re-examine within the maqAid framework, whether the absolute guardianship system can actually hinder women's rights to a healthy and equal marriage, especially if the guardian acts discriminatory.
By looking at the practices in Indonesia and Iran, it is seen that the state can act as a guardian in the context of maqAid if the function is directed at protection .
ife al-naf.
, justice .
l - 'ad.
, and welfare .
In Indonesia, the guardian judge as a state official in the religious court system has legal legitimacy and maqAid, especially in the context of marriage dispensation which requires extra protection for girls.
In this case, a progressive interpretation of the guardianship of judges becomes Contemporary Muslim scholars such as Abdullah bin Bayyah and Hashim Kamali emphasize the need for a maqAid approach in understanding classical legal institutions, including guardianship, so that Islamic law remains relevant to the challenges of the modern era.
32Therefore, this comparison shows that the state can play a strategic role in ensuring marital justice through the guardianship mechanism that does not deny the sharia, but rather actualizes it in the context of protection and welfare.
Conceptual Differences in Guardian Judges between the Syafi'i and Jafar Schools in the Frame of MaqAid al-NikAu The results of the study indicate that there are significant conceptual differences in the meaning and implementation of the guardian judge between the ShAfi and Jafar In the ShAfi school of thought, which is adhered to by the majority of Muslims in Indonesia, a guardian is a valid requirement for marriage.
If there is no guardian lineage, then the guardian judge acts as a representative of state authority to continue the contract.
This concept refers to the hadith of the Prophet SAW.
Marriage is invalid without a guardian (HR.
Abu Daud and Tirmidz.
, which is interpreted textually by classical ShAfi scholars such as al-Nawawi and al-Syirazi.
On the contrary, in the Jafar school of thought which is the basis of family law in Iran, a mature and sane woman has full rights to marry without requiring a guardian, especially in the case of a second marriage or mut'ah.
However, in the case of a first marriage .
, some contemporary Jafar scholars still recommend the consent of a guardian as a form of social benefit, although it is not absolutely mandatory.
Within the framework of maqAid al-nikAu, namely protection of the soul .
ife alnaf.
, honor .
ife al -'ir.
, and reason and descendants, the role of guardians can be understood as a mechanism of social and spiritual protection.
The ShAfi school emphasizes Abdul Wahid.
AuThe Role of Guardian Judges in Preventing Child Marriage in Indonesia,Ay Journal of Religious Courts 12, no.
: 85Ae95.
32 Allal FAsi.
Maqasid Al-Shariah al-Islamiyyah Wa-Makarimuha, (Dar al-Gharb al-Islami, 1.
33 Al-Majm Sharu al-Muhaddhab.
Al-Majm Sharu al-Muhaddhab, 1990th ed.
(Dar al-Fikr, 1.
structural protection through guardians, while the Jafar school emphasizes women's agency with the requirements of rationality and readiness.
Comparison with previous research, this study strengthens and complements previous studies.
For example, the study by Hosen and Marzuki which highlights the requirement for a guardian in marriage law in Indonesia, but has not discussed the Jafar approach and the role of the judge guardian across cultures.
35 This study also responds to AlShahrastani's argument which states that the permission of marriage without a guardian in Jafar can damage the family structure.
This study shows that in the context of maqAid, disproportionate restrictions can also cause harm.
Table 1.
Conceptual Comparison Table of Judges' Guardians No School ShAfi Jafar Marriage Guardian Status Valid marriage Not mandatory .
easonable women can marry themselve.
Role of the Judge Guardian Substitute guardian of Not necessary except for social Main Jurisprudence Basics Hadith: Marriage is for the sake of a guardian and the consensus of scholars Usul Jafar: rationality and social contract Source: Results of interviews and document studies of the Indonesian KUA and Iranian Courts, 2024.
The differences between the two schools of thought are not only normative, but also structural and sociological.
The concept of guardian judge in the ShAfi school is closely tied to patriarchal social structures and collective protection, while the Jafar school is more accommodating of individual rights and women's rationality.
In the context of maqAid alnikAu, both can converge if positioned as instruments of protection and justice, not merely legal formalities.
Implementation of the Practice of Guardian Judges in the Framework of the Positive Legal System in Indonesia and Iran Based on the Syafi'i and Jafar Schools.
In the ShAfi School in Indonesia, the judicial guardian serves as a solution when the lineage guardian is absent or refuses to act without a valid sharia basis.
Its implementation is usually through a religious court or official authority such as the KUA, which issues a marriage decree (SKPN), maintaining the legal and religious validity of the marriage.
Jafar School (Ira.
: The guardian judge can be represented by the community or local clerics even outside the formal environment, as long as the prospective bride and groom agree, by maintaining tradition and ensuring the maslahah .
of the marriage.
This method is more flexible and relies on social legitimacy.
This difference represents two different models of legitimacy: institution-centric and community-centric, but both are in line in fulfilling the principle of protecting the soul .
ife al -naf.
and reason .
ife al -' aq.
the key principles of maqAid al -nikAu.
Jasser Auda.
Maqasid Al-Shariah as Philosophy of Islamic Law: A Systems Approach (International Institute of Islamic Thought, 2.
, 347 https://doi.
org/10.
2307/j.
35 Muhammad Husni Abdulah Pakarti.
Au(PDF) The Principle of Guardianship in Marriage: A Philosophical Analysis of the Harmonization of Islamic Law and Indonesian Positive Law,Ay ResearchGate.
June 4, 2025, 160: https://doi.
org/10.
63142/an-nisa.
Thoat Stiawan.
Salman Al Farisi.
Hisam Sidqi.
Agil Laksamana Judicial Guardianship in MarriageA In Indonesia, the construction of Syafi'i, which places guardians as the legal pillar of marriage, is institutionalized through positive law (Marriage Law/KHI) and administrative regulations of the KUA.
In practice, the guardian judge is appointed by the state .
hrough the Head of the KUA/designated officia.
when the guardian of the nasab does not exist .
, does not meet the requirements .
non-Musli.
, or a'sal .
efuses without shari'i Cutting-edge field research shows strict formal procedures .
pplication, proof, examination/raf'al-'asl, and determination/appointment of guardian judge.
to ensure the validity of the contract and prevent abuse of authority.
This practice affirms the protectivelegalistic pattern of ShAfi in maintaining nasab, 'irs, and the certainty of marital status through institutional control by the state.
In contrast to Indonesia, the Iranian system based on the Jafar school places the legal ability of puberty women as an important principle, but positive law still requires the permission of a guardian .
ather/grandfathe.
for "virgins" in the first marriage (Article 1043 of the Iranian Civil Cod.
If the guardian refuses without a valid reason, a special civil court can grant permission, thus the protective function shifts from the "guardian judge" to judicial and state registration authorities.
This practice shows a model of state-supervised autonomy:
recognition of autonomy accompanied by legal control through court licensing/approval and registration.
Comparison with Previous Studies.
Baharuddin & Sastrawati .
focused on the age of marriage and maqAid without an in-depth study of the guardian judge, while Ma'sum .
discussed early marriage without highlighting the differences in schools of International studies such as by Auda .
and Arkoun .
provide a theoretical basis for an adaptive interpretation of maqAid but have not applied it to the context of the guardian judge.
Table 2.
Comparison of the Implementation of the Guardian Judge in the Positive Legal System in Indonesia and Iran Based on the Syafi'i and Jafar Schools.
Aspect Authority of the Guardian Judge Formality Process Candidate Involvement ShAfi School (Indonesi.
Jafar School (Ira.
Religious Court / KUA Local / community clerics Formally.
SKPN is issued as a legality Candidates must agree to the process of ratification by the court.
More informal, based on local Candidates agree, approved by religious or community leaders Adinda Dewi Mutiara Sari.
AuPenetapan Wali Hakim Dalam Perkawinan Di Kantor Urusan Agama Kecamatan Karanganyar Kabupaten Karanganyar Tahun 2020 | El-Usrah: Jurnal Hukum Keluarga,Ay 2022, 345 https://jurnal.
ar-raniry.
id/index.
php/usrah/article/view/15201.
37 Alikarami Leila.
AuHe Limitation to the Consent to Marriage under Iranian Civil Code,Ay Al-Raida Journal 152 .
): 46Ae59.
38 Auda.
Maqasid Al-Shariah as Philosophy of Islamic Law.
Legal Validity Guaranteed by state and It depends on social legitimacy and local recognition, but if the guardian refuses without any valid reason, it will get legal Practical Challenges Administration fees and time for processing SKPN Lack of legal record and Superiority Legal certainty and protection for prospective brides and grooms Flexibility and accessibility for remote areas Source: In-depth interviews with 10 KUA registrars in East Java and 8 clerics in Tehran and Esfahan provinces.
Iran, in 2024.
Based on this comparison, the legal reformulation of marriage guardians in the future can be directed to the synthesis of the superiority of the two schools.
From the ShAfi school in Indonesia, the system can maintain legal certainty by strengthening regulations and official records, but it is necessary to overcome the problems of costs and bureaucracy that often burden the community.
On the other hand, from the Jafar school in Iran, social flexibility and accessibility can be inspiring, but it must still be equipped with legal record mechanisms and state oversight so as not to create legal vulnerabilities.
Within the framework of maqAid al-nikAu, the reformulation should place the guardian judge not only as a substitute for the guardian of the nasab, but as an agent of social protection.
This means that the state and religious communities must work together to ensure that marriages are fair, protect women and children from forced or early marriage, and provide certainty of legal status for couples.
A reformulation model with dualistic integration: the state guarantees formal legality through marriage registration, while the cleric or community plays the role of a social mediator in resolving guardian conflicts.
Thus, the guardianship system can be more responsive, not only legal-formal but also contextual, inclusive, and in accordance with the goals of maqAid al-syar'ah: safeguarding religion .
ife al-d.
, soul .
ife al-naf.
, reason .
ife al-'aq.
, heredity .
ife al-nas.
, and honor .
ife al-'ir.
The findings of this study have tangible implications for the development of more appropriate and equitable guardianship policies and practices.
Within the framework of maqAid al-sharAoah integrated with social realities, several practical recommendations can be proposed as a reference.
First, there is a need to strengthen local regulations based on maqAid.
Although Law No.
16 of 2019 has established the minimum age of marriage at 19, it has not fully accommodated local dynamics and the role of judges.
Regulatory optimization may be achieved through the issuance of a Minister of Religious Affairs Regulation or Regional Regulation that explicitly outlines the procedures for judicial guardianship, including official consent from the prospective bride and groom as well as indicators of psychological In addition, the Certificate of No Guardian (SKBA) mechanism should be designed and issued well in advance of the marriage contract as an early form of both legal and social protection.
Thoat Stiawan.
Salman Al Farisi.
Hisam Sidqi.
Agil Laksamana Judicial Guardianship in MarriageA Second, premarital education based on community values and Pancasila must be Premarital education that focuses solely on administrative requirements is Learning modules should be developed to incorporate mental and emotional preparedness in accordance with maqAid standards, whereby marriage is aimed at preserving the purity of the soul .
and intellect (Aoaq.
The implementation of such programs may involve marriage registrars .
, local religious leaders, and psychologists within the framework of mosque communities.
Islamic boarding schools, and social organizations such as PKK, using a participatory approach.
Third, the role of the Office of Religious Affairs (KUA) and religious leaders should not be limited to administrative matters but must also extend to social and religious A structured system of premarital assistance should be developed to detect potential risksAisuch as underage marriage or incomplete consentAiwhich can then be referred to the judge or addressed through the SKBA mechanism.
Moreover, panels of guardian judges at the village or subdistrict level, consisting of the headman, community leaders, and womenAos representatives, may be involved in issuing judicial guardianship decisions in line with maqAid principles.
Fourth, the role of ulama fatwas requires revitalization.
Official fatwas issued by MUI.
NU, and Muhammadiyah can be enriched with recommendations that judicial guardianship be applied only under specific conditions, such as clear consent, sufficient maturity, and the absence of coercion.
Furthermore, the standardization of marriage contract drafts accompanied by judicial guardianship approval is necessary to prevent misuse and to ensure that such approval does not become merely ceremonial.
Finally, monitoring and evaluation of implementation are essential to ensure Social and field audits may be conducted by institutions such as the Ministry of WomenAos Empowerment and Child Protection and the National Commission on Violence Against Women to oversee the application of judicial guardianship in various regions.
addition, the preparation of annual reports on the practice of judicial guardianshipAi including data on cases of early marriage successfully prevented through this mechanismAi would provide a solid foundation for future policy formulation.
Conclusion This study emphasizes the importance of the concept of guardian judges in Islamic marriage law through a comparative analysis of the ShAfi and Jafar schools.
The ShAfi school places wali as a valid condition for the marriage contract, while the Jafar school gives greater autonomy to puberty women by considering social benefits.
This difference can be brought together through the approach of maqAid al-nikAu which emphasizes the protection of women's rights, justice, and the welfare of the family.
Thus, this research enriches the discourse of comparative fiqh by raising the dimensions of humanity and justice behind positive legal norms.
Practically, this research encourages religious justice institutions and policy makers to make maqAid al-nikAu the main framework in handling guardianship cases, so that the protection of women and children can be more guaranteed.
The recommendations of this research include the preparation of technical guidelines for judges that consider social, psychological, and economic aspects, as well as the strengthening of legal education based on the Islamic community.
A comparative study with family law practice in Iran (Jafa.
can also inspire regulatory reform in Indonesia while still paying attention to Islamic values and local culture, so that Islamic family law becomes more responsive, progressive, and genderjust.
The limitation of this research is that its scope still focuses on normative-comparative analysis without delving deeply into the dynamics of practice in the field influenced by social, cultural, and political factors.
Therefore, further research is recommended to combine normative approaches with empirical studies to produce a more comprehensive understanding of the implementation of guardianship judges in contemporary Muslim
References