ISTINBAT ABU HANIFAH TENTANG PERNIKAHAN ANAK PEREMPUAN YATIM OLEH WALI NON-MUJBIR

Abstract

This article examines Abu Hanifah's method of legal reasoning regarding the marriage of an underage orphan girl by a non-mujbir guardian. The issue is significant because it reflects different constructions of guardianship in Islamic family law, particularly between the Hanafi school and the majority of jurists. This study applies normative legal research through library-based analysis, using conceptual and comparative madhhab approaches. The primary discussion is drawn from Hanafi jurisprudential literature, especially al-Sarakhsi's Al-Mabsut, supported by relevant works on Islamic marriage law and legal theory. The study finds that Abu Hanifah permits agnatic guardians other than the father and grandfather to arrange the marriage of a minor, including an orphan girl, provided that the guardian remains within the recognized order of guardianship. Nevertheless, such permissibility is not absolute because the child is granted khiyar al-bulugh, namely the right to continue or annul the marriage upon reaching puberty. The legal foundation rests on Prophetic reports, traditions of the Companions, and the reasoning that a person who has guardianship after puberty may also exercise guardianship during minority. Abu Hanifah's method is predominantly bayani, while also reflecting Hanafi ra'y through analogical reasoning and legal protection. The article concludes that this classical view should be read methodologically rather than as an unconditional justification for child marriage in contemporary family law codification.