Comply with the Marriage Act

Same with Comply with the Qur’an and Sunnah of Prophet

Muhammad PBUH

Khoiruddin Nasution

, Noryamin Aini

1,b

, Muhammad Helmy Hakim

2,a

Islamic Family Law, Sunan Kalijaga State Islamic University, Indonesia

Department of Legal Sciences, Syarif Hidayatullah State Islamic University, Indonesia

Faculty of Sharia, Antasari State Islamic University, Indonesia

Keywords: Marriage Act, Jurisprudence, fatwa, obeying the law, obeying the Qur'an, obeying the sunnah of

the prophet

Abstract: Obeying the Marriage Act for ‘Abduh is the same as the command and obligation of the same

status by obeying the Qur’an and sunna of the Prophet Muhammad PBUH. Because obeying the

Marriage Act set by the parliament is a form of obeying the government (ûli al-amr). Obedient

obligations to the government in the form of the the Marriage Act is the realization of the command

to obey Allah, obey the apostle and obey the government (ûli al-amr), as stated in al-Nisa’ (4): 59

and 83. the Marriage Act as a manifestation of Parliament’s decision is the realization of the

agreement of all people in one country. The people as a whole are represented by members of

parliament, because to gather all the people, the present, is something that is not possible. As a

solution, the representation system is one of the ways that can be taken. So the decisions of these

representatives are positioned as agreements and decisions of all people. Consequently, this

agreement must be obeyed. The people’s representative agreement is also for the present time

become ijmâ‘, the third source of Islamic law after the al-Qur’an and the sunnah of the prophet

Muhammad PBUH. This paper tries to explain how the basis used by ‘Abduh to declare the

obligation to obey the Marriage Law, is the same as obeying the Qur’an and sunnah of the prophet

Muhammad PBUH

1 INTRODUCTION

Obeying the Marriage Act for ‘Abduh is the same

as obeying the Qur’an and sunna of the Prophet

Muhammad PBUH. Because obeying the laws set by

the parliament is a form of obeying the government

(ûli al-amr). Obedient obligations to the government

in the form of the law is the realization of the

command to obey Allah, obey the apostle and obey

the government (ûli al-amr), as stated in al-Nisâ’ (4):

59 and 83. Act as a manifestation of Parliament’s

decree is the realization of the agreement of all the

people. The people as a whole are represented by

members of parliament, because to gather all the

people, for the present, is something that is not

possible. As a solution, the representation system is

one of the ways that can be taken. So the decisions of

these representatives are positioned as agreements

and decisions of all people. Consequently, this

agreement must be obeyed. The people’s

representative agreement is also for the present time

become ijmâ‘, the third source of Islamic law after the

al-Qur’an and the sunnah of the prophet Muhammad

PBUH.

This paper tries to explain how the concept of law

authority theorized by Muhammad ‘Abduh, and how

relevant this theory is with the obligation to comply

with the laws stipulated in Indonesia, as a form of

obedience to the government (ûli al-amr), as

governed by Islam in Qur’an al-Nisa’ (4): 59 and 83,

and as a manifestation of obedience to ijmâ‘.

In analyzing how Indonesian Muslim respond to

marital law regulations are used, Max Weber's theory

of social action is used. Max Weber's social action is

an individual action as long as the action has a

subjective meaning or meaning for him and is

Nasution, K., Aini, N. and Hakim, M.

Comply with the Marriage Act Same with Comply with the Qur’an and Sunnah of Prophet Muhammad PBUH.

DOI: 10.5220/0009920901710178

In Proceedings of the 1st International Conference on Recent Innovations (ICRI 2018), pages 171-178

ISBN: 978-989-758-458-9

171

directed to the actions of others. An action will be said

as a social action when the action is actually directed

to other people (other individuals).

There are 5 main characteristics of social action

according to Max Weber, namely; 1. If the human

action according to the actor has a subjective meaning

and this can include various real actions, 2. Actual

actions can be completely fixed, 3. The action can

come from the result of a positive influence on a

situation, actions that are deliberately repeated, or

action in the form of secret consent from any party, 4.

The action is directed at someone or to several

individuals, and 5. The action is concerned with the

actions of others and directed to others.

Social action is divided into four (4). First,

instrumental rationality. This type of action is an

action taken by someone on conscious consideration

and choice in accordance with the availability of tools

and / or facilities used to achieve it. Second, rational

action of value. This type is an act that has the nature

that the existing tools are only conscious

considerations and calculations, while its objectives

already exist in relation to absolute individual values,

such as someone prioritizing older people when

queuing for groceries, because including social and

religious values. Third, emotional action. This type of

action is an action based on emotion, such as a loving

relationship between two teenagers who are in love or

are in love. Fourth, traditional actions. Traditional

action is an action taken because of habits obtained

from ancestors, without conscious reflection or

planning.

It could be said that the first two entered actions

that had conscious, rational and objective planning

and consideration, while the last two had no planning

and no conscious, rational and objective

consideration.

In the act of instrumental rationality there is

planning, and the basis of planning depends on the

availability of facilities and infrastructure. While in

Rational Actions there is value planning, and

consideration is the value (Ritzerr, 2014).

The scope of the discussion of this paper as well

as the systematic discussion is the explanation of the

process of the birth of the law in the Indonesian

constitution system, after the background. Then

explained the concept of ijma‘ of Muhammad

‘Abduh. After that it was shown the authority of

Indonesian law when correlated with the concept of

Muhammad ‘Abduh. Finally the screw is closed with

a concluding remark in the closing section.

2 THE PROCESS OF

STIPULATION OF LAW IN

THE INDONESIAN

CONSTITUTION

Regarding the process of the birth of the Law in

the Indonesian Constitution, more specifically to look

at the authority of the law can be measured by

referring to Law No. 12 of 2011 on Formation of

Legislation. Of the thirteen chapters and 104 articles

contained in this law, there are 6 (six) chapters that

are relevant to the authority of the law, namely

Chapter IV: Planning, Chapter V: Preparation of

Legislation, Chapter VII: Discussion and Ratification

of the Bill, Chapter IX: Enactment, Chapter X:

Dissemination, Chapter XI: Community Participation

(Law No. 12 of 2011).

Based on these 6 (six) chapters, nine (9) points can

be recorded. First, that the making of legislation

includes five stages, namely; 1. planning, 2.

preparation, 3. discussion, 4. ratification or

determination, and 5. enactment, as stated in article 1

paragraph (1) of this Law. Each stage certainly

involves many people.

Second, that the law is a legislative and executive

product through certain procedures, as mentioned in

article 1 paragraph (2) that the Law is established by

the House of Representatives (DPR) with mutual

agreement with the President, as stated in Article 1

paragraph (3).

Third, that the legislation planning starts from the

National Legislation Program which is prepared in a

planned, integrated and systematic manner, in order

to realize the national legal system, which is based on

the aspirations and legal needs of the community.

This point can be deduced from article 1 paragraph

(9), article 17 and 18.

Fourth, it is still planning, that the birth of

legislation is the result of the study, which is called

the academy script, as in article 1 paragraph (11).

Fifth, in connection with the process of drafting

the law, the second step is mentioned in Chapter V:

Preparation of Legislation, Part One, Formulation of

Laws, articles 43 to 51. In this discussion there are 3

articles that are relevant to this discussion, namely

articles 43, 44 and 50. Core article 43, that the Draft

Law can come from the DPR or the President.

Whereas the Draft Law must be accompanied by an

Academic Manuscript and a statement containing the

subject matter and the regulated content matter.

While the core of article 44, that Academic Text is an

integral part of the Act. Article 50, the DPR discusses

the Draft Law within a maximum period of 60 (sixty)

ICRI 2018 - International Conference Recent Innovation

172

days from the date the President's letter is received.

Sixth, concerning the discussion of the law, step

3, Chapter VII: Discussion and Ratification of the

Draft Law, Part One Discussion of the Draft Law,

Article 67. That the discussion of the draft law is

carried out in two levels of discussion, namely: a.

level I talks in commission meetings, joint

commission meetings, Legislation Board meetings,

Budget Agency meetings, or Special Committee

meetings; and b. level II talks at the plenary meeting.

Seventh, with regard to the passage of the law,

step 4, Part Two Ratification of the Draft Law, Article

72. The essence of this article is that the draft law that

has been approved by the DPR was submitted by the

DPR leadership to be passed by the president.

Eighth, related to the dissemination of the law,

Chapter X: Dissemination, Part One: Dissemination

of the National Legislation Program, Draft Law, and

Law, Article 88. That the purpose of the National

Program on the Legislation (Prolegnas)

dissemination, Draft Law and Act is to provide

information and / or obtain community input and

stakeholders.

Ninth, regarding the participation of the

community, in Chapter XI: Community Participation,

Article 96 paragraph (1). That the community has the

right to provide input verbally and / or written in the

Establishment of Legislation, can be done through: a.

public hearings; b. work visit; c. socialization; and /

or d. seminars, workshops, and / or discussions, and

can be carried out by individuals or groups of people

who have an interest in the substance of the Law. To

facilitate the community in providing input, each

draft of legislation must be easily accessed by the

community.

The entire process of producing laws and

regulations, in accordance with the applicable laws

and regulations, does not always work according to

the ideal and stated. Five stages of the enactment of

the law referred to in the law, there may be among

those stages that do not run according to the ideal and

stated in the law. Maybe at the planning stage is not

in accordance with the rules of the law. It may also be

in the next stage, the preparation that is not in line

with the law. Also does not close the possibility in the

discussion phase that is less than optimal. Likewise

there is a possibility that it is not ideal at the

discussion stage. It could also be at the stage of

ratification or stipulation that is not in line with the

law. It may also be at the stage of enactment that is

not ideal. Finally, maybe the stage that is not ideal is

at the stage of community participation.

However, from the description of the process of

the birth of the law in the Indonesian constitution,

from planning to endorsement, it can be concluded

how many people were involved in the process of

birth of legislation. The grouping of people involved,

in constitutional terms is called from the legislative,

executive and community groups. The people

involved can also be grouped into expert groups

(‘âlim, ‘ulamâ’), leaders (‘âmir, ‘umara’), and

community leaders (râis, ru’asâ’). This agreement can

be equated with the decision of uli al-amr in the

language of the Qur’an. Thus, following this

agreement is identical with following uli al-amr, an

agreement that must be obeyed after the Qur’an and

the sunnah of the prophet Muhammad PBUH.

To compare with other Islamic legal thought

products; fikih, fatwa, tafsir (interpretation),

jurisprudence, can be explained by the birth process

of each.

Fikih (Jurisprudence) in terms of language means

al-fahmu (understanding). In terms of the usually

used, fiqh is defined, for example, by ‘Abd al-Wahhb

Khallâf, ‘a collection of laws that are practical and

detailed, originating from a detailed argument’

(Khallâf, 1971). In the process of birth of fiqh there

are 3 (three) basic elements in it, namely: 1.the fâqih

(Islamic jurists) who do ijtihad, meaning fâqih is

mujtahid, 2.nash (the source of Islamic teachings, in

the form of the Qur’an and the sunnah of the prophet

Muhammad SAW.), and 3.fiqh (the result of

understanding / thinking of a fâqih on texts). From

this definition and process it can be concluded that

fiqh is the result / product of thought / understanding

in the field of Islamic law as a result of understanding

the texts. Fikih (Jurisprudence) is the result of

individual understanding. The point is that these

thoughts or opinions are the result of individual

understanding, not collective opinions (opinions of

many people). As for if there is the same

understanding between one expert (mujtahid, fâqih)

with another fâqih, or some experts (fuqahâ‘ / plural

of fâqih) is not designed (by designed).

Fatwa is the opinion of scholars on a particular

problem, the procedure of which begins with the

question. Therefore, in the procedure the birth of a

fatwa has three elements, namely: 1.mufti, a person or

group of experts who issue opinions (fatwa),

2.mustafti

, people who ask, and 3.fatwa, opinions or

answers from muftis. In general, a mufti is a person

who is trusted by the general public to answer the

problems that arise in the life of society, namely to

determine the law of halal or haram, may or not (Al-

Nawawi, 1990). Fatwas can be grouped into two:

individual fatwas, and group fatwas. In Indonesia

group fatwas are generally born from religious

organizations, such as the religious council by

Comply with the Marriage Act Same with Comply with the Qur’an and Sunnah of Prophet Muhammad PBUH

173

Muhammadiyah, Bahtsul Mas'il in Nahdlatul Ulama,

and Majlis Fatwa in the MUI. Thus, fatwas can be

grouped into two, namely: (1) fatwas that are

individual in common with fiqh, and (2) fatwas that

are group, collective, results of understanding, ijtihad

a number of Islamic jurists.

Tafsir (Interpretation) is the same as fiqh, which

is also the result of individual thoughts (individuals)

from an expert of interpretation (mufassir) who do

ijtihad. Mufassir are also mujtahid. From this

definition it can be concluded that interpretation is

also the result / product of thought in the field of

Islamic law as a result of understanding the texts.

Thus, in the process of the birth of interpretation there

are 3 (three) main elements involved, namely: 1.the

mufassir (expert of interpretation) who do ijtihad,

which means the mufassir are also mujtahid together

with fâqih, 2.nash (the source of Islamic teachings, in

the form of the Qur'an and the sunnah of the prophet

Muhammad SAW.), which is the source of

determination, and 3.Tafsir (interpretation) (the result

of the understanding / thought of an exegete on the

text). Again and again the same as fiqh, interpretation

is the result of individual understanding (thinking),

not collective opinion (the opinion of many people.

The jurisprudence in terms of language is the

science or philosophy of law (science or philosophy

of law). In terms of terms or usage that are more

popular, jurisprudence is defined as a collection of

judges' decisions in the court that can be used by

judges as a basis for decisions, especially in cases

where the law has not been found in writing in the

legal books. So the main idea that emerges from

jurisprudence is the judge's decision (qâd}i).

Basically the process of the birth of a judge's decision

in court is the same as the birth process of the fatwa,

namely: starting with the person who asks / complains

(problem people), then, the judge (qâd}i) gives an

answer (decision) in the court, the decision is an

opinion or the answer from qâd}i, and of course the

opinion / answer is also based on the nash (al-Qur'an

and / or sunnah of the prophet Muhammad SAW.

The difference between fiqh, tafsir

(interpretation) and fatwa on the one hand, with the

judge's decision on the other hand, is that the judge's

judgment in court is sometimes collective (judges),

for example 3 judges sit together into one council.

Again need to be reminded that qâd} î is also a

mujtahid. The effort they did to find an answer was

called ijtihad, the same as the effort carried out by the

fâqih, mufassir and mufti. In summary, fâqih,

mufassir, mufti, and qâd} î are both mujtahid, and the

effort they make to establish law (opinion) is called

ijtihad. The result of their ijtihad is what is called the

product of Islamic legal thought. To remind, the

thoughts (legal products) of each are: fâqih (jama‘ or

pluralnya fuqahâ’) gives birth to fiqh, mufassir (jama‘

or plural mufassirûn / mufassirîn) gives birth to

interpretation, mufti gives birth to fatwa, and qâd} î

gives birth court ruling.

The Compilation of Islamic Law (KHI) is the

opinion of many people, the same as the law. The

birth process of the Compilation of Islamic Law

(KHI) is the same principle as the process of the birth

of the law. The stages of the process are namely; 1.

planning, 2. preparation, 3. discussions, 4. ratification

or determination, and 5. enactment. In the KHI

process only one process was not carried out, namely

the Enactment stage. This is also the reason why KHI

is not become a law. With the process carried out in

the birth of KHI, it was proven that the involvement

of many experts and scientists was the same as the

process of the birth of the law. Similarly with the

involvement of many leaders in producing KHI is

same as in law. Thus KHI is also the result of the

thinking of many people, many experts, many

scientists, many leaders, even though the birth

process is less than one when compared to the law. It

is not even exaggerating to say that the stages carried

out in the birth process of KHI are the same and

follow the stages of the birth process of the law, only

less the stage of stipulation by the legislative body. So

it is no exaggeration to say the legal power of KHI is

the same as the law.

Thus when the products of Islamic legal thought

are grouped, two large groups will be born. First, the

product of Islamic legal thought that is individual.

Second, products are thoughts that are collective. The

products of Islamic legal thought that are individual

are fikih, fatwa, tafsir (interpretations), and

jurisprudence. Fatwa and jurisprudence are

individualized, because even though there are

collectives, the number of experts involved remains

very limited when compared to the products of

collective Islamic legal thought. On the other hand,

there are two products of collective thinking, namely

the law and the KHI.

3 IJMA` OF MUHAMMAD

‘ABDUH AND ITS RELEVAN

TO INDONESIA MARRIAGE

ACT

In order to understand the concept of Muhammad

‘Abduh more complete and perfect, it is necessary to

know a little about ‘Abduh’ life. ‘Abduh was born in

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174

1266 H / 1849 AD in a village in Egypt`s Gharbiyah

Province. After moving from the original village of

Mahllat al-Nashr, the Shubrakhit region, Buhayrah

Province, his father, ‘Abduh bin Hasan Khairullah

had built a house for his family in the new village.

‘Abduh's mother named Junaynah was a widow who

came from a village near Tanta, Gharbiyah Province

(‘Abduh, 1922). Birth of ‘Abduh coincides with a

time when society does not get justice from the

government. At that time Egypt was led by

Muhammad Ali Pasha. Abduh’ father is among many

people who disagree and oppose the tyrannical

policy. One of the tyrannical policies meant is the

high tax that must be paid by the people. As a result,

Mr. ‘Abduh was expelled by the government for 15

years. Having finished the tyranny, his father returned

to Mahlat Nashr, a place where ‘Abduh grew,

developed and spent most of his childhood. The

beginning of his education, age 10 ‘Abduh learned to

read and write from his father. Then ‘Abduh was sent

to study al-Qur’an at the Ahmadi mosque in Tanta.

Finally, the results earned the title of al-Qari al-

Hafidz. ‘Abduh is able to memorize the whole Qur’an

in a period of 2 (two) years, something that is not

commonly done by many people.

‘Abduh had stopped school because of the

method of learning which he thought could not

educate. End of the disappointment ‘Abduh married.

Fortunately ‘Abduh met Jamaluddin al-Afghani, who

changed his destiny because he was invited to go

together to Paris France and become a disciple from

1871 to 1879. Together with al-Afghani they

established the Journal of al-Urwah al-Wusqa in

Paris, as a media for carrying out political

movements. Since he was appointed as the Grand

Mufti of Egypt on June 3, 1899, and became a

member of the Legislative Body on June 22, 1899,

‘Abduh carried out many reform efforts in Egypt.

Among them are renewal in court and changing the

school curriculum. Judges are equipped with general

knowledge. Thus the curriculum was changed from a

curriculum that only studied religious knowledge

coupled with general knowledge. Likewise, changing

conventional learning methods becomes more

common and newer methods (‘Abduh, 1960).

Obeying the law for ‘Abduh is the same as the

command and obligation of the same status by

obeying the Qur’an and sunna of the Prophet

Muhammad. Because obeying the laws set by the

parliament is a form of obeying the government (uli

al-amr). Obedient obligation to the government in the

form of the law is the realization of the command to

obey Allah, obey the apostle and obey the

government (uli al-amr), as mentioned in al-Nisa’

(4): 59 and al-Nisa’ (4): 83. The law as a form of the

parliament’s decree is the realization of the agreement

of all the people. The people as a whole are

represented by members of parliament, because to

gather all the people, the present, is something that is

not possible. As a solution, the representation system

is one of the ways that can be taken. So the decisions

of these representatives are positioned as agreements

and decisions of all people. Consequently, this

agreement must be obeyed. This people’s

representative agreement is also for the present time

the form of ijmâ‘ which is the source of the third

Islamic law after the Qur’an and the sunnah of the

prophet Muhammad saw.

The concept of ‘Abduh is different from the

concept of thinkers in general who demand agreement

from all Muslims as an agreement that must be

obeyed. According to ‘Abduh, the agreement of all

Muslims from all over the world, for the present time,

can hardly be done with three main reasons. First, the

number of Muslims is so large, it is not possible to

collect, or it is very difficult to get their

representatives. Second, the context of different

needs and demands between one country and another.

Likewise, the criteria and demands for the welfare of

one nation with another, even between one city and

another is different. So welfare considerations vary

according to the different demands of place,

circumstances, and environment, into consideration

(Rida, 1373). Third and is a continuation of the

second reason, the purpose of establishing and

enforcing the law which is state’s stipulation is to

uphold and realize the welfare of the people. People’s

welfare is also very dependent on the country context.

Therefore, the agreement of citizens in one country,

represented by chosen people, is the way out, ‘Abduh.

The obligation to comply with the law as a form

of agreement between the people (citizens) is a

realization of the obligation to comply with the

government, which means it is formal and legal. The

basic obligation to comply with this law is the

mandatory obligation to obey the government, as

stated in the letters al-Nisa’ (4): 59 and al-Nisa’ (4):

83. Obligation to comply with the government in al-

Nisa’ (4):59 and al-Nisa’ (4): 83, for the present

context, according to ‘Abduh, is a government in one

country, not a government in the context of an Islamic

state throughout the Muslim world.

For the complete of two verses of the al-Qur’an

referred to are the following: al-Nisa '(4): 59, “O ye

who believe! Obey Allah and obey the Messenger

(Him), and ulil amri among you. Then if you disagree

about something, then return it to Allah (the Qur'an)

and the Prophet (sunnah), if you truly believe in Allah

Comply with the Marriage Act Same with Comply with the Qur’an and Sunnah of Prophet Muhammad PBUH

175

and the day after that. That is more important (for

you) and better as a reult”. Al-Nisa’ (4): 83, ”And

when it comes to them a news about security or fear,

they then broadcast it. And if they give it to the

Apostle and ulil amri among them, surely those who

want to know the truth (will be able to) know it from

them (the Apostle and ulil amri). If it is not for the gift

and mercy of Allah to you, surely you will follow

shaitan, except for a small part (among you)”.

The meaning of the words uli al-amr referred to

in al-Nisa’ (4): 59 and 83, according to ‘Abduh

consists of large groups, namely experts in various

scientific fields (‘âlim singular, ‘ulamâ’ plural), and

famous leaders in the community (râ’is singular,

ruasa’/ ru’ûs al-nas plural), both in the tribal

environment, at the city, provincial level, and so on to

the national level. Such understanding is in

accordance with the meaning of the word uli al-amr,

where the word is in the form of jama (plural), which

means a number of famous people in the community

(Hasan, 1976).

To support the theory, ‘Abduh gave the historical

facts of Muslims, especially in the time of khulafa’ al-

râsyidîn, more specifically the first two caliphs. At

that time the word uli al-amr was used to refer to

people who became community leaders (ru’ûs al-nâs

leaders) and experts (‘ulamâ’, scientists) in various

scientific fields (‘ulamâ’) (Faruqi, 1992).

The basis for making scientists and famous

leaders in society is because of their ability to solve

problems that arise in their environment. Thus, their

status as representatives of the people is based on the

public’s trust in their abilities in various fields of

social life, both the ability related to science (as a

scientist) and the ability to lead (as a leader).

In other places ‘Abduh said, the word uli al-amr

was actually a pronoun from experts in solving the

problems faced by the ummah. So uli al-amr by itself

is a people who are believed to be able to provide

welfare to the ummah.

To support this opinion, ‘Abduh again recorded

the historical realities of Muslims that occurred

during the time of the Prophet Muhammad and

Khulafa’-al-râsyidîn, especially the first two caliphs,

Abu Bakr and ‘Umar ibn Khattab. ‘Abduh noted, in

Rasulullah's time, there were a number of people in

Medina who were to whom these people consulted in

solving the problems they faced; in the fields of

politics, administration, justice, and other fields.

The effort to get the best and quality

representatives in accordance with the above criteria,

according to uh ‘Abduh, can be done by holding

general elections, which can be done starting from the

city, province, to national level. On the other hand,

still in order to get truly qualified candidates, voters

must be truly given freedom. In line with this

endeavor, Faruki has the same idea as ‘Abduh, that to

get truly competent and trustworthy representatives,

is through general elections (elections) (Khel, 1980).

4 COMPLY WITH THE

MARRIAGE ACT

Based on the ‘Abduh concept, it can be

concluded that adhering to the Marriage Law No. 1 of

1974 on Marriage, and other laws follow is obligatory

for Indonesian citizens. Other laws are; Law No. 7 of

1989 on the Islamic Court, Law No. 3 of 2006 on the

Amendment of Law No. 7 of 1989 on the Islamic

Court, Government Regulation (PP) No. 10 of 1983

on Marriage and Divorce Permits for Civil Servants

(PNS), Government Regulation (PP) No. 45 of 1990

on Amendments to PP No. 10 of 1983 on Marriage

and Divorce Permits for Civil Servants (PNS) and

Compilation of Islamic Law of 1991.

The obligation to comply with these laws as the

realization of the obligation to obey the Indonesian

government (uli al-amr), as instructed in al-Nisa’ (4):

59 and 83. In addition, the law as a product of a

number of experts in various scientific fields, and

experts in solving various problems of the

community, have more comprehensive and

authoritative legal power from the products of

jurisprudence and individual fatwas. Since

jurisprudence and fatwa are principally only Islamic

law products that are individual (individual). While

the law is the result of the thinking of many

(collective) experts, and ‘Abduh positions the law as

ijmâ‘, the third source of Islamic law after the al-

Qur’an and the sunnah of the Prophet Muhammad. So

that obeying the law is the same as obeying the

command to obey the government and implementing

ijmâ ‘as the source of the third Islamic law after the

Qur’an and the sunnah of the Prophet Muhammad.

Very concisely, there are two basic reasons why the

Marriage Law must be obeyed according to ‘Abduh.

First, complying with the law is the realization of the

order to obey the government (uli al-amr). Second,

obeying the law is an obedient realization of ijmâ‘,

the source of Islamic teachings after the Qur’an and

the sunnah of the prophet Muhammad saw.

From the legislative process in the Indonesian

constitution, it can be concluded how many experts

are involved, experts in various aspects of life in

society. So that the involvement of a number of these

experts when linked to the basic substance of

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‘Abduh’s stipulation obliged to comply with the

government's decision, that in the law-making

process in Indonesia there were also many experts

involved. Thus it is not excessive to state that

Indonesia's constitutional law is in line with the

thoughts of ‘Abduh.

Indeed, Indonesian marital legislation is not only

a form of law, but there are also the Government

Regulations (PP) and Compilation of Islamic Law

(KHI). But it should be noted that these two rules in

principle contain rules that are in line and support the

contents of the law. The government regulation is the

implementation and description of the law, so the

substance must be in line with the law. While KHI is

also the result of many people's thoughts, even though

the birth process is not exactly the same as the law. It

is not even exaggerating to say that the stages carried

out in the birth process of KHI are the same and

follow the stages of the birth process of the law, only

less the stage of stipulation by the legislative body. So

it is no exaggeration to say the legal power of KHI is

the same as the law.

Thus based on the concept of ‘Abduh, Muslims

must obey the rules written in marriage laws and

regulations. Among the rules written in Indonesian

marriage legislation are as follows;

First, the principle of marriage is monogamy, as

stated in Law No. 1 of 1974 on Marriage, Article 3

paragraph (1), in principle in a marriage a man may

only have a wife, a woman may only have a husband.

Indeed there is a possibility of polygamy for a

husband, but only under certain conditions and with

specific requirements, as stated in Article 3 paragraph

(2) of Law No. 1 of 1974 on Marriage, The court can

give husband permission to have more than one wife

if desired by the party concerned. Article 4 paragraph

(1), If a husband has more than one wife as mentioned

in Article 3 paragraph (2) of this Law, he is obliged

to submit an application to the Court in his area of

residence. Article 4 paragraph (2) The court referred

to in paragraph (1) of this article only gives

permission to a husband who will have more than one

wife if (1) the wife cannot carry out her obligations as

a wife; (2) the wife gets a disability or an incurable

disease;(3) the wife cannot give birth to offspring.

Besides, the husband who will polygamy must

also be able to fulfill certain conditions, as stated in

article 5 paragraph (1) of the Law, To be able to apply

to the Court as referred to in Article 4 paragraph (1)

the Law must be fulfilled as follows: a. There is

agreement from the wife/wives; b.there is certainty

that the husband can guarantee the necessities of life

of their wives and children; c. There is a guarantee

that the husband will be fair to their wives and

children. The same rules are mentioned in KHI

articles 55 to 59.

Second, the necessity of the approval of the two

prospective brides, as mentioned in Law No. 1 of

1974 on Marriage, article 6 ‘marriage must be based

on the agreement of the two brides’. The same rule is

stated in KHI articles 16.

Third, the rules of age for men and women, as

mentioned in of Law No. 1 of 1974 on Marriage,

Article 7 paragraph (1), marriage is only permitted if

the man has reached the age of 19 (nineteen) years

and the woman has reached the age of 16 (sixteen)

years. The same rule is stated in KHI articles 15.

Fourth, divorce can only be done in front of a

court hearing, as stated in Law No. 1 of 1974 on

Marriage article 39 paragraph (1), divorce can only be

done in front of a court hearing after the court

concerned tries and does not stop reconciling the two

parties. The same rule is stated in KHI articles 115.

The same content is also mentioned in several

laws and regulations, such as Government Regulation

No. 10 of 1983 On Permission of Marriage and

Reliability for Civil Servants, and Indonesian law

books, such as the compilation of Indonesian Islamic

law. The application of the Compilation of Islamic

Law (KHI) is based on Presidential Instruction No. 1

of 1990.

Fifth, inheritance rights for boys and girls,

including for children of children who died first. That

the boy's part is the same as the girl's part, as stated in

the Compilation of Islamic Law, article 183, ‘The

heirs can agree to peace in the distribution of

inheritance, after each is aware of its share’.

Sixth, it is possible that there is a substitute heir,

as mentioned in the Compilation of Islamic Law,

Article 185 paragraph (1) ‘Heirs who die earlier than

the guardian, their position can be replaced by their

children, except those in Article 173’. The point of

article 173 is that heirs are not entitled to inheritance

because of the murder of the heir or are not entitled to

inheritance for committing slander which results in

the heir being sentenced to 5 years imprisonment or a

heavier sentence.

Likewise, marriage registration rules are

intended as a means to ensure that the marriage to be

carried out has fulfilled the conditions set out in

Indonesian legislation. The rule is stated in Law No.

1 of 1974 on Marriage, article 2, and the same rule is

stated in KHI articles 5.

The relevance of Abduh's view of the Indonesian

context, that the majority of Indonesian Muslims still

confront fiqh, fatwas and interpretations on the one

hand, with the law on the other. Jurisprudence, fatwas

and interpretations have the same position and

Comply with the Marriage Act Same with Comply with the Qur’an and Sunnah of Prophet Muhammad PBUH

177

authority as the Qur'an and the Sunnah of the Prophet

Muhammad, which is why it must be obeyed. While

the law has the same position as the government, it is

not compulsory to obey. Consequently, the legality of

marriage is still based on the views of the imam of the

school, such as the views of Imam al-Shafii from the

Shafi'i school. While the marriage law and the rules

that follow do not constitute the legality of the abash

or not of marriage. By borrowing from Max Weber's

social action theory, this behavior is still in a position

of emotional and / or traditional action, not yet

reaching objective rational action. Because by

considering the birth process of the law on the one

hand, with fiqh products, fatwas and interpretations,

on the other hand, of course the laws are more

authoritative and comprehensive. The law is called

more authoritative and more comprehensive, because

in the birth process the law involves many people and

many experts. Experts are also involved from various

sciences and expertise. The leaders involved in the

process of the birth of the law are also from various

layers, various contexts, and various cultures.

5 CONCLUDING REMARKS

Based on the discussion above, three conclusions

can be noted. First, in the legislative process in the

Indonesian constitution, there are many experts from

various fields of science and experts in various

aspects of life in society. Second, the key concept of

the law that is mandatory uh Abduh to comply is the

law discussed and determined by various experts.

These various experts are grouped ‘Abduh into two,

namely experts from various sciences, and experts

from various problems faced by society in their lives.

Third, the involvement of a number of experts in the

process of establishing laws in the Indonesian

constitution when linked to the basic substance of

apan Abduh's stipulation obliged to comply with the

government's decision, it could be stated that

Indonesia's constitution law was in line with ‘Abduh.

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