From Fiqh to Law: Indonesian Legal Accommodation of Islamic law

Cipto Sembodo

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.

Fiqh Indonesia: Local Context of Islamic Legal Reformism

By Cipto Sembodo

An in-depth overview of transformation of fiqh to state law of Indonesia provides us with a local context of Islamic legal reformism. Also, it reveals the characteristics of the transformation of fiqh or Islamic law into state law which is specifically Indonesian. However, it seems to confirm the impact of the Western influence of modernization and the concept of nation-state on the recent development of Islamic law in general.

In local context of Indonesian Islam, I would argue, it says that instead a process of the Islamization of the state the reverse was the case. It is the making of Indonesian fiqh, or let’s say fiqh Indonesia. Such transformation precisely imported the state political discourse of Islamic law in the New Order government. It is safe to say that more than ever Islamic law had been reformulated in accordance with the state political programmes and interests. However, this is not to confirm the arbitrary and haphazard nature with which Joseph Schacht associated modern Islamic legislation. On the contrary, it is a sort of legislative accommodation of Muslims interests. There can be no question that the step-by-step process of the transformation of Islamic legislation was supported by Muslims. Therefore, there have been mutual benefits for both Muslim people and the state. Their aspirations need to be accommodated, but the state also needs them to legitimize its interests.

Be that as it may, the state political discourse on the transformation of fiqh or Islamic law into state law depicts a locally Indonesian character of Islamic law or fiqh Indonesia in practical terms. On the one hand, it functions to resolve the quasi- conflict between Islamic law and adat practices. This without doubt had been the fitting instrument to revise the conflict approach in the relationship between the two that had its origins in colonial policy. The transformation has downed on more and more legal scholars and Muslim leaders, Fadhil Lubis says, that the conflict was created or at least exaggerated to suit the political purposes of the colonial administration. This specific phenomenon of Indonesia, to some extent, confirms what Léon Buskens calls as the changing relationships between Islamic and state law. According to him, the creation of a national legal system in many Muslim countries after their independence did not mean re-introduction of Islamic law as it existed before colonialization. Any attempts of islamization in the form of Islamic law codification seem only to legitimize existing regimes.

As a result, on the other hand, the transformation of fiqh or Islamic law into state law under the New Order stimulated on advance to make Islamic law closer to adat practices and institutions. This is proved by the extensive accommodation of adat practices in the Compilation of Islamic law. Notwithstanding the fact that this accommodation is perceived as controversial, some adat and local practices have been considered not to be in contravention of Islamic law. Thus, apart from the political overtones with which Islamic law has long been associated, it has now touched upon the issue of methodology. In the light of establishing harmonious relationship with adat.. The transformation is likely to provide Islamic law with the empirical method and the living traditions which can be to be used in the law-discovering process. Therefore, instead of the textual domination of the application of Islamic law, ideally it can be empirical in character.

The above characteristics seem to agree with the basic ideas of the transformation and reformism. In addition to the purpose of Islamic law (maqasid al-shari‘ah) to which the transformation refers, Islamic law is truly a dynamic and living legal system with a high degree of adaptability. So, it is found no problem in adjusting the application of Islamic law to a specific locality, custom, tradition, or culture without endangering the universality of Islamic law. This way of thinking may change some of the prescriptions of Islamic law, departing from what is in its sources. Also for these reasons, the search for its normative basis can be based on specific context of localities. This is exactly the point that signifies the liberal character and the commitment to plurality, so to speak, of the discourse of Islamic law.