Teori Pemberlakuan Hukum Islam

Peace be upon you

, my

friends.

In this session, we will discuss

in depth the

theories of the implementation of

Islamic law in Indonesia.

This topic is very important because it is a

conceptual basis

for understanding how Islamic law

interacts with a pluralistic national legal system

and also to prove that the process of

enforcing law is a process

that involves politics. Therefore,

this material is very relevant to

our course, namely

Islamic legal politics in Indonesia.

Well, we will start

with

a

general fact that when this republic

was founded, the founders of the country said

that Indonesia was not a religious state

but also not a secular state.

Perhaps this statement sounds

ambiguous, but the meaning is that

Indonesia is not a country whose laws

are based on the laws of a particular religion,

but it is also not a school in the sense that religion is

still accommodated in the

national structure, especially in the legal field in

Indonesia. Therefore, the position of

Islamic law developed through a long historical process

.

And from this long process,

various theories emerged which we will discuss one

by one below. So, how many theories

will we discuss on

this occasion? First, we will

discuss the theory of

incomplex reception.

Then the second is the

reception theory.

Then the third is called the

exit reception theory. The fourth is called the

theory of reception a contrario.

Then the last is the theory of

the existence of Islamic law. Well, then

there are also those who add a

sixth theory, namely the integration theory.

Because in today's context we can

see how Islamic law plays a

role or gets a position

in the broader Indonesian legal structure

.

First we will discuss the theory of

incomplex reception.

This theory is a theory

put forward by the Dutch legal scholar

Lordswick Willem Christian Vanenberg, whose

full name is generally

known as Vanenbug.

According to this theory, for

Muslim communities in the archipelago

or during the Dutch colonial period, which was already

called the Dutch East Indies, Islamic law

applied as a whole. Well, so

without exception.

If he is Muslim, then automatically Islamic law

applies. Because in the context of

Dutch East Indies society during the colonial era,

there were several types of laws that

were enforced.

For Europeans, European law applies

. Then for Arabs and Chinese their

own laws apply. The name of the law is there is a

law for the far east. Then for

Muslims their own religious laws apply

. But this is the

whole thing.

Well, in Dutch the whole thing is

called Kompleksu Inkompleksu.

Because it is called the incomplex reception theory

.

In other words, when someone

embraces Islam, all the rules of

Islamic law automatically apply to him.

Well, Vanenb put it this way. For

Muslims, their religious law is the law

that applies to them.

without recognition from other laws. Well,

if we look at this, Vanenbg's attitude

towards Islamic law is very positive.

This theory developed in the early

colonial period and tended to provide

broad space for the application of Islamic law

among indigenous Muslims

sociologically. So. Well, if we take it

in the context of the theory of ushul fiq or the

classical theory of Islamic law,

for example from the perspective of fiqh,

this reality is in line with the principle of

alislamu ya'lu wala yula alaih.

Yes, that Islamic law is for

Muslims, it does not need to be subordinated

to other laws.

However, this theory was later

criticized because it was considered to

oversimplify

more complex social realities,

especially in relation to

customary law. Because of that, the second theory emerged,

which actually

provides more information about

subordinating Islamic law

to customary law. subordinate

means this is part of it. So

Islamic law is not a law that stands

alone like alislamu ylu yula

alaih. But Islamic law is

part of customary law. So this

second theory is called reception theory.

This theory was put forward by Christian

Snok Hurgronya. Perhaps friends

have heard this name, how he

played a role in the formation of

ee theories about Islamic law and

how he as an advisor to the

Dutch colonial government in

relation to the Islamic world ee

played a very important role.

then

further developed by Cornelis

Vanenhoven.

This theory says that

Islamic law only applies

if it has been accepted. Well, "received" is the

Dutch word for reception. Accepted

by customary law. So, if I

said earlier, this is a form

of belittling because Islamic law can be

recognized when it becomes part of

customary or subordinate law. In fact,

this is not subordinate, but

accepted, received. That means being

part of customary law. In

other words, customary law becomes the main filter.

If an Islamic legal norm is not

accepted by custom, then that legal norm

has no legal force

at all.

Well, actually, friends,

Senogoro used this theory

as a colonial political strategy to

limit the influence of Islam. yes. Because the

Dutch colonial government had difficulty

dealing with the

Indonesian people who had

extraordinary resilience when there were

religious motivations within them

. So, an

Islamic legal expert, Snogur Gronya, was brought in

from Leiden University

to research

Indonesian society and then in the field of

law he gave birth to a theory whose

aim was to limit the

influence of Islam among the

Dutch Indian community. Horgron saw that

the power of Islam could become a threat

to Dutch power if not

controlled.

Well, that's why the theory was born.

Well, in practice this theory has

caused

or brought impact.

There are at least three impacts. The first

is the limitation of the authority of

religious courts. Then strengthening the position of

customary law. Meanwhile, in relation

to Islamic law, not all

customary laws are in line with the Islamic religion.

Because before Islam came to the

archipelago,

the people of the archipelago already

had religions and belief systems,

and the

practices within certain religions and

belief systems could be

contrary to Islamic teachings.

Then the third is the

marginalization of Islamic law in the

public sphere. Academically, this theory was

later criticized by many

Indonesian Muslim scholars because it was considered a

colonial tool to weaken

Islamic law.

Even Professor Zairin called

this theory the devil theory. The reception theory

is the devil's theory. Because of this, a

third theory emerged,

put forward by none other than Professor Zairin, namely the

exit reception theory as a reaction

to the previous reception theory, which was

put forward once again by Professor

Hazairin. Hazairin firmly

stated that the reception theory must

come out.

exit means exit from the

Indonesian legal system because it is contrary

to the 1945 Constitution.

According to him, after Indonesia's independence, the

legal basis changed.

Based on the 1945 Constitution, the state

guarantees freedom of religion so that

Islamic law must apply to

Muslims without relying on customary law.

So, this is the basic belief or thesis

of the exit reception theory, namely that

Islamic law must be independent, not

dependent on customary law. So

once again the points emphasized

by Hazairin are that Islamic law

has an independent position.

Islamic law must not be subject to

customary law. Then Islamic law must be

recognized as part of

national law.

Well, some scholars then

said that this theory became an

important milestone in the efforts to decolonize

law in Indonesia. colonized

means an

effort to eliminate the

influence of colonialism

in law in Indonesia. The

fourth is the contrario reception theory.

This theory was developed by another legal expert

besides Azirin, namely

Sayudi Talib. Sayid Thalib is

a legal expert who

talks a lot about Islamic law,

customary law, and national law.

Well, he is quite senior, which means that

his influence is very big in the life of

Islamic law in Indonesia. And previously

he taught at

UIN Sunan Kalijaga, Jogja.

Wrote several books such as

Indonesian family law

and Islamic inheritance law. Well, back

to the theory of ee resepo

contrario.

Ee

contrario means the opposite. Well, it's the

opposite. If Azirin previously opposed the

reception theory with an exit reception,

that the reception theory must be removed from the

Indonesian national legal system,

Sayuti Talib said the opposite, namely the

reception a contrario theory,

that customary law only applies if it

does not conflict with Islamic law.

So the benchmark is

Islamic law, not customary law. Meanwhile, the

suluk gorgo was the opposite, for

him what had to apply were the

customary laws first. If Islamic law does not

violate customs then that is fine, right?

Well that was not agreed upon.

Thus, according to Sayid Thalib,

Islamic law is the main standard. While

customary law is subordinate.

I said earlier that at the beginning the reception theory,

ee the

Senugor Gronyo reception theory, actually

makes Islamic law

subordinate to customary law. Well, Sayidi

Thalib further saw that for

Muslim society, Islamic law is of course the

law that should be

used as the main reference, while custom is

only a complement. Yes, if it's like in

Minang, there might not be a problem because the

Minang people have the

customary principle of basandi sarak syarak basani

kitabullah. But in

other places perhaps you will find

different things. Well, this theory strengthens

the position of Islamic law in at least three

areas,

namely marriage,

inheritance, and muamalah.

From the perspective of ushul fiqh,

this approach can be linked to the principle of alurf

muhakkam maam yukhallf asyar. These customs

can be made into law as long as they do not

conflict with the Sharia. Or there is ee

for example, if urf and adat are

considered the same, for example, it means there is

al-adah muhakamah.

something that is commonplace can

become law. But what is the

night of yukf asyaru when it does not

conflict with the Shari'a. Well,

this rule shows that Islam actually

recognizes customary law but with

very clear limitations. The fifth

is the theory of existence.

So, besides the classical theories above,

what is known as

the theory of the existence of Islamic law has also developed, which is

widely discussed by contemporary scholars

such as Ismail Sunni. Well, this theory

emphasizes that Islamic law has existed

in the Indonesian legal system both

formally and informally. So,

what is it like formally?

For example, there is something called the

compilation of Islamic law recently.

But before that there was the

1974 Marriage Law.

Then there were also religious courts for

Muslims. Of course the political process is

long. I once read a

review by Nur Khalis Majid about the

political dynamics behind the promulgation or

ratification of the religious court by

President Soeharto in the late 1980s,

if I'm not mistaken, it was

related to the dynamics of parliament.

Then this existence also exists in

sociological form. For example, the practice of

Islamic law in society even

appears in cultural forms, namely

through Islamic traditions and values.

According to Ismail Sunni, Islamic law in

Indonesia does not only live in texts,

but also in social practices in

society.

This theory is more realistic because it sees

Islamic law as a living phenomenon

or in legal terms we

often hear about living law. So

Islamic law is living law.

Living and developing laws are not just

formal norms.

Then the sixth is the theory of an

integrative approach in

national law. So, in

further developments, an integrative theory emerged which

saw that Islamic law was

one of the sources in the formation of

national law.

One of the supporters of this theory or

approach is Abdul Ghani

Abdullah who stated that

Islamic law functions as a material source

in the development of national law. Well,

yes, that's what happened. This means that

Islamic legal values ​​can be adopted

into legislation

without having to make the country an

Islamic state. Indonesia is not a

religious state, but it is not a secular state either

. Well, those are the examples of

Marriage Law Number 1 of

1974. Then the birth of the Compilation of

Islamic Law. then also the ratification of the

religious court law. Thus,

Islamic law has a

substantive contribution to the national legal system.

So, the next thing is,

ee,

what are we going to give ee? let's conclude, yes,

conclude

what we said earlier.

Therefore, from the various theories above,

we can see that the implementation of

Islamic law in Indonesia, ee theory, yes, the

theory of the implementation of Islamic law in

Indonesia is not singular.

But there are at least three elements,

namely religion,

customs and state. Well, if

we look at the theories above, there are six of them, namely the

rotation or dialectic

between religion, custom and state. So

if we analyze critically,

we can say this.

The theory of incomplex reception is too

idealistic. So, why be too idealistic?

Because for Muslims it is

their religious law. Meanwhile,

what is this so-called Islamic law? Because

if you, friends, in the

early semesters, studied

about the introduction to Islamic law, what does

Islamic law look like? There is fiqh for

that. Well, while fiqh is not

singular. So that is one reason, the

second is that it is too idealistic, meaning that it is

likening or assuming that

Islamic law has absolutely no

flexibility when dealing with

society, including the customs within it.

Secondly, the theory of reception recipes is

too

colonialist and reductionist

because of politics, because

its purpose is political. So we can

understand why they

brought Islamic law into the

Indonesian context in this way. Because the approach

and the goal are political.

Meanwhile, the exit reception theory is

normative and ideological. Well, that's it. ee

normative means yes, it should be like

that according to the text. Meanwhile,

the ideology was triggered by what is called an

ideological war in quotation marks, namely

Islamic ideology with colonial ideology.

Then the reception contontrario.

Well, this provides affirmation

to the position of Islamic law in the

legal context in Indonesia. Meanwhile, the theory of

existence is considered by many scholars

as a realistic and

contextual theory. So

, friends,

from the perspective of ushul fiqh, this dynamic

reflects the flexibility of Islamic law.

As we often hear and

in this case we can find in the

book Iklamul muwaqiin juz 3 by Ibn

Qayyim Aljauziyah tagayyarul fatwa

bitagiril azman wal amakinah or

tagayarul fatwa tagayyurul fatwa bitagur

zaman wal makan ee that fatwa

or law ya

ahkamaguril

azman walakinah. There are various kinds of

formulations. But in fact it

states that the law develops

in accordance with the realities that occur in

society throughout time and

everywhere. Changes in time, changes in time

provide context or provide ee ee

determination for changes in a law.

Well, that's it. In conclusion,

we can conclude that the theories of

implementing Islamic law in Indonesia

show a long process of

negotiation. There is room for negotiation

between religious norms and the realities of

society

in a nation state. Included in it

are customs. So no

single theory is completely dominant.

But if we look at all these theories, they

contribute

to varying degrees

in shaping the face of Islamic law in

Indonesia today. So the most important thing

is that we understand that Islamic law

in Indonesia did not suddenly appear as it is

now, but is evolutionary.

besides being evolutionary, it is also adaptive, capable of

making adjustments and

always interacting

if my language is in dialectic

with the socio-political context. So

by understanding these theories, we

not only see Islamic law as a

norm, but also as a

dynamic historical and sociological phenomenon

which also involves or is

involved in

political processes. So as I

said, I often say that law can never be

separated from politics. That's all,

thank you. Asalamualaikum

warahmatullahi wabarakatuh.