Regulating Sexuality and Reproduction in Selected Muslim-Majority States: Comparing Positive Law and Islamic Fiqh

Abstract

Indonesia's 2023 Criminal Code recriminalised the public display of contraceptives and widened the offence of extramarital intercourse, yet comparison with other Muslim-majority jurisdictions remains thin. This article is a doctrinal study in comparative legal analysis. It examines Indonesia, Tunisia, Türkiye, and Saudi Arabia, and reads classical fiqh as a normative benchmark rather than a fifth jurisdiction. The four systems do not occupy positions on a single scale between religious and secular law. Divergence follows from constitutional settlement, political contestation, and the selective reception of classical doctrine. Türkiye withdrew penal law from consensual adult sexuality. Tunisia confined the offence to married persons and repealed the gendered defences once attached to it. Indonesia widened the definition while restricting enforcement to a complaint from within the family. Saudi Arabia retained the hadd classification while codifying family law in 2022 and relying in practice on discretionary punishment. For Indonesian reform the study recommends two measures: a ministerial regulation defining authorised health personnel under Article 410, since that exemption keeps practitioners outside the offence created by Article 408, and clarification of the complaint rule in Articles 411 and 412, which governs entry into the process rather than its conduct.