Poligami di Indonesia dalam perspektif CEDAW dan mazhab Shafi’i

Abstract

Convention on the Elimination of All Forms of Discrimination against Women or CEDAW’s paradigm of
thought is gender equality, women should be given rights as men in principles and rights in marriage
including marriage approval, marriage dismissal, marriage guardian, and so on. Discrimination is an
attitude that opposite of justice and must be eliminated. The source of the CEDAW’s concept paradigm
of thought is mind, lustand feeling, and then the concept of CEDAW considered rational and
Maslahah (good) enough. The Shafi’i paradigm is guiding the mind and heart based on religious texts.
The religious prohibition have Madharat in the world and in the after life. If the world have not seen the
Madharat, it will be feltin the after life. The Maslahah principle in CEDAW included al-Maslahah al-
Mulghah, as it is contrary enough to the teachings of Islamic law contained in religious texts. In fact, any
law that is contrary to Islamic law governed by religious texts is not Maslahah but Madharat and should
be abandoned even it is logical and good enough by the reason of thought. CEDAW uses Nash’s
Guidelines that understand the Qur’an verse by considering Siyaq al-Kalam, so it interprets ‘fair’by
though of mindor in love and affection. Polygamy will no longer mu’asharah bi al-ma’ruf by causing the
suffering of wives. With the Sad al-Dhari’ah consideration, it will change the polygamy law from allowed
or mubah to haram lighoirihi. Shafi’i madhhab uses the dalalah ‘ibarah’ which understands the Qur’an
verse without considering siyaq al-kalam. The law of Haram li ghairihi on the permissibility of Polygamy
based on Sad al-Dhari’ah is not applicable generally, and means that polygamy can not be judged as haram
li ghairihi but keep see the conditions with the consideration of the single person condition.