From Classical Fiqh to Commercial Court: Reconciling Taflīs and Actio Pauliana in Indonesian Legal Practice

Abstrak

The rapid expansion of Islamic finance in Indonesia has exposed a critical doctrinal rift between the secular, proceduralist national bankruptcy regime and the ethical-legal foundations of sharīʿah-compliant transactions. This study examines the applicability of the conventional actio pauliana doctrine—a cornerstone of creditor protection under Law No. 37 of 2004—to insolvencies governed by Islamic economic principles. Employing a normative-juridical methodology, the research conducts a critical comparative analysis of statutory provisions, Commercial Court jurisprudence, and classical Islamic legal texts, using Ibn Rushd’s (Averroes) doctrine of taflīs (insolvency) as its primary jurisprudential lens. The findings reveal a profound normative dissonance. The rigid, formalist application of actio pauliana systematically marginalizes substantive sharīʿah scrutiny, creates jurisdictional conflicts over the definition of insolvency, and sidelines specialized religious expertise. This failure of the formal system has consequently spurred the rise of unregulated digital and informal dispute resolution mechanisms, which, while adaptive, fragment legal certainty and undermine collective creditor protections. The article makes an original contribution by applying Ibn Rushd’s classical framework to this modern dilemma. It concludes by proposing a tripartite integrative model for legal harmonization, involving regulatory recognition of sharīʿah contracts, the establishment of specialized judicial panels, and the procedural integration of sharīʿah-based assessments into bankruptcy proceedings. These reforms are essential to align Indonesia’s legal infrastructure with its Islamic finance sector, ensuring substantive justice, restoring stakeholder confidence, and fostering sustainable growth.