al-Ihkam: Jurnal Hukum dan Pranata Sosial, 19 .
, 2024: 519-545
ISSN: 1907-591X.
E-ISSN: 2442-3084
DOI: https://doi.
org/10.
19105/al-lhkam.
MaqAid cum-MubAdalah Methodology of KUPI:
Centering WomenAos Experiences in Islamic Law for Gender-Just Fiqh Faqiuddin Abdul Kodir Universitas Islam Negeri Siber Syekh Nurjati Cirebon.
Indonesia email: faqiuddin@syekhnurjati.
Nor Ismah University of Michigan.
United States of America Email: nismah@umich.
Samia Kotele yOcole Normale Supyrieure de Lyon.
France Email: samia.
kotele@ens-lyon.
Wakhit Hasyim Universitas Islam Negeri Siber Syekh Nurjati Cirebon.
Indonesia Email: wakhit.
hasim@syekhnurjati.
Fadzila Din International Islamic University Malaysia.
Malaysia Email: fadzila@iium.
Article history: Received: December 08, 2024.
Accepted: January 13, 2025.
Published: January 25, 2025 Abstract The production of fatwA in Indonesia has traditionally been dominated by male scholars and rooted in conventional methodologies that prioritize textual sources, often neglecting the lived experiences of women.
This article examines innovative methodology proposed by the Indonesian Congress of Women Ulama (Kongres Ulama Perempuan Indonesia, or Author correspondence email: faqiuddin@syekhnurjati.
Available online at: http://ejournal.
id/index.
php/alihkam/ Copyright .
2024 by Al-Ihkam.
Jurnal Hukum dan Pranata Sosial Faqiuddin Abdul Kodir KUPI) to develop a gender-just approach to Islamic jurisprudence .
Drawing on participant observation of KUPI's fatwa-making processes in two events occurring respectively in 2017 and 2022 and literature analysis, this study explores two key questions: .
To what extent does KUPIAos maqAid cum-mubAdalah methodology foster gender-just fiqh? .
How does KUPI apply this methodology, incorporating both womenAos experiential perspectives and literal Islamic texts, in issuing its fatwA on child marriage and abortion in cases of rape? The analysis highlights how KUPIAos maqAid cum-mubAdalah jurisprudence, showcasing its transformative potential.
KUPIAos framework integrates maqAid asy-syarAoah .
he objectives of Islamic la.
with mubAdalah a perspective emphasizing equality and reciprocity between men and women.
Termed maqAid cum-mubAdalah, this methodology recognizes lived experiences of women as one of the sources to formulate religious opinions, or fatwA, in Islamic legal tradition.
This article underscores the importance of integrating women's experiential perspectives into Islamic legal discourse, offering new insights into evolving interpretations of fiqh that prioritize justice and equality.
Keywords:
FatwA.
Gender-Just Fiqh.
KUPI.
MaqAid cum-mubAdalah Introduction The basis of religious legal opinion, known as fatwA, issued by religious institutions, such as the Indonesian Ulama Council (MUI) is fiqh, an Islamic jurisprudence which reflects scholars endeavor to address real-life challenges by referring to foundational textsAithe Qur'an and Hadith.
1 Although these source texts remain unchanged, the interpretation of their content has naturally evolved, resulting in ongoing developments in fiqh, particularly regarding women's issues 1 N.
Hosen.
AuBehind the Scenes: Fatwas of Majelis Ulama Indonesia .
,Ay Journal Islamic Studies .
147Ae79, https://doi.
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1093/jis/15.
al-Ihkam: Jurnal Hukum dan Pranata Sosial, 19 .
, 2024: 519-545 MaqAid cum-MubAdalah Methodology of KUPI:
Centering WomenAos Experiences in Islamic Law for Gender-Just Fiqh in family law.
2 This evolution in fiqh requires a comprehensive and holistic methodology,3 in which women's participation becomes a "means of ensuring just and lasting reforms".
Reforms on womenAos right in family and society include diverse methodologies and approaches aimed at formulating genderjust fiqh.
5 According to Ziba Mir-Hosseini, these reforms have undergone three significant phases.
The first phase is the codification moment, during which Muslim countries throughout the twentieth century transformed classical fiqh into codified family laws.
However, it did not include any critique of the patriarchal structures inherent in classical fiqh.
The second phase is marked by the rise of political Islam, beginning in the 1970s, with its peak in 1979 in countries like Iran.
Egypt, and Pakistan, where there was a movement to return to Islamic sharia, which is really classical fiqh.
The third phase is characterized by the emergence of Islamic feminism, pioneered by scholars such as Azizah al-Hibri.
Riffat Hassan, and Amina Wadud.
These scholars began to reclaim Islam's egalitarian message from its original sources and challenged the patriarchal dimensions of Islamic tradition.
In this third phase, the Indonesian Congress of Women Ulama (KUPI), established in 2017, uniquely integrates Islamic sources with women's knowledge and experiences.
This approach, according to Kloos and Ismah, expands the global Islamic feminist project from a primarily scholarly and intellectual movement into a locally resonant 2 Ziba Mir-Hosseini.
AuThe Construction of Gender in Islamic Legal Thought Strategies Reform,Ay Hawwa .
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3 Khoiruddin Nasution.
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4 John L.
Esposito and Natana J.
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Women in Muslim Family Law (New York: Syracuse University Press, 2.
, 162.
5 Ziba Mir-Hosseini.
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Mulki Al-Sharmani, and Jana Rumminger (London: Oneworld Publications, 2.
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Michael N Nwoko and Clement Chimezie Igbokwe.
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6 Mir-Hosseini.
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al-Ihkam: Jurnal Hukum dan Pranata Sosial, 19 .
, 2024: 519-545 Faqiuddin Abdul Kodir and potentially impactful social movement.
7 KUPI, held twice, first in 2017 at the Islamic boarding school, or Pesantren Kebon Jambu alIslami Cirebon West Java, and second in 2022 at Pesantren Hasyim Asy'ari Bangsri Jepara Central Java, featured a core activity called the religious deliberation (Musyawarah Keagamaan or MK) to discuss and decide KUPIAos religious opinions.
Since the first Congress in Cirebon.
KUPI has become a movement that brings together women clerics, scholars, activists, and organizations in Indonesia to advocate gender justice from an Islamic perspective.
Numerous studies on KUPI have underscored its importance in highlighting the presence and influence of women in clerical roles, especially in fatwA making, in which they participate in all of its 8 This distinguishes KUPI from other fatwA-issuing institutions, such as the MUI, and serves as a response to the challenge posed by various scholars and activists advocating for women's involvement in the issuance of religious fatwA.
Furthermore, the body within KUPI responsible for issuing fatwA, operates through community-level stages, promotes collective decision-making, integrates women's perspectives, and catalyzes social, cultural, and spiritual movements.
While previous studies have defined Islamic knowledge within KUPIAos movement, they lack analysis of how KUPI applies maqAid to develop gender-just fiqh.
This article addresses this gap by examining maqAid asy-syarAoah as reinterpreted by KUPI through the 7 David Kloos and Nor Ismah.
AuSiting Islamic Feminism: The Indonesian Congress of Women Islamic Scholars and the Challenge of Challenging Patriarchal Authority,Ay History and Anthropology 34, no.
5 (October 2.
: 818Ae43, https://doi.
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1080/02757206.
8 Inayah Rohmaniyah.
Samia Kotele, and Rr Siti Kurnia Widiastuti.
AuReclaiming an Authority: WomenAos Ulama Congress Network (KUPI) and a New Trend of Religious Discourse in Indonesia,Ay Academic Journal of Interdisciplinary Studies 11, no.
3 (May 2.
: 60Ae70, https://doi.
org/10.
36941/ajis-2022-0068.
Arifah Millati Agustina and Nor Ismah.
AuChallenging Traditional Islamic Authority: Indonesian Female Ulama and the Fatwa Against Forced Marriages,Ay Journal of Islamic Law 5, no.
: 125Ae46, https://doi.
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Zainul MunAoim et al.
AuRevisioning Official Islam in Indonesia: The Role of Women Ulama Congress in Reproducing Female Authority in Islamic Law,Ay Ahkam: Jurnal Ilmu Syariah 24, no.
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Umma Farida and Abdurrohman Kasdi.
AuThe 2017 KUPI Congress and Indonesian Female AoUlama,AoAy Journal Indonesian Islam .
135Ae58, https://doi.
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al-Ihkam: Jurnal Hukum dan Pranata Sosial, 19 .
, 2024: 519-545 MaqAid cum-MubAdalah Methodology of KUPI:
Centering WomenAos Experiences in Islamic Law for Gender-Just Fiqh mubAdalah .
9 KUPI adopts mubAdalah as both perspective and method, enabling gender-sensitive reinterpretation of Islamic texts, emphasizing reciprocal gender roles, fostering cooperative relationships, and accommodating evolving contexts.
This article highlights the need to revisit maqAid to address modern challenges.
10 In Indonesia, while the Indonesian Ulama Council (MUI) integrates maqAid principles into its fatwA,11 they are extensively applied to economic and health matters,12 neglecting womenAos issues and resulting in patriarchal fatwA.
13 Notably.
MUI has used maqAid to justify practices like female circumcision,14 criticized for harming women and violating their sexual rights.
In contrast.
KUPIAos maqAid cum-mubAdalah methodology stands out for its inclusive approach, involving female ulema throughout the fatwA-making processAia critical aspect absents in other fatwA organizations in Indonesia and beyond.
The involvement of the ulema, who can be both male and females, does mean the 9 Siti Nurjanah et al.
AuAl-MubAdalah f Mafhm Fiqh al-MarAoah al-MuAoAirah bi IndnsiyA,Ay Al-Ihkam: Jurnal Hukum dan Pranata Sosial 17, no.
: 189Ae215, https://doi.
org/10.
19105/al-Ihkam.
10 Wael B.
Hallaq.
AuMaqasid and the Challenges of Modernity,Ay Al-JamiAoah:
Journal Islamic Studies .
1Ae31, https://doi.
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14421/ajis.
11 Muhammad Sholihin and Fuad Zein.
AuMaslahah Reasoning behind Fatwa of the Indonesian Ulema Council: Between IjtihadAos Method and Pragmatism,Ay Ijtihad 36, .
1Ae10, https://journals.
org/index.
php/ijtihad/article/view/36.
12 Nurhayati Nurhayati and Muhammad Syukri Albani Nasution.
AuMaqAsd AlShara in the Fatwa of the Indonesian Ulama Council Regarding Congregational Worship During the COVID-19 Pandemic,Ay Asy-SyirAoah: Jurnal Ilmu SyariAoah dan Hukum 54, no.
: 251, https://doi.
org/10.
14421/ajish.
13 MunAoim et al.
AuRevisioning Official Islam in Indonesia: The Role of Women Ulama Congress in Reproducing Female Authority in Islamic Law.
Ay 14 M.
Asrorun NiAoam Sholeh.
AuFatwa MUI Tentang Khitan Perempuan,Ay Ahkam:
Jurnal Ilmu Syariah .
35Ae46, https://doi.
org/10.
15408/ajis.
15 Jauharotul Farida et al.
AuSunat pada Anak Perempuan (Khifad.
dan Perlindungan Anak Perempuan di Indonesia: Studi Kasus di Kabupaten Demak,Ay Sawwa:
Jurnal Studi Gender .
https://doi.
org/10.
21580/sa.
Nisaul Fadillah.
AuWomenAos Majelis Taklim and the Gradual Move Toward Gender Equality: A Study in Jambi Province,Ay Journal Indonesian Islam .
100Ae123, https://doi.
org/10.
15642/JIIS.
al-Ihkam: Jurnal Hukum dan Pranata Sosial, 19 .
, 2024: 519-545 Faqiuddin Abdul Kodir consideration of womenAos experience.
This article analyzes how KUPI through fatwA on child marriage and protecting womenAos lives from pregnancy risks due to rape, theoretically and practically elucidate maqAid as the foundational principle of the mubAdalah framework, known as maqAid cum-mubAdalah, fosters gender-just fiqh.
Methods The primary data for this article were gathered through authorAos participation and observation during KUPIAos fatwA-making processes at the first Congress in Cirebon .
and the second Congress in Jepara .
This was complemented by literature analysis, including documents and writings related to the MubAdalah concept and its application in formulating KUPI fatwA.
The main sources include Dokumen Resmi Proses dan Hasil Kongres Ulama Perempuan Indonesia (Official Document of Process and Resulat of Indonesian Congress of WomenAos Ulama, 2.
Metodologi FatwA KUPI: Pokok-pokok Pikiran Musyawarah Keagamaan Kongres Ulama Perempuan Indonesia (Fatwa Methodology of KUPI: Main Thougths of Religious Deliberation of Indonesian Congress of WomenAos Ulama, 2.
, and Hasil Musyawarah Keagamaan Kongres Ulama Perempuan Indonesia (KUPI) ke-2 (The Result of Religious Deliberation of Indonesian Congress of WomenAos Ulama, 2.
The data were analyzed using a hermeneutic framework, focusing on epistemological foundations, the evolution of thought, and the development, conceptualization, and dissemination of womenAos experiences within the maqAid cum-mubAdalah approach.
highlight the significance of womenAos experiences as a key element in fatwa formulation, two KUPI fatwA were selected for analysis: the fatwa on child marriage .
ssued in Cirebon, 2.
and the fatwa on protecting women's lives from pregnancy risks due to rape .
ssued in Jepara, 2.
, commonly associated with abortion in such cases.
This analysis examines the steps taken by the KUPI Religious Deliberation (Musyawarah Keagamaa.
to integrate women's perspectives into the methodology, process, and outcomes of its fatwA.
These topics were chosen as they represent key discussions from the first and second KUPI congresses, which have sparked scholarly debate due to differing perspectives and methodologies in fatwa production.
al-Ihkam: Jurnal Hukum dan Pranata Sosial, 19 .
, 2024: 519-545 MaqAid cum-MubAdalah Methodology of KUPI:
Centering WomenAos Experiences in Islamic Law for Gender-Just Fiqh Result and Discussion Fostering Gender-Just Fiqh: KUPI's MaqAid cum-MubAdalah Approach As the foundation for contemporary fatwA, fiqh represents the scholars' understanding of Islamic source texts-the QurAoan and Hadith-to address various life challenges, thereby serving as a source of benefit for humanity in both this world and the hereafter.
modern times, beginning with Ibn Ashur .
, scholars have increasingly viewed the use of maqAid as essential when other methods in Ul al-Fiqh .
he methodology of Islamic jurisprudenc.
prove inadequate to address the diverse challenges of contemporary 16 This maqAid has evolved "from a secondary methodology to a primary methodology and ultimately to a multidisciplinary science" in order "to encompass a broader scope of ijtihad" across all aspects of modern life.
The definition of maqAid lacks a standardized and singular interpretation, as scholars and intellectuals present diverse perspectives and formulations.
Among the most prominent conceptualizations of maqAid asy-syarAoah is the classification introduced by the classical scholar Ab Amid al-GhazAl .
who identified five core objectives of Islamic law: the protection of religion .
ife ad-d.
, life .
ife an-naf.
, intellect .
ife al-Aoaq.
, property .
ife al-mA.
, and lineage or offspring .
ife an-nas.
Contemporary scholars have expanded the scope of maqAid to encompass a broader range of issues, including socio-political reform, women's rights, justice, freedom, brotherhood, social welfare, human dignity, nationbuilding, cooperation, and the protection of nature, among others.
The principle of maqAid has been mobilized by a wide range of ulema in the Islamic world, in a wide range of domains.
Rashid Rida .
offers a socio-political reform and championed the 16 Mohammad Hasyim Kamali.
Membumikan Syariah: Pergulatan Mengaktualkan Islam (Bandung: Mizan, 2.
, 164Ae68.
Hengki Ferdiansyah.
Pemikiran Hukum Islam Jasser Auda (Jakarta: Yayasan Pengkajian Hadits el-Bukhari, 2.
, 32Ae41.
17 Tazul Islam.
AuExpansion of MaqAid Thought Beyond MaqAid al-Sharah:
MaqAid al-QurAn As a New Paradigm,Ay Hamdard Islamicus 45, no.
: 79Ae95, https://doi.
org/10.
57144/hi.
18 Kamali.
Membumikan Syariah: Pergulatan Mengaktualkan Islam.
al-Ihkam: Jurnal Hukum dan Pranata Sosial, 19 .
, 2024: 519-545 Faqiuddin Abdul Kodir fulfillment of women's rights as themes of maqAid.
19 Ibn Ashur expanded the themes of maqAid by incorporating principles of freedom, equality, and tolerance.
20 Yusuf al-Qaradawi added themes on justice, freedom, brotherhood, social welfare, human dignity, nation-building, and cooperation between humans.
21 Zaynab alAoUlwan took a specific focus, including saknah .
ranquility and happines.
, as a goal within Islamic family law .
aqAid asy-syarAoah f al-usra.
Here, contemporary scholars generally agree that maqAid embodies universal values like social justice, public good, and economic welfare, which are applicable to both men and women.
However, they have not sufficiently elaborated on how the maqAid methodology can be specifically applied to gender issues.
24 Some studies on Islamic law in the Indonesian context, even those employing the maqAid approach, have yet to fully engage with conceptions of maqAid that involve women and incorporate their life 19 Zaprulkhan.
Rekonstruksi Paradigma MaqAid asy-SyarAoah: Kajian Kritis dan Komprehensif (Yogyakarta: IRCISOD, 2.
, 177Ae78.
20 Muuammad a-Ahir Ibn AoAshr.
MaqAid asy-SyarAoah al-IslAmiyyah (Cairo:
Dar al-Salam, 2.
, 449Ae63.
Darul Faizin.
AuKonstribusi Muhammad A-Ahir Ibnu AoAsyr Terhadap MaqAid asy-SyarAoah,Ay El-Mashlahah 11, no.
: 1Ae12, https://doi.
org/10.
23971/elma.
21 Yusuf Al-QarasAw.
Madkhal Li-DirasAt asy-SyarAoah al-IslAmiyyah (Cairo:
Maktabah Wahbah, 1.
, 75.
22 Zaynab ahA Al-AoUlwan.
Al-Usrah fi MaqAid asy-SyarAoah: QirAAoAh f QasAyA az-ZawAj Wa A-alAq Fi AmirkA (Herdon: iT, 2.
, 90Ae97.
23 Zaprulkhan.
Rekonstruksi Paradigma MaqAid asy-SyarAoah: Kajian Kritis dan Komprehensif, 174Ae79.
24 Adis Duderija.
AuMaqAid Al-SharAoa.
Gender Non-Patriarchal QurAn-Sunna Hermeneutics, and the Reformation of Muslim Family Law,Ay in MaqAid Al-SharAoah and Contemporary Reformist Muslim Thought, ed.
Adis Duderija, 2014, 193Ae218, https://doi.
org/10.
1057/9781137319418_9.
Basma I.
Abdelgafar.
AuRe-Envisioning WomenAos Empowerment: A Maqasid Approach to Understanding WomenAos Status and Rights in Islam,Ay in WomenAos Empowerment and Public Policy in the Arab Gulf States.
Rabia Naquib, (Ottawa:
Springer, 55Ae73, https://doi.
org/https://doi.
org/10.
1007/978-981-99-6006-4_3.
25 Edi Kurniawan et al.
AuEarly Marriage.
Human Rights, and the Living Fiqh:
A MaqAid Al-SharAoa Review,Ay Al-Risalah: Forum Kajian Hukum dan Sosial Kemasyarakatan 20, no.
: 1Ae15, https://doi.
org/10.
30631/alrisalah.
Anthin Lathifah et al.
AuThe Construction of Religious Freedom in Indonesian al-Ihkam: Jurnal Hukum dan Pranata Sosial, 19 .
, 2024: 519-545 MaqAid cum-MubAdalah Methodology of KUPI:
Centering WomenAos Experiences in Islamic Law for Gender-Just Fiqh Recognizing women's perspectives and experiences is crucial for producing authentic religious knowledge, and KUPI has made this a cornerstone of its use of maqAid in formulating gender-just fiqh.
The Religious Deliberation (Musyawarah Keagamaa.
of KUPI, held in Cirebon .
and Jepara .
adopted the maqAid methodology, but its distinctiveness is found in its integration of maqAid with women's perspectives and experiences.
The validation of women's perspectives and experiences is demonstrated through the active involvement of female ulema in all KUPIAos fatwA processes, the acknowledgment of women's experiences as a legitimate source of knowledge, and the resulting fatwA that promote gender justice.
In the KUPIAos perspective, men and women are seen as complete individuals and full participants in life, with their experiences valued as authoritative knowledge.
Women actively contribute to formulating religious fatwA, ensuring their experiences are recognized and their interests protected.
This approach emphasizes cooperation and mutual exchange, positioning both genders as equal participants in life.
It ensures equal consideration of men's and women's experiences, preventing their marginalization in life's challenges.
Recognizing men and women as complete individuals involves acknowledging their diverse dimensionsAi physical, psychological, social, and spiritualAibeyond traditional gender roles.
KUPI embraces this perspective and employes two strategies in conceptualizing, referring, and implementing the maqAid First, women together with men should actively participate in all fatwA processes, acting as both contributors and recipients of its outcomes.
The second strategy focuses on acknowledging the unique experiences of women that differentiate Legislation: A Perspective of MaqAsid Hifz Al-Dn,Ay Samarah: Jurnal Hukum Keluarga dan Hukum Islam 6, no.
: 369Ae90, https://doi.
org/10.
22373/sjhk.
26 Nor Ismah.
Women Issuing Fatwas: Female Isalmic Scholars and CommunityBased Authority in Java Indonesia (Leiden: Unpublished Dissertation in Leiden University, 2.
, 179Ae89.
27 Nur Rofiah.
AuReading the QurAoan Through WomenAos Experience,Ay in Justice and Beauty in Muslim Marriage: Towards Egalitarian Ethics and Laws, ed.
Ziba MirHosseni (London: Oneworld, 2.
, 57Ae84.
Halimah Basri et al.
AuInheritance Rights of Women in Makassar Society: A Study of Living QurAoan and Its Implications for Islamic Law,Ay Samarah: Jurnal Hukum Keluarga dan Hukum Islam 6, no.
: 537Ae57, https://doi.
org/10.
22373/sjhk.
al-Ihkam: Jurnal Hukum dan Pranata Sosial, 19 .
, 2024: 519-545 Faqiuddin Abdul Kodir them from men.
This includes biological aspects such as menstruation, pregnancy, childbirth, postpartum experience, and Socially, women often face vulnerabilities, including stigmatization, subordination, marginalization, violence, and double burdens, solely because of their gender.
These unique biological and social experiences for women become integrated into the human experience, and serve as sources of knowledge, including religious opinions, such as fiqh and fatwA.
The protection of offspring .
ife an-nas.
, one of five core principles in the maqAid methodology, has been expanded by contemporary scholars to encompass the protection of the integrity and welfare of family life.
This principle has been reconceptualized by KUPI through two primary strategies.
First, the principle is understood to encompass and prioritize the welfare of both men and women within the context of family life, integrating the experiences of both genders into its framework.
Second.
KUPI incorporates considerations related to women's reproductive health, both biological and social, into the formulation of uife an-nasl in various fatwA.
For example, the potential harm to the wombs of underage girls caused by pregnancyAia risk that is exclusive to female reproductive organsAihas led KUPI to prohibit the marriage of children.
Additionally, the social consequences uniquely faced by girls who marry young, such as restrictions on their access to education and social activities, are factored into the application of the uife an-nasl principle in efforts to protect the welfare of families.
The other four principles of maqAidAithe protection of the soul, mind, property, and religionAiare also conceptualized through these two strategies, ensuring that the equal needs of men and women as human beings are addressed while simultaneously accommodating the specific biological and social needs of women.
This approach is 28 Faqihuddin Abdul Kodir and Nur Rofiah.
Summary the Result of the Religious Deliberation: The 2nd Congress of Indonesian Women Ulama (KUPI), ed.
Samia Kotele (Jakarta: AMAN Indonesia, 2.
, 13Ae14.
29 Kongres Ulama Perempuan Indonesia.
Hasil Musyawarah Keagamaan Kongres Ulama Perempuan Indonesia (KUPI) Ke-2 (Jakarta: KUPI, 2.
, 111Ae15.
Tim Kongres Ulama Perempuan Indonesia.
Dokumen Resmi Proses Dan Hasil Kongres Ulama Perempuan Indonesia (Cirebon: KUPI, 2.
, 145Ae48.
Abdul Kodir and Rofiah.
Summary the Result of the Religious Deliberation: The 2nd Congress of Indonesian Women Ulama (KUPI), 11Ae15.
al-Ihkam: Jurnal Hukum dan Pranata Sosial, 19 .
, 2024: 519-545 MaqAid cum-MubAdalah Methodology of KUPI:
Centering WomenAos Experiences in Islamic Law for Gender-Just Fiqh evident in the structure of KUPI's fatwA, from the initial conceptualization .
, to the formulation of themes based on textual references .
, and particularly in process of reasoning .
In the taawwur section.
KUPI presents data on the adverse effects experienced by women in the cases under review for fatwA, emphasizing the necessity for women to avoid these harms in accordance with the principles of justice and benefit as outlined in Islamic teachings.
In the adillah section.
KUPI compiles themes based on universal values, drawing sources from the Qur'an.
Hadith, and These themes include teachings that apply broadly to both men and womenAisuch as those promoting human dignity, justice, compassion, and general kindness toward humans and natureAias well as those that specifically address women, such as the command to treat women well, the prohibition against causing harm to women, and the emphasis on compassion for women during pregnancy, childbirth, and breastfeeding.
In the istidlAl section.
KUPI connects the experiences of women highlighted in the taawwur with the universal themes outlined in the adillah, ensuring that the resulting arguments are relevant and aligned with the principles of the MaqAid Issuing FatwA on Child Marriage and Pregnancy from Rape: A MaqAid cum-MubAdalah Approach Traditional fiqh commonly delves into the legal aspects of child marriage, examining its permissibility through the lens of textual 30 Conversely, modern scholars and intellectuals have shifted the discourse towards advocating for the imposition of a minimum age for marriage, emphasizing the positive outcomes for children, especially the girls, in which the maqAid methodology is invoked in the discussion.
31 MUI does not yet have a fatwA on child 30 Wahbah Az-Zuuail.
Al-Fiqh al-IslAm wa Adillatuh (Damascus: Dar al-Fikr, 1.
, 17.
31 Muhammad Shofwan Taufiq and M Fahruddin.
AuThe Hermeneutics of Islamic Law in Reviewing Changes to the Minimum Age for Marriage,Ay Muhammadiyah Law Reform .
1Ae23, https://doi.
org/10.
24127/mlr.
Agus Purnm et al.
AuDimensions MaqAsid al-SharAoah and Human Rights in the Constitutional CourtAos Decision on Marriage Age Difference in Indonesia,Ay Samarah: Jurnal Hukum Keluarga Dan Hukum Islam 7, no.
al-Ihkam: Jurnal Hukum dan Pranata Sosial, 19 .
, 2024: 519-545 Faqiuddin Abdul Kodir marriage, while NU's fatwA represents traditional fiqh which allows child marriage.
32 Although MuhammadiyahAos fatwA disregards underaged marriage, its explanation on maqAid methodology is very minimal, as it mostly discusses related hadiths.
Therefore.
KUPI's distinctive approach in incorporating maqAid into its formulation adds a significant and nuanced dimension to the discourse on child marriage, contributing to the development of gender-just fiqh.
The taawwur of KUPIAos fatwa incorporates quantitative and qualitative data related to child marriage across diverse regions in Indonesia.
Within this taawwur, numerous expressions derived from this data are correlated with the themes of maqaid advocated by contemporary scholars.
Phrases such as 'benefits for children,' 'child welfare,' and 'adverse impacts experienced by children' occur frequently, which are relevant to the themes of maqAid, emerging as conclusions drawn from qualitative data on child marriages.
Negative impacts of child marriages encompass economic, physical, mental, and intellectual aspects, which are subsequently incorporated into Maqaid analysis of five principles, i.
the expanded meaning of protection of life, mind, wealth, descent, and religion.
What distinguishes KUPIAos fatwA is its grounding in and exploration of data on the lived experiences of women as victims of child marriage.
34 The taawwur section details the adverse impacts of .
: 1397Ae1421, https://doi.
org/10.
22373/sjhk.
Arbanur Rasyid et al.
AuDynamics of Childless Marriage Through the Lens of Maqasid Al-ShariAoa,Ay Jurnal Ilmiah Peuradeun .
763Ae86, https://doi.
org/10.
26811/peuradeun.
Farida Ulvi Naimah et al.
AuInternalization of Local Traditions in Child Marriage from the Perspective of MaqAid al-Usrah,Ay El-Mashlahah 14, no.
: 237Ae58, https://doi.
org/10.
23971/elmashlahah.
32 Pengurus Besar Nahdlatul Ulama.
Keputusan Muktamar xII Nahdlatul Ulama (Jakarta: Pengurus Besar Nahdlatul Ulama, 2.
, 206Ae8.
33 Pimpinan Pusat Muhammadiyah.
Tanfidz Keputusan Musyawarah Nasional Tarjih XXVi (Yogyakarta: Pimpinan Pusat Muhammadiyah, 2.
, 135Ae39.
34 Qodariah Barkah et al.
AuAbandonment of WomenAos Rights in Child Marriage.
An Islamic Law Perspective,Ay Al-Ihkam: Jurnal Hukum dan Pranata Sosial 17, 2 .
: 383Ae411, https://doi.
org/10.
19105/al-Ihkam.
Syarifah Ema Rahmaniah and Egi Tanadi Taufik.
AuOur Husband and Children Are Not Acknowledge: Endogamy.
Gendered Power, and Child Issues in the AoAlawiyyn Marriage in Indonesia,Ay Journal of Indonesia Islam 18, no.
: 374Ae402, https://doi.
org/10.
15642/JIIS.
Ardhina Shafa Sipayung and al-Ihkam: Jurnal Hukum dan Pranata Sosial, 19 .
, 2024: 519-545 MaqAid cum-MubAdalah Methodology of KUPI:
Centering WomenAos Experiences in Islamic Law for Gender-Just Fiqh child marriage, including its contributions to illiteracy rates, maternal and infant mortality rates, the difficulties faced by married girls and young mothers, their malnutrition, low educational attainment, high school dropout rates, and the challenges faced by young women who are divorced from early marriages.
It also addresses the mental and emotional strain these girls endure as wives, their low levels of wellbeing, high dependency, and the prevalence of domestic violence.
The textual references .
employed by KUPI, following the taawwur section, also encompass themes that align with the structure of maqAid as universal values.
Specifically, the adillah concerning child marriage include seven Quranic verses, five Hadith texts, and six statements from scholars .
qwal al-AoulamAA.
These references are systematically aligned with maqAid-related themes, which include the objective of marriage as a means of attaining peace of mind, the prohibition against producing a weak generation, the directive to become the best among people, the proscription against self-destruction, the mandate to exercise authority justly, the command to act equitably and virtuously, and the encouragement to seek knowledge.
The hadith-derived adillah further reinforce these themes, emphasizing the prohibition against self-harm, the proscription against perpetrating injustice, the principle of love, the requirement of capability as a condition for marriage, and the importance of willingness in marriage.
Additionally, the adillah drawn from the perspectives of scholars highlight the principle of forbidding harm and evil, as well as the five foundational principles of protection, which are central to the MaqAid methodology.
In the istidlAl section, all the themes identified in the taawwur and adillah serve as fundamental concepts for KUPI to argue that child marriage contradicts the principles of maqAid and that protecting children from early marriage is essential to the objectives of Islamic The focus of istidlAl is on elaborating the key concepts derived from the adillah themes, which align with the objectives of Islamic law.
These objectives are then presented as strong, clear, and persuasive Mualimin Mochammad Sahid.
AuAwaking WomenAos Agency Through Organizations:
Legal Attitude of Muslim Women Victims of Marital Rape,Ay Al-Ahwal: Jurnal Hukum Keluarga Islam 15, no.
: 257Ae74, https://doi.
org/10.
14421/ahwal.
35 Tim Kongres Ulama Perempuan Indonesia.
Dokumen Resmi Proses dan Hasil Kongres Ulama Perempuan Indonesia, 101Ae4.
36 Tim Kongres Ulama Perempuan Indonesia, 104Ae10.
al-Ihkam: Jurnal Hukum dan Pranata Sosial, 19 .
, 2024: 519-545 Faqiuddin Abdul Kodir arguments affirming Islam's obligation to protect children from early When contemporary scholars Jasser Audah extended the principle of preserving religion .
ife ad-d.
has evolved to encompass freedom of belief,37 KUPI opines that it:
"Entails shielding children from marriage, ensuring they have sufficient time to comprehend and faithfully practice religious teachings, aligning with the marriage goals delineated by religion.
Contracting marriage at a young age deprives them of the opportunity to study and deepen their understanding of religion in general and to fulfill the specific marriage goals outlined by "38 The principle of preserving the mind .
ife al-'aq.
, which has evolved to include the propagation of scientific thinking, the suppression of herd mentality, and the avoidance of brain drain,39 is further explained by MK KUPI as encompassing the need to shield children from the possibility of hindering intellectual development resulting from the interruption of their education.
Similarly, while the preservation of offspring .
ife an-nas.
, honor .
ife al-Aoir.
, and wealth .
ife al-mA.
have evolved to include the care of family, the protection of human dignity, and economic development respectively,40 KUPI clarifies that:
"Preserving offspring .
ife an-nas.
signifies protecting children from the risk of producing inferior-quality Upholding honor .
ife al-Aoir.
involves shielding children from vulnerability to trafficking and exploitation, which may occur if they are forced to work prematurely to support the family due to early 37 Jasser Audah.
Maqasid al-Shariah as Philosohpy of Islamic Law: A System of Approach (London: iT, 2.
, 248.
38 Tim Kongres Ulama Perempuan Indonesia.
Dokumen Resmi Proses dan Hasil Kongres Ulama Perempuan Indonesia, 114Ae15.
39 Audah.
Maqasid al-Shariah as Philosohpy of Islamic Law: A System of Approach, 40 Audah, 248Ae49.
al-Ihkam: Jurnal Hukum dan Pranata Sosial, 19 .
, 2024: 519-545 MaqAid cum-MubAdalah Methodology of KUPI:
Centering WomenAos Experiences in Islamic Law for Gender-Just Fiqh Preserving wealth .
ife al-mA.
entails protecting children from the potential consequences of poverty and the inability to live prosperously due to insufficient knowledge and skills resulting from early "41 Thus.
KUPI grounds its fatwA in the logical framework of the maqAid cum- mubAdalah, acknowledging the shared needs of men and women, and also addressing specific reproductive challenges experienced by married girls, that are not typically encountered by young married men.
Within this conceptual framework, the primary contention advanced by KUPI is that Islam advocates for the protection of children, particularly girls, from the harmful consequences of early marriages.
This protection should be provided by parents, families, society, and, most importantly, by the government and state.
KUPI also mandates that these entities ensure the rights of children, even those who are married, to education, health, care, and protection from all forms of violence, exploitation, and discrimination.
Contemporary fatwA in Indonesia, as grounded in classical fiqh, emphasize the permissible age for aborting a pregnancy resulting from rape rather than addressing the profound traumatic experiences and criminalization faced by many female victims.
43 FatwA issued by formal institutions primarily focus on the permissibility of abortion within 40 days of conception or the act of rape, thereby neglecting the complex realities and challenges faced by these women.
44 However, due to the profound mental trauma experienced by rape victims, 41 Tim Kongres Ulama Perempuan Indonesia.
Dokumen Resmi Proses dan Hasil Kongres Ulama Perempuan Indonesia, 114Ae15.
42 Tim Kongres Ulama Perempuan Indonesia, 116.
43 Khoirul Bariyyah and Khairul Muttaqin.
AuLegalisasi Aborsi dalam Perspektif Medis dan Yuridis,Ay Al-Ihkam: Jurnal Hukum dan Pranata Sosial 11, no.
: 120Ae47, https://doi.
org/http://dx.
org/10.
19105/al-ihkam.
Sabarudin Ahmad.
AuHukum Aborsi Akibat Perkosaan (Analisis Hukum Islam Terhadap Peraturan Pemerintah Nomor 61 Tahun 2014 tentang Kesehatan Reproduksi ),Ay El-Mashlahah 8, no.
: 162Ae83, https://doi.
org/10.
23971/elmas.
44 Ibnu Fadli.
AuLegalitas Aborsi Bagi Korban Perkosaan (Tinjauan Menurut Hukum Positif dan Hukum Isla.
,Ay Jurnal Lex Renaissance 7, no.
: 559Ae70, https://doi.
org/10.
20885/jlr.
al-Ihkam: Jurnal Hukum dan Pranata Sosial, 19 .
, 2024: 519-545 Faqiuddin Abdul Kodir many women may not even become aware of their pregnancies until well beyond this 40-day window.
In response to this gap, particularly the absence of women's experiences in religious fatwA concerning rape victims, women in Indonesia-including ulama, scholars, activists, and victims' advocatesorganized a series of meetings informed by their respective studies.
These efforts culminated in the second KUPI Religious Conference (MK) in Jepara in 2022, which issued a fatwA aimed at protecting pregnant rape victims, grounded in the lived experiences of women.
For allowing abortion.
MUIAos fatwA 4/2005 categorizes rape as a secondary necessity .
l-haja.
, in contrast to severe medical conditions like advanced cancer, which are regarded as primary emergencies .
In these two situations, according to the MUI, pregnancy may be terminated within 40 days of conception to protect the mother's well-being.
Specifically, in cases of rape, the decision to terminate the pregnancy must involve consultation with the family, medical professionals, and religious scholars.
Unfortunately, because the fatwA does not take into account women's experiences, the consent of women who have been raped is not considered in the decision to permit abortion.
This fatwA is grounded in several Qur'anic verses.
Hadith texts, and some quotations of maqAid principles, such as the obligation to eliminate harm, the permissibility of otherwise prohibited actions in emergencies, and other related considerations.
Unlike the MUIAos fatwA, the KUPIAos fatwA focuses its considerations on physical, psychological, and social conditions of the female victim when determining the permissibility of terminating a pregnancy or the obligation to continue it.
47 It is grounded in the maqAid cum-mubAdalah approach, acknowledging the principle of equality between men and women, and the recognition of women's unique biological and social experiences.
This approach is integrated 45 Maidina Rahmawati.
Arinta Dea Dini Singgi, and Erasmus A.
Napitupulu.
Penyelenggaraan Kebijakan Aborsi Aman.
Bermutu, dan Bertanggung Jawab Sesuai dengan UU Kesehatan di Indonesia (Jakarta: Institute for Criminal Justice Reform (ICJR) Jalan, 2.
, 43Ae45.
Sri Warjiyati.
AuAborsi pada Masa Iddah Wanita Hamil untuk Mempercepat Perkawinan dalam Perspektif Hukum Islam,Ay Al-Ahwal: Jurnal Hukum Keluarga Islam 12, no.
: 46Ae55, https://doi.
org/10.
14421/ahwal.
46 Kongres Ulama Perempuan Indonesia.
Hasil Musyawarah Keagamaan Kongres Ulama Perempuan Indonesia (KUPI) Ke-2, 164Ae210.
47 Kongres Ulama Perempuan Indonesia, 194Ae95.
al-Ihkam: Jurnal Hukum dan Pranata Sosial, 19 .
, 2024: 519-545 MaqAid cum-MubAdalah Methodology of KUPI:
Centering WomenAos Experiences in Islamic Law for Gender-Just Fiqh throughout the fatwA's structure.
In the taawwur section, the fatwA highlights three central aspects: the harmful effects of rape that must be avoided, the necessity of protecting individuals-especially womenfrom these adverse consequences, and the crucial need to safeguard the lives of women who become pregnant as a result of rape.
The data presented in this section is closely aligned with the core concepts of maqAid.
In the adillah section, there are themes of maqAid, derived from the Qur'an .
Hadith .
, and aqwAl al-AoulamAAo .
The Qur'anic verses address key themes such as the inherent dignity of human beings, the mission of Islam to promote mercy, prohibitions against harming others, self-condemnation, safeguarding the vulnerable, refraining from blaming those who are coerced, and extending forgiveness to victims of sexual coercion.
The Hadith texts further reinforce emphasizing the prohibition of tyranny, the avoidance of harm to oneself and others, the importance of supporting the weak, alleviating the difficulties of others, treating women with kindness, aiding those who have been wronged, and urging leaders to facilitate ease for the people.
Excerpts from aqwAl al'ulamA' address the imperative to eliminate harm .
af'u ad-sara.
, the principle that emergencies can justify prohibitions .
d-sarrAt tubu almauerA.
, the recognition of rape as a crime against women, the prioritization of the mother's life over that of the unborn child in critical circumstances, and the government's duty to prioritize the welfare of the people.
The themes of maqAid in the adillah section are explicitly focused on women as victims who are entitled to protection, forgiveness, and support.
In the analysis (IstidlA.
section, then, these themes are methodically reorganized into a cohesive framework that reinforces several key arguments: the inherent injustice of rape, the attribution of wrongdoing solely to the perpetrator, and the assertion that women who have been raped are not only innocent but are also in need of assistance, support, and companionship.
These arguments lay the foundation for raising awareness about critical importance of addressing the needs of women who are victims of rape, particularly 48 Kongres Ulama Perempuan Indonesia, 164Ae70.
49 Kongres Ulama Perempuan Indonesia, 170Ae85.
al-Ihkam: Jurnal Hukum dan Pranata Sosial, 19 .
, 2024: 519-545 Faqiuddin Abdul Kodir emphasizing their need for protection in the aftermath of rape and the consequences of pregnancy resulting from such traumatic events.
KUPI defines protection of religion .
ife ad-d.
and life .
ife an-naf.
within the maqAid cum-mubAdalah methodology, by saying AuRape victims facing pregnancy may encounter challenges in practicing uife ad-dn, as they may harbor feelings of blame towards fate and perceive Allah as unjust, especially when lacking support from the Muslim community, leading them to question Islam's The lives of women who are victims of rape and experience pregnancy are highly susceptible to ongoing stigmatization, discrimination, blame, ostracism, and other forms of violence.
Consequently, victims may engage in self-harming actions, and in severe cases, contemplate or commit suicide.
Therefore, subjecting them to such conditions goes against the principle of uife an-nafs, which emphasizes the protection of human lives in Islamic lawAy.
KUPI also argues that exposing rape survivors to the risks of pregnancy violates the principle of uife al-'aql, which prioritizes the preservation of mental integrity within the framework of Islamic law.
This conclusion stems from evidence indicating that women who become pregnant due to rape often endure long-term psychological and cognitive disturbances, face substantial barriers to education, and struggle to sustain clear and rational thought processes critical to their well-being.
Such conditions may further result in feelings of selfworth deterioration and an increased risk of self-harm.
According to KUPI, allowing women who are victims of rape to remain vulnerable to the risks of pregnancy also contravenes the principle of uife al-mAl, which emphasizes the protection of property within Islamic law.
This is because women who become pregnant as a result of rape and experience cognitive impairments may struggle to manage their assets effectively, face the risk of job loss or dismissal, 50 Kongres Ulama Perempuan Indonesia, 187Ae95.
51 Kongres Ulama Perempuan Indonesia, 188Ae89.
al-Ihkam: Jurnal Hukum dan Pranata Sosial, 19 .
, 2024: 519-545 MaqAid cum-MubAdalah Methodology of KUPI:
Centering WomenAos Experiences in Islamic Law for Gender-Just Fiqh and encounter barriers to economic participation.
Additionally, the financial burden of recovery from the physical and psychological trauma of rape, coupled with the costs of maintaining a healthy pregnancy and providing for the child over their lifetime, is substantial and cannot be overlooked.
Furthermore.
KUPI argues that subjecting women to the risks of pregnancy under these circumstances violates the principle of uife an-nasl, which underscores the protection of lineage and family in Islamic law.
The logic is that women who become pregnant due to rape may experience self-directed resentment and harbor negative feelings toward the fetus, potentially leading to self-harm or neglect of their own and the fetusAos well-being, including inadequate nutrition.
Such conditions risk the birth of a vulnerable generation, as warned in the Quran (QS.
An-Nisa, 4:.
, potentially alienated from familial bonds, lacking essential support, and facing significant life challenges.
Based on the maqAid cum-mubAdalah norms grounded in women's experiences, as elaborated above.
KUPI issued fatwA on protection of women from the danger of pregnancy due to rape, consisting of three decisions: .
the protection of womenAos lives from the dangers of pregnancy resulting from rape is obligatory at any stage of pregnancy, whether by continuing or terminating the .
all relevant parties bear the responsibility to protect womenAos lives from the dangers associated with pregnancy resulting from rape.
parties who have the responsibility and ability in providing protection to women's lives from the dangers of pregnancy resulting from rape are prohibited to abandon their responsibility.
These three points of KUPI's fatwA differ not only from similar fatwA issued by official institutions in Indonesia, but also from scholarly works that have employed the MaqAid methodology in addressing related issues.
52 KUPI's fatwA stands out particularly because it actively involves women in the deliberation process and grounds its methodology in the lived experiences of women, especially those who are victims of rape.
Nur Azizah.
Mhd.
Syahnan, and Budi Sastra Panjaitan.
AuThe Legality of Abortion by Medical Personnel for Rape Victims in Indonesia: A Perspective from Maqashid Sharia by Al-Syatibi and Al-Tufi,Ay Madania: Jurnal Kajian Keislaman 28, no.
: 35, https://doi.
org/10.
29300/madania.
al-Ihkam: Jurnal Hukum dan Pranata Sosial, 19 .
, 2024: 519-545 Faqiuddin Abdul Kodir The explanation above on fatwA regarding child marriage and pregnancy resulting from rape is summarized Table 1 Table 1.
Application of maqashid cum mubadalah methodology in three steps.
Aspect Tashawwur (Description and Conceptualizatio.
Adillah (Textual Reference.
Istidlal (Analysis Legal Reasonin.
Fatwa on Child Marriage Data on child marriageAos impacts gathered through qualitative methods Concepts linked to maqAid like child welfare and adverse consequences for young girls.
Identifying impacts of child marriage.
Fatwa on Pregnancy Due to Rape Focus psychological, and social Concepts maqAid related to protecting womenAos dignity, mental health, and well-being.
Emphasizing the harmful effects of rape and the necessity to protect women from further harm through 7 QurAoanic verses, 5 Hadiths, and 6 scholar maqAid principles.
Key themes: prohibition of harm, protection of life, 17 Qur'anic verses, 13 Hadiths, and 8 scholar opinions supporting maqAid Key themes: protection of womenAos dignity, mercy, prohibition of harm, and government responsibility.
Emphasizing contradiction between child marriage and maqAid principles Arguing for the protection of children, particularly girls, from the harmful effects of early marriage, aligning with Islamic lawAos Reorganizing themes from adillah to argue that subjecting rape victims to pregnancy violates maqAid principles Advocating for the protection of womenAos lives and mental health, emphasizing that rape victims should not be forced to carry a pregnancy.
Table 1 shows how the three steps are consistently applied in issuing the fatwa.
It begins from observing the situation in the field relying on updated data on relevant issues then followed by analyzing relevant textual sources.
It further implies the use of both contextual and textual references to be able to comprehensively portray the issues and put them proportionally through determining al-Ihkam: Jurnal Hukum dan Pranata Sosial, 19 .
, 2024: 519-545 MaqAid cum-MubAdalah Methodology of KUPI:
Centering WomenAos Experiences in Islamic Law for Gender-Just Fiqh the key themes.
The last step will be about deciding whether the social fact aligns or contradict to what the textual sources urge to realize.
This decision will determine what next steps to take or advocate, namely in formulating the fatwa to issue.
Conclusions The maqAid cum-mubAdalah methodology, as implemented by KUPI in addressing child marriage and pregnancy resulting from rape, tackles three key challenges identified by scholars and gender justice activists.
First, women are actively involved at all stages of the fatwA process, from data collection to formulation.
Second, women's lived experiences are integrated into the fatwaAos methodological framework, shaping the final decisions.
Third.
KUPI has developed a contemporary fiqh methodology that promotes gender justice.
Unlike traditional approaches that often marginalize women's experiences.
KUPI validates their authority in religious discourse, promoting gender justice within Islamic law.
By involving female ulama in the fatwa process and valuing their expertise.
KUPI ensures a comprehensive understanding of gender issues.
However, further research is required to investigate how KUPI fatwA operate within civil society movements for social change and how female ulama utilize their knowledge to advocate for gender equality.
Conducting in-depth interviews with female ulama would be a valuable approach for future research, addressing a gap in this article.
Acknowledgment