PERLINDUNGAN HUKUM ANAK DI LUAR PERKAWINAN DALAM PERSPEKTIF FILSAFAT HUKUM ISLAM DAN HUKUM POSITIF INDONESIA

Abstract

This study examines the legal protection of children born out of wedlock from the perspective of Islamic legal philosophy and Indonesian positive law. The research employed a normative literature review by analyzing eight scholarly articles, national laws and regulations, and the Constitutional Court Decision No. 46/PUU-VIII/2010. The findings reveal three main points. First, there is a conceptual tension between classical Islamic jurisprudence, which limits lineage (nasab) solely to the mother, and Indonesian positive law, which has adopted a more inclusive approach by recognizing the civil relationship between children and their biological fathers. Second, the protection of children born out of wedlock remains hindered by social stigma and administrative barriers, particularly in civil registration, which restricts access to education, healthcare, and public services. Third, the perspective of maqÄá¹£id al-sharÄ«âah, particularly hifz al-nasl (protection of lineage) and hifz al-nafs (protection of life), emphasizes that children must not be discriminated against due to their birth status, and that the fulfillment of their rights is both a moral and constitutional mandate. This study concludes that harmonization between Islamic legal philosophy and Indonesian positive law is urgently needed to establish a more inclusive, just, and comprehensive framework for the protection of children born out of wedlock.