INTRODUCTION
Islamic law comes from the Qur'an and hadith, which
later developed into a product of legal thought. The product of legal thought
produces legal materials based on the community's needs (Kurniati, 2015). Then it is formed
and formed into a concept to be implemented and obeyed as a result of the
product of legal thought. Islamic legal theory is usually called Islamic legal theory, recognizing
various sources, but the main source is the Qur'an and hadith as primary
sources. At the same time, other sources are secondary sources that come from
ijtihad and interpretation, or the achievement of a consensus commonly called ijma'
(Hallaq, 2001).
This consensus is an agreement reached that is considered to represent legal
certainty and or to represent the majority of the Islamic community.
Islamic law refers to the various legal systems
that have been and continue to be developed in accordance with the Islamic
religion (Salaymeh, 2015). In the social
history of Islamic law, recorded and written was first applied in the first
century Hijri in Medina by the Prophet Muhammad and based on the constitution
of the Medina Charter. The charter's preamble is written that the Medina
Charter applies to people who believe and embrace Islam and come from the
Quraysh and Yasrib tribes. Apart from Muslims, it
also applies to those who follow them, unite themselves, and struggle with them
(Ahmad, 2014). The essence of
the charter is an agreement/agreement between Muslims, Christians, and Jews
(non-Muslim communities), which are used as statutory provisions. Prophet
Muhammad SAW guaranteed life for them (non-Muslims), property rights, religion,
and complete freedom to practice the teachings of their respective religions.
This proves that Islamic law is not applied to coerce and oppress other people
but to serve as a rule that protects the entire nation in social life.
The rules, which are the result of the product of
Islamic legal thought, when viewed from the social history of Islamic law, have
grown and developed since the time of the Prophet Muhammad until now applied in
Indonesia (Kurniati, 2013). However, this
social history of Islamic law emerged in the Western world at the end of the
20th century, when Islamic law (fiqh) was recorded in
various literature and presented its complete portrait. With the bookkeeping of
Islamic law, Muslims can find the history of the growth and development of
Islamic law starting from the time of the Prophet Muhammad. until modern times,
including the reform era in Indonesia.
Islamic law grows and develops in Indonesia,
formulated in four products of legal thought: fiqh, ulema's fatwas, court decisions (jurisprudence), and laws (Supardin, 2017). The four products
of legal thought serve as guidelines for Muslims in the life of the nation,
state, and society in Indonesia.
METHOD
The method utilized is qualitative.
Qualitative research is conducted in natural settings, directly with the data
source, and the researcher is the primary instrument, more descriptive and data
collected information is in the form of words or images, so the emphasis is not
on statistics (Creswell, 2017). Additionally,
this inquiry utilizes library research. Library research is the collection of
library data gathered from numerous sources of library information relating to
the subject of the research, including abstracts of research results, indexes,
reviews, journals, and reference books (Sugiyono, 2010). This step
collects information from prior results of the study.
RESULTS AND DISCUSSION
A. Products of Fiqh Thought
The social history of Islamic law is a science that
studies the life history of a society that has to do with the process of the
birth and development of Islamic law. The existence of a social history of
Islamic law as science can provide a direction and purpose so that it can
produce products of Islamic legal thought in Indonesia, such as fiqh. Jurisprudence is closely related to Islamic law, so
sometimes, fiqh is equated with Islamic law.
In the Al-Munawwir
Dictionary, fiqh(فقه)
means to understand and simply according to language, and fiqh
means knowing and understanding. The term fiqh is
interpreted the same as religion prescribed by Allah for servants whom complete
religious laws related to words, deeds, engagements, etc.
Meanwhile, according to jumhur
fuqaha, fiqh is the science that explains the laws of
syara', which is obtained from the tafshili, namely the arguments about specific laws taken
from them by way of ijtihad (Ash-Shiddieqy, 1991). According
to the meaning of the term most fuqaha, in other sources, fiqh
is "all sharia laws" taken from the Book of Allah SWT. and the Sunnah
of the Prophet Muhammad by deepening understanding and surveillance, namely
utilizing ijtihad and istinbat (Ash-Shiddieqy, 1978). Knowing fiqh means reducing debate about the caliphate issue,
meaning that tolerance in the caliphate is upheld. Jurisprudence is a basic
science for understanding Islamic teachings, including Islamic law, which is
understood and enforced in Indonesia.
According to H. Amir Syarifuddin,
the word fiqh (فقه)
means deep understanding. If understanding can be used for external things,
then fiqh means understanding that conveys zhahir knowledge to inner science (Syarifuddin, 2003). Fiqh about something means knowing one's mind to the depths
of that thing. People who know fiqh mean implementing
Islamic law with deep conviction. So that in doing and praying, including in
worship, it is not easy to be swayed by the surrounding influences.
Knowledge generated from fiqh
can lead people to act within the level of the enforced Islamic law. The
meaning of the term Islamic law is the law that is believed to be related to
Islamic sources and teachings, namely the practice of law in the form of human
interaction, in addition to jinayat (Islamic crime) (Amrullah, 1996). However, it
is possible to use it in Islamic crimes, which will also be applied in the life
of the Islamic community, both regionally or locally as well as nationally,
such as domestic violence, and is now in the draft stage to be transferred to
the authority of the Religious Courts. All provisions relating to pure worship
(mahdah) are not included in the meaning of Islamic
law in this discussion. This includes particular Islamic civil law, a positive
law for Muslims, and applied law for the Religious Courts.
The Legal Dictionary explains that Islamic law
(Indonesian) or syara' is the rules and provisions
relating to life based on the Qur'an (Sudarsono, 2007). The Big
Indonesian Dictionary explained that Islamic law is the rules and regulations
relating to life based on the Qur'an and Hadith (Ministry of National
Education, Big Indonesian Dictionary, Third Edition (Indonesia, 2011). That is,
Islamic law is a product of Indonesian fiqh.
The definition of Islamic law or syara'
according to the term usul scholars, is the shari'a doctrine concerned khitab
with the actions of the mukallaf people by order or
being ordered to choose or in the form of a decree (taqrir)
(Khallaf, 1993). Islamic law
is intended as a regulation relating to adult life in carrying out orders and
leaving prohibitions based on the instructions of the Qur'an or hadith.
According to TM Hasbi Ash-Shiddieqy,
Islamic law is part of the science of fiqh. Because
the science of jurisprudence is a collection of knowledge that is very broad in
discussion, which collects various types of Islamic law in regulating life for
the needs of a person, group, and society in general (Teungku, 2001). Then in the
Encyclopedia of Islamic Law, the scholars of ushul fiqh define it with the demands of Allah SWT. related to
the actions of the mukallaf, either in the form of
demands, elections, or making something into a cause, condition, barrier,
legal, invalid, rukhsah (remission), or 'az�mah (deed) (Teungku, 2001).
A book that discusses various issues of Islamic law
such as worship, muamalah, crime, justice, jihad,
war, and peace based on the results of the ijtihad of fiqh
scholars in understanding the Qur'an and hadith associated with existing realities
using various ijtihad methods.
B. Product of Ulama's Fatwa Thought
After fiqh thought, the
second product of legal thought is the thought of ulama's fatwa, which is the
result of the formulation of Islamic law. Fatwa, according to language, means
the answer, decision, and opinion the mufti gives about a problem; advice of
the pious, suitable lessons (Dahlan, 1999). According
to usul fiqh scholars,
fatwa means an opinion put forward by a mujtahid or faqih in response to a
request for a fatwa in a non-binding case (Dahlan, 1999). This fatwa
is a moral sanction that does not bind a person to give a fatwa, ask for a
fatwa, or accept/obey the fatwa.
The fatwa is the result of the ijtihad of a mufti
related to his problem or problem. The results of ijtihad ulama, called fatwas,
are sometimes written as fiqh books to be guided by
Muslims in Indonesia. Ulama's fatwa is usually an appeal from a group of
scholars, and sometimes it is a call from a particular ulema
to the broader community or a particular community. The ulema
is expert in the science of jurisprudence. Therefore, the product of fiqh thought cannot be separated from the product of the
fatwa of the ulama because fiqh is the product of the
ijtihad of the ulama.
The results of the ulama's fatwa in Indonesia are
stated nationally in the form of the MUI (Indonesian Ulema
Council) fatwa. In addition, there are two ulema
fatwas sourced from Islamic organizations: Nahdatul
Ulama and Muhammadiyah. These two Islamic organizations always color the MUI
fatwa in Indonesia. This is influenced by political power and the system of
government/ rulers in Indonesia.
C. Product of Jurisprudence Thought
The word jurisprudence (English) means the science of
law (Echols & Shadily, 1996). Jurisprudence consists of two words, namely
jurisprudence and prudence (prudential). Yuris means
a legal expert or legal scholar, and prudential means wise (Indonesia, 2011).
Jurisprudence is law teaching through the judiciary or a set of judges'
decisions (Indonesia, 2011). (Echols & Shadily,
1996) Jurisprudence
in Latin is ius/ iuris,
meaning law, and prudential means expertise or skill, so jurisprudence means
expertise or ability in law (Dahlan, 1999).
Jurisprudence is the science of the main principles of law that specializes in
the field of law in various aspects: its traditional analysis, the history of
its origin and development, and the ideal character of the law (Dahlan, 1999). In the
legal dictionary of jurisprudence, written jurisprudence, because if there is a
fixed jurisprudence, judges will always follow in giving their decisions (Prasetyo,
Simorangkir, & Erwin, 2010). Therefore,
jurisprudence is a series of judges' decisions, which are then summarized in a
court decision to be guided by the judges in applying legal regulations to hear
and decide similar cases. The jurisprudence with the highest legal force is the
decision of the Supreme Court of the Republic of Indonesia.
D. Products of Legal Thought
The products of legal thought cannot be separated from
the results of other legal products. The law was born after receiving a
positive response from the community, especially among the legislative and
judicial institutions. A society that obeys the law has implemented statutory
regulations because the law is part of the life order in the nation, state, and
society. The law covers various legal, political and other socio-cultural
aspects. Laws, according to the Indonesian language, are State provisions and
regulations made by the government (ministers, executive bodies, etc.),
ratified by parliament, signed by the head of state president, head of
government, kings, etc., and have binding power; rules made by a person or body
in power; law in the sense of a standard that is natural or by the
characteristics of nature (Indonesia, 2011).
It is generally understood that Islamic law is a
regulation that has been standardized in Indonesia to serve as a product of
legal thought in Indonesia. Islamic law is also part of national law because
the national law that applies in Indonesia is sourced from three law sources:
customary law, western law, and Islamic law. Islamic law has long been known in
Indonesia, namely since the days of the sultanate and colonialism until
post-independence. However, Islamic law was made national law for Muslims after
the promulgation of Law Number 7 of 1989 concerning Religious Courts on
December 20, 1989. Then it was strengthened again after the unification of the
roofs of judicial institutions at the Supreme Court of the Republic of
Indonesia until the issuance of amendments to the law.
The results of the amendments to the law are based on
Law Number 3 of 2006 concerning Amendments to Law Number 7 of 1989 concerning
the Religious Courts, promulgated on March 20, 2006. The result of the
amendments is the development of Islamic law materials in Indonesia, including
sharia economics. Its parts have become the authority of the Religious Courts.
The extension of the authority of the Religious Courts is based on Law Number 4
of 2004 concerning Judicial Power.
Thus, it can be understood that the development of
Islamic law material in the future is not only limited to the civil field but
also the criminal field. For example, future acts of violence in domestic life
(domestic violence) will be published and regulated in the Agma Court. If the
case in the household is a Muslim, then the one who resolves it is the Religious
Court, even though there is a criminal element. This is evidenced by the
expansion of the area of authority of the Religious Courts in the
economic field of Muslims, which is called sharia economics. The birth law
takes a long time and is not as easy as turning the palm. The law also requires
socialization in the broader community so that in its implementation, it can be
obeyed by all levels of Indonesian society.
E. Problematic of Islamic Legal Thought
Products Islamic Implementation
Islamic law, whose two primary sources are the Qur'an
and Sunnah, was not born in a culturally void society. Apart from being a
divine concept that teaches the truth, it is also a guide to life and human
life in all its aspects (Al-Qardhawi, 1993). Islamic law
can be detailed in three things: First, instructions and guidance to obtain
Allah's correct knowledge (ma'rifat) and the unseen
world called ahkam syar'iyyah
i'tiqadiyah. Second, the instructions and provisions
for developing the potential for goodness that exists in humans are called ahkam syar'iyyah khuluqiyyah. Third, the provisions and a set of legal
regulations that regulate human relations with God, relations with fellow
humans, and the environment (Yafie, 1994).
In responding to the corridor of Islamic legal
products, it is necessary to understand that the basic rules come directly from
Allah SWT. It cannot be changed because it has been present and was born as a Shari'a which is a direct decree from Allah to His servants
so that they can become plural in life. Observing the form of each product of Islamic
legal thought, it can be concluded that the main challenge that will be a
problem to be faced in its application is the incompatibility between the legal
rules that have been formulated with the conditions so that legal problems and
the sense of justice of the community where the law is to be applied. The
incompatibility problem, referred to as an irrelevant problem, is primarily
experienced by fiqh books. This is because it is
resistant to change.
For applying fiqh products,
it is necessary to select a legal dictum and in-depth legal analysis so that
the applicable fiqh rules must be by the conditions
of society. It must be placed proportionally, namely with the aim that the
application of the law is not explicitly implemented but is reinterpreted into
a legal form that the community can accept.
Most people generally know fiqh
as a law that comes directly from Allah SWT. Therefore it is the correct rule
of law. Therefore, responding to other products of Islamic legal thought, such
as court decisions, fatwas, and legislation, sometimes seems like this fiqh is not in line with these rules. Thus, the
consequences of this understanding make people throw away the product rules of
Islamic legal thought, such as court decisions and legislation for the separation
of law from religion.
As for the fatwa, which, although it is a direct
response to Islamic law, does not mean that the public can directly accept it,
the fatwa given directly by a mufti which is a fatwa has a different vision and
mission because sometimes there are fatwas that are born individually so that
there is a legal discrepancy. In addition, the fatwa is usually only oriented
to certain fiqh books.
Regarding the efforts that need to be faced by issuing
a fatwa by a mufti, the fatwa must be rational and cover all legal aspects of
Islamic law so that its implementation can be optimized with the aim of a more
relevant social vision. Besides that, the integration and independence of the
muftis must be continuously improved so that the power does not quickly
intervene in them. At the same time, the decision of the religious
court/jurisprudence is also the most critical factor in the product of Islamic
legal thought because in the decision of the religious court, all sources of
law that have been decided by a judge in court become the following legal basis
in deciding the same legal cases in the future. However, it should be
understood that the essential factor for a judge in court is the quality judge
because the judge who has integrity and understands the Shari'a/
Fiqh will undoubtedly determine the judge's decision
that can give a sense of justice to the litigants.
Judges are the inventors of applied law born from
society to produce jurisprudence that can be enforced in society. Judges must
also have a high moral spirit to do what is right and uphold justice. Judges
must maintain the independence that the laws and regulations have guaranteed.
Thus, all decisions made by him are entirely free from influences Bustanul Arifin termed that a
judge must have no superior who can rule other than his conscience and God (Arifin, 1996). A judge
must be able to perform his function as a fair judge in its application. He
must also be able to explore the legal values that live in
society. The problem in jurisprudence is the lack of communication between
judges and other judges so that the application of the product of legal thought
is not applied too much. Therefore, it is necessary to make substantial efforts
to create communication between fellow judges to achieve equal enforcement of
the law.
Regarding the law, as the fourth product of Islamic
Law thought, it seems that there are not too many obstacles to its application.
It is just that the dynamics are a bit slow because making or changing a law
takes a lot of time, money, and preparation. Because in the application of
favorable laws, it can be accepted by the community, there is still a need for
socialization of laws/rules in the community so that they obey and understand
and submit and obey the laws that apply.
For Islamic law to be integrated into legislation, it
is primarily determined by the thinkers and scholars involved in the
legislative body. Their commitment to Islamic law can positively impact the
integration of Islamic law into state legislation. This is where it takes moral
courage from thinkers and scholars to voice Islam, although not literally.
CONCLUSION
The product of fiqh thought is a
type of product of Islamic legal thought in Indonesia, which gave birth to
various types of books that are guided in finding the law, as well as being
used as a source of law, such as the book Compilation of Islamic Law (KHI) in
Indonesia derived from the collective thought of the ulama, then poured in the
form of a fatwa to establish the law, such as the fatwa of the Indonesian Ulema Council. The product of court decision thinking
(jurisprudence) is a type of product of Islamic legal thought in Indonesia
which originates from the thoughts of the panel of judges, then compiled as a
court decision. The court's decision is used as a source for establishing the
law, guided by the judge as a source of law, especially for new issues similar
to jurisprudence. The court's decision is binding on judges and justice
seekers.
�� �������� The
product of legal thought is a type of product of Islamic legal thought in Indonesia
that comes from the thoughts of legal experts, academics, politicians, and
related agencies. The results of the legal thought are designed by the
executive (government); discussed, decided, and determined by the legislature;
approved by the president. The law is not immediately implemented, because it
has to wait for technical instructions in the form of government regulations
and ministerial decisions, now referred to as ministerial regulations. There
are four products of Islamic legal thought; fiqh,
fatwas, decisions of religious court judges, and legislation. In responding to
this, it is necessary to understand that the fiqh
applied in the social order is the rule of law that comes directly from Allah
SWT., which is religious; fiqh cannot be changed but
has become a stipulation. As a result, the Islamic community considers other
products of Islamic legal thought unrelated to religion but something separate
from religion. At the same time, the product of Islamic legal thought other
than fiqh is a rule born from a mujtahid which
indirectly will have legal defects in its application later.
However, it should be understood that this product of
Islamic legal thought touches on the structure of Islamic society, which can be
taken as strong even though it is independent of sharia law. However, it will
maintain the balance of Islamic society. Thus, a solution so that the product
of Islamic law can be enforced is the need for public awareness in obeying the
law, either directly from God or even the rule of law from a mujtahid because a
mujtahid in enforcing the law is God's intervention in his actions. Therefore,
a mujtahid must be able to produce products of Islamic legal thought that can
answer all the needs of the community so that it touches the sense of legal
justice for the community.
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