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Islamic law had been subject to a fluctuating relationship with the state institutions since the colonial period up to the first half of the New Order regime. Given this historical fact, political acceptance and legal accommodation of Islamic law constitutes a significant achievement by modern legal reform of the current Indonesian Islam. It is therefore to his credit that it can generally be said that nowadays Islamic law constitutes a part of national law of Indonesia. Also, it constitutes the a positive result of what we call the transformation of fiqh to law.
It should be noted that in many other Muslim countries reforms have often resulted in the judicial limitation of Islamic law to what we call family matters. Islamic courts in many Muslim countries such as in Egypt and in Tunisia have also been abolished. These are unequivocal signal that the extension of the state power and the triumph of European-derived codification, that as Asad would claim have together been seen as essential to secularization.
The transformation of fiqh into the state law in Indonesia has proved to share similarities. Both have asserted Western influences in the sense that in practice Islamic law has adopted the use of the institution of court or tribunal and its structural authority and the code or legislation form of law which originally stem from Western tradition of law. But the differences show significant picture of the scope of Islamic law, the way it has been applied in the nation-state of Indonesia.
Instead of confining the jurisdiction of Islamic law to family matters, the transformation, I would argue, has been a move to prove the reverse. It potentially paved the way towards enlarging the scope of Islamic rules within national legal system. The fact that Islamic religious courts only adjudicate in matters of family law is undoubtedly true. But at the same time any legislation pertaining to the Islamic law of social and economic contracts (mu‘amalah) and rituals seems to have been enacted without hindrance by the state. The law pertaining to the Islamic Bank Muamalat and the administration of alms giving by the President may be seen as evidence of this.
Such facts give us a very distinct picture of the existence and performance of Islamic law in Indonesia. There seems to be sort of pattern, I would say, upon which the political discourse of the transformation of Islamic law into state law has gradually come to rely. The transformation was applied in entirely to family matters. As is the case in other Muslim countries, this has been done by enacting Muslim family law through legislation after it has been reformed.
Furthermore, there was a secure path waiting for it in Indonesia where Islamic family law has its own institutions, i.e. religious courts. Viewed from the view-point of history there is actually nothing new. But this clearly signifies the political significance of Islamic family law in the New Order. To my mind, Islamic family law, therefore, has been completely transformed into state law abstracted from its classical jurisprudence form of origin (fiqh) and transposed into the state legislation. Pertinently this was accomplished by the use a modern type of court which was originally Western. This is why in the field of (family) law Indonesia is more advanced than it is in a number of Islamic countries.
It is worth mentioning that the Indonesian Religious Court and its development has been taken as a model to be copied or followed by other member states of the South East Asia Shari’ah Association (SEASA) in its 3rd forum held on December 1985 in Colombo, Sri Lanka. For this reason Islamic family law in Indonesia indeed is an example of modern Islamic legislation par excellence.
In the areas other than family matters, Islamic law in Indonesia has been partially transformed. In this sense, the transformation carries two meanings. First, it means that Islamic law can be a part of the whole system of the state law of Indonesia. In this sense, a specific provision of Islamic law can be legislated, such as the Law of Islamic Bank, the Law of zakah (alms-giving) and the Law of waqf (religious endowment). All these laws are clearly cited in Islamic terms. Second, the transformation of Islamic law into the state law means that it becomes some of the raw material upon which legislation relies. This means that any legislation enacted by the state should not violate the principles of Muslim religious law.
It should be noted that in many other Muslim countries reforms have often resulted in the judicial limitation of Islamic law to what we call family matters. Islamic courts in many Muslim countries such as in Egypt and in Tunisia have also been abolished. These are unequivocal signal that the extension of the state power and the triumph of European-derived codification, that as Asad would claim have together been seen as essential to secularization.
The transformation of fiqh into the state law in Indonesia has proved to share similarities. Both have asserted Western influences in the sense that in practice Islamic law has adopted the use of the institution of court or tribunal and its structural authority and the code or legislation form of law which originally stem from Western tradition of law. But the differences show significant picture of the scope of Islamic law, the way it has been applied in the nation-state of Indonesia.
Instead of confining the jurisdiction of Islamic law to family matters, the transformation, I would argue, has been a move to prove the reverse. It potentially paved the way towards enlarging the scope of Islamic rules within national legal system. The fact that Islamic religious courts only adjudicate in matters of family law is undoubtedly true. But at the same time any legislation pertaining to the Islamic law of social and economic contracts (mu‘amalah) and rituals seems to have been enacted without hindrance by the state. The law pertaining to the Islamic Bank Muamalat and the administration of alms giving by the President may be seen as evidence of this.
Such facts give us a very distinct picture of the existence and performance of Islamic law in Indonesia. There seems to be sort of pattern, I would say, upon which the political discourse of the transformation of Islamic law into state law has gradually come to rely. The transformation was applied in entirely to family matters. As is the case in other Muslim countries, this has been done by enacting Muslim family law through legislation after it has been reformed.
Furthermore, there was a secure path waiting for it in Indonesia where Islamic family law has its own institutions, i.e. religious courts. Viewed from the view-point of history there is actually nothing new. But this clearly signifies the political significance of Islamic family law in the New Order. To my mind, Islamic family law, therefore, has been completely transformed into state law abstracted from its classical jurisprudence form of origin (fiqh) and transposed into the state legislation. Pertinently this was accomplished by the use a modern type of court which was originally Western. This is why in the field of (family) law Indonesia is more advanced than it is in a number of Islamic countries.
It is worth mentioning that the Indonesian Religious Court and its development has been taken as a model to be copied or followed by other member states of the South East Asia Shari’ah Association (SEASA) in its 3rd forum held on December 1985 in Colombo, Sri Lanka. For this reason Islamic family law in Indonesia indeed is an example of modern Islamic legislation par excellence.
In the areas other than family matters, Islamic law in Indonesia has been partially transformed. In this sense, the transformation carries two meanings. First, it means that Islamic law can be a part of the whole system of the state law of Indonesia. In this sense, a specific provision of Islamic law can be legislated, such as the Law of Islamic Bank, the Law of zakah (alms-giving) and the Law of waqf (religious endowment). All these laws are clearly cited in Islamic terms. Second, the transformation of Islamic law into the state law means that it becomes some of the raw material upon which legislation relies. This means that any legislation enacted by the state should not violate the principles of Muslim religious law.
