Application Of Islamic Law In Indonesia (Problems And Strategies) by minist


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									       Application Of Islamic Law In Indonesia (Problems And Strategies)


This paper discusses the problems and strategies for implementation of Islamic
law in Indonesia. Of this paper can be seen that in the application of Shari'ah past
efforts in Indonesia, there are several problems that epistemological problems (in
the form of difference-the difference principle and an understanding of Islamic
law itself), methodological problems (in the form of differences in methods of
formulation of Islamic law), and political problems which the public forces that
can pemperjuangkan aspiration is less adequate, plus there is a difference of
principles and strategies in the fight for the aspirations of the application of
Islamic law.

While the strategy to implement Islamic law in Indonesia is the strategy of
formulating legislation to Islamic law Islamic law materials in the form of legal
drafting a bill for submission to the legislature to be passed as law. This strategy
must go through several stages of the formulation stage, the stage of socialization
and political stage is to fight the bill on the legislation for enactment as law.


The reform era marked the beginning of the politicization of Islam in which the
parties appear berasaskan Islam and using symbols and jargon 'Islam'. On the
other hand, society and organizations of Islamic movements increasingly also
emerging. These movements carry the aspirations of the application of Islamic
law in Indonesia, the political path baiklewat aksio in parliament and other social
movements, such as the movement to eradicate gambling, liquor, entertainment
venues and night by a group of certain Islamic movements.

Some areas also carries the aspirations of the implementation of Islamic shariah
law to be applied as a National Indonesia. As Nangro Special Region of Aceh
Darussalam, and bebarapa movement in other areas such as Napier, Tasikmalaya
and so on.

Islamic parties that carries the aspirations of the application of Islamic law such
as not having a clear concept of Islamic law itself. [2] This is coupled with the
aspirations pertentang with other Muslims and liberal-minded nationalist
groups, so aspirations are facing problems for the landing.

Meanwhile, legislation some legislation that berbuatan 'Islamic law' has been
widely applied. Such as the Marriage Law, Law of Zakat, Hajj Law, Banking Law
that carries the aspirations of the establishment of Sharia Banking in addition to
Conventional Banking, Religious Judicature Act amendments yangvmenambah
PA authority in settling civil cases and disputes Islamic banking, a special law for
Aceh Darussalam Nangro that gave him authority to implement Islamic criminal
law, and so on. This is a strategy of gradual implementation of Islamic law, with
memasukkannilai-value and substance of Islamic law into national law.

Based on the above explanation, this paper discusses problems and strategies for
implementation of Islamic law in Indonesia.

Problem Application of Islamic Shari'ah
a. Epistemological Problem

Islamic law is the law of God, but in the establishment of Islamic law formulated
by the fuqaha (Islamic jurists). This can cause the basic conflict between the
revelation of God or the human mind (thinking jurists). Since the establishment
of Islamic law, there is a difference of opinion about whether Islamic law derived
only from the revelation or reason also plays a role in the understanding of
Islamic law. This debate can be seen in several books of usul fiqh; between
Ash'arite, Mu'tazilite and Maturidiyah. Ash'arite group considers that Islamic
law is known only from divine revelation, while Mu'tazila view that Islamic law
can be known by human reason, [3] Adapaun Maturidiyah as an act of
compromise between the two is that Islamic law is derived from the revelation of
God and be known by human reason. Differences of opinion such as this also
occurs in the view of the ahl al-hadith and ahl ar-ra'yi, since the early days of the
establishment of Islamic law that continues to the formation of Maliki and Hanafi
schools. [4] The debate over these two streams is compromised by Shafi with the
method analogy (Qiyas) [5].

Differences of opinion which occurred later, in today's era-about whether Islamic
law as Islamic law is sacred and can not be changed, or did could change in
accordance with the change of matter, time and place and the times.

Noel J. Coulson saw a few basic conflict in the Islamic law, the first conflict
between revelation and reason, as exposed above, the second, the conflict
between unity and diversity, namely that the laws of sharia law that is believed
to be single and uniform rules of conduct prescribed by the God for all His
creatures on earth. But in reality, tunggai shari'a law which can be understood in
various ways. The conflict can be reconciled with the concept of ijma
'(consensus). This concept is the principle of unanimous approval of the jurists
are authorized to issue the opinion, has the authority to bind and absolute. Third,
the conflict between authority and freedom, which is about whether a judge has
the freedom in determining the need to follow the law or legal authority has
been recognized. Efforts to understand the law of God from the source is called
ijtihad. At first, the scholars have complete freedom to ijtihad, but then there was
the space limitations of this ijtihad. [6] Fourth, the conflict between idealism and
realism. In the early period of its establishment, Islamic law is that the actual
decision-making that is the answer to problems that arise at the time, as the case
Himariyah during Caliph Umar bin Khattab. So also in the early establishment of
schools, the concept of Islamic law that is highly related to the practice of law in
society. But with the debate over the theory of jurisprudence that mengahsilakan
legal sources, the idea that the Shari'ah as a comprehensive system of God's
commands and predetermined, a legal system that has existence apart from
society, not arising from society, but the set from the top to the community. Thus
the law became distant from practice, and law to be idealistic. Fifth, the conflict
between law and morality. These problems arise as a result of contact with
western legal system, which separates between law and morality. In the Qur'an
as a source of Islamic law, there is no clear distinction between moratitas and the
rule of law. The Qur'an sets of good and bad, appropriate and inappropriate, as
well as establish rules of law are accompanied by sanctions. Sixth, the conflict
between stability and change. Islamic law as the revelation of God, unity dokrtin
derived from universal consensus, orotiter nature in the form of the doctrine of
taqlid and idealism, who see Islam as a legal doctrine that is always true, would
result in the idea that Islamic law is the law of a stable, fixed, rigid and not can be
changed. On the other hand, human reason in law, the doctrine of the resulting
diversity, freedom in Islamic law memahai, generating the idea that Islamic law
is dynamically, can be changed and varied [7].

Conflicts basis in Islamic law becomes a partial understanding among Muslims.
Thus producing two meanstrem thoughts on Islamic law. Fundamental problem
of Islamic law which the author sebuat as an epistemological problem at this
level, would be a problem at the next level in order to formulate the laws of

On the other hand, public opinion against Indonesia Islamic law - which has
been legislated into law legislation - also varied. First glance, does not recognize
the law as a rule of law replaces the fiqh, because Islamic law for them is what is
written in the books of fiqh. Second, recognizing the law as the law that must be
obeyed in his capacity as a citizen, and in yanga same time as the people who are
Muslims remain mengaakui and run the rules of fiqh. They said: "The case is
valid according to religion, although it deviates from the provisions of state
regulations." For example about marriage. The third view, regard the Act as state
laws that regulate legitimate Muslims, and it is the fiqh Indonesia [8] .

b. Methodological Problem
From the above epistemological differences, implications for the methodological
differences. For those groups who believe that Islamic law is only sourced from
the revelation of God, will see the source of law is the legal texts and methods of
the invention tends to textual and linguistic. While the group who believe that
Islamic law is also derived from reason, it is felt that not enough if you just look
at nash-textually and then develop models of interpretation other than linguistic

This difference has been around since the beginning of the establishment of
Islamic law that is the presence Dhahir understanding of texts and an
understanding of what is implicit from the texts, as in the event of war Bani
Quraidhah above. During the development of schools of fiqh there are also
differences in methods of law istinbat. As seen in the discourse of usul fiqh there
are several systems including the production of meaning, the first level, manthuq
the texts that discuss sharih [9] and ghairu sharih [10], second, understand the
texts that discuss muwafaqah understand [11] and understand mukhalafah [12],
the third, an ma'qul texts associated with ijtihad ta'lili fine tune the law that is
based on illat (qiyas method [13]) and the fourth, the spirit of the texts associated
with ijtihad ta'lili as lay down the law with mashalahah and wisdom or called by
istishlah [14].

In the development of contemporary fiqh usul discussed about the methods of
the new understanding of Islamic law such as the double movement
interpretation method proposed by Fazlur Rahman [15], which dikemukakn
naskh reversal method by Mahmoud Taha [16], the method hudud / theory of
limits stated by Muhammad Shahrur [ 17] and many more. The other method
which combines texts normatively and empirically relitas communities have also
been developed by Louay Sofi [18].

These methodological problems present in the formulation phase of Islamic law
be applied in a country. Therefore, the aspirations of the application of Islamic
law in Indonesia should consider these methodological problems.

c. Political Problem
Formalization of Islamic law, or in other words, to impose Islamic law in a
country requires political forces that will support it. In countries that follow the
Continental European legal systems, enforcement of laws through the legislative
process by the legislature. Therefore we need legislature members who will fight
for enforcement of Islamic law.

In the context of post-New Order Indonesia, the political problems in the
application of Islamic law is the polarization of the aspirations of Islamic parties
in the application of Islamic law and the existence of competition between the
political stream (particularly between nationalist and Islamist groups) in the
executive branch. In the multiparty era, these parties can be mapped into
nationalist parties and parties based on religion (Islam and Christianity), in this
connection the Islamic party. Islamic parties are just some of the parties in
Indonesia, but there was no agreement in the application of Islamic law this

In conjunction with the inspiration of the application of Islamic Shari'a, the
Islamic Party can be mapped into a group of liberal Islamic party, modernist and
conservative. Group of liberal Islamic parties in this case is a mass-based party of
Muslims, but not carrying the aspirations of the application of Islamic law. For
them Islam is the religion held by each person individually, without any state
intervention to pemberlakukannya. This group emphasizes culturally Islamic
preaching. Modernist Islamic party group that is mass-based party that carries
the aspirations of Muslims application of Islamic law, but first they are
formulated in formulatif, it can even be legal darfating to be a bill that will be
legislated into national law. Meanwhile, the conservative Islamic party, namely
that carries the aspirations of the application of Islamic law, but has not been
formulated in a specific formulation for legislated. They consider Islamic law is
what is in the Qur'an and the Hadith as well as formulated in fiqh. They also
fight for the implementation of Islamic law through the Constitution, namely
Article amandeman 29UUD 1945.

Differences groove understanding of Islamic law in the Islamic parties are a
problem in the application of Islamic law itself.

Alternative Strategies Implementation of Islamic Shari'ah in Indonesia

By looking at the map thinking and aspirations about the application of Islamic
law in Indonesia mentioned above, can be seen that basically the majority of the
Islamic party wants the application of Islamic law in Indonesia, they do manun
strategy is different, namely through the constitution, legislation and the cultural
message of Islam. Of the several strategies that can be done, but gradually: first,
legislation and strategies in cultural propagation can be performed
simultaneously. Because, basically, the law requires the application of juridical
legitimacy through legislation, in addition also requires community
preparedness to accept and comply with such regulations. The struggle for the
implementation of Islamic law through the constitution by including seven
words of the Jakarta Charter, it is still hard to do because there are still
communities that are resistant to the hat.
Assumption that the Jakarta Charter would lead to disunity and internal strife
among religions even Islam itself is still dominated the thinking of the people of
Indonesia, then it requires the preparation of this strategy is very heavy, both at
the formulation, dissemination, and at the political level (because this hat
requires a political force that support both in the legislature, Majlis, as well as
mass organizations, and society in general).

In the concept of Islamic law reform, legal reform legislation is an attempt to
adapt Islam to the Western legal system which has now been adopted in many
Muslim countries including Indonesia. Legislation is done by formulating
Islamic law in the form of legal rules drawn up by chapters and articles (in legal
drafting) to be submitted as draft legislation (Bill) to the agency Iegislatif to get
approval, then validated in an advanced gazetted a regulation the legislation.

As for the stages that must be done within the framework of Islamic law such
legislation include:

a. Formulation Phase

In this stage the matter should be sorted Islamic law which will be legislated.
Fiqh-for example-are divided into several aspects of which aspects of the
individual (man's relationship with God ansich) such as prayer, fasting, ethics
(eating, drinking, waste water etc.), aspects of worship associated with social and
cultural aspects such as Friday prayers, as well as material in the field of fiqh
mu'amalah associated with social and cultural aspects, which need the juridical
rules, such as perkawinanan and perceraaian, inheritance, perwakafan, zakat
management, and so on. This latter material that should be formalized in
legislation, while the material aspects of fiqh in individual worship does not
require a judicial setting. In this formulation stage should also be determined
methods to be used in understanding the material law, so it can be a definition of
law in accordance with the realities and needs of the community.

Schools of this formulation should involve all among the Muslims with the
representation of the scholars, scientists in related disciplines, academics and
community leaders in order to get unanimity of opinion. Formulation stage as
synonymous with the concept of ijma 'of the earlier scholars, but if consensus is
an agreement of Muslims as a whole, the consensus on the formulation of Islamic
law in Indonesia is a consensus of local Indonesian-ness.

b. Socialization Stage

Basically the law is a rule that contains the commands and judgments that exist
in society itself. [19] However, with the ideas of positivism which penetrated in
various aspects of human life including the law, then the law becomes a positive
regulatory formalized through a juridical justification the state. However, the
presence of positivikasi or legal formalization should not eliminate the substance
of law as rules of life in society. Therefore, the law should be the people's
aspirations, and the formalization of the law should be a formalization of the
rules that have been living in the community. Thus, the socialization of law is
necessary in order formalization of a law. In this context the cultural approach to
Islamic law is necessary in the socialization of Islamic law in society, to prepare a
legal enforceability.

Enforceability of law (das das geltung recht) there are three [20]: first, legal
enforceability of applicable law if enacted procedurally in the state, second,
sociological enforceability of applicable law, if accepted in society and the
philosophical validity of the third law applies if in accordance with the
philosophical values of society. Therefore, in addition to the juridical
formalization of Islamic law, Islamic law dieprlukan socializing both before and
after the formalization of Islamic law.

Phase Pilitis
After the stage of formulation and socialization, then the required strength to
support the rule of law terseut untukmendapatkan juridical legality by the state
(judicial keberlakukan a rule of law). In the Indonesian context, the efforts of this
effort can be done through the government (executive) as well as legislative path,
because the legislation of a legislation can be submitted by the president or the
government departments concerned with the approval of Parliament, nor with
the proposed House of Representatives (bill initiative) for endorsement by
persetuajuan President. [21]

Therefore, the formalization of Islamic law requires political forces that
supported the bill 'Islamic law' is, from both political parties who sit as
representatives in the House, or the Muslims who sit on the executive


From the description in this paper can be concluded that:

In the fight for the aspirations of the application of Islamic law in Indonesia,
there are some problems, namely the epistemological problem (in the form of
difference-the difference principle and an understanding of Islamic law itself),
methodological problems (in the form of differences in methods of formulation
of Islamic law, namely the method of textual and contextual), and political
problems which the public powers that be are less memaadai pemperjuanagkan
aspirations, plus there is a difference of principles and strategies in the fight for
the aspirations of the application of Islamic law.
Strategies that can be taken to implement Islamic law legislation including the
strategy of Islamic law that is formulating the material in the form of Islamic law
legal drafting a bill for submission to the legislature to be passed as law. This
strategy must go through several stages of the formulation stage, material sorting
barupa fiqh or Islamic law to be legal drafting and bill, the stage of socialization
is socialization matter of Islamic law in public life, so it became common practice
in the community, and further the political stage is to fight for the bill at the level
of legislation for enactment as law.

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