Al-Qadha: Jurnal Hukum Islam dan Perundang-Undangan
Vol. 10, No. 2, Desember 2023,(197-216)
https://doi.org/10.32505/qadha.v10i2.7352
https://journal.iainlangsa.ac.id/index.
p-ISSN 2356-1637 | e-ISSN 2581-0103

Between Conservatism and Progressivism: The Young Penghulu in
East Java's Legal Paradigm Addresses Disability Issues in Marriage
Mukhammad Nur Hadi1* ,Fahruddin Ali Sabri2, Ahmad Masum3
1,2 UIN Sunan Ampel Surabaya, Indonesia
3Univeristi Islam Sultan Sharif Ali, Brunei Darussalam
mukhammad.nur.hadi@uinsby.ac.id
*Corresponding Author
Submitted: Nov 16, 2023

Accepted: Dec 18, 2023

Published: Dec 22, 2023

How to Cite (Chicago): Nur Hadi, Mukhammad, Fahruddin Ali Sabri, and Ahmad Masum. 2023. “Between
Conservatism and Progressivism: The Young Penghulu in East Java’s Legal Paradigm Addresses Disability
Al-Qadha:
Jurnal
Hukum
Islam
Dan
Perundang-Undangan
Issues
in
Marriage”.
10
(2).
https://doi.org/10.32505/qadha.v10i2.7352..

Abstract
The legal knowledge of penghulu on disability issues determines how to implement laws
that advocate for persons with disabilities. This paper traces the legal paradigm of seven
Penghulus in East Java who were newly inducted in 2022 against several articles in the
Compilation of Islamic Law (KHI) that touch on disability issues. Some of the themes tracked
are marriage guardians (article 22), marriage witnesses (article 25), and polygamy (article 57).
It is an empirical study using conceptual and philosophical approaches. This article finds
that most young East Javanese penghulu still need an advocate interpretation paradigm
because they read the articles authentically and grammatically, not sociologically or
teleologically. The benefit (maslahah) aspect of these articles is also considered to look more
authentic. Therefore, the argument of advocates for the rights of persons with a human
rights perspective is not widely involved. As a result, persons with disabilities who are
guardians of marriage, witnesses of marriage, and wives can become victims of neglect of
fundamental civil rights in marriage. It is where the conservative paradigm of the young
penghulu comes into being strong and dominant. The existence of the progressive paradigm
is also buried and framed in the current conservative paradigm. This finding is certainly an
important note about how the government indirectly shapes the contestation of conservative
and progressive paradigms in family law.
Kata Kunci: Legal Paradigm, Marriage, Penghulu, Disability
Abstrak
Pengetahuan hukum penghulu terhadap isu-isu disabilitas menentukan bagaimana
implementasi hukum yang advokatif terhadap penyandang disabilitas. Tulisan ini melacak
paradigma hukum penghulu muda Jawa Timur yang berjumlah 7 penghulu terhadap
beberapa pasal dalam Kompilasi Hukum Islam (KHI) yang menyinggung isu-isu disabilitas.
Beberapa tema yang dilacak adalah wali nikah (pasal 22), saksi nikah (pasal 25), dan
poligami (pasal 57). Kajian ini adalah yuridis empiris dengan menggunakan pendekatan
Creative Commons Attribution-Noncommercial 4.0 International
(CC BY-NC 4.0)

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Between Conservatism and Progressivism...

konseptual dan filosofis. Artikel ini menemukan bahwa mayoritas penghulu muda Jawa
Timur belum memiliki paradigma interpretasi advokatif karena mereka membaca pasalpasal secara otentik dan gramatikal, tidak secara sosiologis atau teleologis. Aspek maslahat
dari pasal-pasal tersebut juga dinilai terlihat lebih nyata. Oleh karena itu, nalar advokatif
terhadap hak penyandang disabilitas dengan perspektif hak asasi manusia tidak banyak
dilibatkan. Akibatnya, penyandang disabilitas yang menjadi wali nikah, saksi nikah, dan
sebagai istri dapat menjadi korban pengabaian hak perdata yang asasi dalam perkawinan.
Di sinilah paradigma konservatif penghulu muda tampil secara kuat dan dominan.
Sementara eksistensi paradigma progresif juga terkubur dan terbingkai dalam arus
paradigma konservatif. Temuan ini tentu menjadi catatan penting tentang bagaimana
kontestasi paradigma konservatif dan progresif dalam hukum keluarga yang secara tidak
langsung dibentuk sendiri oleh pemerintah.
Kata Kunci: Paradigma hukum, Penghulu, Disabilitas
Introduction
Penghulus has a vital role to play in overseeing the development of Indonesian Islamic
family law. Their attitude and decision towards a legal case are essential to how
contemporary issues are resolved. The more diverse perspectives are used, the more options
the problematic parties can choose from. Therefore, penghulu is not only burdened with
overseeing the development of law but can also reposition, reconstruct, and even deconstruct
a legal order when it is judged that it cannot bring benefits (maslahah). This argument is
strengthened through several studies exposing how vital the role of penghulu is on crucial
issues in society, both in thought1 as well as in practice.2
In practice, the ability of penghulu to oversee and reform Islamic family law rests on
the reasoning of legal interpretation of the legal text and the cases at hand. The penghulu also
has a vital role in interpreting the law, besides judges. The difference lies in the scope and
character of cases. Judges in the Religious Courts interpret broader cases, such as marriage,
divorce, guardianship, inheritance, and endowments, containing a conflict character.
Meanwhile, penghulu only focuses on marriage, marriage guardianship, and waqf with nonconflict and conflict characters. Therefore, the rational interpretation of penghulu is the key to
directing how law can exist by regarding sensitive issues because, in essence, legal
reinterpretation is scientific fairness and the demands of the times.3
Several important issues relate to penghulu: marriage guardians, witnesses, and
polygamy. At this point, it is also essential to put forward other reasons why these three
issues are important to study. These three issues are generally explored by researches using a
1

2

3

Maufur, ed., Fikih Dan HAM: Best Practices Pengarustamaan Hak Aaasi Manusia Dalam Kebebasan
Beragama, Gender, Dan Hak Anak Di Lingkungan Kantor Urusan Agama (KUA), 1st ed. (Yogyakarta:
Pascasarjana UIN Sunan Kalijaga, 2019). This book tells about the experiences of priests in
responding to crucial issues of marriage in their work experiences. Not only that, this book also
proves that the penghulu can present humanist and progressive reasoning both in the form of
thought and practice
Sahlan Habibi Siregar, “Peran Penghulu Dalam Upaya Meminimalisir Tingkat Perceraian,” Jurnal
Analisa Pemikiran Insan Cendekia 5, no. 2 (2022): 69–74.
Jaenal Sarifudin, “Problem Kekerasan Dalam Rumah Tangga Dan Ketimpangan Relasi Keluarga,”
in Fikih Humanis: Meneguhkan Keragaman, Membela Kesetaraan Dan Kemanusiaan, Noorhaidi
(Yogyakarta: Pascasarjana UIN Sunan Kalijaga Press, 2022), 297.

198

gender approach. Studies of marriage guardians and marriage witnesses often question
women's rights as marriage guardians4 to choose a partner independently,5 and witness in
marriage6 as well as divorce.7 Meanwhile, in polygamy studies, what is often revealed is
injustice and psychological violence against wives and children,8 not in the realm of how the
conditions of wives with disabilities are respected, protected, and fought for without causing
psychological harm.
These three issues will find different sides when placed on the disability issue. It is
because, in addition to the Compilation of Islamic Law (the KHI) being a vital reference for
penghulu, the KHI also describes these three issues within the disability and non-disability
framework. Also, tracking the position of this issue by looking at how the penghulu interprets
these articles in the KHI is an essential point for measuring the extent to which the young
penghulu's advocative reasoning is present, which may differ from other regions, especially
in East Java.
Several studies of Islamic law and disability have been conducted by several
researchers. However, these studies do not touch on how the penghulu responses disability
issues. Rispler-Chaim traced in detail the classic texts on disability, in the context of worship,
jihad, marriage, and crime.9 Kristina L. Richardson traced in detail how portrait of disability
existed in the medieval Islamic World, focusing on important texts in the Ottoman and
Mamluk dynasties. 10 In women issues, Turmusani’s and Maftuhin’s showed significant
findings. Turmusani found that women with disabilities are subordinated in a variety of
contexts where it is in line with the massive discrimination at that time generally faced by
women.11 Maftuhin found that although Nahdlatul Ulama and Muhammadiyah involved
women with disabilities in the preparation of fatwas, their participation was limited. It
impacts on the characters of fiqh disability that are friendly to women.12

4

5

6

7

8

9
10

11

12

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Asnidar Astari, “Konsep Wali Nikah Dalam Kompilasi Hukum Islam Perspektif Gender”
(Universitas Islam Negeri Sunan Kalijaga Yogyakarta, 2017).
Kholifatul Fitria, “Hak Ijbar Wali Nikah Dalam Perspektif Gender” (Universitas Islam Negeri
Sunan Kalijaga Yogyakarta, 2013).
Shofa Aminah, “Studi Perbandingan Antara Mazhab Hanafi Dan Mazhab Syafi’i Tentang Saksi
Perempuan Dalam Akad Nikah” (Institut Agama Islam Negeri Antasari Banjarmasin, 2016).
Ahmad Zaini, “Epistemologi Hukum Islam Ibnu Hazm Tentang Saksi Perempuan Dalam
Pernikahan: Kesetaraan ‘Terbatas’ Status Hukum Perempuan,” Tesis, 2020, 1–137.
Malpha Della Thalita, “Studi Kasus Keluarga Poligami Di Daerah Istimewa Yogyakarta” 16, no. 1
(2019): 184–97; Khoirul Abror, “Poligami Dan Relevansinya Dengan Keharmonisan Rumah Tangga
(Studi Di Kelurahan Rajabasa Bandar Lampung),” Al-´Adalah 13, no. 2 (2016): 227–38; Pradika
Kusuma Fridayanto, “Implementasi Konsep Keadilan Terhadap Izin Poligami Karena Suami
Hypersex” (Universitas Islam Negeri Walisongo Semarang, 2021); Noviriani Nur Islamiyah and
Endang Supraptiningsih, “Tinjauan Dampak Psikologis Perkawinan Poligami Di Indonesia,” 2013,
614–19.
Vardit Rispler-Chaim, Disability in Islamic Law (Dordrecht: Springer, 2007).
Kristina L. Richardson, Difference and Disability in The Medieval Islamic Wolrd (Edinbrugh:
Edinburgh University, 2012).
Majid Turmusani, “Disabled Women in Islam: Middle Eastern Perspective,” Journal of Religion,
Disability and Health 5, no. 2–3 (October 1, 2001): 73–85, https://doi.org/10.1300/J095v05n02_06.
Arif Maftuhin, “Islamic Law, Disability, and Women in Indonesia: The Cases of Nahdlatul Ulama
and Muhammadiyah,” Journal of Disability and Religion 27, no. 4 (2023): 1–15.
Mukhammad Nur Hadi, Fahruddin Ali Sabri, Ahmad Masum

Between Conservatism and Progressivism...

Studies on disability and penghulu paradigm, especially with regard to their
paradigms, are rarely conducted. Generally, in examining the penghulu legal paradigm,
researchers only highlight gender issues. Saputra traces the argument of the penghulu at the
Yogyakarta City Office of Religious Affairs to the possibility of women becoming penghulu.
His study shows that the penghulus are divided into two groups by arguing normatively
and juridically. The first group views the potential of this opportunity because fiqh does not
prohibit it either. The second group completely rejects this possibility because guardian
judges in Indonesia must be male. 13 In tracing the penghulu's argument, Muyassaroh
explored the views of the penghulu in Malang City regarding the possibility of a will be
implemented. She found that most penghulus thought that wills could not be applied because
positive law did not accommodate them.14
A similar study is the author's writing, which looks at how the penghulu's legal
reasoning is towards marriage witnesses with disabilities in Malang City. The study found
that penghulus in Malang City, in response to the issue of marriage witnesses with
disabilities, still predominantly used fiqh reasoning. On the one hand, fiqh is dominantly
seen as creating benefits for penghulus. On the other hand, fiqh is also projected to benefit the
public by elaborating on sociological and technological developments. This dominant
condition shows the point of uncertainty in synchronizing the penghulu's legal reasoning
with the ideals of the city of Malang as an inclusive city in Indonesia.15
Based on the research findings above, this study is designed with a different reading
concept and tries to complete the last study. The main object of this paper is the legal
paradigm of young penghulus in East Java who have just been appointed in 2022, with a total
of seven people scattered in several cities in East Java. This data is obtained through survey
via Google Form. This empirical juridical study utilizes a conceptual and philosophical
approach to explore the arguments of the penghulus. Deploying qualitative methods, this
article traces the extent to which the penghulu's interpretation of the articles on marriage
guardians, marriage witnesses, and polygamy is reasonable in disability issues. It also
examines the extent to which the benefits aspects are considered in the reasoning of these
interpretations, whether they prioritize protecting and fulfilling the rights of persons with
disabilities or vice versa. Furthermore, that result will later be framed in a circle of
contestation of conservative and progressive paradigms. Conservative paradigm shows how
the penghulu tends to preserve the existing regulation which may not advocate rights of
person with disabilities. While, progressive paradigm explains how the penghulu tries to
protect, fulfill, and respect their rights by presenting the new interpretation.

13

14

15

Megi Saputra, "Penghulu of Women According to the Penghulu of the Yogyakarta City Religious
Affairs Office," Al-Ahwal: Journal of Islamic Family Law 11, no. 2 (2020): 97,
https://doi.org/10.14421/ahwal.2018.11208.
Binti Sahlatun Muyassaroh, “Pandangan Penghulu Kota Malang Terhadap Kedudukan Wali
Washi Dalam Pernikahan” (Universitas Islam Negeri Maulana Malik Ibrahim Malang, 2018).
Mukhammad Nur Hadi, “Nalar Fikih Penghulu Di Kota Malang Dalam Saksi Nikah Tuli,” Inklusi
8, no. 2 (2022): 169–84, https://doi.org/10.14421/ijds.080206.

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The Intersection of Disability Issues in Fiqh
Fiqh has various provisions regarding the rules for marriage guardians, marriage witnesses,
and polygamy. This diversity of opinion can provide many alternatives to be selected as part
of legal reasoning following the believed school of law. Here, the various arguments will be
described, focusing on how fiqh regulates persons with disabilities about the three issues
above.
Marriage Guardian and Disability in Fiqh
The issue of disability in marriage guardians is often associated with the legality of
persons with visual disabilities. Al-Ghazali emphasized that marriage guardians with visual
disabilities still have their rights as marriage guardians. He views that the purpose of
marriage is not related to the disability condition of the marriage guardian with a visual
disability.16 Ash-Sharbani also said that a marriage guardian with a visual disability still has
the right to become a marriage guardian.17 This argument was agreed upon and justified by
the Syafi'iyyah scholars.18 However, the description of Ash-Shirazi’s argument is interesting
to write here. Ash-Shirazi outlines two opinions on this case. First, marriage guardians with
visual disabilities still get guardianship rights because it is based on the story of Prophet
Shu'aib who married his daughter to Prophet Musa, while he was blind. Second, such
marriage guardians are not permitted because the marriage guardian has the authority to
determine the implementation of the marriage, and it can only be done perfectly if the
marriage guardian does not have a blind disability.19
How did the scholars position the other two sensory disabilities, speech and deaf
disabilities? For Ash-Sharbani, people with speech disabilities can still be marriage
guardians. This right is still obtained if the marriage guardian can provide understanding in
sign language or other instructions that the public can understand.20 This opinion is certainly
interesting if it is reconciled with the arguments of Muhammad Kholil, an Indonesian
scholar from Bangkalan. In his book as-Silah fi Bayan an-Nikah, Muhammad Kholil argues that
marriage guardians should not have speech disabilities. On the contrary, he stated that a
man who is deaf and visual disability has rights to be a marriage guardian.21 At this point,
there is still no argument to accommodate the three conditions of sensory disability in
totality.
Marriage Witness and Disability in Fiqh
The intersection of disabilities with marriage witnesses has a long debate. Two things
that are highlighted are the ability to see and hear. First, regarding the ability to see,
16

17

18

19

20
21

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Abu Hamid bin Muhammad bin Muhammad bin Muhammad Al-Ghazali, Al-Wasit Fi Al-Madhhab
(Beirut: Dar al-Kutub al-’Ilmiyyah, 2001), 3: 137.
Muhammad ash-Sharbani Al-Khatib, Al-Iqna’ Fi Halli Alfazi Abi Syuja’ (Semarang: Thaha Putra,
n.d.), 124.
Taqiyyuddīn Abi Bakar bin Muḥammad Al-Ḥaṣni, Kifayah Al-Akhyar Fi Halli Ghayah Al-Ikhtishar,
7th ed. (Beirut: Dar al-Kutub al-’Ilmiyyah, 2013), 476.
Abu Ishaq Ash-Shiraziy, Al-Muhadhab Fi Fiqh Al-Imam Asy-Syafi’iy (Damaskus: Dar al-Qalam,
1996), 4: 120.
Al-Khatib, Al-Iqna’ Fi Halli Alfazi Abi Syuja’, 125.
Muhammad Khalil bin Abdu al-Lathif Al-Bangkalaniy, “As-Silah Fi Bayan an-Nikah” (Surabaya,
n.d.), 10.
Mukhammad Nur Hadi, Fahruddin Ali Sabri, Ahmad Masum

Between Conservatism and Progressivism...

Shafi'iyyah emphasized that a marriage witness must be able to see to determine the party to
the contract other than just by sound. However, most scholars agree that marriage witnesses
need not be able to see because the testimony in the marriage contract is in the context of
speech. Therefore, if they can distinguish between the voices of the marriage guardian and
the groom without any doubt, their testimonials can be acknowledged. Second, in the
context of hearing ability, most fiqh scholars agree that the affidavit of a deaf person is not
regarded as accurate. It is because the primary purpose of the testimony is to clarify the
contract.22
Polygamy and Disability in Fiqh
Polygamy is the most sensitive subject of debate in any context, including disability
issues. Polygamy rules to solve the humanitarian problems in the Arab world which
excessively exploit women. In other words, the protection of humanity is one of the
important points in the practice of polygamy because there is a main purpose behind it,
namely to protect the assets and rights of orphans, which are often neglected due to the
practice of polygamy. It seems logical that Syahrur then made fulfilling the requests of
orphans one of the conditions that had to be met.23 At this position, the concept of humanity
in the context of polygamy is sometimes interpreted differently so that the bias in protecting
humanity in practice can be avoided. In other words, the humanity sometimes violates the
essence of humanity itself.24
In the issue of polygamy, the wife's disability, whether due to an incurable disease or
infertility, causes polygamy to become sunnah (recommended), by regarding that the
husband can act fairly. The reason is that there are benefits that are recommended to be
fought for. This argument is strengthened by the stories of the companions of the prophet
who had more than one wife.25 Wahbah az-Zuhayliy categorizes the factors above as special
factors. He further explained that the condition of the wife's infertility must be overcome
immediately by allowing the husband to remarry. The goal is to realize happiness with the
birth of a child while simultaneously pouring out his instincts of affection for the child. 26At
this point, it can be read that the point of interest built in Az-Zuhayliy's argument is the
interests of men, not women, as parties with disabilities.
The Intersection of Disability Issues in Marriage in Indonesia
As a product of legal positivism, the Compilation of Islamic Law has different nuances in
regulating this study's three critical issues: marriage guardians, marriage witnesses, and
polygamy. The KHI provides few legal choices like fiqh, which presents a variety of opinions
to choose. The KHI only gives one legal perspective, which is undoubtedly considered public
benefits by the drafters at that time. Of course, the legal perspective formed in the KHI is not
22
23

24

25

26

Wahbah Az-Zuhaili, Ilmu Ushul Al-Fiqh Al-Islamiy (Damaskus: Dar al-Fikr, 1986), 4: 138.
Ahmad Rajafi, Nalar Fiqh Muhammad Quraish Shihab, Istana Publishing, vol. 53 (Yogyakarta: Istana
Publishing, 2015), 69, https://doi.org/10.5281/zenodo.3909325.
Mukhammad Nur Hadi, “Conservative Muslim on The Screen: The Narrative of Islamic Family
Law in Indonesian Films” 18, no. 1 (2021): 140.
Mustofa Al-Khin, Mustofa Al-Bugho, and Ali Asy-Syarbaji, Al-Fiqh Al-Manhajiy ’ala Madhhab AlImam Ash-Shafi’iy (Damaskus: Dar al-Qalam, 1992), 4: 35.
Az-Zuhaili, Ilmu Ushul Al-Fiqh Al-Islamiy, 7: 180.

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a single school of fiqh, although the KHI eventually create a single school of thought.
However, it is the eclectic pattern chosen by the government. Therefore, considering which
opinions are strong and which are not in fiqh studies is not the main guideline. The only
benefit is used as a basic guideline by considering the dominant paradigm of Islamic law in
Indonesian society.27
In its development, after running for three decades, the KHI received much criticism.
Several studies show the criticism is quite massive. Some criticized the KHI's chosen reform
methodology. 28 Some criticize the issue of distribution of assets, such as the portrait of
Islamic patriarchal inheritance 29 and distribution of joint property.30
Based on the findings, few highlight the disability issues that intersect with the KHI,
especially in these three main issues. Most studies focus on discussing gender and feminism
in Islamic family law. Therefore, it is essential to reiterate to what extent these three issues
intersect with disability. Marriage guardians are regulated explicitly in five articles, namely
articles 19, 20, 21, 22 and 23. Article 19 emphasizes marriage guardian as a pillar of marriage.
Article 20 explains who has the right and obligation to become a guardian. Article 21
regulates the order of lineage guardian and what to do when there is a conflict of authority
within the same degree of lineage guardian. Article 22 governs the shift of rights to be a
marriage guardian. Article 23 outlines when a judge guardian (wali hakim) can replace the
position of a biological guardian. At this position, only article 22 deals with disability issues.
This article explains that the rights of a marriage guardian can shift to another marriage
guardian at the next level due to disabilities, namely speech disability and deafness, or old
age, such as being old and seriously ill. If it is associated with concepts in fiqh, of course, this
opinion is in tune with most fiqh scholars.
Next, marriage witnesses are regulated in three articles: 24, 25, and 26. Article 24
confirms marriage witnesses as a marriage pillar. Articles 25 and 26 control the conditions
for becoming a marriage guardian. Here, only Article 25 pertains to the issue of disability. It
is because article 25 restricts persons with hearing or deaf disabilities from being witnesses in
marriage.
Where does the polygamy rule in the KHI intersect with the disability issue?
Polygamy is regulated in Chapter IX under the title “Having More Than One Wife” (Beristri
Lebih Dari Satu). The editorial choice of this title is unique because there are indications to
avoid excessive public responses, especially negative ones. This chapter includes five articles;
55, 56, 57, 58 and 59. Article 55 regulates the main requirements for polygamy. Article 56
27
28

29

30

203

Imron Rosyadi, Rekonstruksi Epistemologi Hukum Keluarga Islam (Jakarta: Kencana, 2022), 32.
Marzuki Wahid and Rumadi, Fiqh Madzhab Negara: Kritik Atas Politik Hukum Islam Di Indonesia, 2nd
ed. (Yogyakarta: LKiS, 2011); Marzuki Wahid, Fiqh Indonesia: Kompilasi Hukum Islam Dan Legal Draft
Kompilasi Hukum Islam Indonesia Dalam Bingkai Politik Hukum Islam Indonesia, 1st ed. (Bandung:
Penerbit Marja, 2014); Wardah Nuroniyah et al., “Kritik Metodologis Terhadap Pembaruan
Hukum Perkawinan Dalam Kompilasi Hukum Islam,” Mahkamah: Jurnal Kajian Hukum Islam 1, no.
1 (2016): 33–47.
Defel Fakhyadi, “Ptriarkisme Hukum Kewarisan Islam: Kritik Hukum Waris Islam Dan Kompilasi
Hukum Islam,” Hukum Islam 21, no. 1 (2021): 25.
Elimartati and Elfia, “Kritik Terhadap Kompilasi Hukum Islam Tentang Ketentuan Harta Bersama
Dalam
Perkawinan,”
Juris:
Jurnal
Ilmiah
Syariah
19,
no.
2
(2020):
231–43,
https://doi.org/10.31958/juris.v19i2.2283.
Mukhammad Nur Hadi, Fahruddin Ali Sabri, Ahmad Masum

Between Conservatism and Progressivism...

confirms the procedure for licensing polygamy to the Religious Courts. Article 57 explains
when the Religious Courts can grant permission for polygamy. Article 58 outlines the
conditions for supporting polygamy. Article 59 describes when a party or husband can make
an appeal or cassation regarding the stipulation of a polygamy permit from the Religious
Courts. Based on the several articles above, only article 57 pertains to the issue of disability.
The report explicitly states that polygamy can be permitted if the wife has a physical
disability or an incurable disease and cannot bear children. These two conditions are related
to the category of physical disability.
Penghulu and Interpretation Authority on Compilation of Islamic Law
History records that the penghulu has a significant role in controlling and directing
the discourse of Islamic law in society. Penghulu is an institution of clergy that has been
formed since the first Islamic empire arrived in Java. This institution was filled by the Wali
Songo (nine scholars) when the control of da’wah was in their hands. In fact, before Wali
Songo, several people had served as penghulus. In Sultan Hanyakrakusuman’s era, the
penghulu’s status was increasingly prestigious. Scholars were placed in two places; as high
royal advisors and judges at the Islamic Religious Court, which was chaired by the
penghulu.31
When the Islamic Mataram kingdom was split into Kasunanan, Kesultanan,
Mangkunegaran, and Pakualaman, the penghulu still existed as kepengulon, which was held by
courtiers and headed by Penghulu Ageng, who was based in the Palace. The position of
penghulu is also found in various regencies under the authority of the Kasunanan, Kesultanan,
Mangkunegaran, and Pakualaman. This position also remains occupied by the clergy. Until the
Dutch occupied Java, the position of penghulu still existed but was changed with a new face,
where, in the end, Dutch narrowed the authority of penghulu, both in the execution and
interpretation of a rule.32 Regardless of the efforts to reduce the penghulu’s authority, the
main task of penghulu in this era remains with the courts.33
The authority of the penghulu in the early Javanese Islamic era was limited to matters
of marriage, divorce, inheritance, waqf, and zakat and other Islamic civil and criminal
matters.34 However, this authority was eventually narrowed down by transferring part of
that authority from the kapengulon (religious raad) to the landraad (state court).35 Although
the authority has been reduced, regardless his position as a judge in religious cases, the
penghulu is also positioned as a mufti or adviser to Islam, as Hasan Mustapa did in
Priangan.36 This position is given to assist the government in handling customary cases in the

31

32
33

34
35
36

Ibnu Qoyim Isma’il, Kiai Penghulu Jawa: Peranannya Di Masa Kolonial (Jakarta: Gema Insani Press,
1997), 65.
Isma’il, 65.
Fariska Dwi Purbaningrum, “Penghulu-Penghulu Keraton: Peran Dan Konferensi Penghulu
Bidang Agama, Hukum, Pendidikan Di Kasunanan Surakarta Dan Mangkunegaran Tahun 19361947” (Universitas Islam Negeri Raden Mas Said Surakarta, 2022), 84.
Isma’il, Kiai Penghulu Jawa: Peranannya Di Masa Kolonial, 66.
Isma’il, 116.
Fahmi Moh. Ansori, “Peran Hasan Mustopa Dalam Lembaga Penghulu Di Priangan Masa Kolonial
Belanda (1895-1918 M)” (Universitas Islam Negeri Sunan Kalijaga Yogyakarta, 2018), 72.

204

landraad.37 The authority of the penghulu's interpretation of Islamic civil law issues has solid
historical roots because the penghulu is also a judge. However, the strength of his authority in
interpreting the law and the penghulu’s work was intervened by the government, which was
finally maintained until independence.38
Indonesia issued a regulation that explicitly regulates the work of the penghulu. Code
of the Minister for Administrative Reform (Permenpan) Number: PER/62 /M.PAN/6/2005
Concerning the Functional Position of the Penghulu and his Credit Score, describe position of
penghulu and what must be done in detail. Article 1 confirms that the penghulu supervises
marriages or reconciliation according to the Islamic religion. This task is clarified in Article 4,
which is related to the planning of penghulu activities, supervision, recording, service,
counselling and marriage counselling or reconciliation. Penghulu also monitors violations of
the provisions of marriage or reconciliation. Other essential tasks related to developing
thought are providing legal fatwa services and studying Islamic family law issues through
regular discussions, such as bahtsul masail (discussing Islamic legal issues).
Young Penghulu’s Interpretation of Disability Issues in Marriage
This data was obtained from a survey of young penghulus in East Java via Google Forms. The
data targeted are 13 penghulus appointed in 2023 as State Civil Apparatus (ASN). However,
only seven penghulus were willing to fill out the form. These penghulu are positioned in cities
such as Bojonegoro, Probolinggo, Lumajang, Jember, Ngawi, Lamongan, Situbondo and
Blitar. These penghulus are referred to as young penghulas because their current age ranges
from 24 to 36 years. The details are as follows:

No
1

Table 1. Penghulus and their Institution
Name
Age
Institutions
DH
25
KUA Solokuro, Lamongan

2

AM

36

KUA Kasreman, Ngawi

3

FDA

25

KUA Banyuputih, Ngawi

4

IQB

24

KUA Trucuk, Bojonegoro

5

MU

27

KUA Panti, Jember

6

ARF

28

KUA Krejengan, Probolinggo

7

BY

27

KUA Bakung, Blitar

Three critical issues discussed were about strengthening the rights of persons with
disabilities in marriage guardians, marriage witnesses, and polygamy. These three issues are
explored through several articles in the KHI. Simply, their reading patterns are the main
object of this study. Therefore, the explanation will be divided into small sub-chapters based
on this theme by assembling their answers into one related narrative.
Marriage Guardian
Two things are being asked and discussed here. First, are the requirements for
marriage guardians the ability to see, hear, and speak, or marriage gurdians just fulfill one of
37
38

205

Isma’il, Kiai Penghulu Jawa: Peranannya Di Masa Kolonial, 72.
Hadi, “Nalar Fikih Penghulu Di Kota Malang Dalam Saksi Nikah Tuli,” 82.
Mukhammad Nur Hadi, Fahruddin Ali Sabri, Ahmad Masum

Between Conservatism and Progressivism...

them? Second, does Article 22 regulating the shift of the rights of a deaf marriage guardian to
the next marriage guardian, contain beneficial values, or is it discriminatory? Two questions
triggered various reasons or perspectives on the young penghulus as the new legal
practitioners.
To the first question, three groups emerged. In the first group, the three penghulus
answered that “it could be one”. In the second group, two penghulus responded “yes”. In the
third group, two penghulus answered “no”. Here, only two penghulu did not view physical
disability as a problem in guardianship.
I will elaborate on their argument from the predominant answer: the penghulu who
answered “it could be one of the three conditions”: eyes, mouth and ears. DH views these
conditions are not important to be an issue as long as other essential requirements, such as
being male, Muslim, mature, and intelligent, are met. ARH focuses on the ability of marriage
guardians to understand their intentions to the public. FDA provides more specific
specifications for the permissibility of disability conditions. This restriction applies to visual
and hearing disabilities. Meanwhile, speech disabilities are considered a problem. Being able
to speak without being accompanied by the ability to see or hear will make it difficult for the
penghulu and the public because they cannot receive information in two directions, so this
condition can be considered as not fulfilling the legal requirements of being a guardian of
marriage.
For the second question, the first group presented quite exciting answers. DH
considers that this article is beneficial and, at the same time, proves that Islamic law is
always present in facilitating conditions. FDA provided a solution that strengthens DH's
argument. He believes that the benefit of Article 22 above lies in its legal purpose because the
article was written to provide legal clarity for guardians of persons with disabilities who
cannot communicate and receive information, ideally, not to discriminate against these
marriage guardians. The important note is that as long as marriage guardians can provide
information, even though they have speech and deaf disabilities, their right to be marriage
guardians must still be fought for. ARH assesses the opposite. He considered the article
discriminatory. It is just that he was unable to explain what marriage guardians with speech
and deaf disabilities received as forms of discrimination.
The second group, which requires that the guardian must be free from conditions of
blindness, speech and deaf disabilities, have arguments that are almost similar to the first
group but with a different emphasis. In the first question, BY assessed the KHI as the
primary reference. Therefore, any disability condition should not be present in a marriage
guardian. By emphasizing the importance of conveying information, AM viewed that it was
difficult for guardians with speech and deaf disabilities to provide accurate information. It is
different from guardians who are blind disability. However, he argued that it would be
better if the rights of marriage guardians were given to the next degree of marriage guardian
when the marriage guardian has three disability conditions.
How did this group respond second question? BY emphasized that what was written
in the KHI already contained beneficial values. AM gave an answer that strengthened the
first penghulu. The benefit of article 22 above lies in efforts to avoid all possibilities that will
affect the validity of the marriage. It is because the ability to communicate is essential to

206

produce information that is understandable by the public, and it seems complicated to arise
from the condition of guardians who have speech or deaf disabilities, as often happens to
guardians who are old and vulnerable.
The third group, which doesn’t mind the guardian’s disability, has interesting
answers and arguments. Regarding the first question, MU explained that the requirements
for marriage guardians have nothing to do with disabilities because as long as the marriage
guardian is a Muslim, male, mature, intelligent, independent, and just, the marriage contract
is valid. IQB has a different argument. The main point for IQB’s argument is the belief of the
public or parties involved in the marriage contract regarding the validity of the marriage
contract with marriage guardians with disabilities. Therefore, IQB considered persons with
disabilities eligible to become marriage guardians even though, in one condition, the
marriage guardian can choose another option, by representing guardianship through
writing.
MU and IQB arguments bring up a unique perspective regarding the second
question. MU expressly stated that it does not agree with the transfer of marriage guardian
rights in Article 22. For him, persons with physical disabilities are still categorized as
mukallaf-ahliyyah, so the reason for disability is inappropriate as the main factor in
transferring their guardianship rights. IQB instead provides a compromise answer. On the
one hand, people with speech and deaf disabilities can still become guardians regarding
their ability to provide information and understanding. On the other hand, transferring the
rights of marriage guardians due to severe physical disabilities is the best choice as a form of
caution so that the validity of the marriage is maintained while at the same time bringing
benefits.
Marriage Witness
Two questions are also raised regarding the issue of marriage guardians. First, are
the requirements for a marriage witness the ability to see, hear, and speak or just is one of
them fulfilled? Second, does Article 25, which regulates the limitation of the rights of deaf
marriage witnesses, contain beneficial or discriminatory values? The penghulu's answer in
this section differs from the previous issue. Discriminatory answers are more dominant here
than in the first issue.
Towards the first question, the penghulus was divided into three groups. The first
group, two penghulus, answered that they could be one. The second group of four penghulus
responded “yes”. In the third group, one penghulu answered “no”. Here, it can be seen that
the dominant penghulu did not agree to grant the deaf witness the right to be a marriage
witness.
The first group argues with quite accommodative narratives that still need to be built
strong enough. In the first question, DH saw that the witness with one of the disabilities
above might still understand the marriage contract. Unfortunately, he could not describe
how witnesses understood and received information. FDA provides various possibilities. If
the witness has a visual disability, he can understands the marriage contract through
hearing. If the witness has a speech disability, he can appreciate the marriage contract by
witnessing it first-hand and by hearing it. If the witness is deaf, he can testify through his
experience of seeing.
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Between Conservatism and Progressivism...

In second question, DH considers that Article 25 presents a beneficial aspect. The
restrictions imposed by the KHI are not discriminations. FDA also considers Article 25
already contains beneficial value because the witness must also be able to hear what he
witnessed. If there is a language interpreter at the time of the marriage ceremony where the
deaf witness can understands and testify how the lips of husband and marriage guardian
move, his right to be a witness remains.
The second group, which firmly rejects deaf witnesses or witnesses with other
disabilities, has various arguments. IQB confirms that there is no sequence of rights in
marriage witnesses as marriage guardians. Therefore, looking for witnesses based on the
KHI is the best choice. BY also agrees with this argument because the witness plays an
essential role in determining the validity of the marriage contract. Two other ideas, AM and
ARH, further strengthen the two previous opinions. They confirmed that the witness must
be able to prove what he saw and heard when necessary. If he cannot do so, his right to be a
marriage witness is void. Here, all the penghulus of this group agree that the limitation on the
rights of deaf marriage witnesses in Article 25 contains beneficial values, precisely and in
general.
The third group, represented only by MU, rejects the limitation on the rights of deaf
marriage witnesses in Article 25 . Unlike several other penghulus, his opinion is consistent in
rejecting restrictions on the rights of persons with disabilities, both in the issue of marriage
guardians and marriage witnesses. The requirements for a marriage witness are the same as
a marriage guardian: male, Muslim, mature, intelligent, independent, and justice. However,
he still thinks that witnesses who are “deaf” seem troublesome because they have difficulty
understanding the marriage contract. In other words, he emphasizes that the article bring
benefits.
Polygamy
On the issue of polygamy, the penghulu has the same opinion. When they are asked
about whether polygamy is permissible if the wife has a disability, including chronic or
incurable illness, or cannot bear children, they answered yes. Some base their arguments on
the original law of polygamy, mubah (permissible), without considering the condition of the
wife’s disability as stated by DH, BY, AM, and ARH. MU revealed that polygamy is
permissible because of the wife’s disability condition, which is a more beneficial path. FDA
answered this question by looking at three critical lessons from polygamy because of these
conditions; to have children, to keep the family without divorcing the first wife, and to
protect the husband from adultery. Unlike the others, IQB considers polygamy permissible
because it is a standard rule.
Their interpretation of article 57 showed discriminatory opinions and in one hand
confirmed benefits of that article. Most penghulus considered that article 57 creates benefits.
FDA revealed that these benefits would be realized if polygamy was carried out with the
principle of essential justice so that the right to support and protection for wives with
disabilities were fulfilled. Even though, on the one hand, it seem hurts the first wife, other
more real benefits, such as avoiding adultery, are more important to pay attention to. The
concept of benefit is also agreed upon by several other penghulus, such as DH, AM, MU, and
ARH. BY even revealed that such polygamy seeks to realize maqashid sharia, protecting

208

offspring (hifd an-nasl). IQB gives a different emphasis on the meaning of discrimination. He
emphasized that the potential for discrimination in polygamy cannot be avoided. However,
this discrimination disappears when the wife has given permission.
Based on the description above, most of the penghulus interpreted the article
authentically, not teleologically or sociologically. Even though some use a teleological
interpretation, that interpretation is ultimately biased and wrapped up in a non-advocative
grammatical understanding. One can also read the distribution of benefit values from their
performance of the three articles above. The following table can at least trace the direction of
the tendency of maslahat from the interpretation of the penghulus, whether benefit was born
within a conservative-discriminatory or progressive-advocative framework.
Table 2. Penghulu’s Views on Benefit Values of Articles
Concerning on Disability Issues in the KHI
No.

Name

Marriage
Guardian

Marriage
Witness
Benefit Values

Polygamy

Yes

Yes

Yes

No

No

1

DH

v

v

v

2

FDA

v

v

v

3

AM

v

v

v

4

IQB

v

v

v

5

MU

6

ARH

v

v

v

7

BY

v

v

v

v
v

v

No

v

The table above shows that interpretations of Articles 22, 25 and 57 are dominated by
conservative paradigm. The penghulus was impressed to see that the article was already
presented in an ideal package and did not need to be interpreted in a more actual way. Even
the diction used in the article is still used again in analyzing. This means that the young East
Java penghulus still do not understand the essential concepts in disability studies even
though this issue is inherent in their work as practitioners of Islamic family law.
Navigating Legal Paradigm and Maslahah of the Penghulu's Interpretation
This section will further analyze the reasoning and benefits (maslahah) of the penghulu's
interpretation. The description will be based on two opposite categories of legal paradigms,
conservative and progressive, to see how far the penghulus present their rationale for taking
sides with persons with disabilities.
The conservative legal paradigm places law as an established product. The values of
benefit, justice, and the benefit of law remain relevant, so there is no need to make changes
or even interpret them differently from the text of the law. This paradigm also appears by
strengthening legal texts with other legal texts, which are also statically interpreted and
interpreted. Simply put, this paradigm is born from textual interpretation, which can be
authentic and grammatical interpretations.
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Between Conservatism and Progressivism...

Several things guide the progressive legal paradigm. First, the humanist perspective
becomes the main character in interpreting law to create universal justice and welfare.
Second, the product of interpretation or pattern of interpretation seeks to reject the legal
establishment (status quo). Third, interpreting legal texts does not rely on classical legal texts
considered final values but also on context.39 Thus, the paradigm of progressive law creates a
paradigm of liberation.40
Guided by the two types of paradigms above and referring to the description of the
penghulu's interpretation of the arguments, the legal paradigm that stands out from the
young East Java penghulus against the three articles in the KHI; 22, 25, and 27, is
conservative. This argument is based on several important points representing how the
penghulu continues to try to reinforce the text of the article. Not only that, another indication
is through the choice of diction used when giving arguments, especially those that intersect
with a disability perspective.
I will start with the first textual interpretation. In the issue of marriage guardians and
marriage witnesses, the majority of penghulus prefer to continue to reinforce the provisions of
this article. The main arguments used are the ability to convey information on persons with
disabilities and the completeness of information from persons with disabilities. Whatever the
conditions, the majority believe that the power of the marriage guardian to convey and
receive information, as well as ensure the correctness of the information manually when the
marriage contract, is an absolute requirement in determining the validity of the marriage
contract. Likewise, on the issue of marriage witnesses, most of the penghulus also considered
it that way. Here, most penghulus understand that marriage guardians and marriage
witnesses with disabilities have limitations in this regard. People with visual disabilities are
unable to witness and prove phenomena directly. People with speech disabilities and
deafness are weak in understanding the meaning of the conversation in the marriage
contract. The auxiliary media mentioned are only sign language or written media. How
assistive technology works for marriage guardians and marriage witnesses with speech
disabilities and deafness is not much discussed.
The same thing also happened to the issue of polygamy. Young penghulus in East Java
interpreted Article 57 the KHI on polygamy conservatively. The various conditions that
allow for polygamy in the article are believed to be legal steps, even with the exclusion of the
psychological condition of the wife who has a disability, either due to an acute illness or
infertility.
How did the penghulu display the benefit value that they idealize in their
conservative interpretations? Based on the above arguments, benefits do not appear
reciprocally. The gift that was fought for in the penghulu's interpretation of the issue of
marriage guardians and marriage witnesses was more to the public benefit. Meanwhile,
individual benefits leading to the fulfilment of the legal rights of persons with disabilities are
ignored. In fact, if referring to the concept of legal competence (ahliyyah), persons with

39 Malthuf Siroj, Hukum Islam Progresif, Nucl. Phys. (Yogyakarta: Penerbit Pustaka Ilmu, 2021), 13.
40 Mukhammad Nur Hadi, “Metode Ijtihad Kolektif Progresif Di Indonesia Sebagai Media Proyeksi

Nalar Kemanusiaan,” Ma’mal 4, no. 2 (2023): 160.

210

sensory disabilities referred to in the article on marriage guardians and marriage witnesses
still have the right to obtain their rights, not to be shifted or replaced. It is because legal
prowess only relies on intellectual abilities, not physical disabilities.41
In contrast to the two issues above, the benefit is only directed to the husband's side
in the issue of polygamy. Benefit for the wife is hardly talked about much. The penghulu's
argument about protecting the husband from adultery is proof of how patriarchal benefit is.
Meanwhile, the value of the benefit that leads to the first wife’s side is not highlighted much.
Is not taking care of a wife who is acutely ill more important than satisfying sexual interests
for a moment but hurting the wife’s psychology? Is not trying to have children with the help
of modern medical technology also better than polygamy, which can cause new conflicts in
the household? The answers to these questions are not much addressed or even raised in
their interpretations. At this point, what penghulu declared show the same line toward
judge’s argument using Islamic Legal Maxims to support their patriarchal legal paradigm.42
Therefore, in this part, either penghulu or judge has the same arguments to respond this issue
and at the same time they show their position as practitioners to challenge the legal inclusive
which is tried to be developed by the government as well as the academicians.
Next, the choice of diction in interpreting is also an important highlight. Most
penghulus still use the diction used in the articles of the KHI, especially on the issue of
marriage guardians and witnesses. The words “tuna” (impairment) and “cacat”
(impairment), are still often found in the description of their interpretation. Only one
penghulu, MU, has explicitly used the word disability several times. The frequent use of the
words “tuna” and “cacat” indicates that most young penghulus do not understand the best
choice of words when discussing disability issues. Their awareness of how to interpret
articles from a disability perspective has not emerged.
An important implication of this choice of words is their tendency towards
strengthening the legal rights of persons with disabilities. Negative words, such as ”tuna”
and “cacat”, used by the penghulu to refer to persons with disabilities, represent a
conservative and non-accommodating legal paradigm. This is because negative words are
present in the medical paradigm (medical model), which positions persons with disabilities
as a group that is hampered in their activities and must be cured first. Various experts have
criticized this paradigm. However, it turns out that this paradigm still resides in the legal
reasoning of young penghulus. This is different from the social paradigm (social model),
which places them as a group constrained by social factors or public perception.43 If the
medical model makes them the wrong party, the social model is in the opposite position.
People with disabilities are not bad. The wrong party is a society that views them

41
42

43

211

Abdul Wahab Al-Khallaf, ‘Ilmu Ushul Al-Fiqh (Beirut: Dar al-Kutub al-’Ilmiyyah, 2010), 105.
Mukhammad Nur Hadi, “Conservatism on Islamic Legal Maxims: Judicial Interpretation of
Polygamous Marriage at the Religious Courts of Mojokerto, Indonesia,” Journal of Islamic Law 4, no.
2 (2023): 172–96, https://doi.org/10.24260/jil.v4i2.1637.
Ro’fah, “Mengikis Bias Normalisme Dalam Fikih: Upaya Menuju Fikih Ramah Difabel,” in FIkih
(Ramah) Difabel, ed. Ro’fah (Q-Media, 2015), 13.
Mukhammad Nur Hadi, Fahruddin Ali Sabri, Ahmad Masum

Between Conservatism and Progressivism...

discriminatively. It is a form of social exclusion, which is an acute social problem. 44
Therefore, ideally, all persons with disabilities should be treated and given equal
opportunities. Efforts must be made to achieve equal access to the media.
How did the penghulu's interpret articles using progressive paradigm? The authors
only found one penghulu, MU, and that was only on two issues: marriage guardians and
marriage witnesses. Meanwhile, on the issue of polygamy, the penghulu is trapped in a
patriarchal benefit narrative. Althogh he tries to reason progressively, there are still
indications of discriminatory reasoning and normalism bias. It can be seen when MU
interprets the marriage witness article. On the one hand, he disagrees with the limitation of
the legal rights of deaf marriage witnesses. On the other hand, he also uses the diction
“tuna”, not deaf or people with disabilities or hearing disabilities, which is more friendly in
terms of editorial and meaning. Finally, it can be stated that the progressive paradigm is
wrapped in a conservative paradigm.
The contestation between progressive and conservative paradigms in interpreting the
articles on marriage guardians, marriage witnesses, and polygamy in the KHI was finally
won by the conservative paradigm. This victory is nothing new as founded by the author to
the penghulu in Malang City 45 and Halili Rais to the penghulu in the Special Region of
Yogyakarta in which the conservative paradigm also won the contestation46. Therefore, this
article completed as well as affirmed what has been found by previous research. The writer's
hope for a fresh idea of young penghulus in East Java is answered through this study,
confirming that conservatism still dominates the majority's legal reasoning. At this point, the
author emphasizes that efforts to realize progressive legal ideas in family law issues must be
rechallenged by the legal paradigm of family law practitioners, penghulu.
The dominance of the conservative paradigm impacts on efforts to create a moderate
and inclusive paradigm of Indonesian Islamic family law. Penghulu as the practitioner and
the guardian of Islamic family law has an important role to create and maintain the moderate
and the inclusive legal paradigm for persons with disabilities. Moreover, this fact actually
violates Islamic legal ethics which shows positive ethics towards people with disabilities.47 It
is because Islamic law always viewes and places persons with disabilities in an equal
position. The protection and fulfillment of their rights is a non-negotiable command as a
manifestation of humanist Islamic law. Therefore, ignoring and subordinating this role is
tantamount to going against the grand narrative of the Religious Affairs Ministry that highly
upholds inclusivism.
Otherwise, when progressive paradigms dominate the penghulu pardigm, inclusive
responses and fresh ideas will emerge where the penghulu is required to protect, respect, and
fulfill the rights of persons with disabilities. The penghulu will consciously really consider the
44

45
46

47

Mark Sherry, “The Promise of Human Rights for Disabled and the Reality of Neoliberalism,” in
Disability, Human Rights and the Limits of Humanitarianism, ed. Michale Gill and J. Chatty SchlundVials (New York: Routledge, 2016), 18.
Hadi, “Nalar Fikih Penghulu Di Kota Malang Dalam Saksi Nikah Tuli.”
Halili Rais, Penguhulu Di Antara Dua Otiritas Fikih Dan Kompilasi Hukum Islam (Yogyakarta:
Penerbit Lingkaran, 2020).
Mohammed Ghaly, “Disability in the Islamic Tradition,” Religion Compass 10, no. 6 (June 2016):
149–62, https://doi.org/10.1111/rec3.12202.

212

variety of rights they ideally get, starting from the smallest part such as how the penghulu
calls them with the special term. Progressivism will lead the penghulu to a flexible practice of
ijtihad. The penghulu wrapped in progressive legal reason will predominantly prefer to
abandon texts that are static and not in favor of persons with disabilities. Thus, true justice is
the main goal even though it must negotiate or even break the legal text so that the
interaction between law and society is absolutely necessary48 in order to create advocative
law. At this point, however, the penghulu can be the law maker as the judge on all three
issues as well as presents the inclusive law. The spirit to give birth to an inclusive legal
character reflects the fresh character of ijtihad which places the values of justice, equality,
human rights, pluralism, and other global ethics as a priority.49 At the same time, this way
will further demonstrate that the transformation of the Islamic family law towards persons
with disabilities is worthy of revision by involving persons with disabilities in order to creat
fiqh that is truly based on their factual experiences.
At this point, the role of the Ministry of Religious Affairs as the main institution that
is administratively and substantively able to direct and intervene in the paradigm of the
upstream is again challenged. Thus, the legal paradigm battle is actually not formed
naturally, but indirectly it is developed systematically. It is because the party responsible for
creating the battle of legal paradigm, the Ministry of Religion, as the commander of the legal
paradigm of the Penghulu, only provides a few facilities for the Penghulu to build an inclusive
progressive paradigm.
Conclusion
East Java’s young penghulus display a conservative paradigm on three issues; marriage
guardian, marriage witness, and polygamy. This paradigm arose because the penghulu
statically interpreted the legal text, the KHI. The penghulu only emphasized and strengthened
what the KHI had formulated. Not only that, the usefulness values in that article are also
considered relevant. In the end, the rights of persons with disabilities were reduced and
weakened as a result of the penghulu’s textual interpretations. On the other hand, in
interpreting the KHI, the penghulu still uses words that tend to discriminate against persons
with disabilities, not editorials that are inclusive and advocative.
At this point, it can be understood that this condition is a gap that needs to be
resolved by the Ministry of Religion in building a humanist perspective for the penghulu.
Thus, ideal references that are often used in dealing with various marriage issues are not
limited to fiqh, the KHI, and other regulations, such as Regulations of the Minister of
Religion (PMA) or Decrees of the Minister of Religion (KMA), which tend to be fiqh oriented,
but also from a disabled perspective. In this way, the penghulu's progressive paradigm
towards disability issues can be formed. Obstacles to the development of advanced family
law can slowly be overcome.

48

49

213

Suad Fikriawan, Syamsul Anwar, and Misnen Ardiansyah, “The Paradigm of Progressive Judge’s
Decision and Its Contribution to Islamic Legal Reform in Indonesia,” Al-Manahij: Jurnal Kajian
Hukum Islam 15, no. 2 (2021): 258, https://doi.org/10.24090/mnh.v15i2.4730.
Yusdani Yusdani, “Islamic Law and Contemporary Challenges from Fresh Ijtihad Point of View,”
Jurnal Hukum Islam 20, no. 1 (2022): 116, https://doi.org/10.28918/jhi.v20i1.5991.
Mukhammad Nur Hadi, Fahruddin Ali Sabri, Ahmad Masum

Between Conservatism and Progressivism...

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