Download ISLAMIC LAW IN CONTEMPORARY WORLD: THE SOURCES OF

ISLAMIC LAW IN CONTEMPORARY WORLD: THE SOURCES OF ISLAMIC
LAW FOR THE PAST AND TODAY’S CONTEXT
FINAL PAPER
presented as an assignment for
Comprehensive Islamic Studies subject
By:
Arnis Silvia, S.Pd
2111014000017
MASTER PROGRAM OF ENGLISH EDUCATION
FACULTY OF TEACHER TRAINING AND EDUCATION
UIN SYARIF HIDAYATULLAH JAKARTA
2012
ISLAMIC LAW IN CONTEMPORARY WORLD: THE SOURCES OF ISLAMIC
LAW FOR THE PAST AND TODAY’S CONTEXT
Arnis Silvia, S.Pd
Introduction
It has been a common agreement among the Islamic scholars that every Muslim’s deeds,
either in spoken or action, in term of worship or interaction with others, in Islam Shareea are
all included in law area. These laws have been explained by Quran and Hadith, but as the
progressing life, some new problems came up and urged new laws. In this case, the mujtahid
(an authoritative interpreter of the religious law of Islam) needs to take a dalil (istinbal) for
these new problems. This implies a challenge and opportunity whether or not Islamic law
could fit any situation and era. For this reason, this paper presents the sources of Islamic law
(sharia) and its challenges in answering contemporary problems in today’s world.
I. Basic Concept of Law (Shariah)
Djazuli & Aen (2000) stated that law as stated by ushul authoritatives is “statements
constituting shara’ that are correlated to the action of Mukallaf, either as an order or
prohibition, choice, or wadl’iy (explaining things causative to the other things, prerequisite,
and hindrance towards a law).” From this definition, law of shariah applies to mukallaf,
which means Muslim within certain age (baligh), sane, and can be charged law.
Along their live, a Muslim should follow the law as their guidance or as the solution
for the life problems they encounter. The purpose of Islamic law is to provide the guidelines
and requirements for two types of interactions: those between human beings and God, or
worship, and those between human beings, or social transactions. Esposito1 (2011:58)
mentions that throughout the history, Islamic law has remained central to Muslim identity and
practice, for it constitutes the ideal social blueprint for the believer who asks, “What should I
do?”. These laws are explained through some sources, namely Quran, Sunnah, Ijma’ and
Qiyas.
1
See John L. Esposito. 2011. What Everyone Needs to Know about Islam. Oxford: Oxford University Press, page
58.
1
I.1 Primary Sources of Islamic Law
To classify the sources of Islamic Law, there are two kinds of sources namely primary
source and secondary source. Primary source consists of Quran and Sunnah (Hadith), while
the secondary sources are Ijma’ and Qiyas, respectively. It means that the first and the
foremost reference of law is Quran. When there is no such specific law in Quran, then consult
to the Hadith. When there is no adequate explanation on Hadith, then consult to Ijma’. When
there is no such consensus on it, then look for Qiyas.
Esposito states that Quranic texts provide moral directives, setting out what Muslims
should aspire to as individuals and achieve as a community. Sunnah of Muhammad illustrates
Islamic faith in practice and supplements and explains Quranic principles. Ijma’ (concensus)
originates from Prophet Muhammad saying, “My ummah will never agree on an error”
implying that a consensus among religious scholars could determine permissibility of an
action. Qiyas is used to provide parralels between similar situations or principles when no
clear text is found in Quran Sunnah and Ijtihad.
I.2 The Nature of Quran as the Primary Source
Abdul Wahhab Khallaf2 defined Quran as “the Allah revelation through Gibrael to
Prophet Muhammad in Arabic language within the exact meaning as an evidence for his
prophecy, as a constitution as well as guidance for human beings, and as the medium of
approach (a human to his God), and worths a worship when it is read.”. Further, he explains
that it was delivered continuosly without any cut chains, from generation to generation, both
literally or meaningfully, kept from any changes and replacement. It was revealed within two
periods: Mecca and Madina. Mecca ayahs describe about aqidah (belief), tawheed (Godness), and the Last Day. While Madina ayahs describe about more detail worship and
muamalah practices.
Quran as the main sources covers three major laws, namely: aqidah (belief), ethique
(akhlak), and fiqh. Aqidah refers to the system of belief to God, Angels, Prophets and the
Last Day. Ethique refers to the obligation of a mukallaf to conduct the good things and leave
the bad. Fiqh is law correlated to the sayings, actions, agreements, contracts which occurs
2
Read more on Abdul Wahhab Khallaf. 1994. 1994. Ilmu Ushul Fikih. Semarang: Toha Putra.
2
among mukallaf. This Fiqh consists of nine kinds of laws, such as: laws of worships (prayer,
fasting, almgiving, nadzar, and other men-to-God worship; laws of social interactions or
mu’amalah (contract, punishment, crime, and other men-to-men interactions); laws of private
(family law, husband and wife relationship, relative relationships and other 70 similar laws);
civic law (trade, mortgage, dependent, syirkah, and such.); criminal law (30 ayahs);
procedural law (law correlated with court, testimony, and oaths.) there are 13 ayahs about it. ;
state constitutional law (law correlated with constitution and its basis) there are 10 ayahs
about it; international law (law correlated with international relationship between or among
nations that regulates the interaction among citizens of Islam and non Islam countries, there
are 25 ayahs about it); and the economic and finance law (law about the economic law of the
poor, the beggar, the almsgiving (zakah) and such, there are 10 ayahs about this law.
The above laws contained in Quran are basically aiming at constituting these four
basis.3
1. The Removal of Difficulty, means that the law was purposed to the human benefit. It
provides human with guidance in all walks of life in order to ensure for him a righteous
lifestyle within a just society committed to the service of God. The example of this basis are
the permission for a traveler to perform prayer shorter (jama’or qashar), the permission to not
fasting when having safar or sickness, and so on.
2. The Reduction of Religious Obligations, meaning tha the law stated in Quran is trying to
ease the reader and the ummah, as well as those who just began to learn Islam about the
prohibitions in the Islam. Quran states explicitely about what is allowed and what is
prohibited explicitely, like the women who can be married, the prohibition of riba, the food
that is allowed, and so on.
3. The Realization of Public Welfare, meaning that the laws of Islaam were primarily enacted
for the general good of all mankind. God may prescribe a law suitable to people at the time of
its enactment, or it may serve a particular limited purpose. For example, the law of
inheritance, the law of bequest (wasiyah), almsgiving (zakah) and so on.
4. The Realization of Universal Justice, means Islamic legislation considers all humans the
same withregards to their obligation to submit to the divine laws and in their responsibility
3
Philips, B. 1990. The Evolution of Fiqh (Islamic Law and the Madhab). Riyadh: International Islamic Publishing
House. page 25-37
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for breaking them. The laws mentioned in the Qur’aan are all general, making no distinction
between one group or another (discrimination). Examples are the legal punishment for the
thief, killer, and other crimes.
As a main source of Islamic law, Quran covers two kinds of law, the explicit ones
(with a very clear and detail nash) and the predictable ones. The first consists of very clear
law that could be interpreted directly without needing any takwil. The example are An Nisaa
12 (inheritance) and An Nuur 2 (the punishment for adulterer). The latter consists of some
clues about a law, and opened for a takwil. The example is Al Baqarah 228 (the waiting
period for divorced woman).
I.3 The Nature of Sunnah and its Function in the Islamic Legal Source
Sunnah refers to the statements and actions of Prophet Muhammad (PBUH) as well as
the statements and actions of others done in his presence which did not meet his disapproval.
The Sunnah is considered the second source of revelation based on Allaah’s statement in the
Qur’aan, “He does not speak from his desires. Verily it is inspiration which has been
revealed.” Etimologically, As-sunnah is taken from the words sanna – yasinnu – wayasunnu ,
meaning: explaining. From the aspect of Shariah, as sunnah is everything coming from
Prophet Muhammad PBUH in the form of qaul (sayings), fi’il (action), taqrir (decision),
body language and attitude (akhlaq) which are aimed at being tasyri’ (shareeah) to Islam
people.
Sunnah, as also called by Hadith, are divided into some types. Based on the way of its
deliverers, there are Hadith Mutawateer and Ahad. Hadith Mutawateer are sayings from
Prophet Muhammad PBUH delivered together once a time by several trusted scholars who
are impossible lying. Hadith Ahad are hadith with a less degree than Hadith Mutawateer.
Based on the kind of hadith, hadith is also divided into three types, namely Hadith
Qauly, Hadith Fi’li, and Hadith Taqriri. 4
a. hadith qauli (sunnah in the form of sayings), is any kind of sayings from Prophet
Muhammad PBUH which correlates to tasyri’, as Prophet says: “Among Islam
4
Abdul Wahhab Khallaf. 1994. 1994. Ilmu Ushul Fikih. Semarang: Toha Putra.
4
goodness is to leave what disadvantages to him” (At Tirmidzi no. 2317, Ibnu
Majjah no. 3976, Ibn Hibban no. 229)
b. hadith fi’li (sunnah in the form of action), is any kind of Prophet Muhammad
PBUH acted which correlates to syariah, like Prayers (Shalat), Ablution (Wudhu),
Hajj, and so on.
c. Hadith taqriri, is any action did by Prophet’s companion (shahabah) known and
approved by Prophet Muhammad PBUH as a sign of approve it. Example: When
shahabah did a traveling (safar) and they didn’t find any water whereas the prayer
(shalat) time is coming. They did a tayammum. Suddenly they found water and
did ablution with it. and rasulullah said “You did according to sunnah”. (Abu
Dawood no.338-339, an Nasa’i (I/213). See Shahih Sunan Abu Dawud (n0.336),
cet.I/Gharraas, 1423 H.
Imam Syafi’i in As-Suyuthi5 elaborates the three “faces” of Sunnah (Hadith) as three
faces, they are: 1) it acts as what it is stated in Quran as a nash (Prophet Muhammad did
exactly what it said), 2) it specifies what was generally mentioned by Quran. In this case,
Prophet Muhammad explains the meaning of the ayahs, and specifies whether it applies
generally or specifically.
Further, Yazid bin Abdul Qadir Jawas6, restates Ibnul Qayyim explains the correlation
of As Sunnah and Quran as follows:
1) As Sunnah strengthen the laws in Quran, such as: in the case of tawheed, shalat,
zakah, Ramadhan fasting, hajj, doing good for parents, and so on.
2) As Sunnah explains / describes what is stated as general (mujmal) in Quran which
consists of two functions those are: bayan tafsil and bayan takhsish. Bayan Tafsil
means that As Sunnah demonstrates what is said in Al Quran, for example: the pratice
of Shalah, Hajj and Ablution. On the other hand, Bayan Takhsish means that As
Sunnah explains what is said in Al Quran more specifically, such as: the verse about
inheritance (mawarits), the punishment for the thief, et cetera.
5
Imam Jalaludi Suyuthi. 2009. As Sunnah sebagai Sumber dan Dasar Hukum. Jakarta: Pustaka Jurnal Keluarga.
Hal. 41
6
Jawas, Y.Q. 2005. Kedudukan As-Sunnah Dalam Syariat Islam. Bogor: Pustaka At Taqwa
5
3) As Sunnah constitutes new laws that is not stated in Al Quran
To some extents, Sunnah constitutes new laws which are not stated in Quran, such as:
some forbidden (haram) states of certain meat (a bird with sharp claws, animals with canine,
domestic donkey, etc.), haram for a man wearing silk, haram drinking from a gold glass, and
so on.
Along with Quran, As Sunnah possesses a strong position as the law source as it is
delivered by Prophet Muhammad PBUH whose attitude was the best and as the Allah’s
chosen one as the closure of prophets (khatamul anbiya’). As there are some degrees of
Hadith like, shahih, hasan, ahad, and maudu, only the shahih and hasan hadith that will be
considered as the basis of law making.
II. Ar Ra’yu: the Secondary Sources of Islamic Law
After the death of Prophet Muhammad in II/632, there was unsettled question of
succession among his companions. This emerged some methods of law making to answer the
most current problems faced by the Islamic societies back then. This applied to some
problems that was not mentioned explicitely in the Quran nor Hadith. Then, there were some
new methods to consider new laws.
Reformers say that laws relate to Muslim’s duties and obligations to God (worship) is
unchanging, but laws that relate to social transactions or obligations which depends on social
and historical circumstances are subject to change. Therefore, ijtihad is needed to reinterpret
Islam to address contemporary issues and meet needs in modern societies.
The previous sources of Islamic laws (Quran and Hadith) are the agreed sources of
law, where there is no difference in the understanding of the strength of the law. The next
methods, namely Ar Ra’yu are arguable, as it emerges from the concensus of the scholars,
which, might apply or not apply to another society.
Ar Ra’yu is the secondary source of Islamic Law after Al Quran and As Sunnah. Ar
Ra’yu is used when some dalil is needed whereas it is not stated in Al Quran and As Sunnah.
It correlates with some dinamic problem, like social, politic, economy, culture, science,
technology, and so on. Ar Ra’yu is classified into: 1) Ijma’ (consensus), 2) Qiyas (analogy),
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3) Al-mashlahah mursalah (Consideration of Public Interest), 4) ‘urf (custom), 5) Istihsan
(Equity in Islamic Law), 6) Qaul al-shahabat
II.1 Ijma’
Etimologically, Ijma’ means: 1) a strong willing, as what stated “... So resolve upon
your plan and [call upon] your associates. Then let not your plan be obscure to you. Then
carry it out upon me and do not give me respite.” (Yunus: 71), 2) agreement.
Terminologically, Ijma’ means the agreement of ijtihad experts from the realm of Prophet
Muhammad followes after his death in a certain time towards a certain religious problem.
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Ijtihad is an effort to apply maximum thinking capability to reach a law decision based on
shar’ee dalil. Ijma’ is starting after Prophet Muhammad PBUH death, because any laws
during his life is reached through the revelation of Al Quran and his Sunnah.
Ijma’ is considered as the third Islamic law source for some reasons:
a) Nothing in Ijma’ which contradicts to Al Quran and As Sunnah, as Moslem will not
agree in disgression, especially the generation of Shahabat and tabi’in. Ijma’ is reached
based on Al Qur’an, Shahih Hadist (especially the Mutawatir ones), healthy logic, and
realistic reality. Ibn Hazm said: “No Ijma’ except it is based on religion nash, either
from the saying of Prophet Muhammad (that is preserved well) or from his acts which is
delivered manqul.”
b) Ijma’ has a strong position (Hujjah Syari’ah) as a base of law, after Al Quran and
Sunnah. Ijma’ is supported by Al Quran and Hadist, like on these dalil:
“And hold firmly to the rope of Allah all together and do not become divided...” (Ali
Imran: 3)
“And whoever opposes the Messenger after guidance has become clear to him and
follows other than the way of the believers - We will give him what he has taken and
drive him into Hell, and evil it is as a destination.” (An-Nisa’: 115)
“Stay with the Jamaah and beware of separative. Indeed, shaitan is near to one person,
but get far to two person. And whoever expects the middle Jannah, he better be with
Jamaah.” (shahih Ahmad I/18)
7
Al-Jami' li Ahkam Ushul Fiqih, Syaikh Muhammad Siddiq Hasan Khan, page. 154.
7
However, Ijma’ in practice has some varieties8, such as:
1) Ijma’ as Hujjah Qath’i (according to as-Asfahani and mashyur in most scholars)
2) Ijma’ can not apply without any determination of zhanni, either ijma’ based on dalil
qath’i or dalil zhanni
3) Ijma’ should be differenciated between the agreed (hujjah qath’i) and the debated
ones (ijma’ sukuti). This kind of Ijma’ apply and determine as zhanni. It’s stated as
shahih by Ibn Taimiyya.
II.2 Qiyas (analogy)
Qiyas, various forms of reasoning, including by analogy, are used by the law scholars
(Mujtahidun) to deal with situations where the sources provided no concrete rules. The
consensus of the community or people, public interest, and others were also accepted a
secondary sources where the first four primary sources allow. Qiyas is a methodology
developed by jurists through which rulings in new areas are kept close to the Quran and
Sunnah because new rulings are based on the Illah (causes) discovered in the legislation of
the Quran and Sunnah. Rulings on new areas could diverge a lot, if Qiyas was not applied.
This is a major justification for validity of Qiyas. Qiyas is determining something which do
not have a clear nash or dalil, by making analogy with the constituted terms. Example: the
prohibition of beer (the analogy is taken from the Haraam of khamr).
II.3 Al-mashlahat mursalah (common good things)
Al mashlahat mursalah is determining a term which (might) not considered as “good”
in previous time, but considered as “good” or “urgent” in preserving the religion at the
current time. In other words, it means take the good, leave the bad one. Zefri classifies
Mashlahah Murshalah to some types of Mashlahah Mursalah, as follows.
a) Ad Dharuriyah (primary/urgence), meaning that without this common things, the life
continuity can be hindered. It consists of ad dien (preserving religion), nafs (preserving
life), ‘aql (preserving the ratio), nasl (preserving the inheritance), and mal (preserving
property).
8
Masadirul-Istidalal 'ala Masail-I’tiqâd, Syaikh 'Utsman Ali Hasan, page. 56-57.
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b) Al Hajiiyyah (secondary), meaning the goodness to support the primary goodness for the
sake of the human being. For example: qashr prayer, breaking fast when getting sick,
and so on.
c) At Tahsiniyyah (complementary/tertiary), comprising the previous two mashalahah, such
as: eating well-nourished food, wearing a proper cloth, doing sunnah prayers, et cetera.
Some other examples of Mashlahah Murshalah are: a) the documentation of Qur’an
(the writing of Quran was not applied in Prophet Muhammad time, but as some of the Qari’
are dead, a writing of Quran is urged to preserve its continuity) b) the talaq said three times at
one time is considered one talaq (said Sayyidina Umar). Here, it is clear that the mashlahah
murshalah focuses on considering the two sides of possibilty, the better or the worse. As the
example mentioned above, the mashlahah taken by documenting the Quran although there
was no single ayah on it or hadith. It is based on the consideration that there would be more
harm than good if the Quran was not docummented well. Islam could loose the Big Book and
it can be gone.
II.4 ‘Uruf (tradition or habit from the pre-Islamic time)
‘Uruf is tradition that is applied before the revelation of Islam, but considered to be Good
in certain time. This tradition, however, should consider the existence of its supporting or
against statement in Quran or in Hadith. When the habit is concordance with previous Islamic
law sources, not violating the Quran, Hadith, Ijma or Qiyas, so the habit or custom is fine to
be applied. The application of ‘urf, for sure, variable from community to community, from
country to country. As Islam was born in a pre-Islamic sociaty which do not erase all the
habit from the old time, ‘urf could be also used as the people around the world as a source of
law making. Example: one community has a habit to pay mahar (gift) with cash instead of
things. It is considered as applicable.
II.5 Istihsan (something considered good by Muslimin)
This consideration of good differs from one mazhab to others. Mazhab Syafii do no
consider Istihsan as a method to take dalil or hujjah, but the other mazhabs consider
differently. Example: Woman in period (haidh) can still read Quran, Stock exchange business
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II.6 Qaul al-shahabat (Companion opinion)
These opinions, surely, could be taken as a hujjah (law reference) as long as it goes along
with Al Quran and As Sunnah.
Example:
a) The last period of talbiyah in Umrah (Imam as-Syafi’i)
b) Khiyar ain in marriage (Umar bin Khattab)
c) The state of a woman who is left by a missing husband (Ali bin Abi Thalib)
II.7 Syar’u man qablana
Syar’u man qablana means shareeah that was revealed to the previous religion before
Islam (Musa, Daud, Isa) that can still be applied because of its commonness.
Example:
a) Believing in Allah
b) Qishash
c) Punishment for thief
II.8 Historical Facts
Historical facts including the manuscripts, letters, castles, mosque, fortress, tomb,
building, and so on are needed to support what is stated in Al Qur’an.
For example:
The story about Pharaoh in Al Quran, supported by the tomb in Egypt.
The story about Ibrahim, can be seen in Mecca (Ka’bah)
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III. Conclusion
By describing the sources of Islamic law from the past to the current context, it could
be stated that Islam has a constituted laws derived from the main sources (Quran and Hadith)
and also the other sources (Ijma, Qiyas, Mashlahah Murshalah, Istihsan, ‘Urf, and Qaul As
Shahabah).
Quran as the main source of Islamic law which was revealed centuries ago, has been
proved as having the relevance to the todays problems, not only for worship issues, but also
in some other issues, like politics, science, economics, social, and so on. Sunnah has also
considered as the most ideal way of life, as there are some movement to go back to Quran
and Sunnah as what done by Salafi community, where they consider that by following the
path of Quran and Prophet Muhammad, they will have a genuinely harmonious life, both in
dunya and in the after life.
The contemporary approaches of law has also proved that Islam is relevance to the
world changes. It has been supposed that Islamic law could be also flexible according to the
cultural, social, and historical context. This opens a discussion that Islamic law, which was
revealed hundred years ago could be applied in any time. Despite of some disputes (khilaf)
among scholars in some cases, but the contemporary approaches of Islamic law can be
applied in the future as the life gets more complicated.
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References
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Keluarga.
Djazuli, H.A. & Aen, N. 2000. Ushul Fiqh: Metodologi Hukum Islam. Jakarta: RajaGrafindo
Persada.
Esposito, J.L. 2011. What Everyone Needs to Know about Islam 2nd edition. Oxford: Oxford
University Press Khallaf, A.W. 2003. Ilmu Ushul Fikih. Jakarta: Pustaka Amani.
Khallaf, A.W. 1994. Ilmu Ushul Fikih. Semarang: Toha Putra
Jawas, Y.Q. 2005. Kedudukan As-Sunnah Dalam Syariat Islam. Bogor: Pustaka At Taqwa
Nata, A. 2011. Studi Islam Komprehensif. Jakarta: Kencana.
Philips, B. 1990. The Evolution of Fiqh (Islamic Law and the Madhab). Riyadh: International
Islamic Publishing House.
Zefri, S. 2009. Urgensi dan Relevansi Al-Mashlahah Al-Murshalah sebagai Metode Ijtihad
Kontemporer. Paper presented as “Cakim Pengadilan Agama Sidoarjo Jawa Timur”.
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