ISLAMIC LAW OF MUSLIM WORLDWIDE

ISLAMIC LAW OF MUSLIM WORLDWIDE

Quoted from the article: Abd. Ghoffar Mahfuz

Abstract: Modernization of Islamic Law becomes an important part in facing the phenomenon of law which has developed in the life of society. islamic law as a living law and developing in society has its own characteristics, among others, islamic law characterizes responsive, adaptive and dynamic. This can be seen from the sensitivity of proplems concernsn Islamic law, either thought characteristic or the findings of event occurred in society.

So that, it needs efforts to answer the problems. the efforts of implementing modernization of law have been carried out by Islamic scholars / fuqaha Figh. Various theories and methedologies have been used and developed in order to find a law which people find justice. Howover on the other side, the use of methodology is only based on original sources of law (Qur'an and hadith). If the phenomena of law that existed lately neglected or they had never been found in fuqaha period, so, what kind of methodelogy or theory that wiil be used as an effort to determine ist law. this problem needs to be studied specifically. research and Ijtihad will become a discourse to answer it.

Keywords: renewal, Islamic law, the Muslim world

The renewal of Islamic law is an important part of dealing with the growing phenomenon of law in the life of society. Islamic law as a living and growing law in society has its own characteristics, including Islamic responsive, befits and dynamic laws. This can be seen from the problems related to Islamic law, both of which are the thoughts and findings of events occurring in society. For that there is an effort to answer the problem.

 The effort to make legal reform has been done by scholars / fiqh fuqaha. Various theories and methods have been used and developed to find the law that is fairly justified by the people. However, on the other hand the use of the method is only limited to the original legal sources (Al-Qur'an and Hadith). If the legal phenomenon that appears later does not want or has not been met during the time of fuqaha, then what method or theory will be used as an effort to establish its law. These problems need to be studied in particular. Research or ijtihad will be a discourse to answer it.

In the Muslim community, there may always be two views on the contrary Islamic law. The first view, says that Islamic law has universal and dynamic values, so it is always suitable to be implemented anywhere and anytime. The second view, said that Islamic law was static, not modern and even suitable for certain societies and at certain times. Against these two views there is an assumption that both parties are mutually priorious and one another, this is because one is based on religious beliefs, while others are based on other beliefs.

Although not entirely true, such assumptions contain the truth, in the sense that defending the law of Islam will surely have the people who defend it based on objective attitude, because he is a Muslim. Similarly, among the assessors that the Islamic law is not modern there must be some who express their views based on subjective attitudes as well, because he "does not like" to Islam that he does not hug. But in between it can be ascertained that there are people who earnestly use scientific methods of thinking to arrive at that point of view. That is, any scientific view that uses the latest scientific methods, especially if it is not in the sciences of science, does not necessarily produce the same conclusions and views.

On the other hand, the determination of variables, the discovery of concepts, and the determination of indicators is an essential part of drawing the desired conclusions from the study of the problem. Determining the formulas of problems concepts may vary between an author / researcher with another author / researcher, this is largely dependent on what stresses his research. Thus the differences become a major feature in the scientific world.

In this short article, it is attempted to re-disclose the Islamic law system with a commonly used method. The use of various methods is intended to find the perspective of Islamic law itself among the Muslim world.

Research on Islamic Law

To support the thinking and development of Islamic law itself in the life of society, it is time that Islamic law research has begun to be developed through a framework of positive law research methods. Normative law research with all its forms is indeed the hallmark of common law research methods and Islamic law in particular, as well as empirical research sociological law of all kinds and forms.

      According to Soekanto, normative law research only uses secondary data or bibliographic data as a material for scrutiny of written law. The written law may be scrutinized from its systematic point of view, its basics, its synchronization status, its history or its comparison (Soekanto 1983: 140). The normative law research is essentially the basis for sociological / empirical law research. Sociological / empirical law research basically uses primary data derived directly from the community, on the basis of the thought or framework obtained from library research.

         The sociological law research in Islamic law can be said to be still "rare" done by Islamic jurists. Legal studies in existing society are done by anthropologists. Sociological / empirical research has an important significance, since sociological law is a reflection of the living values ​​and beliefs of society as a prerequisite in society, nation and state life (in broader context). This suggests that Islamic law content should be able to capture the aspirations of the people who have grown and developed since its time. Prophets, friends, tabiin and mujtahid centuries ago. This means that Islamic law is expected not only as a present, but also as a reference in anticipation of social, economic,

              

  The above thought suggests that the law (Islam) is not just a static norm, but puts emphasis on certainty and order in society. On the other hand, the norms are expected to dynamize the thinking and engineering of the people's behavior in applying the applicable norms of law.

                In the study of the renewal of Islamic law in the Islamic world, JND Anderson and Jhon L. Esposito concluded that the method commonly developed by Islamic reformers in dealing with legal issues is still centered on an adhoc approach and divided by the principles of takhayyur and talfiq (Anderson 1997: 7). However, regardless of whether or not the conclusions of the two figures are, it is necessary to re-examine, how the tendency of Islamic law in the Muslim world today and the times to come. The Islamic law perspective will be important for us as a starting point to step from now on.

                Whereas the legal systems in the Islamic world are now globally can be grouped into three groups: 1. a system that still recognizes Shariah as a fundamental law, and still applies it in full; 2. a system that leaves Sharia, and replaces it with a secular legal system; 3. the legal system that compromises the two systems.

                Globally the description of the above three legal systems can be summarized as follows. The first system, according to Anderson (1975: 83), there are some examples of countries that still hold Sharia as a fundamental law and still seek to apply it in all aspects of humanitarian relations, are Saudi Arabia and the Northern Territory of Nigeria.

                For Muslims, the Shariah is "a comprehensive humanitarian task", encompassing moral, theological and ethical guidance of the people, spiritual aspirations, formal worship and pure rituals. According to SG Vesey-Fitzgerait, in the writings of Khaduri and Liesbesny (Law in the Middle East: 85), "Shariah covers all aspects of public and individual, health, and even politeness and morality".

                If anyone thinks that the Sharia section is inadequate, the bid'ah will be accused by the majority of Muslims who believe that the whole Shariah is Ilmiyah. The view of this general belief will be a major psychological barrier in Syariah reconstruction efforts, much less reinforced by the threat of criminal lawsuit with apostasy indictment.

                Saudi Arabia is an independent Islamic state with a distinctive pattern that still values ​​Sharia as the law governing all aspects of life. It does not seem to have accepted the Western legal system. In general, any law that contravenes the basic concepts of Islam, means theoretically, also contravenes the fundamental laws of Hijaz. The legalization of the Hijaz Foundation was officially declared by the late King Abd al-Aziz ibn Sa'ud, in his statement saying that "the rule of law in the Hijaz Kingdom should always be adapted to the book of God's Qur'an, the Prophet's sunnah and the actions of the companions and the his loyal followers "(Goverment's Fist Memorial in Abitration between the Government of Saudi Arabia and the Arabian American Oil Company (Aramco), Appendix I: 10-11).

    However, a recent tax declaration on income tax in which it entails an American taxpayer is declared valid, and this reflects the merger of the

basic Islamic teachings of zakat, or obligatory obligations, with American views on fiscal law rules .

     Furthermore, Anderson (1975: 83) says it is undoubtedly that this process will be faster, as Saudi Arabia is increasingly engaged in international trade arrangements, especially with the Amaricans.

   The above phenomenon suggests that the purity of the Shariah public law, it is not the law of all its principles and direct rules from God to the Prophet Muhammad. If convinced that the Sharia was compiled by early Islamic jurists, based on the interpretation of its basic sources, namely the Qur'an and the Sunnah. Thus contemporary Muslims will be more open to accepting the possibility of substantial Shariah reforms.

    An-Naim (1990: 26), commented, that the Sharia as understood by Muslims over the years, is not scientifically (direct revelation from God), but rather than the product of the process of interpretation and logical interpretation of the text of the Qur'an and sunnah and other traditions.

Second system; This system shows a contradiction to the pattern adopted by the first system. The second legal system embraces the secular legal system. For example it can be said that the Turkish state appears to be very different from those of Saudi Arabia. In Saudi Arabia, as has been stated, Sharia is still recognized as a law in both public and private law. While in Turkey the official Syariah has been declared invalid, as far as matters of justice, even in the area of ​​family relations.

                As an illustration of the history of law in Turkey, we follow the following quote from Anderson (1975: 87): At the time of the revolution, the Attaturk government was claiming to treat new laws sourced from the Turkish Islamic heritage. But after a few months of disagreement among the members of the committee (legislative) is inexhaustible. At that time the government lost its patience. At the time of this confusion they took the ruling to bring his country into the Western world, not to the Eastern world as it were. It is as a demanding release from its bonds with the past, and is moving forward in line with the development of society. They also believe that the situation is very urgent to immediately compile new and original codifications (from Turkey),

    Thus in 1926, Swiss Law was set up as a Sharia substitute, even including the law of his family. Monogamy is applied as a substitute for polygamy; and the divorce of judges on the basis of certain grounds, the same for husbands or wives of litigants applied in lieu of ties unilaterally disobedient to the husband or imposed upon the consent of the wives concerned (East in Amir 1999: 12).

        However, it is worth looking at us, the majority of the Turks still believe that they are Muslims. Even among the rulers also most asserted that they did not reject Islam, they simply followed the Western attitude that religion was a private matter that governed the relationship between each individual and God.

          This second legal system seems to have not only survived or developed in Turkey alone, but unnoticed in countries whose majority of muslimps (like Indonesia) began to enter in almost all legal aspects. While Islamic-born law began to decline desperate by the more secular legal traits of society.

Third system, There are some countries that take the moderate system, which is between the two extreme legal systems (ie, the full Islamic law) and a system that completely rejects Islamic law, as described above, among others, Egypt, Sudan, Lebanon , Syria, Jordan, Iraq, Tunisia and Morocco (Anderson 1975: 89-90).

                When noted further, legal reforms are taking place, in an effort to trace the patterns that the Muslim nations appear to embrace (which embrace this middle path). In the section to diagnose the recent tendencies.

                According to Anderson (1975) on this third system, there has been a strict dichotomy in the law, partly colored by Western inspired inspired rules. Meanwhile other sections remain Shariah holders. In essence this dichotomy has been running centuries throughout the Islamic world, but has never been acknowledged blatantly and equally.

                Based on that dichotomy, the law of criminal and trade law, almost entirely in secularism, while family law remains characterized by Islam, marital law and sales law in a narrow sense.

In the field of justice and personnel, this dichotomy seems to be the most likely occurrence compared to other areas. Nonetheless, Syariah Courts are still equipped with ancient, characteristic clerical staff, educated in traditional madrasahs. This is in an attempt to summarize the views of the Hanafi sect which are included in the manuscripts or books (yellow), the secular courts are preceded by judges who are educated according to Western patterns, and even educated in Western countries (Anderson 1975 ). The influence of these "mixed courts" tends to reinforce the development and deepen the influence of Western legal thinking on wider and wide-ranging law experts. This condition for Indonesia itself is very potential, because generally the law applies in Indonesia is the Dutch colonial legacy law. The law comes from European Land (Continental) called civil law, and from the archipelago Europe familiar with Anglo Saxon is called common law.

                According to historical perspective, the renewal of Islamic law according to Coulson (1994: 149-185), placing itself in four forms:

1. Codified (i.e. the sorting of similar law in the law) Islamic law becomes the law of the state, which is called the doctrine of siyasah.

2. Unrelated Muslims to only one particular law school, which he calls the superstitious doctrine (selection) of the most dominant opinion in society.

3. Legal development in anticipation of the emergence of a new legal event called the doctrine of tatbiq (the application of the law to new events).

4. Change of law from old to new, called tajdid doctrine (reinterpretation of law and source of law).

In Coulson's conclusion above, Coulson seems to mean the update is the same as the change. Meanwhile, according to Friedman, quoted by Soekanto (1984), "looking at these two terms are two different concepts". Furthermore Abdullah (1996: 214), explained, "the change of law does not change the formal rules, while the reform of the law changes the formal rules". The difference between these two terms leads to the difference in meaning contained therein. Therefore change and renewal is a concept of law that needs to be optimally assessed to obtain meaning or meaning in accordance with the spirit of the language.

Legal Update Method

                In Islam there is also a term of legal renewal. The term is very familiar with Muslims called ijtihad. According to Faturrahman (1995: 172), ijtihad is a method of legal development established by Allah and the Prophet, and the casting of Islamic legal values ​​into the national legal system through excavations from its sources (Al-Qur'an and al-Hadith). In the Islamic Encyclopedia (Cyril Glasse 1996: 161), ijtihad "gross effort". The term comes from a hadith in which the Prophet Muhammad asked a question to his messenger named Mu'az on the criteria to be set in carrying out the task assigned to him, "with the Qur'an" Mu'az replied. The hadith quote is:

If it is not in the Qur'an, then use what ", ask the Prophet later. Answer Mu'az by using the guidance of the sunnah (the Prophet's example). Then by using what ", ask the Prophet again. He replied, "I will pursue ijtihad based on my personal ability, and will act in accordance with the ijtihad. The Prophet justified the Mu'az.

Studying the dialogue of the Prophet with Mu'az above, then the ijtihad is valid in matters which do not exist in the Qur'an and / or sunnah directly, also in the case of can not be applied analogy (qiyas) directly to known law. In this connection they have the authority to perform ijtihad named mujtahid.

Known among the Sunni people, those who are ranked first after the four caliphs are the founders of the sect. The case or legal events that have not been resolved by the founder of the sect, are the authority of the mujtahids under it or after the founder of the sect of death.

Therefore, perhaps theoretically the possibility of ijtihad is still going on until now, but because the requirement of knowledge perfection for a mujtahid is a big challenge, it is often said that in the Islamic history "closing the door of ijtihad" it was almost nine centuries. During that time the tendency is only limited to the decomposition of the previous opinions (not to discover new opinions or laws).

Sekalipun demikian, kebutuhan akan ijtihad merupakan sesuatu yang tidak dapat dihindarkan. Hal ini disebabkan karena adanya kebutuhan akan hukum dalam berbagai situasi dan kondisi yang baru dalam kehidupan masyarakat. Dalam kaitan ini seyogyanya seorang individu yang beriman mestilah berkedudukan sebagai “Mu’az” dan mestilah pula mempromosikan ijtihad sebagai keputusan pribadi.

Among Sunni rulers, the judge's decision on a particular problem indicates the small role of ijtihad, which must be attributed to the provisions of certain sects. Among Shi'ah Ushulli, ijtihad is viewed as the need of the day and is the prerogative of religious authorities (ulama). This is different from that which happened to Shiite Akhbari. Of course the authority of ijtihad is a function of a priest, but in the absence of a priest, this function is represented by the great Shiite scholars. The scholar's position was the mujtahid who recognized his authority in making the right decision (Glasse 1999).

In the case of the Sunni and Shiite mujtahid, there are two things to keep in mind, that Shiite views on ijtihad differ from Sunni views. A Shiite mujtahid, in fact, is required to undergo ijtihad, although the answer to a problem that has been encountered has occurred in the past. Every ijtihad resolution is unique (unique) and only relates to the problem or case being faced. Among the Sunnis, the problems faced are not or have never appeared at the time of the companions or tabi'in. In the settlement of the case it is required legal provisions. For that, there is ijtihad to find the law.

The concept of reforming Islamic law that is growing today is the reactualization of Islamic teachings. Reactualization of Islamic teachings is a form or effort to provide answers to the complexity of the problems facing Muslims lately. This concept is evolving as it is driven by the assessment of the growing religious (Islamic law) state of affairs today. This conception implies the present interpretation of Islamic teachings, and this is the adaptation of Islamic teachings from the past.

According to Scacht (1971: 1), the basic assumption of reactualization of Islamic teachings is the issue of reactualization should be studied starting from the aspect of Islamic law. This is because Islamic law is very influential and effective in shaping the social order and the life of the Muslim community.

What the Scacht reveals, shows that the law is considered very important, in order to understand the character and ethos of a nation or community. On the other hand it can be said that the law reflects the souls of the people far clearer than any organization. This will apply not only to the Islamic law itself, but it applies and develops against the legal phenomenon outside Islam.

According to Zarkasyi Abdussalam and Syamsul Anwar in "Response to Makalah Reaktualization of Islamic Studies", in Asy-Syir'ah (1998: 13). Islamic law is firmly on the very foundation of theology, as acknowledged by fiqh experts and ushul fiqh, that Islamic law imtimbathnya is science kalam (theology). Essential legal concepts in Sunni fiqh are fundamentally influenced by theological doctrines. Karen, re-factualization should also touch the theological aspect that is the basis of the doctrine of Islamic law. Therefore, the problem of reaktualization as an effort to adapt Islamic teachings into the context of changing society and seeking legal changes, is seen from the perspective of intellectual and revelation.

Looking at the above statement Zarkasyi, illustrates that the development of Islamic law through the concept of reactualization should not be separated from theological thoughts. It is considered theological thought as the root of the development of all aspects of Islamic law. It is also related to the classic theory of Islam, namely: "the law comes from the divine will, so it is stated that the Lawgiver (al-Hakim) in Islam is the All-Wise God" (Khallaf 1968: 96).

Based on that classic theory, every attempt (method) of the discovery of Islamic law, is nothing but a search and formulation of divine will. Therefore, it would be wrong if the classical method derived from divine will is not a tool or discourse in the study of Islamic law.

However, it is worth noting that, the theory of divine will is not a static system without significant change, but it is progressively revealed and progressive principles. Therefore, the problems that arise are how and in what way the will of God becomes the law can be revealed, is it only God's revelation is the only source to know syar'i's law, or can it be through human nature's common sense and can the mind play an active role in seek and find the syar'i law. This problem is a research question. For that, a special study is needed to find the answer.

It is a challenge for Muslims to find the law desired by all Muslims. In the sense it can fulfill the "sense of justice" for all. If this has been realized by the Muslims, then the Islamic legal perspective will be able to make a great contribution to the Islamic world.

As an illustration of the above issues, it can be said that the approach adopted by ulama ushul fiqh (Islamic law theorists) to this problem is based on the legal definition of syar'i as an ethical quality placed on the act of a mukallaf (as a legal subject). The point is that the problem is whether the mind can determine the good or bad of a human act and can the syar'i law be related to the good and bad that is found through the rational reasoning of a human being.

This illustration is just as an effort to open our discourse (the Muslims) to do more and more in line with the guidelines or methods of legal reform. This discourse will develop to suit the legal issues faced by mujtahids (researchers).

On the other hand, the theological background embraced by the mujtahid / researcher, will have a great influence, and this will have implications for freedom or not in doing his deeds. It will then have an impact on the large and inadequate role of man on revelation in determining the badness of a lawful act set.

This article deliberately does not appear to be conclusions, as this article aims to encourage and inspire us all to study and find the desired law and fulfill the "sense of justice" for the Muslim community. For that there are certain methods of fiqh in legal development. These methods are contained in the ushul corridor of fiqh and qawaid al-fiqhiyah. Thus the writing of this method is just a repetition, and the means of re-presenting our memory to the old study. The methods in the operation consist of:

1. Istinbath method (deductive), a method of drawing conclusions specifically (micro) from common arguments (as in the Qur'an and Hadith). This method is used to describe or interpret the verses of the Qur'an and the hadith into problems ushul fiqh.

2. Istiqra (inductive) method, which is the method of taking general conclusions resulting from special facts. The conclusion is the conclusion of the law on a problem which does not mention the details of its provisions in the Qur'an and Hadith. In fiqh studies it seems that this istiqra'i / inductive method is used by fuqaha ahlu al-ra'yi (human group).

3.            Metode takwini (genetika), yaitu metode  penelusuran kebelakanf, untuk mengetahui latar belakang terbitnya nas atau memperhatikan kualitas (seperti hadis). Metode ini mempriorotaskan  kajian tentang sebab-sebab terjadinya, atau melihat sejarah kemunculan masalah yang  dipecahkan oleh nas atau memperhatikan  kualitas periwayatan (Hadis). Dengan demikian, metode  ini menggunakan  pendekatan sejarah  (historical approach). Metode ini biasanya (secara umum) digunakan oleh ulama-ulama  hadis dalam  meneliti  status hadis  dari segi riwayat dan dirayahnya. Bagi fuqaha, metode ini digunakan/dilakukan untuk menentukan/menemukan hukum dengan melihat/meneliti nas (dalil), dari sebab-sebab atau latar belakang  turunnya nas Al-Qur’an, yang dikenal dengan asbab al-nuzul, dan terhadap hadis disebut asbab al-wurud.

4. The method of dialectics, which is a method that uses reasoning through questions or statements that satisfy tesa (theses) and anti tesa. Both of these statements will then be discussed with the principles of rational logic to obtain a conclusion called the final tesa. This method generally uses an analogy (qiyas) approach and argument or illat. Generally, the fuqaha uses this method as an attempt to determine the law on a legal issue / phenomenon, which is clearly not mentioned in the texts, but explicitly is implied by the script, it is indicated by the presence of certain qarinah / clues. This problem can be seen in cases of zakat profession, poultry farming and others.

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