Analisis Kemaslahatan Pada Putusan MA Tentang Wasiat Waji>Bah Dalam Pemberian Hak Waris Bagi Non Muslim (Studi Analisis Pada Putusan MA No. 51.K/AG/1999)

  • Faradilla Chairunnisa Program Studi Ahwal al-Syakhshiyyah FAI UNISMA Bekasi
  • Agus Supriyanto Program Studi Ahwal al-Syakhshiyyah FAI UNISMA Bekasi
Keywords: maslahah, inheritance, wasiat waji>bah

Abstract

The objectives of this study are as follows, (1) To find out the legal position wasiat waji>bah
in the distribution of inheritance for non-Muslims; (2) To find out the reasons behind the decision
Mahkamah Agung in deciding inheritance rights for non-Muslims in the form wasiat waji>bah;
and (3) To analyze the benefit of the Verdict Mah-kamah Agung No.51.K/AG/1999. The method used
in this research is the Inductive method, which is in the form of drawing general conclusions or a
basic knowledge of specific matters. That is, from the existing facts a conclusion can be drawn. This
type of research is library research or library research. This research is descriptive and maslahah
analysis. The conclusion of this study, first, the legal position of wills in giving inheritance for non-
Muslims in KHI does not mention that a person is prevented from becoming an heir due to religious
differences. Non-Muslim heirs in Islamic law are located outside the heirs who have the right to
receive an inheritance, because religious differences become an obstacle to obtaining inheritance
rights. The Hanafiyah Ulama viewed the will to non-Muslim heirs as valid and the jurists agreed that
the testament to the Muslim ghair ahl al-dzimmah was permissible. Therefore, granting inheritance
rights to non-Muslims in the form of a compulsory will is legal because religious differences do not
become a barrier to the validity of a will. Second, in its decision, the Panel of Judges gave reasons for
granting inheritance rights to non-Muslims through a mandatory will without questioning the religion
of the heirs by stating that non-Muslim heirs have the right to receive inheritance with the same
proportion as religious heirs. Islam from the inheritance left by the heirs. Third, the researcher found
that there was a problem in the Supreme Court decision no. 51.K / AG / 1999. First, the existence of
mas} lah} ah according to syara ‘belongs to al-Mas} lah} ah al-Mursalah. Second, the level of need
based on the priority of use is included in the Maslahah Daruriyat aimed at maintaining the purposes
of Islamic law (Maqasid al-Syari’ah) and avoiding damage. Third, the content of the maslahah or
which priority should take precedence is included in the Maslahah al-Ammah. Fourth, change an as a
fixed or changing limitation, including in Maslahah al-Mutaghayyirah and Fifth, there is a principle
of Justice.

Published
2020-06-02