REKONTRUKSI HAK IJBAR WALI DITIJAU DARI TEORI LAW AS A TOOL SOCIAL ENGINEERING ROSCOE POUND

Abstract

The concept of hak ijbar is often misinterpreted as coercing a daughter into marriage with a spouse chosen by her parents, without her consent. It is even perceived by some as the absolute authority granted by Islam to a father or grandfather to marry off his daughter, regardless of her agreement. This phenomenon becomes particularly significant when analyzed through Roscoe Pound’s theory of “law as a tool of social engineering.” The purpose of this study is to examine hak ijbar using this theory in order to understand the reconstruction of the guardian’s right (hak ijbar wali). This research employs a library-based method, collecting a variety of scholarly sources such as books, journals, and articles. The data were then analyzed through content analysis and descriptive analysis. The findings indicate that, based on their authority, female guardianship (wilayah) is classified into two types: compulsory guardianship (wilayat ijbar) and optional guardianship (wilayah ikhtiyar). Roscoe Pound’s perspective underscores the function of law as a disciplinary instrument through his theory that “law is a tool of social engineering,” meaning that law serves as a means to reform or restructure society. In this context, the provisions of the Indonesian Marriage Law represent a response to the misuse of hak ijbar by guardians who impose forced marriages on their daughters.