PUTUSAN MAHKAMAH KONSTITUSI TERHADAP PASAL 43 AYAT (1) UU NO 1 TAHUN 1974 TENTANG STATUS ANAK DI LUAR NIKAH BERDASARKAN MASHLAHAH NAJMUDDIN AL-THUFI (Dekonstruksi Undang-Undang Hukum Islam)

Abstract

This article will explore The Verdict of Constitusion Court on unwed children status related not only by mother but also by father. So, the verdict of Constitutional Court on unwed children status was accordance with the intent of Shari'ah. According to al-Thufi, the methode to understanding mashlahah in muamalah can be done with reasonable consideration. Al-Thufi say "al-Istiqlal al idrâk uqûl bi-wa al-mafâsid mashâlih". This principle argues that human reason can find mafsadah and mashlahah independently. However, the independence of this reason in finding mashlahah is not in all areas including worship, but just in mu'amalah. The principle of al-Thûfi emphasizing ratio is obviously very different compared to the other Ulama Ushul. Independence of the al-Thûfi’s reason will be more apparent when listening to his expression: "Amma mashlahah siyasa fi al-mukalllafîn huqûqihim fahiya ma'lûmatun lahum bihukmi al-Adah wa al-aqli". Therefore, According to Thufi, the verdict of Constitusion Court on unwed children status is in accordance with the substantial of Syari’ah.