The Prospect of Islamization of Legal Science in
By Prof. Dr. Rifyal Ka‘bah, M.A.â
Studies about Islamic legal science in
The paper attempts to reveal the prospect of islamization of Islamic legal science in
Islamic Law in
The word "hukum" (law) and other words related to law in
In Indonesian vocabularies there are the words "hukum" (law), "hukuman" (sentence, punishment), "orang hukuman" (criminal), "penegak hukum" (law enforcer), "terhukum" (convicted, sentenced), "hakim" (judge), "kehakiman" (judiciary), "berhakim" (to judge to, to decide), "menghakimi" (to judge without proper proof), "mahkamah" (court of law), "memahkamahkan" (to put some one into trial) and so on. The same principle is also applied to the word "adil" (just, fair), "keadilan" (justice), "mengadili" (to put into trail), "peradilan" (court), "praperadilan" (investigation before trial) and many other words of the same origin which all stem from the Arabic word [عدل].
These Arabic words entered into Indonesian vocabularies through the spread of Islam. If the ninth up to the eleventh century A.D. can be attributed as the beginning of the advent of Islam in
[هذا القبر للمرحم المغفور له التقى الناصح الحسيب النسيب الكريم العابد الفاتح الملقب سلطان مالك الصالح الذى انتقل من رمضان سنة ست و تسعين و ستمائة من انتقال النبوية].
With the growth of Islamic educational centres like suraus (a small place for prayer and teaching basic things about Islam), langgars (another name for surau in Java), mosques, pesantren (Islamic boarding schools) and madrasahs made the Arabic known better in
As the matter of fact, Islamic law had a unique position before the coming of the Dutch into
Apart from what is mentioned above, fiqh books of the Shafi‘îte school were also used for reference and guidance. To mention some of them: Muharrar by Abû Qâsim ar-Râfi‘î; Minhaj at-Tâlibîn by Muhyi ’d-Dîn Abû Zakariyyâ bin Sharîf an-Nawawî; an-Nihâyah by Ahmad ar-Ramlî; Mughni al-Muhtâj and al-Iqnâ‘ by ash-Sharbînî; Tuhfah by Ibnu Hajar; Mukhtasar by Abû Sujâ‘; Hâshiyah Fath al-Qarîb by al-Bajurî; al-Muhazzab by ash-Shairâzî; etc. These books are among the sources of the Compilation of Islamic Law of Indonesia which were compiled based upon the President's Decree in 1991.
Even today, the meaning of law in daily activities of Indonesians, especially among the Muslim community, is about something decided by Islamic law. For example, they ask the ulama about "hukum" (the law) of getting married with a woman who is still within the ‘iddah period after divorce; about "hukum" of usury (ribâ); about "hukum" of telling lies for the sake of truth; about "hukum" of a judge who gave an unjust verdict, about "hukum" of establishing prayer without taking ablution and so on. By mentioning "hukum" in such questions they meant that they want to know the exact decision of Islam on the matters as the rules that have to be applied in everyday life. Law for them is very much the same as understood by the fuqahâ' and usûliyyûn: "the message of Allah related to the affairs of al-mukallaf (those who are bound to obey His Law) whether it is a command to be obeyed or a prohibition to be avoided" or "the implementation as the effect of that message."
Through the dissemination of Islam throughout the archipelagoe, peaceful Islamization process took place and Islamic kingdoms began to replace previous Hindus/Buddhist ones. To be converted to Islam usually begins with one’s conversion from his or her previous religion to the new religion and then followed by a change of attitude. Law is one of the essential things in Islam that controls the community's way of life. Whenever someone embraces Islam he or she will automatically recognize Islamic law and will be asked to implement it in their private and public life. In the daily life, no matter how simple a Muslim community may be, individuals in that community will at least try to implement Islamic law in matrimony and inheritance (farâ’id). In the field of social life, Islam introduced a tradition of new law in
Research concerning Islamic Law has not yet revealed the forms of the implementation of Islamic law in the Islamic kingdoms that used to exist throughout the archipelagoe prior to Dutch colonial rule, but titles given to several kings and sultans such as "Adipati Ing Alogo Sayyidin Panotogomo" makes it clear that Islamic law played a great role within these kingdoms. One research finding concerning Islamic mysticism mentions that several kings and sultans tried to socialize Islamic teachings in Nusantara. Islamic law in those days constitutes an important phase in the history of law in
This fact was later recognized by the Dutch colonial rule after seeing various rebellions and uprisings against the colonial government in many regions throughout the archipelagoe. For example, the populace rebellion against the Dutch colonial rule during the Diponegoro War (1825-1830) was actually an undertaking to establish Islamic law. A Lieutenant Colonel of the Dutch colonial rule during that war wrote in his memoirs that the aim of the rebellion against the Dutch government was to reestablish Islamic law amongst the Javanese to what it was once was. He wrote that the Dutch colonial rule sent a delegation to the remote area of Salatiga under William Stavers to negotiate with Prince Diponegoro and his followers. The delegates that carried a letter from the Governor General Hendrik Markus de Kock were not received by Pangeran Diponegoro himself, but by his associates: Kiai Modjo, Ali Basa and others. The Dutch delegate in that meeting asked them to stop the war so that there would no further bloodshed among the people. Kiai Modjo replied that war could not be stopped until the demand was complied. During the meeting the Diponegoro side also used the Arabic phrase which says [لا موت إلا بلأجل] “There is no death except its time has been determined by Allah". Kiai Modjo also quoted the phrases used by the Prophet Sulayman directed to Queen
Since the VOC (Dutch East Indies Company) period, the Dutch had in fact already recognized Islamic law in
Islamic Law in
As a matter of fact the Islamic sharî‘ah as a way or a law which comes from Allah has three meanings in its history. Firstly, it is the entire text of the Qur’an and the authoritative Hadiths as the divine way of life to be followed by human beings. The sharî‘ah in this sense is the Islamic religion itself and ‘Abdullah Yusuf ‘Ali calls it "the right way of religion". Secondly, the sharî‘ah as fiqh or legal opinions and jurisprudence of the Muslim jurists across the centuries, and fiqh as we know today at least have four or five schools of law. The scope of shari‘ah as the Islamic law in this sense is much wider than any Western systems of law. "It regulates man's relationship not only with his neighbours and with the state, which is the limit of most other legal systems, but also with his God and his own conscience." Thirdly the sharî‘ah as a positive law that regulates man's relationship with his fellow countryman in a sovereign state. The Islamic sharî‘ah within the context of modern law has everything to do with the constitution, acts, codification, compilation of various laws and regulations of the country. What we mean by the implementation of Islamic law is in this third sense of sharî‘ah.
Islamic law is actually implemented in several domains within the territories of the
Efforts are now being made by the Islamic parties in the Ad Hoc Committee of the MPR (the highest legislative body in
The existence of Islamic law can be seen from the products of law introduced since
Islamization of Legal Studies
The science of law as fiqh has been known for a long time in
In the meantime the science of law as fiqh was taught at religious schools (madrasahs) all over the country. In the early fifties the government founded the State School of Religious Judges (SGHA/Sekolah Hakim Agama) which was followed by the establishment of the State College of Islamic Studies (PTAIN/Perguruan Tinggi Agama Islam Negeri) and later replaced by the State Institute of Islamic Studies (IAIN/Institut Agama Islam Negeri) where a faculty of shariah was one of its faculties.
Each faculty of law and shariah operates separately. The faculties of law supply the state with lawyers, experts and other legal professions, and the faculties of shariah supply the state with experts in shariah for some positions in the Religious Court and the Department of Religious Affairs. In short the curricula in all faculties of shariah in general do not talk about laws to be applied by the state, but rather for the sake of religious laws which do not need a state to apply them.
A new development has emerged since the early seventies when the parliament and the government passed some regulations and acts related to Islamic laws, such as: the acts of marriage, religious court, shariah banking system, hajj and zakat. This development encourages the faculties of law to develop the subject of Islamic law, which has already existed and the faculties of shariah to develop some subjects of law which have been already there but not yet Islamized. In the end, both type of faculties begin to realize the necessity for islamization of legal science. The biggest challenge faced by both types of faculties are very classic, that is, the lack of textbooks and experts in the field. A few universities have started some programs as an effort to face the challenge, but it is still a long way to go on the road of Islamization of legal science in Indonesia.
The University of Yarsi in Jakarta, for instance, since its inception in the early seventies, has paid some interests in the Islamization of knowledge by organizing seminars and adding one or two subjects on what Islam has to say about medicine, technology, science, economy, law and so on. It also imposes on the students who are about to graduate to make a research paper which about certain topic on Islam and also the main subject which they study in their faculties. Most of the research papers in discussing these topics facus on the religious law of Islam. Although the topics vary and the depth of research is questionable, but they are still assets to the university to take further steps of Islamization of knowledge in the future. The following table shows the number of papers that have been written, in addition to the period of graduation and the name of faculties/departments:
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Science of Computer
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Finance and Banking
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Efforts are also being made at Bandung Islamic University, at the Faculty of Shari‘ah in particular, by adopting new curricula of shari‘ah and law on the same lines. About 163 research papers on shari‘ah and law have been produced by the alumni of the undergraduate program from 1991-1993 and 1998-2000.
The interest to develop the Islamic law as a law of the state can be seen in some state and private faculties under the care of the Ministry of Education and Culture. Islamic law is one of the subjects taught in these faculties besides other subjects related to legal studies in general. Islamic law takes only a small portion of the curricula which relates to the acts and regulations that need implementation as a law of the country about marriage, divorce, will, hibbah, waqf, etc. Other parts of Islamic law about criminology, commerce, the economic system, international relations and so on do not have a proper place in these faculties.
The first step toward Islamization of knowledge was undertaken by the Ministry of Religious Affairs in the early seventies by issuing some textbooks under the title of "Islam untuk Disiplin Ilmu" (IDI/Islam for a Discipline of Knowledge). The books were written by a team of experts in various disciplines of sciences and knowledge, in addition to having knowledge obout Islam. They were intended as an Islamic introduction to certain disciplines in the universities which have no branch of Islamic studies. These books talk about the philosophy of science, Islam's relation to some disciplines and general principles, but they do not go into details. Since their first issue in 1986, these book were reprinted several times, but they were not revised or enlarged.
One of the importance sources of the Islamization of legal studies in Indonesia at the present is research papers, theses and dissertations produced by the former students of the faculties of shari‘ah, especially within the framework of all State Institutes for Islamic Studies throughout Indonesia, and faculties of law which have a department of Islamic law. Some of them have been published in the form of books and has been distributed through bookstores. Hundreds of theses and tens of dissertations have been produced in this field. Until now, no survey has been made to evaluate the contents, methodologies and approaches used by these research papers, theses and dissertations.
1. Islamic law is deeply rooted in the history and legal culture of Indonesia. This is one of the factors that make Islamic law part of the national law of Indonesia at the present. To make Islamic law have more impact on national law, it is necessary to transform traditional fiqh studies into positive law of Indonesia.
2. Among the steps that have to be taken in this regard is to conduct research on the implementation of positive law during the time of the Islamic kingdoms and sultanates in the past, Indonesia in particular, in the light of the Islamization of legal science. In addition to that, an effort has to be made in accelerating the merger of the faculties of shari‘ah into the faculties of law. More studies on Islamic rule of law, Islamic legal procedures, Islamic courts and other related subjects are needed. Universities and Islamic research centres are required to support these studies. Hopefully, the State Institutes of Islamic Studies, for instance, will become the State Islamic Universities in future conducting research on the Islamization of knowledge and developing curricula towards truly modern Islamic universities. On other hand, some faculties of law which belong to some famous Indonesian universities like the University of Indonesia in Jakarta and Yogyakarta University in Central Java, have to be encouraged to consolidate shari‘ah studies into the domain of law. This is also in spite of various efforts to produce as many Islamic regulations and acts as possible through the legislative bodies: the MPR and DPR.
Ó To be presented at International Conference on Islamization of Human Sciences, organized by the International Islamic University Malaysia, Kuala Lumpur, 4-6 August 2000.
â Lecturer at the Faculty of Law, Yarsi University, Jakarta, and Faculty of Law, University of Indonesia, Jakarta.
 John Ball, Indonesian Legal History 1602-1848 (Sydney: Oughtershaw Press, 1982), p. 64.
 N.A. Baloch, Advent of Islam in Indonesia (Islamabad: National Institute of Historical and Cultural Research, 1980), pp. 56-57. A seminar on the advent of Islam in Indonesia held in Medan in 1983 concludes "that Islam had entered Indonesia for the first time during the first century of hijrah (seventh/eighth centuries) and directly from the Arab main land." A. Hasymi, Sejarah Masuk dan Berkembangnya Islam di Indonesia (Bandung: PT Alma‘arif, 1981), p. 7. So since the first century of Islam the Arabic words had been introduced to the people of the Indonesian Archipelagoe.
 Teuku Ibrahim Alfian, Wajah Aceh dalam Lintasan Sejarah (Banda Aceh: Pusat Dokumenasi dan Informasi Aceh, 1999), p. 49.
 Some names from West Sumatra can be mentioned here like ‘Abd al-Hamîd al-Hakîm who 6 volume of al-Mu‘în al-Mubîn (fiqh) and al-Bayân (usûl al-fiqh), and Mawardi Muhammad wrote Mustalah al-Hadits and then translated into Indonesian.
 Mohammad Daud Ali, "Hukum Islam dan Pembangunan Hukum Nasional: Suatu Analisas Terhadap RUU Peradilan Agama" in Hukum dan Pembangunan, No. 6, Tahun Ke-XIX, December 1982, p. 528.
 Ibid., p. 527.
 Penoh Daly, Hukum Nikah, Talak, Rujuk, Hadanah dan nafkah Kerabat dalam Naskah Mir’ât ath-Thullab Karya ‘Abd ar-Ra’ûf Singkel. A Ph.D. dissertation at the Faculty of Sharî‘ah, IAIN Jakarta, 1982), p. 26.
 This book was translated by Dutch orientalist, Van den Berg, into French, and then translated again into English by E.C. Howard, Minhâj-et-Tâlibîn: A Mannual of Muhammadan Law According to the School of Shafi‘î . Lahore: Law Publishing Company, n.t. A question why it was translated into French and not into Dutch, may be because of the different opinion between Van den Berg as an expert in law who favored the law of the people to be applied to them and the government which wanted to impose the Dutch law on their Muslims subject. By translating the book into French, he would like to inform the Dutch intellectual about the importance of the book and in the meantime he was able indirectly to escape from the government's attention.
 Mohammad Daud Ali, Hukum Islam (Jakarta: Rajawali Pers, 1993), p. 191.
 Departemen Agama RI, Kompilasi Hukum Islam Di Indonesia (Jakarta: Direktorat Jenderal Pembinaan Kelembagaan Agama Islam, 1995/1996), p. 124.
 [خطاب الله المتعلق بأفعال المكلفين طلبا أو وضعا] [الصفةة التى هى أثر ذلك] Muhammad al-Khudarî, Usûl al-Fiqh (Bairut: Dâr al-Fikr, 1988/1409), p. 18.
 Daniel S. Lev, translated into Indonesian by Nirwono and A.E. Proyono, Hukum dan Politik di Indonesia (Jakarta: LP3S, 1990), pp. 122-123.
 Agus Triyana, "Prospek Hukum Islam di Indonesia" in Jurnal Hukum Ius Quia Iustum, Faculty of Law, Yogyakarta Islamic University of Indonesia, No. 8 Vol. 5, 1997, p. 2.
 Simmuh, Mistik Islam Kejawen Raden Ngabehi Ronggowarsito (Jakarta: UI Press, 1988), p. 12.
 Moh. Idris Ramulyo, Asas-Asas Hukum Islam (Jakarta: Sinar Grafika, 1995), p. 38.
 F.V.A. Ridder de Stuers, Gedenkschrift van den Orloog op Java (Amsterdam: Johannes Müller, 1847), pp. 286-288.
 Ibid., p. 288.
 Ibid., p. 277.
 Busthanul Arifin, Pelembagaan Hukum Islam di Indonesia (Jakarta: Geman Insani Press, 1996), p. 35.
 John Ball, pp. 117-122.
 Ibid., p. 67.
 Busthanul Arifin, p. 72.
 Hazairin, Demokrasi Pancasila (Jakarta: Penerbit Rineka Cipta, 1990), p. 97.
 S. Takdir Alisjahbana, Kebudayaan Sebagai Perjuangan (Jakarta: PT Dian Rakyat, 1988), p. 11.
 ‘Abdullah Yusuf ‘Ali, The Holy Qur’an: Text, Translation and Commenary (Brendwood, Maryland: Amana Corporation, 1409/1989), p. 1297, foot note no. 4756.
 Article "Shari‘ah: Nature and Significance of Islamic law" in CD ROM Encyclopædia Britannica 1994-2000.
 Busthanul Arifin, "Membangun Ilmu Hukum Indonesia" in Rifyal Ka‘bah, p. xi-xiii.