Conflict in Mortgage Enforcement and Sharia Legitimacy: Reconstructing Legal Authority through Maqāṣid al-Sharīʿah

Conflicts in mortgage enforcement by Islamic banks remain underexplored, particularly regarding the interaction between mortgage rights, Sharia-based contracts, and judicial authority. Previous studies have largely examined collateral enforcement, Sharia compliance, and judicial competence as separate issues, leaving insufficient explanation of how conflicting legal norms and institutional authorities affect the legitimacy of mortgage enforcement. This study adopts an empirical socio-legal approach with a qualitative case-study design focusing on mortgage enforcement by Bank Sumsel Babel Syariah. Data were collected through observation, semi-structured interviews with purposively selected Bank representatives involved in financing and recovery, creditors and debtors or their legal counsel with direct experience of enforcement disputes, and Religious Court actors familiar with judicial authority and case handling, alongside analysis of court decisions, legislation, financing contracts, and relevant legal literature. The findings reveal conflicts between formal legal certainty and substantive Sharia justice, regulatory disharmony and overlapping institutional authority, and institutional risks concerning financing recovery and legal legitimacy. These findings indicate that formal validity alone is insufficient to establish legitimate mortgage enforcement in Islamic banking. The study therefore reconstructs legal authority through maqāṣid al-sharīʿah by integrating asset protection, creditors’ rights, debtor protection, and Sharia legitimacy within a more coherent framework of mortgage enforcement.

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