A Socio-Historical Approach
Historically, the era of 70s witnessed the unfair relation (even conflict) between the West and Islam. Certain scholars on Islamic Studies in the West were often attacking Islamic teaching and Muslims. The term orientalist had a pejorative meaning very popular among Muslims. According to many Muslims, Orientalists were always attacking Islam and Muslims. Islam was often addressed as Muhammadenism, a religion established and promoted by Muhammad. These encouraged certain Muslims to apologetically response to such an attack. Because of the effort of certain Western scholars and Muslim scholars as well, such a situation became better and better. They tried to appreciate between one and another, promoted a mutual understanding between them, and looked at the West and Islam “objectively.” More Muslims afterwards took their M.A. and Ph.D. at some Western Universities, even on the subject of Islamic law which is seen as the core of Islamic teaching. Some western scholars even converted to Islam, while some others respect Islam as the same religion as Judaism and Christianity. These three religions are then known as the Abrahamic Religions. Such an effort to promote mutual understanding and good relation between the West and Islam was interrupted by the unintended case of 11 September, an attack on the World Trade Center (WTC) at New York in 2001. This attack becomes one of the most important events which influence significantly the world order, including the relation between the West and the East (Islam). Soon afterward, this conflict between the West and Islam becomes a hot and a common topic again; quite a number of books and articles have been published on such a topic. This topic receives more attention because of other events, particularly what is going on in Afghanistan, Iraq, Palestine, and also Lebanon. The present book is not addressed specifically to the conflict between the West and Islam, but rather to emphasize the importance of mutual understanding between both. It aims at presenting some views on Islam, particularly Islamic law, showing among other things, that (historically speaking) Islamic law has proved strong relation, cooperation, adaptation, and adjustment to other systems of law as well as to any local tradition, including those that we call now Western system of law and also Western tradition. There has also been quite a number of facts that Islamic law has to some extent become among important sources for the development of law in the West. The central issue in this book is then a dialog and a dialectic, rather than conflict. To be sure, this book gives an account of a personal path in the study of Islamic law. It of course cannot address all the questions on the dialog and the dialectic between Islamic law and local tradition. Nevertheless, the discussion in this book may be able to exhibit the topic as in some measure an organic whole; accordingly, the reader will hopefully be able to see in it such a dialog and dialectic as a whole. It is marked throughout by the labors I have done since I took my M.A. and then Ph.D. program at the Institute of Islamic Studies-McGill University, Montreal-Canada (1990-1997). Normatively, Islamic law is God’s command and teachings, thus sacred and absolute. These God’s command and teachings are called al-shari’ah, the teaching of Islam which must be understood and implemented by Muslims in their daily life. Nonetheless, when this shari’ah is understood by Muslims and tried to be implemented in their daily life, this shari’ah’s teaching turns to the level of human being, thus becomes profane and relative. Hermeneutically, certain teachings of the shari’ah may be understood differently by different people because of their different local traditions, places and time. This effort of understanding by human being belongs to what we call al-fiqh wa-usul al-fiqh. Thus, the shari’ah is sacred and absolute while fiqh wa-usul fiqh is profane and relative. Islamic law is one but the understanding of Islamic law could be many (Islam is one but Muslim is many). Thus, the understanding and implementation of Islamic law in Arab countries (e.g. Saudi Arabia), must not necessarily be the same as that in other Muslim countries (e.g. Indonesia). This is not the end of the issue. In the level of al-fiqh wa-usul fiqh, the dialog and the dialectic between the teaching of Islamic law and the local tradition of the Muslims have always been happening. The present book even suggests that the teaching of Islamic law is implemented according to the local tradition (al`adah wal-`urf), and that the same teaching of Islamic law is applied differently by different Muslims because of their different local traditions, places, and time. As a result, certain rules of Islamic law applied in certain places or countries could even be changed because of the change of their local tradition and culture. Not only this. If there is a contradiction between the teaching of Islamic law stated clearly in the Qur’an or in the Prophetic Tradition (al-hadith) and the local tradition, Muslims prefer to chose the local tradition rather than the text of the Qur’an or Hadith. To use Najmuddin al-Thufi’s words: taqdim al-maslahah ala an-nas wal-ijma` (the public interest should be prioritized over the Qur’anic text and the consensus of Muslims). The present book presents very much discussion on this issue, arguing that the dialog and the dialectic between the teaching of Islamic law and the local traditions are the same as happening in any other system of laws, be it Western, Judaism, Christianity, Hindus, Buddhist, and the likes. By doing this, the writer tries to make people believe that the problem of Muslims in understanding and applying their religious teaching, including those of Islamic law, are to some extent in line with those happening in any other religion in which local tradition and local culture are very much influencing their daily religious understanding and life.
PERSPECTIVES ON LAW, LEGAL REASONING, AND SOCIETY IN ISLAM: THE
CASE OF THE COMPILATION OF ISLAMIC LAW IN INDONESIA Joseph Schacht
did not exaggerate when he wrote that Islamic law "occupies a central place in
Muslim society, and...represents the core and kernel of Islam itself."1 It is "
understandable therefore that Islam has often been considered "a religion of law.
"2 Realizing the important position of Islamic law in the Muslim society, it is
reasonable that ...
