Contemporary Islamic Law Research Articles

Modernitas dan Keindonesiaan Fatwa Majelis Ulama Indonesia

This research shows that 19 (nineteen) fatwas of 104 (one hundred and four) fatwas of the Indonesian Ulama Council (MUI) from 1983 to 2009 are reflecting modernity and the Indonesia-ness. The modernity of the fatwas is implemented in the using of maqasid shari‘ah, the maslahat principle, collective ijtihad, and flexibility in madhhab. As for the Indonesianess of the fatwas is implemented at the local wisdom which includes the consideration of: National Stability of Indonesia, the Republic of Indonesia (NKRI), Public Order, National Culture, and Legislation regulated in Indonesia.The research supports the thought of the contextualist group which is represented by Sahal Mahfudh, Ali Yafie and Munawar Chalil; both of them echo the contextual relationship between fiqh and the aspects of Indonesian people’s life. Also Muhammad Atho Mudzhar which states that the implementation of any Islamic law is the result of interaction between the jurist or mufti with his sociocultural and sociopolitical environment. Musfirin al-Qahtani as well states the importance of istinbat methodology in facing the development of the contemporary Islamic law (fiqh) by standing on the shariah arguments, the fiqh formulas (qaidah fiqhiyyah), takhrij, and maqasid al-shari‘ah.

Evolution of Islamic Law in the 20th Century: The Conception of Collective Ijtihād in the Debate Between Muslim Scholars

Abstract In order to meet the demands of modern life and its complexities, Muslim scholars developed in the 20th century a new instrument of Islamic legal finding, namely al-ijtihād al-jamāʿī [collective independent legal reasoning (ijtihād)]. The latter serves at present as a basis for the technical work within various institutions of contemporary Islamic law, in particular the fiqh academies. This article examines collective ijtihād as a newly developed concept of modern Islamic Law. By focusing on discussions among contemporary Muslim scholars about this concept, I aim to outline certain theoretical characteristics and a methodological framework for collective ijtihād. Furthermore, this article describes positions taken by Muslim scholars concerning the legitimacy and the probative value (ḥujjiyya) of collective ijtihād.

Kontekstualisasi Maqashid Shari’ah Dalam Sustainable Development Goals

Abstract The process of building a nation will never be separated from relations with other nations in the world. But on the other hand, development often only emphasizes the aspect of growth, it forgets the most important element, namely equity. As a result, the poverty curve is not decreasing, but it remains a problem in itself to create gaping gaps. In order to respond to fundamental problems, the world responds by setting sustainable development goals that contain 17 points. Then how is the contextualization of the objectives of contemporary Islamic law in response to the mandate of the SDGs? The type of method used in this study is a qualitative method. After the data is collected, an analysis is performed using descriptive-analytical methods to get a critical interpretation of the SDGs picture in the perspective of maqashid shari'ah. Research shows that the Sustainable Development Goals, which are summarized in 17 points of The Global Goals, are very much in harmony with the principles of the objectives of contemporary Islamic law, namely the Maqashid shari'ah version of Jasser Auda.

CONTEMPORARY ISLAMIC JURISPRUDENCE THOUGH IN THE WORK OF KHALED ABOU EL FADL

With a qualitative approach, this research raises Khaled Abou El Fadl's thoughts on contemporary Islamic law discourse by analyzing one of his main works, namely Speaking in God's Name: Islamic Law, Authority, and Women. This paper will be focused on two important questions. First, how is the history of Khaled Abou El Fadl's life? Second, how is Khaled Abou El Fadl’s thought style in the tradition of contemporary jurisprudence? Based on those two questions, this research finally produces that; First, Abou El Fadl grew out of the dialectic of Islamic thought in the Middle East which has grown since the 1970s. His thought was actually a reaction to the rise of Salafi discourses, especially in Saudi Arabia and Egypt. The idea of Abou El Fadl is seen as a moderate wing representation in Salafi thought. Second, Atas Nama Tuhan, Khaled Aboul El Fadl's work is an experiment of his criticism of Salafism ideology which argues that Islamic reformism is also responsible for creating a creed closed, intolerant, and superficial in understanding the sacred texts of Islam should be taken seriously. His thought provides a discourse on Islamic law by combining classical Islamic thought with modern hermeneuticdiscourse.

Research Handbook on Islamic Law and Society

The premise of the adaptability, flexibility, and compatibility of Islamic normative teachings (sharīʿa) to new social contexts is already documented by many scholars, including John Bowen’s On British Islam: Religion, Law, and Everyday Practice in Shari‘a Councils and Michael G. Peletz’s Islamic Modern: Religious Courts and Cultural Politics in Malaysia. Unlike those works, this textbook is organized by theme which provides a unique contribution to our understanding of the overall function of contemporary Islamic law. Such an approach shows that the ‘right’ answer in one country is not necessarily the ‘right’ solution in another Muslim community, which explains the diverse application of Islamic law. The book challenges Wael Hallaq’s observation that the modern codification of Islamic law resulted in the absence of hermeneutical possibilities or led to a single mode of judicial application. Perhaps Hallaq’s proposition is accurate if we examine the function of Islamic law in a specific country. Nevertheless, the book provides concrete examples of the administrative and interpretive techniques of ‘neo-ijtihād’ today.
 To download full review, click on PDF.

Research Handbook on Islamic Law and Society

The premise of the adaptability, flexibility, and compatibility of Islamic normative teachings (sharīʿa) to new social contexts is already documented by many scholars, including John Bowen’s On British Islam: Religion, Law, and Everyday Practice in Shari‘a Councils and Michael G. Peletz’s Islamic Modern: Religious Courts and Cultural Politics in Malaysia. Unlike those works, this textbook is organized by theme which provides a unique contribution to our understanding of the overall function of contemporary Islamic law. Such an approach shows that the ‘right’ answer in one country is not necessarily the ‘right’ solution in another Muslim community, which explains the diverse application of Islamic law. The book challenges Wael Hallaq’s observation that the modern codification of Islamic law resulted in the absence of hermeneutical possibilities or led to a single mode of judicial application. Perhaps Hallaq’s proposition is accurate if we examine the function of Islamic law in a specific country. Nevertheless, the book provides concrete examples of the administrative and interpretive techniques of ‘neo-ijtihād’ today.
 To download full review, click on PDF.

PENGEMBANGAN HUKUM ISLAM KONTEMPORER: DARI QAWLĪ KE MANHAJĪ

ABSTRACTQawlī approach to solve legal problems, especially contemporary problems, needs to be strengthened and complemented with a manhaji approach. The existence of ushul al-fiqh which have only become supplementary tools to understand the works of classical fiqh, need to be improved to more applicable. Therefore, ushul al-fiqh ul will have direct relevance to the Muslims lives. This paper attempts to offer ushul al-fiqh manhajī which functions to develop the thought of Contemporary Islamic Law. In this paper ushul al-fiqh manhajī will be parsed, departing from classic ushul al-fiqh, the characteristics of ushul al-fiqh manhajī, the contemporary understanding of Islamic law, and the idea of progressive fiqh to face the growing age. It can be understood that ushul al-fiqh manhajī means ushul al-fiqh following the methodology of ulama thought, not the product of their thought. Following the methodology may result in the same or different product. Thinking methodologically means avoiding textuality an sich without studying its philosophical-methodological aspects. In conclusion, ushul al-fiqh manhajī is an offer to develop the thought of Contemporary Islamic Law.Keywords: Ushul al-Fiqh, M anhajī, ContemporaryIslamic law, Qawli

THE CONTEMPORARY ISLAMIC LAW PARADIGM IN INDONESIA

This paper by using the ijtihad paradigm of maqâshid al-syari’ah of JasserAudah and the descriptive-analytical approach, would like to emphasize that the role of religion and economic welfare are two things that cannot be separated. Although in practice these two things often face obstacles, especially in the matter of diversity in religious life because of the superficial ijtihad paradigm of Islamic law. Based on the contemporary paradigm that seeks to provide new criteria in the conception of qath’i al-dlilalah and dlanni al-dlilalah, it can be stated that the contemporary Islamic law paradigm that needs to be built must be based on (a) the development of citizens’ welfare Muslims, but also must be the same as non-Muslims because of that we need to carry out financial and economic reforms (al-ishlâh al-mâli wa al-iqtishâdi); (b) protection of freedom of thought (hurriyah al-tafkir) and freedom of religion (hurriyah al-i’tiqâd) is an important aspect that must be maintained to guarantee the peace and harmony of the nation’s life in the territory of Indonesia. Therefore, the religious and economic aspects must be prioritized for their protection and safety.

THE CONTEMPORARY ISLAMIC LAW PARADIGM IN INDONESIA

This paper by using the ijtihad paradigm of maqâshid al-syari’ah of JasserAudah and the descriptive-analytical approach, would like to emphasize that the role of religion and economic welfare are two things that cannot be separated. Although in practice these two things often face obstacles, especially in the matter of diversity in religious life because of the superficial ijtihad paradigm of Islamic law. Based on the contemporary paradigm that seeks to provide new criteria in the conception of qath’i al-dlilalah and dlanni al-dlilalah, it can be stated that the contemporary Islamic law paradigm that needs to be built must be based on (a) the development of citizens’ welfare Muslims, but also must be the same as non-Muslims because of that we need to carry out financial and economic reforms (al-ishlâh al-mâli wa al-iqtishâdi); (b) protection of freedom of thought (hurriyah al-tafkir) and freedom of religion (hurriyah al-i’tiqâd) is an important aspect that must be maintained to guarantee the peace and harmony of the nation’s life in the territory of Indonesia. Therefore, the religious and economic aspects must be prioritized for their protection and safety.

CONTEXTUALISING ISLAMIC LAWS

This paper by using the ijtihad paradigm of maqâshid al-syarî’ah of Jasser Audah and the descriptive-analytical approach, would like to emphasize that the role of religion and economic welfare are two things that cannot be separated. Although in practice these two things often face obstacles, especially in the matter of diversity in religious life because of the superficial ijtihad paradigm of Islamic law. Based on the contemporary paradigm that seeks to provide new criteria in the conception of qath’i al-dlilalah and dlanni al-dlilalah, it can be stated that the contemporary Islamic law paradigm that needs to be built must be based on (a) the development of citizens’ welfare Muslims, but also must be the same as non-Muslims because of that we need to carry out financial and economic reforms (al-ishlâh al-mâlî wa al-iqtishâdî); (b) protection of freedom of thought (hurriyah al-tafkîr) and freedom of religion (hurriyah al-i’tiqâd) is an important aspect that must be maintained to guarantee the peace and harmony of the nation’s life in the territory of Indonesia. Therefore, the religious and economic aspects must be prioritized for their protection and safety.

Fatwas of the Indonesian council of ulama and its contributions to the development of contemporary Islamic law in Indonesia

This article addresses the contributions of the fatwas of the Indonesian Council of Ulama (MUI) to the transformation of contemporary Islamic law and the development of Islamic law in Indonesia, from 1975 to 2011. It aims to respond to the existing papers claiming that the MUI’s fatwas were likely to be compliant with the government’s wishes and dependent. This paper also wants to demonstrate another fact that the MUI has been inconsistently using their own guidelines for the determination of its fatwas. The present study found that over 26 years the MUI’s fatwas contributed positively to the transformation of contemporary Islamic law in Indonesia. During the period, the MUI produced 137 fatwas and 50 decisions, either addressed to Muslims and the Indonesian government. Therefore, the MUI’s fatwas, as among the elements of Islamic law in Indonesia, also contributed to the development of contemporary Islamic law in Indonesia.Artikel ini mengkaji kontribusi fatwa Majelis Ulama Indonesia terhadap transformasi hukum Islam kontemporer, dan perkembangan hukum Islam di Indonesia, dalam kurun waktu 1975 sampai dengan 2011. Tulisan ini bertujuan untuk menanggapi tulisan yang telah ada selama ini, bahwa fatwa MUI cenderung mengikuti keinginan pemerintah, dan tidak mandiri. Tulisan ini juga ingin membuktikan fakta lain, bahwa MUI tidak konsisten menggunakan pedoman penetapan fatwanya. Penelitian ini menemukan, bahwa fatwa MUI selama kurun waktu 26 tahun, telah memberikan kontribusi positif terhadap transformasi hukum Islam kontemporer di Indonesia. Selama kurun waktu tersebut, MUI telah menghasilkan 137 fatwa, dan 50 keputusan baik yang ditujukan kepada umat Islam, maupun pemerintah Indonesia. Sehingga fatwa MUI, sebagai salah satu unsur hukum Islam di Indonesia, telah juga memberikan kontribusi terhadap perkembangan hukum Islam kontemporer di Indonesia

Asuransi Konvensional dan Asuransi Syariah dalam Hukum Islam Kontemporer

Insurance based on the operational system is divided into two types,namely: conventional insurance and Islamic insurance (takaful). Thiscurrent research aims to explore and explain the difference betweenconventional insurance and Islamic insurance as well as both legalstatuses of the insurance in contemporary Islamic law. This study waslibrary research by analyzing the perspectives of ulema (Islamicscholars). The research findings reveal that firstly, the differencebetween conventional and Islamic insurance could be noticed fromthe characteristics and contract (aqad) provided by both of theinsurance. Secondly, both legal statuses of the insurance that wereviewed from the perspectives of ulema demonstrated (a) all forms ofinsurance were haram (forbidden/sinful), (b) all forms of theinsurance were mubah (neutral), (c) all forms of social insurance weremubah (neutral) while commercial insurance was haram, and (d) allpractices of insurance were syubhat (suspected-could be halal orharam).
 Keywords: Conventional Insurance, Islamic Insurance, Contemporary Islamic Law.

POLA ASUH ORANG TUA DALAM PEMBENTUKAN AKHLAK ANAK DALAM PENDIDIKAN ISLAM

The background of the research is based on the author's concern about the rise of apostasy cases that occur in Indonesian society, especially those that occur among public figures in the country. As happened with Lukman Sardi, Asmirandah and others. There has been a pro-contra against this phenomenon, ranging from the phobia of Islam (secular), liberal Islamic groups, radical Islamic groups (Wahhabis), and moderate modernist groups. The crucial point that has become a debate about apostasy is the application of the death law to apostates, which is regulated legally in Islamic law, so that affiliates who reject the total law arise with the pretext of human rights, and groups that defend the law with arguments undeniable. then the writer looks for the midpoint that answers and becomes the solution to this hot issue, by reviewing some classical references (turats), so that a meeting point can be found that can be agreed by both parties. To find the right formula in answering this phenomenon the author uses the Library Research method (library research) by using primary data and secondary data. Data analysis was obtained through library research which was analyzed qualitatively. From this study found answers relevant to apostasy and their consequences in contemporary Islamic law. There are two opinions that seem opposite and contradictory, between the opinions of classical and contemporary scholars. The side of difference is in the legality of beheading for apostates. One group considers it legal with valid arguments while the other group considers it not. Nevertheless there are points of equality in several criteria that justify the execution.

Good Governance dalam Perspektif Hukum Islam Kontemporer (Tinjauan Usul Fikih dari Teori Pertingkatan Norma)

The concept of good governance on Us}u>l al-Fiqh perspective is directed towards how to utilize the methods offered in the science of Us}u>l al-Fiqh to formulate Islamic legal principles to respond to the latest problems of all issues, and here I will specifically address the issue of good governance in the perspective of contemporary Islamic law. In this case, seeing the many problems, especially the corruption of governance, requires us to examine the current reality of these governance conditions for better, professional, responsible, trustworthy, and so on. One of them is by developing the concept of good governance with the hope of contributing to the development of better bureaucratic governance in accordance with the principles and values ​​in Islamic law such as equality, tolerance (tasa>muh), justice, welfare, consultation (syu>ra>), honesty, objectivity (comprehensiveness) and so on become an indication of good and clean governance. The approach used is the Us}u>l al-Fiqh approach as the epistemological and philosophical basis in Islamic law by describing the theory of new Us}u>l al-Fiqh as applied theory in exploring the values ​​of public services (good bureaucracy–good governance or other terms that can be called clean governance) in the eyes of contemporary Islamic law.

الاحتجاج بالاستصحاب وأثره في اختلاف الفقهاء

Islam is a complete and comprehensive religion. The comprehension of Islam does not lie in the completeness of the verses of the Qur’an and the words of Hadith, because in fact the verses of the
 Qur’an and the words of Hadith are limited, meanwhile the human problems continue to grow. So, the role of ijtihad as a means of reform of Islamic law is vital. One of the methods of ijtihad is Istishâb.
 This study describes the meaning of Istishâb, scholars’ opinion about the value of its strength as a source of law, as well as the influence of scholars’ opinion about the value of his resistance to differences of opinion in Islamic law. This study concludes that the majority of scholars of the Maliki, Shafii, and Hambali sect assert that Istishâb is a hujjah to defend (daf’i) and establish something (itsbat). The late ulamas of the Hanafi sect assert that Istishâb is a hujjah in defense of something, while the majority of the Hanafi scholars and some scholars of the Shafi’i sect state that Istishâb is not a hujjah at all. The difference of the ulama’s view of the use of Istishâb in ijtihad has led to differences in their views on Islamic law, as in the case of the law of the disappeared’s inheritance. In addition, the existence of Istishâb becomes a solution to find out contemporary Islamic law, Especially In the field of criminal law, personal status and civil law.
 
 Keywords: Istishâb, argumentative, Islamic Law

ASURANSI KONVENSIONAL DAN ASURANSI SYARIAH DALAM HUKUM ISLAM KONTEMPORER

The paper is about conventional insurance and takaful insurance in contemporary Islamic law. Insurance is one of the non bank financial institution that function to collect public funds to provide protection against the risk of uncertainty resulting from the occurence of accidentns, accidents or other losses. Insurance based on the operational system is divided into two types, namely conventional insurance and takaful insurance. Takaful Insurance is classified as a new non-bank financial institution innovation and based on the principles of Islam, the Takaful is still not known by the people of Indonesia whose population is mostly Muslim. Of the phenomenon the authors try to discuss about conventional insurance and takaful insurance in contemporary islamic law.

االحتجاج باالستصحاب وأثره يف اختالف الفقهاءإعداد: عبد الوهاب أحمد خليل

Islam is a complete and comprehensive religion. The comprehension of Islam does not lie in the completeness of the verses of the Qur’an and the words of Hadith, because in fact the verses of the Qur’an and the words of Hadith are limited, meanwhile the human problems continue to grow. So, the role of ijtihad as a means of reform of Islamic law is vital. One of the methods of ijtihad is Istishâb. This study describes the meaning of Istishâb, scholars’ opinion about the value of its strength as a source of law, as well as the influence of scholars’ opinion about the value of his resistance to differences of opinion in Islamic law. This study concludes that the majority of scholars of the Maliki, Shafii, and Hambali sect assert that Istishâb is a hujjah to defend (daf’i) and establish something (itsbat). The late ulamas of the Hanafi sect assert that Istishâb is a hujjah in defense of something, while the majority of the Hanafi scholars and some scholars of the Shafi’i sect state that Istishâb is not a hujjah at all. The difference of the ulama’s view of the use of Istishâb in ijtihad has led to differences in their views on Islamic law, as in the case of the law of the disappeared’s inheritance. In addition, the existence of Istishâb becomes a solution to find out contemporary Islamic law, Especially In the field of criminal law, personal status and civil law.

Contemporary Islamic Law in Indonesia: Sharia and Legal Pluralism.By Arskal Salim

Contemporary Islamic Law in Indonesia: Sharia and Legal Pluralism.<i>By Arskal Salim</i>

ANALISIS TERHADAP UNDANG-UNDANG NOMOR 23 TAHUN 2011 TENTANG PENGELOLAAN ZAKAT (PERSPEKTIF HUKUM ISLAM)

The Birth of Law No. 23/2011 marks a new era of transformation of the national charity which has given rise to a new paradigm of charity management in our country. Some rules are the result of constitutive ijtihadin the ?eld of charity gets a reaction from some quarters, especially related to the management of charity by the state authority. Regardless of the debate which led to the material and formal lawsuit, there are several key issues to be further analyzed in relation to the reconstruction of ?qh paradigm evaluated from the perspective of contemporary Islamic law. First, the authorities and the involvement of the state as charities through the agency or institution that is of?cially established or recognized by the state, so that the management of charity can be done effectively, guaranteed. And have legal certainty. Secondly, the absence of sanctions for muzaki who shirk the obligation of charity in Law No.23 / 2011 shows that the payment of charity is voluntary, therefore charity regulations in Indonesia are still considered weak in the legal framework that can bind to the individual or business entity that is exposed to the taxpayer , Third, the reform paradigm of subject, object and charity tas{arruf ?eld have already accommodated in Law No.23 / 2011 in accordance with the principle of mas}lah}atand justice. Fourth, the relationship of charity and tax reaf?rmed in the amendment of new Law charity as?scal incentives for charity payers to make charity as a reduction of PKP (tax deduction), although this provision has not been able to realize the position of charitywhich is more signi?cant as a tax deduction(tax credit).

Pembaruan Hukum Islam dalam Kompilasi Hukum Islam

This paper discusses the reform of Islamic law in the Islamic Law Compilation. The main sources of Islamic law are the Qur'an and Sunnah shall be applied to the human race. Therefore, Islamic law must be able to respond to development and change that occur in people's lives. Reform of Islamic law as the search for relevance to the development of contemporary Islamic law is not a stand-alone effort, but is influenced by internal factors and external factors. One Islamic law in Indonesia in the form of the regulation that has become positive law is Islamic Law Compilation. Several articles in the Islamic Law Compilation is a form of Islamic law reform. Whether it relates to marriage or about donation such grants could be a legacy. There are many other clauses which are part of the reform of Islamic law in the Islamic law compilation.