From Hybrid Contracts to Waqf–Musyārakah-Based Takaful: A Maqāṣid al-Syarī‘ah Comparative Legal Analysis of Indonesia and Malaysia

Abstrak

Islamic insurance is founded on the principles of mutual assistance, justice, and collective protection, yet its practice in Indonesia remains predominantly structured through hybrid contracts such as tabarru‘, wakālah, and muḍārabah. Although these contracts are formally recognized in takaful practice, they are not necessarily optimal in realizing the objectives of maqāṣid al-syarī‘ah, particularly wealth protection, distributive justice, social solidarity, and public welfare. The study analyzed the legal frameworks of takaful in Indonesia and Malaysia and formulated a normative reconstruction of a waqf-musyārakah-based takaful model for Indonesia. The study employed normative legal research, drawing on statutory, conceptual, and comparative approaches, with maqāṣid al-syarī‘ah as the main analytical framework. Despite that, Indonesia’s hybrid model remains formally valid, while takafulis still placed within a commercially managed structure in which the social function of takaful ijtimā‘ī is not yet fully institutionalized. Malaysia, by contrast, offers comparative lessons through a more integrated governance framework and stronger participant-oriented regulation. The article argues that a waqf-musyārakah-based model provides a more maqāṣid-oriented direction for reform by strengthening the social foundation of participant protection and promoting a more participatory governance structure, provided that it is supported by clearer regulation and stronger institutional safeguards.