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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.
Application Of Islamic Law In Indonesia (Problems And Strategies) Abstraction 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. Preliminary 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.  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,  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.  The debate over these two streams is compromised by Shafi with the method analogy (Qiyas) . 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.  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 . 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 Islam. 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  . 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 methods. 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  and ghairu sharih , second, understand the texts that discuss muwafaqah understand  and understand mukhalafah , the third, an ma'qul texts associated with ijtihad ta'lili fine tune the law that is based on illat (qiyas method ) 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 . 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 , which dikemukakn naskh reversal method by Mahmoud Taha , 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 . 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 aspiration. 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.  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 : 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.  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 government. Cover 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. REFERENCES Abd al Wahhab Khalaf, `Ilmu Ushul Fiqh, (Kairo: Dar AI-Qalam, 1978) AM. Haj Nour, `The Schools of Laws: Their Emergence and Validity Today' dalamIntenational Seminar on Islamic Law di Institute of AdministrationAhmadu Bello University, April 1976 Amir Syarifuddin, Meretas Kebekuan Ijtihad: Isu-isu Penting Hukum Islam Kontemporer di Indonesia, (Jakarta: Ciputat Press, 2002) Fazlur Rahman, Islam dan Modernitas: Sebuah Transfornrasi Intelektraal, alih Bahasa Ahsin Muhammad, Cet 2, (Bandung: Pustaka, 1995) Mahmoud Muhammed Taha, The Second Massage of Islam (Ar-Risalah Tsaniyah min al-Islam), alih Bahasa Abdullahi Ahmed An-Naim, (Syracuse: Syracuse University Press, 1985) Muhammad Abu Zahrah, Ushul al- fiqh, (Beirut: Dar AI-Fikr AI-Arabi, 1958) Muhammad Syahrur, AI-Kitab wa Al-Qur'an, (Damakus: Dar alAhali, 1992) Noel J. Coulson, Conflicts and Tensions In Islamic Jurisprudence, (Chicago: The University Of Chicago Press, 1969) Satjipto Raharjo, Ilmu Hukum, (Bandung: Angkasa, 1880) Sri Wahyuni, Politik Hukum Islam Di Indonesia: Studi terhadap Aspirasi Partai-Partai Islam di Indonesia tentang Penerapan Syari’at Islam, Tesis Pascasarjana IAIN Sunan Kalijaga Yogyakarta, 2003. Sudikno Mertokusumo, Penemuan Hukum, (Yogyakarta: Liberty, 2001). Suryono Sukanto, Kegunaan Sosiologi Hukum bagi Kajian Hukum, Cet-6, (Bandung: Citra Aditya Bakti,1991) Undang-undang Dasar 1945
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