Konsep Ishlāh dan Keadilan Restoratif serta Batasan Penerapannya dalam Penyelesaian Perkara KDRT

Abstract

Domestic Violence (DV) offenses present unique challenges due to the intimate nature of the relationship between the perpetrator and the victim. Modern legal trends increasingly favor Restorative Justice as a means of restoration, a concept that resonates with Ishlāh in Islamic law. However, applying Restorative Justice without strict parameters risks perpetuating violence and neglecting the rights of female victims. This study aims to analyze the conceptual convergence between Ishlāh and Restorative Justice, and to formulate the boundaries of their application in resolving DV cases. This is a normative legal study employing statutory and comparative approaches, analyzed qualitatively. The findings indicate that the intersection of these two concepts lies in the vision of restoration (restitutio in integrum) and the preservation of the family institution (hifz an-nasl), utilizing mediation mechanisms akin to the role of a hakam. However, its application is strictly constrained by Maqashid Syariah principles, specifically by prioritizing the preservation of life (hifz an-nafs) over the preservation of the family unit. Amicable settlement is permissible for minor physical violence classified as complaint-based offenses, psychological violence, and economic neglect, serving as an educational form of ta'zir. Conversely, reconciliation is strictly prohibited in cases of severe physical violence, death, sexual violence, and recidivism, as these constitute ordinary offenses (gewone delict) and violate the fundamental principle of preserving life.