The Shari’ah
“Then We have put you (O Muhammad s.a.w) on a plain way of (Our) commandment. So follow you that (Islamic Monotheism and its laws), and follow not the desires of those who know not” (Al-Jathiah: 18)
Literally Shari’ah means the right path. Rules which are review by Allah to his survent human and genie. And this rule covered faith “akidah” (morality and akhlak, human actions).
- Rules related to faith we call it “Al Ahkam Al-l’yiqadiyyah”. The rules which regulates relationship between God and human being.
Example : Believing in God, believing in angles. Believeing in Qada and Qadar.
- Rules related to morality we call it “Al Ahkam Al-Akhlaqiyyah”. The rules which regulates relationship between human and himself.
Example : being honest
- Rules related to action we call it “Practical Legal Rule” or “Al Ahkam Al-Amaliyyah”. The rules which regulates relationship between human and the others.
The Fiqh
“And make loose the knot (the defect) from my tongue, That they understand my speech” (Taha: 27. 28)
Literally Fiqh means understanding something. Technically is a knowledge about practical legal rules which can be deduced from detailed legal sources.
Fiqh devided into 7 (seven) :
- Wajib (obligatory) is any option which is required by the law maker (Allah SWT) in compulsory manner.
Example : Fasting, Hajj
- Mandub (recommendable) is any option which is required by legislator but not in compulsory manner.
Example : Shalat Dhuha
- Mubah (permissable) is option of action between commission and ommission.
Example : Drink tea or drink water
- Makruh (discouraged) is any ommission which is required by legislator in compulsory manner.
Example : Smoker
- Haram (prohibited) is any ommission required by the legislator in a compulsory manner.
- Sah (valid) means legal rule which is related to action which is legally commited.
- Batil (invalid/ void) means legal rule which is related to action which is not commited according to Shari’ah.
The Differences between Shari’ah and Fiqh
1. Shari’ah is broader than Fiqh. Because Shari’ah covers 3 (three) area of rules related to morality, faith, and action. But Fiqh only covers rule related to action.
2. Shari’ah does not have human elemen.
3. Shari’ah is the origin of Fiqh. Fiqh is the product of Shari’ah.
4. The sources of Shari’ah are Al-Qur’an and sunnah. But the sources of Fiqh are Al-Qur’an, sunnah, and ijtihad.
– Kinds of Ijtihad : Ijma
Qiyas
Masalih Mursalah (Public Interest)
Istihsan
‘Urf (Custom)
Sadd Al-Dharai’
Opinions of The Companions
5. Shari’ah does not change. But Fiqh can changeable.
6. Shari’ah can not be transgressed. But Fiqh can be transgressed.
The Objectives of Shari’ah
1. Daruriyyat (Essentials) are the matters on which the religion and worldly affairs of the people depend upon, their neglect will lead to total disruption and disorder and it could lead to evil ending.
- Protection of Al-Din. Al-Din is the most important values that must be protected by the Muslims.
“Recite, [O Muhammad], what has been revealed to you of the Book and establish prayer. Indeed, prayer prohibits immorality and wrongdoing, and the remembrance of Allah is greater. And Allah knows that which you do.” (Al-Ankabut: 45)
- Protection of Life. Life is essential and valuable to everyone.
“And do not kill the soul which Allah has forbidden, except by right. And whoever is killed unjustly - We have given his heir authority, but let him not exceed limits in [the matter of] taking life. Indeed, he has been supported [by the law].”
(Al-Isra: 33)
(Al-Isra: 33)
- Protection of Dignity includes the protection of individual rights to privacy and not exposing or accusing others of misbehaviors.
“And those who accuse chaste women and then do not produce four witnesses - lash them with eighty lashes and do not accept from them testimony ever after. And those are the defiantly disobedient”
(An-Nur: 4)
- Protection of Mind/ Intelect. Al-‘aql or the intellect is a great gift from Allah (s.w.t) to mankind. This is one of the human capacities that differentiates man from animals.
“The [unmarried] woman or [unmarried] man found guilty of sexual intercourse - lash each one of them with a hundred lashes, and do not be taken by pity for them in the religion of Allah , if you should believe in Allah and the Last Day. And let a group of the believers witness their punishment.”
(An-Nur: 2)
- Protection of Property. Acquiring property is one of the necessities of mankind. Everyone has his/ her own property and would like to have all the necessary protection and security for his/ her property.
“And do not consume one another's wealth unjustly or send it [in bribery] to the rulers in order that [they might aid] you [to] consume a portion of the wealth of the people in sin, while you know [it is unlawful].”
(Al-Baqarah: 188)
2. Hajiyat (Complimentaries)
If this objective are not require, this life will become difficult.
Sources of Islamic Law
1. Al-Qur’an
2. Sunnah
3. Ijtihad
(i) Ijma
(ii) Qiyas
(iii) Istihsan
(iv) Masalih Mursalah/ Istislah
(v) Istihsab
(vi) Sadd Al-Dhara’i
(vii) Custom
(viii) Opinions of The Companions
(ix) Shara’i Man Qablana
The Case of Muadz bin Jabal
When the prophet sents him to Yaman as a governer (a judge).
- If a case broke to you, how would you judge? Muadz answer, “I will refer to Al-Qur’an”
- If you can not find anything form the Al-Qur’an, how would you judge? Muadz answer, “I will refer to the Sunnah of the Prophets”
- If you can not find anything in the Al-Qur’an and the Sunnah, how would you judge? Muadz answer, “I will exercise Ijtihad and I will do it seriously”
The Prophet pet his chest.
Primary Sources of Shari’ah
Al-Qur’an is the words of Allah revealed to prophet Muhammad trough Angel Gibrael in Arabic language transmitted continously written in a book starting from Al-Fatihah, ending with Surah Annas, recited in ibadah.
It’s first chapter was revealed in the cave of Hira in Makkah when the following verses were revealed,
“Recite in the name of your Lord who created”
“Created man from a clinging substance.”
“Recite, and your Lord is the most Generous”
“Who taught by the pen”
“Taught man that which he knew not.”
(Al- Alaq: 1-5)
The Second Source of Islamic Law
Sunnah
The Sunnah literally means a clear path or a beaten track. In pre-Islamic Arabia. The Arabs used the word ‘Sunnah’ in reference to the ancient and continuous practice of the community, which they inherited from their ancestors. The Sunnah as the second source of Islamic Law can be considered as a type of revelation from Allah to His Prophet (s.a.w).
“Nor does he speak from [his own] inclination”
“It is not but a revelation revealed”
(Al- Najm: 3-4)
The Function of Sunnah as The Second Source :
1. To support the rules in the Al-Qur’an
Characteristics of Islamic Law :
1. Divine Law
2. Imposing two punishment
3. Comprehensive
4. Universal
5. Everlasting (aplicable forever)
6. Sources Al-Qur’an and Sunnah
Islamic Law Contains Universal Principles :
1. The Principal of shura (mutual consultation) in Islam. The Al-Qur’an has strongly propagated this principle as stated in the following verses:
“And those who have responded to their lord and established prayer and whose affair is [determined by] consultation among themselves, and from what We have provided them, they spend.”
(Al-Shura: 38)
2. Principles of Equality (al-musawa) in Islam. This principle does not discriminate anyone particularly in the implementation of Islamic Law. All are equal in the eye of law, whether they are the rulers of commoners. This principle is essential in order to uphold justice.
3. Principles of Justice (al-adalah) in Islam. Islam propagates the upholding of justice in all circumstances and at all level. This is manifested in Al-Qur’an in the following verses:
“Indeed, Allah commands you to render trusts to whom they are due and when you judge between people to judge with justice. Excellent is that which Allah instructs you. Indeed, Allah is ever Hearing and Seeing.”
(An-Nisa: 58)
4. The principle of “no harm shall be inflicted nor reciprocated” (la darar wa la dirar). This is a Hadith of the Prophet (s.a.w) which describes one of the most important principals to be held in the society. The principle indicates that all kinds of harms shall be avoided and removed whether it involves an individual or society.
The Legality of Ijtihad
1. Refer to Surah An-Nisa 59
“O you who have believed, obey Allah and obey the Messenger and those in authority among you. And if you disagree over anything, refer it to Allah and the Messenger, if you should believe in Allah and the Last Day. That is the best [way] and best in result.”
The point is in the last sentence “obey the ijtihad”.
The ijtihad that you have to follow is from the head of state.
2. The case of Muadz bin Jabal
When the prophet sents him to Yaman as a governer (a judge).
- If a case broke to you, how would you judge? Muadz answer, “I will refer to Al-Qur’an”
- If you can not find anything form the Al-Qur’an, how would you judge? Muadz answer, “I will refer to the Sunnah of the Prophets”
- If you can not find anything in the Al-Qur’an and the Sunnah, how would you judge? Muadz answer, “I will exercise Ijtihad and I will do it seriously”
The Prophet pet his chest.
3. Practice of The Prophet and Kulafa Rashidin.
Treaty of Hudaybiyyah.
In the battle of Hudaybiyyah, non muslim army when they were almost to be defeated, they offered cease fire the Prophet did not know what to do, so he asked companions discussion. After the discussion, he made decision to accept the cease fire.
When the Prophet died, a lot of Muslims left their religion (murtad). And also a lot of Muslims refuse to pay zakat. So Abu Bakar did not know wht to do, so he consulted with companions, he made decision to kill them.
When Muslim army went to open Iraq, the want the battle. And they obtain spoils of war in the form of land. Umar did not know what to do to the land, he consulted with companions. And he made decision to distribute the land to the local people.
How to be a Mujtahid
Muslim scholars require 4 (four) requirements in a person to be a Mujtahid :
1. The person must know the content of Al-Qur’an
2. The person must know Sunnah of the Prophet
3. The person must know Arabic. Because the 2 (two) sources are written in Arabic.
4. The person should know usul Al- Fiqh
Methods of Ijtihad
1. Ijma is consensus of Muslim juris of ummah of Muhammad in a certain matter after the death of a Prophet in a legal issue.
This is one of the verses from the Al-Qur’an frequently quoted by the scholars as the basis of Ijma :
“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.”
(Al- Nisa: 115)
Example : a Muslim woman is not permitted to marry a non Muslim man
2. Qiyas
Measuring a subject for which a provision or dalil are not available in the Al-Qur’an or Sunnah with the subject for which provision are available in the Al-Qur’an and Sunnah to find a legal rule based on similar ‘illah (effective cause).
One of the verse normally quoted is the verse in Surhat al- Nisa’:
“O you who have believed, obey Allah and obey the Messenger and those in authority among you. And if you disagree over anything, refer it to Allah and the Messenger, if you should believe in Allah and the Last Day. That is the best [way] and best in result.” (Al- Nisa: 59)
There are 2 (two) types of indications in the Sunnah, which were normally quoted by scholars in support of Qiyas:
1. Qiyas is a form of personal reasoning (ijtihad) which the Prophet s.a.w expressly validates in the famous Hadith of Muadz bin Jabal when he was sent to Yemen.
2. There are several evidence in the Sunnah of the Prophet s.a.w which indicate that he resorted to qiyas on occasion when he did not receive a revelation on a particular matter.
The Pillars of Qiyas
There are several pillars (arkan) of qiyas considered as the essential requirements in exercising qiyas. These pillars are:
1. The original case, or ‘asl, a case about which a ruling is given in the text and analogy seeks to extend it to a new case.
2. The new case, or furu’ on which a ruling is needed and it is the extension of the same ruling which is applied in the original case.
3. The effective cause or illah, which is an attribute of the original case and is found to be in common between the original and the new case.
4. The rule (hukm) governing the original case, which is to be extended to the new case.
Examples of Qiyas
1. The Qur’an forbids selling or buying of goods after the last call for Friday prayers until the end of the prayer. This can be observed in the following verses:
“O you who have believed, when [the adhan] is called for the prayer on the day of Jumu'ah [Friday], then proceed to the remembrance of Allah and leave trade. That is better for you, if you only knew.” (Al-Jumu`ah: 9)
By analogy, this prohibition is extended to all kinds of transactions and activities such as agriculture activities, administration and others. This is because the effective cause, that is diversion from Friday prayer, is common to all.
2. The Prophet s.a.w is reported to have said in a Hadith, “The Killer shall not inheret (from his victim)”. By analogy, this ruling is extended to bequests (wasiyyah), which would implicate that the killer can not benefit from the will of his victim either as both issues share the same cause effective which is killing in order to rush in obtaining one’s right.
3. Istihsan (Juristic Preference)
Hasan means good. Istihsan means looking for good or looking for better. The deviation from established legal rule when there is a spesific authority or dalil or reason justifying that the deviated legal rule is better than the established rule.
Classification of Istihsan
Scholars have divided istihsan into several types according to its origin. The Hanafi scholars divided istihsan into two main categories:
1. The departure from the clear analogical reasoning (qiyas jali) to the hidden analogy (qiyas khafi) because the latter is stronger and more effective in repelling hardship and also is it arrived at through deeper reflection and analysis. This type of istihsan is also called istihsan qiyas. An example for this type of istihsan can be observed in the Hanafi view on waqf (charitable endowments)’
2. The second variety of istihsan consists of making an exception to a general rule of the existing law. This type of istihsan is also called istihsan istihna’i.
4. Maslahah Mursalah (Public Interest)
Maslahah literally means benefit or interest. When it is narrowed to maslahah mursalah, it indicates unregulated public interest in the sense of not having been regulated by the law giver as nor textual authority can be found on its validity or otherwise.
Classification of Maslahah Mursalah
The scholars have divided maslahah mursalah into three categories:
1. Maslahah which the Qur’an or Sunnah has expressly upheld and has enacted a law for its realisation. This is called Al-maslahah Al-mu’tabarah, or accredited maslahah. This type of maslahah can not be rejected and must be upheld.
2. The second type of maslahah is the invalidated maslahah, or maslahah mulgha which the Qur’an or Sunnah has nullified either clearly or by indication that could be found in Shari’ah.
3. The third variety of maslahah is the masalih that has been validated after the divine revelation came to an end, namely the maslahah mursalah. For this type of maslahah, there is no text that validates it nor any text that invalidates it.
Conditions for the Validity of Maslahah
The jurists have also set certain conditions that must be met by the prescribed maslahah in order for it to be valid. The following conditions are designed to ensure that maslahah does not become an instrument of arbitrary desire or individual bias in legislation:
1. The maslahah must be genuine (haqiqiyyah), as opposed to imaginary maslahah (maslahah wahmiyyah), which is not a proper ground for legislation.
2. The maslahah must be general (kulliyyah) which means it prevents harm or secures benefit to the people as a whole and not to a particular person or group of persons.
3. Finally, the maslahah must not be in conflict with a principle or value which is upheld by the Qur’an, Sunnah or Ijma (consensus of opinion of the scholars).
There are many general verses and practices of the Prophet (s.a.w) which can be quoted as the basis of maslahah. One of the verses is:
“And We have not sent you, [O Muhammad], except as a mercy to the worlds.” (Al- Anbiya: 107)
5. Sadd al- Dhara’i (Blocking the Means to an Evil)
Sadd literally means blocking and the word dhara’i, which is the plural of dhari’ah (synonymous to wasilah) signifies the means of obtaining a certain end. Sadd al- Dhara’i thus indicates blocking the means to an expected end which is likely to materialise if such a means is not blocked.
Classification of Sadd al- Dhara’i
The scholars devided dhara’i into four categories, namely
1. Means which definitely leads to evil, such as the building of structure at hill slope which is proven to be unsafe for the construction of any buildings.
2. The second type of dhara’i is that which is most likely to lead to evil and is rarely, if ever, expected to lead to a benefit.
Example : The selling of weapons at the time of war or selling grapes to a wine maker.
3. The third type of dhara’i is that which frequently leads to evil but there is no certainty, nor even a prevailing probability that this will always be the case.
Example : The sale which is used as a means to procure usury (riba’)
4. The last type of dhara’i is that which is rarely expected to lead to evil and is most likely to lead to a benefit.
Example : The usage of many current equipment such as computers, the internet, television, video players, telecommunication equipment and other electronic objects.
The Basis of Sadd al-Dhara’i
The proponent of sadd al-dhara’i has quoted several verses from al-Qur’an, Sunnah and the action of the companions of the Prophet as the basis for the utilisation this source in deducing the rulings of fiqh.
The basis from al-Qur’an is:
“And do not insult those they invoke other than Allah , lest they insult Allah in enmity without knowledge. Thus We have made pleasing to every community their deeds. Then to their Lord is their return, and He will inform them about what they used to do.” (Al-An’am: 108)
6. ‘Urf (Custom)
‘Urf is a noun of ayn, ra, fa, which literally means ‘to know’. As a conventional term, various defenitions of ‘urf have been given by the Muslim jurists. Khallaf defined ‘urf as, “What is established and practiced by people from their sayings and doings, or not doing”.
Classification of ‘Urf
Islamic jurists have developed a classification of the different types of ‘urf and have divided them into various types. The classifications are:
1. The Verbal (Qawly) and Practical (Amali) ‘Urf.
The verbal ‘urf consists of the general agreement of the people on the usage and meaning of words for purposes other than their literal meanings. As a result of such agreement, the customary meaning tends to become dominant and the original or literal meaning is reduced to an exception.
2. The General (‘Amm) and Particular (Khass) ‘Urf.
‘Urf, whether verbal or in practice is divided into two types; general (al-‘urf al- ‘amm) and particular (al-‘urf al-khass). The general ‘urf is the common custom which is prevalent everywhere among all people in a matter regardless of the passage of time.
3. The Valid (Sahih) and Invalid (Fasid) ‘Urf
Finally, custom is once again divided into valid (al-‘urf al-sahih) and invalid custopm (al-‘urf al-fasid). The valid custom is the ‘urf that is practiced by the people, which does not contravene the Shari’ah and deny the interest of people and at the same time does not bring corruption.
Conditions of Valid ‘Urf
Muslim scholars have laid down the conditions that must be fulfilled in a customary practice in order to consider it as valid ‘urf. Besides being reasonable and acceptable to the people with wise reason and sound behaviour, ‘urf in order to be authoritative, must fulfill the followong requirements:
1. ‘Urf must represent common and recurrent phenomena. This means that the ‘urf must be practiced by the people commonly and frequently in their daily life.
2. Custom, in order to be authoritative, must also be dominant in the sense that it is observed in all or most of the cases to which it can apply.
3. The custom must be in existence at the time the transaction is concluded. This means in order for ‘urf to be considered as a basis for judicial decisions, the practice must be prevalent at the time the transaction is concluded and not an extinct customary practice.
4. The custom must not contravene the clear stipulation of an agreement. A custom can only be applied if there is no contractual agreement made in a particular transaction.
5. Finally, the custom must not be in conflict with the Qur’an or Sunnah (nass). The opposition of custom to the nass may be absolute or partial. In cases of absolute conflict, the custom will have no effect because texts override customs.
The Basis of ‘Urf
The majority of the scholars (jumhur) recognised ‘urf as a supportive source of the Shari’ah and they have quoted several proofs in order to support their view. This is one of the proofs:
The verse from Al-Qur’an usually quoted in support of ‘urf is:
“Take what is given freely, enjoin what is good, and turn away from the ignorant.” (Al-A’raf: 199)
7. Istishab (Presumption of Continuity)
Istishab literally means companionship. Technically, istishab indicates that facts, or rules of law and reason, whose existence or non existence had been proven in the past are presumed to remain so for lack of evidence to establish any change.
Scholars divided istishab into four categories based on the nature of the conditions that are presumed to be continuous. The four varieties of istishab:
1. Istishab, which presumes the continuity of the general rules and principles of the law. This means if there are no rulings in the Shari’ah on a matter, it will be categorized within the principle of ibahah (permissibility) which is the general norm of Islamic law concerning a matter that is regarded beneficial and free of evil consequences.
2. The presumption of original absence which means that a fact or rule of law which has not existed in the past is presumed to be non-existent until the contrary is proved.
3. The presumption of original presence. This type of Istishab takes for granted the presence or existence of that which is indicated by the law or reason.
4. Istishab al-wasf or continuity of attributes such as the presumption that a missing person is still alive. The person will be presumed alive until there is credible evidence, which proves otherwise.
Development of Islamic Law
1. The 1st period: The Period of the Prophet (609 – 632 C.E)
2. The 2nd period: The Period of the Four Guided Caliph (Al-Khulafa’ Al-Rashidin) (632 – 661 C.E)
3. The 3rb period: The Period of the Ummayyah (661 – 750 C.E)
4. The 4th period: The Period of the Abbasiyyah (750 – 1258 C.E)
- The Golden Period (750 – 950 C.E)
- The Stagnation/ Consolidation Period (950 – 1258 C.E)
5. The 5th period: The Period of Reformation/ Reinvention (1258 – 1924 C.E)
6. The 6th period: The Modern Period (1924 – 2009)
The 1st period: The Period of the Prophet (609 – 632 C.E)
The Historical Background
Legislation during This Period
1. Legislation in Makkah (609 – 622 C.E) covers:
(i) Tawhid and the existence of Allah
(ii) Life after death
(iii) Heaven and hell
(iv) Stories of the previous people
(v) Challenges to the Pagan Jahiliyyah
(vi) Moral values
2. Legislation in Madinah (622 – 632 C.E) covers:
(i) Legal injuctions (al-ahkam al-‘amaliyyah)
(ii) People of the Books (ahl al-Kitab)
(iii) Jihad and rulings related to war
(iv) The hypocrites (al-munafiqun
(v) Morality and ethics related to social life
The Methods of Qur’anic Legislation in This Period
1. The Qur’anic verses were revealed to address the issues occured
2. The Qur’anic verses were revealed to answer queries put forward by people to the Prophet.
3. The Qur’anic verses were revealed due to the need of society without any issue or query
Characteristics of Legislation in This Period
1. Graduation (tadarruj)
2. Focusing on removal of hardship
3. Abrogation (naskh)
Ijtihad during This Period
1. Ijtihad of the Prophet
2. Ijtihad of the Companions
The 2nd period: The Period of the Four Guided Caliph (Al-Khulafa’ Al-Rashidin) (632 – 661 C.E)
The Historical Background
The Problem Solving Procedures of the Four Guided Caliphs
Ijtihad of the Companions
(i) The suspension of the hadd punishment for theft
(ii) Statement of divorce
(iii) Waging war against those who refused to pay Zakah
Difference of View among the Companions
Main Reasons for the Difference of Opinion among the Companions:
(i) Difference in their knowledge about the existence of certain hadiths
(ii) Difference in their acceptance of hadiths
(iii) Difference in the interpretation and understanding of certain Qur’anic verses
(iv) Difference in the method of ijtihad on issues not mentioned in the text
Characteristics of Fiqh during This Period:
1. Based on real issues
2. Sticking to texts
3. Changing of laws with the disappearance of reasons for the existence of the law and the changes of social condition
4. Absence of madhhabs
The 3rb period: The Period of the Ummayyah (661 – 750 C.E)
Historical Background
Development of Fiqh during This Period:
(i) Increase in the issues related to fiqh and ijtihad
(ii) Spreading of fabricated hadiths
(iii) Emergence of the 1st two madhhabs of Islamic law – Ahl al-Hadith (School of Hadith) and Ahl al-Ra’y (School of Opinion)
Major Differences between the Methodology of Ahl al-Hadith and Ahl al-Ra’y:
(i) Ahl al-Hadith is more inclined to texts whereas Ahl al-Ra’y is more inclined to reasoning
(ii) Ahl al-Hadith is restricted by texts whereas is inclined to hypothetical fiqh
Reasons for the Existence of Ahl al-Hadith in Madinah and Ahl al-Ra’y in Kufah:
(i) The availability of great numbers of hadith in Madinah and the scarcity of hadiths in Kufah
(ii) The influence of the previous local scholars to the later scholars
(iii) Simple life in Madinah and complex life in Kufah
The 4th period: The Period of the Abbasiyyah (750 – 1258 C.E)
The Golden Period (750 – 950 C.E)
The Historical Background
Factors Affecting the Development of Fiqh in This Period:
(i) Government’s support towards the development of Fiqh
(ii) Emergence of mujtahidins and the spread of debate and discussion
(iii) Expansion of the Islamic territories
(iv) Compilation of Sunnah
(v) Emergence of different madhhabs of Islamic Law
Among others:
a. Hanafi
b. Maliki
c. Shafi’i
d. Hanbali
e. Zaidi
f. Ja’fari
g. Auza’i
h. Zahiri
Factors Leading to the Emergence of Different Madhhabs:
(i) Difference in evaluating hadiths
(ii) Difference in understanding certain texts
(iii) Difference in life environment
(iv) Difference in method of ijtihad
(v) Difference in personality of scholars
(vi) Difference in narrators of hadiths
The Sources of Islamic Law during This Period:
(i) Al-Qur’an
(ii) Al- Sunnah
(iii) Ijma’
(iv) Qiyas
(v) Istihsan (Juristic Preference)
(vi) Masalih Mursalah (Public Interest)
(vii) Istishab (Presumption of Continuity)
(viii) Sadd al- Dhara’i
(ix) ‘Urf
(x) ‘Amal Ahl-al-Madinah (Practices of the People of Madinah)
The Stagnation/ Consolidation Period (950 – 1258 C.E)
The Historical Background
Taqlid and the Reasons of Its Emergence:
1. The breaking up of the Abbasid state into small states
2. The formation of the different madhhabs of Islamic Law
3. The practice of ijtihad by unqualified individuals
4. Utilization of single madhhab by judge
Contribution of Scholars during This Period:
1. Scholars of each madhhab analyzed all the rulings of their madhhab founding scholars and codified them
2. Scholars of madhhab made effort to distinguish the strong view from the others who had different vies on spesific issues
3. Scholars developed a format of writing of fiqh
The 5th period: The Period of Reformation/ Reinvention (1258 – 1924 C.E)
Historical Background
The Main Features of This Period
1. The emergence of reformers
(i) Ibn Taymiyyah (1263 – 1328 C.E)
(ii) Shah Waliullah (1703 – 1761 C.E)
(iii) Al-Shawkani (1757 – 1835 C.E)
(iv) Jamaluddin al-Afghani (1839 – 1905 C.E)
(v) Muhammad ‘Abduh (1849 – 1905 C.E)
2. The call to revive ijtihad
3. Codification of Islamic Law
Majallah al-Ahkam al-‘Adliyyah of the Uthmaniyyah (1869 – 1876 C.E)
4. Collection of fatwas
(i) Fatawa Ibn Tawmiyyah
(ii) Fatawa al- Bazzariyyah
(iii) Fatawa al- Hindiyyah
5. The colonization of the Islamic state by the Western powers
The 6th period: The Modern Period (1924 – 2009)
Historical Background
The Main Features of This Period:
1. The fall of the Islamic state in Turkey
2. The continuation of the colonization of the Islamic state by the Western Powers
3. The replacement of Islamic law with the secular law by the Western Colonials except the Law of Personal Status with modification.
Chapter V
Islamic Law in Indonesia
Pre Independence Period
Classical Kingdoms
Islamic Law had been practiced among indigenous people in Nusantara. There were several Islamic Kingdoms such as the Kingdom of Demak, the Kingdom of Mataram, the Kingdom of Samudra Pasai, Banten Kingdom, etc.
Colonial Era
- Recognition of the existence of Islamic Law
- The establishment of the Theory ‘Receptio In Complexu’ in 1855, it says that “Islamic law may be practiced by anyone embracing the religion of Islam”.
- The emergence of the Theory of Recpetie 1925, which says that Islamic lawcould be implemented under conditions:
a. Had been accepted in traditional custom
b. Did not contradict with Dutch Regulation
After Independence Period
Islamic law is applied to Muslims citizen through various decree/ regulations:
- 1974 : Marriage Regulation (UU Perkawinan)
- 1989 : Islamic Court
- 1991 : the Compilation of Islamic Law
- 1992 : Islamic Banking Systen
- 1994 : Halal Certification
- 1999 : Zakah Regulation
- 2002 : Wakaf Regulation
- 2008 : Islamic Banking
- 2008 : Islamic Bond
- Post Reformation Era : Local and Specific Autonomy
Note : in 1975, Prof Hazairin built a theory in the implementation of Islamic Law, i.e., The Receptio a Contrario.
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