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In the seventeenth and eighteenth centuries and before the coming of the Dutch government in general, the ideas and efforts to introduce Islamic law reform had always revolved around adat and cultural influences, which are alien to Islamic principles. Such efforts have been often called a purification and is inextricably linked to the salafiyyah movement which seeks justification for all principles in scripture. In the field of Islamic law, it was manifested in the determination to eradicate the fanaticism of the madhhab urging instead that much more attention should be paid to ijtihad.
Under the Dutch government, as briefly stated above, the use of Islamic law was permitted by fits and stains inside the religious court. As it is very well known, it was under the revised Islamic policy of Christian Snouck Hurgronje (1857-1936) that Islamic law was subject to a decline and succumbed to crisis in terms of its political and legal status in the state and its use inside the courtroom. He legitimated the implementation of his policy by the extensive use of what was then called receptie theory, a theory that recommends the use of prevailing adat or customary law rather than that of law of Islam.
There is no proper acceptance of Islamic law in the Indonesian legal system, even after its independence. The theory of receptie still strongly influences Indonesian legal system and many scholars. This is why to begin with according to Musim modernists, the first step in the reform is to eliminate the receptie theory of Christian Snouck Hurgronje from the Indonesian legal system. If this effort should succeed, however, as B.J. Bolland argues, it seems that it would be only the partial realization of Islamic law, i.e. an attempt to include certain elements of Islamic law through regulation by the government, which traditionally impinges family laws.
This legal and political effort was supported by two prominent figures, Hazairin and Sajuti Thalib. Hazairin cogently argues that after Indonesian independence and the 1945 Constitution was used as the basis of the state, all regulations and rules of the Dutch government based on receptie theory should have been nullified, because they did not concur with the spirit of the constitution. This is why the receptie theory should exit from the Indonesian legal system and will never again come into effect. Later, Hazairin stigmatized receptie theory the “theory of evil”. His rationale is that many Muslims, by following this theory, are being influenced to advance customary law instead of Qur’an and Sunnah, which simply means violating Islamic principles. It is his outspoken criticism that later has often been called the receptie exit theory.
Dealing with the relationship between Islamic law and adat or customary law in particular, Sajuti Thalib developed Hazairin’s receptie exit theory into what he calls receptio a contario. It says that Islamic law is valid for all Muslims, especially in marriage and inheritance law, because it pertakes of their own religious soul and morality. Pertinently, adat or customary law is also valid for Muslims as long as does not violate Islamic principles.
It takes no more than a glance to see, these efforts suggest very clearly the political contestation within which Islamic law was debated by many people with pulling political interests and aspirations in policy-making institution. What is interesting to note is the fact that the debate about the political contestation of Islamic law has reflected and to some extent the social need for and practices of Islamic law in daily life. The introduction of the theory of receptie, receptie exit and receptio a contrario respectively has proved the close relationship between the social dimensions of Islamic law reform since the very beginning of Indonesia up to the establishment of the New Order government. The application of each theory, furthermore, strongly suggests the political contestation of Islamic law
This social and political dimension of the spirit of Islamic law reform became more and more clearly apparent in the light of the government’s programme emphasizing its development projects and push for modernization. As we can see later, Islamic law was involved in its development project. At first, this was often in conflict of the principle of Islamic law. Islamic principles were actually even seen as an obstacle towards developing the country. The case of the Marriage Act Proposal at the beginning of 1970s, which elicited a huge protest from Muslims, is often seen as evidence of the issue.
Later, policy was changed towards making use of all aspects of Islamic principles to support and to legitimize government programmes. The establishment of the Council of Indonesian Ulama in 1975 was in fact aimed at making sure that ulama would give their help to guide the Muslim community towards supporting government projects. In fact, the government often took advantage of it by using its fatwas to guarantee that what government wanted to do was not in conflict with Islamic principles. Fatwas such as these on family planning, in vitro fertilization, and similar issues clearly involved government interests. This is not to say that the council of Indonesian ulama has been completely subject to the government interests. By contrast, there were and there are on-going dynamism and debate within the council as reflected in its fatwas that as leader of Muslim community ulamas are independent.
Under the Dutch government, as briefly stated above, the use of Islamic law was permitted by fits and stains inside the religious court. As it is very well known, it was under the revised Islamic policy of Christian Snouck Hurgronje (1857-1936) that Islamic law was subject to a decline and succumbed to crisis in terms of its political and legal status in the state and its use inside the courtroom. He legitimated the implementation of his policy by the extensive use of what was then called receptie theory, a theory that recommends the use of prevailing adat or customary law rather than that of law of Islam.
There is no proper acceptance of Islamic law in the Indonesian legal system, even after its independence. The theory of receptie still strongly influences Indonesian legal system and many scholars. This is why to begin with according to Musim modernists, the first step in the reform is to eliminate the receptie theory of Christian Snouck Hurgronje from the Indonesian legal system. If this effort should succeed, however, as B.J. Bolland argues, it seems that it would be only the partial realization of Islamic law, i.e. an attempt to include certain elements of Islamic law through regulation by the government, which traditionally impinges family laws.
This legal and political effort was supported by two prominent figures, Hazairin and Sajuti Thalib. Hazairin cogently argues that after Indonesian independence and the 1945 Constitution was used as the basis of the state, all regulations and rules of the Dutch government based on receptie theory should have been nullified, because they did not concur with the spirit of the constitution. This is why the receptie theory should exit from the Indonesian legal system and will never again come into effect. Later, Hazairin stigmatized receptie theory the “theory of evil”. His rationale is that many Muslims, by following this theory, are being influenced to advance customary law instead of Qur’an and Sunnah, which simply means violating Islamic principles. It is his outspoken criticism that later has often been called the receptie exit theory.
Dealing with the relationship between Islamic law and adat or customary law in particular, Sajuti Thalib developed Hazairin’s receptie exit theory into what he calls receptio a contario. It says that Islamic law is valid for all Muslims, especially in marriage and inheritance law, because it pertakes of their own religious soul and morality. Pertinently, adat or customary law is also valid for Muslims as long as does not violate Islamic principles.
It takes no more than a glance to see, these efforts suggest very clearly the political contestation within which Islamic law was debated by many people with pulling political interests and aspirations in policy-making institution. What is interesting to note is the fact that the debate about the political contestation of Islamic law has reflected and to some extent the social need for and practices of Islamic law in daily life. The introduction of the theory of receptie, receptie exit and receptio a contrario respectively has proved the close relationship between the social dimensions of Islamic law reform since the very beginning of Indonesia up to the establishment of the New Order government. The application of each theory, furthermore, strongly suggests the political contestation of Islamic law
This social and political dimension of the spirit of Islamic law reform became more and more clearly apparent in the light of the government’s programme emphasizing its development projects and push for modernization. As we can see later, Islamic law was involved in its development project. At first, this was often in conflict of the principle of Islamic law. Islamic principles were actually even seen as an obstacle towards developing the country. The case of the Marriage Act Proposal at the beginning of 1970s, which elicited a huge protest from Muslims, is often seen as evidence of the issue.
Later, policy was changed towards making use of all aspects of Islamic principles to support and to legitimize government programmes. The establishment of the Council of Indonesian Ulama in 1975 was in fact aimed at making sure that ulama would give their help to guide the Muslim community towards supporting government projects. In fact, the government often took advantage of it by using its fatwas to guarantee that what government wanted to do was not in conflict with Islamic principles. Fatwas such as these on family planning, in vitro fertilization, and similar issues clearly involved government interests. This is not to say that the council of Indonesian ulama has been completely subject to the government interests. By contrast, there were and there are on-going dynamism and debate within the council as reflected in its fatwas that as leader of Muslim community ulamas are independent.
