The Jakarta Post, June 22 2006
Most proponents of Islamic law believe that to implement it, it has to be codified into a state law, transforming the Islamic law from fiqh (legal literature written by Islamic scholars) into a state-law (either state laws or regional bylaws or Perda).
What they don't quite realize is that the very transformation changes the nature of Islamic law from a divine and religious law into a secular law. Contrary to what the proponents believe, what is happening in Aceh and other localities is not really the shariatization of state-law but is instead the secularization of Islamic law. Let me make it clear here.
Historically speaking, from the time of the Prophet to the end of the caliphate system, Islamic law was implemented in a decentralized way where every judge had his individual and independent authority to issue a judgment out of his personal legal reasoning (ijtihad).
There is a bold principle in Islamic court of justice stipulating that a judge is not bound by any other judgment when he has a case to be dealt with. Furthermore, he is even not bound by his own previous judgments, tilka ma qadayna wa hazihi ma naqdi ("that was our previous judgment in this one is our new judgment").
To put it in a legal-speak way, it is "the judge who makes the law", not the legislative or executive branches. Islamic legal tradition and history are much closer to those of the Common Law tradition than to those of the Continental Law one.
There had never been any codified laws in Islamic legal history until the last decades of the Ottoman Caliphate, as a result of its attempts to modernize its empire and of the Continental European influence.
The first attempts were made as early as in the first century of Islam when a caliph of the Umayyad dynasty asked Imam Malik (the most senior Imam of the four prominent and authoritative imams that have ever existed) to let the caliph have his treaties of Islamic law (al-Muwatta) be the only book of Islamic law imposed on the caliphate.
The caliph was inspired by his predecessor, Uthman bin Affan, who succeeded in unifying all Muslims around one Koranic text. The caliph felt it would be similarly beneficial to unite all Muslims under one Islamic book of law.
However, the imam had sharp and decisive answer to the proposal. "I am only a man with limited knowledge of prophetic tradition. What I compiled in my book are simply some parts of other parts of Islamic law that I don't have any capability to cover. The students of the Prophet have left Medina and the knowledge of some Islamic law has gone with them. My book is far from being appropriate to be the standard one."
Since then, Islamic law has lived an independent life outside of the state machinery. Every judge has free preference to issue his judgment and the state has no authority to intervene in them.
Indonesia itself is a good example of this. Up to the 1990s, we actually had no a standardized Islamic law or a single codification implemented for all Muslims.
Judges in Indonesian Islamic courts had the right to refer to their preferred book of Islamic law appropriate to a given case in a certain locality (what is appropriate to Minangkabauan Muslims might not be appropriate to the Javanese ones).
Sad to say, with the ambition of the New Order to unite Indonesia, those plural practices were seen as a problem and a project of unification of Islamic law was carried out under the auspices of the Religious Affairs Ministry. In 1991, a presidential instruction legalized the so called Kompilasi Hukum Islam as the single reference for Islamic judges. The once plural practices were unified under a national version of Islamic law, eliminating local interpretations.
Now, epistemologically speaking, with the codification of Islamic law and its formalization into a positive law, undang-undang or perda, can we call it Islamic law? Surely, we can "name" it, but what is in a name? Undang-undang and perda, no matter what we call them, are state-made laws -- yes, state-made, not God-made. It is not a divine law anymore. On the contrary, it is secular law.
In addition, according to Islamic legal literature, to issue an Islamic law, a person has to fulfill many academic pre-requisites. He has to be a pious Muslim, have mastered the Koran and its interpretation, understand prophetic tradition and its textual critique and is also required to have mastered Arabic and its literature. Are those members of parliaments or local legislatures eligible and qualified to issue any Islamic law?
Therefore, if the proponents of Islamic law implementation continuously and relentlessly demand those Islamic-law-inspired bills be passed, they have to realize they have secularized the Islamic law anyway.
When Islamic law is secularized, it is a matter of public issues, and has nothing to do with one's faith. If a Muslim joins the Movement of Bhinneka Tunggal Ika to reject the pornography bill, for example, please don't say he or she is not a good Muslim. Because she or he is rejecting mere secular law, not an Islamic law; and that has nothing to do with being a good or bad Muslim.
Most proponents of Islamic law believe that to implement it, it has to be codified into a state law, transforming the Islamic law from fiqh (legal literature written by Islamic scholars) into a state-law (either state laws or regional bylaws or Perda).
What they don't quite realize is that the very transformation changes the nature of Islamic law from a divine and religious law into a secular law. Contrary to what the proponents believe, what is happening in Aceh and other localities is not really the shariatization of state-law but is instead the secularization of Islamic law. Let me make it clear here.
Historically speaking, from the time of the Prophet to the end of the caliphate system, Islamic law was implemented in a decentralized way where every judge had his individual and independent authority to issue a judgment out of his personal legal reasoning (ijtihad).
There is a bold principle in Islamic court of justice stipulating that a judge is not bound by any other judgment when he has a case to be dealt with. Furthermore, he is even not bound by his own previous judgments, tilka ma qadayna wa hazihi ma naqdi ("that was our previous judgment in this one is our new judgment").
To put it in a legal-speak way, it is "the judge who makes the law", not the legislative or executive branches. Islamic legal tradition and history are much closer to those of the Common Law tradition than to those of the Continental Law one.
There had never been any codified laws in Islamic legal history until the last decades of the Ottoman Caliphate, as a result of its attempts to modernize its empire and of the Continental European influence.
The first attempts were made as early as in the first century of Islam when a caliph of the Umayyad dynasty asked Imam Malik (the most senior Imam of the four prominent and authoritative imams that have ever existed) to let the caliph have his treaties of Islamic law (al-Muwatta) be the only book of Islamic law imposed on the caliphate.
The caliph was inspired by his predecessor, Uthman bin Affan, who succeeded in unifying all Muslims around one Koranic text. The caliph felt it would be similarly beneficial to unite all Muslims under one Islamic book of law.
However, the imam had sharp and decisive answer to the proposal. "I am only a man with limited knowledge of prophetic tradition. What I compiled in my book are simply some parts of other parts of Islamic law that I don't have any capability to cover. The students of the Prophet have left Medina and the knowledge of some Islamic law has gone with them. My book is far from being appropriate to be the standard one."
Since then, Islamic law has lived an independent life outside of the state machinery. Every judge has free preference to issue his judgment and the state has no authority to intervene in them.
Indonesia itself is a good example of this. Up to the 1990s, we actually had no a standardized Islamic law or a single codification implemented for all Muslims.
Judges in Indonesian Islamic courts had the right to refer to their preferred book of Islamic law appropriate to a given case in a certain locality (what is appropriate to Minangkabauan Muslims might not be appropriate to the Javanese ones).
Sad to say, with the ambition of the New Order to unite Indonesia, those plural practices were seen as a problem and a project of unification of Islamic law was carried out under the auspices of the Religious Affairs Ministry. In 1991, a presidential instruction legalized the so called Kompilasi Hukum Islam as the single reference for Islamic judges. The once plural practices were unified under a national version of Islamic law, eliminating local interpretations.
Now, epistemologically speaking, with the codification of Islamic law and its formalization into a positive law, undang-undang or perda, can we call it Islamic law? Surely, we can "name" it, but what is in a name? Undang-undang and perda, no matter what we call them, are state-made laws -- yes, state-made, not God-made. It is not a divine law anymore. On the contrary, it is secular law.
In addition, according to Islamic legal literature, to issue an Islamic law, a person has to fulfill many academic pre-requisites. He has to be a pious Muslim, have mastered the Koran and its interpretation, understand prophetic tradition and its textual critique and is also required to have mastered Arabic and its literature. Are those members of parliaments or local legislatures eligible and qualified to issue any Islamic law?
Therefore, if the proponents of Islamic law implementation continuously and relentlessly demand those Islamic-law-inspired bills be passed, they have to realize they have secularized the Islamic law anyway.
When Islamic law is secularized, it is a matter of public issues, and has nothing to do with one's faith. If a Muslim joins the Movement of Bhinneka Tunggal Ika to reject the pornography bill, for example, please don't say he or she is not a good Muslim. Because she or he is rejecting mere secular law, not an Islamic law; and that has nothing to do with being a good or bad Muslim.
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