Legal Justice for All and Anti Discrimination: Models for Practicing
Sharia in Democratic Secular State of Indonesia
Nurrohman Syarif
1
,Tatang Astarudin
1
, Abdulah Safe’i
1
and Muhamad Sar’an
1
1
Sharia and Law, UIN Sunan Gunung Djati, Bandung, Indonesia
Keywords: anti-discrimination, legal justice, sharia
Abstract: As a source of ethics, moral and spiritual, sharia is an ideal concept that is used as guide for Muslims in
everyday life because it contains the principles of justice, benefit for all. However when these principles are
extracted and formulated by a number of Islamic legal experts the results are not singular. Sharia often
criticized for unable to give justice for all. Therefore, when there is a high demand in Indonesia to make
sharia the material resource for national law, a more suitable model is needed. By assuming that there are
many models that can be used in practicing sharia, this study aims to explore models of implementation of
Islamic law, the problem and impacts of each model and the solution that can be take by Muslims in
practicing sharia in Indonesia. This objective can be achieved by examining the meaning of sharia, its
purpose, the models of sharia implementation in a number of countries, as well as model of sharia
implementation which suitable for the condition of Indonesia. This paper argues that in social and political
life, Muslims can use any model for practicing sharia as long as it is directed to achieve the purpose of
sharia: to protect basic human rights for all member of the community, to establish justice between Muslims
and the rest of humanity, and to provide benefits for human beings and removing hardships from them.
1 INTRODUCTION
Indonesia is a multi-ethnic and multi-
religious state. The major religious groups in this
country of more than 250 million inhabitants are
Islam. As the state founded on divine values,
religion in Indonesia can not be separated from the
life of nation and state. Therefore, efforts to separate
religious values from the life of the nation and state
will always be in vain. On the contrary, efforts to
integrate religious values into the life of a state
always have wide support. According to research in
2013, there are 72% of Indonesian Muslims who
support Islamic law as an official law for the state
(www.pewforum.org - article 1, 2013). There is also
the fact that 61 % of Indonesian Muslims approve of
Indonesia as a democratic country (Bev, 2018). It
means that a substantial majority of Indonesians
support both Islamic law and democratic state.
While democracy accepted plurality, 45% of
Indonesian Muslims hold that Islamic sharia has
only one interpretation (www.pewforum.org - article
2, 2013). It means that there is the tendency of some
Indonesian Muslims who practiced sharia rigidly.
Such a rigid model of practicing sharia is vulnerable
to being exploited by radical Islamic groups or
Islamists that make religion a political ideology and
Islamic sharia as political agenda. Therefore, efforts
to search model for practicing sharia in democratic
state that able to be tool for achieving justice for all
is needed to counter radical groups who believe that
in democratic secular state like Indonesia Islamic
law cannot be fully implemented. In other words,
sharia cannot be fully implemented because
Indonesia is not Islamic state.
The assumption that in secular state the
aspirations of sharia are always confined, supported
by the thesis of Arskal Salim. In his book
Challenging the Secular State; The Islamization of
Law in Modern Indonesia Arskal Salim argues that
attempts to formally implement sharia in Indonesia
have always been marked by a tension between
political aspirations of the proponents and the
opponents of sharia and by resistance from the
secular state. The result has been that sharia rules
remains tightly confined in Indonesia (Salim, 2008).
Syarif, N., Astarudin, T., Safe’i, A. and Sar’an, M.
Legal Justice for All and Anti Discrimination: Models for Practicing Sharia in Democratic Secular State of Indonesia.
DOI: 10.5220/0009923010751083
In Proceedings of the 1st International Conference on Recent Innovations (ICRI 2018), pages 1075-1083
ISBN: 978-989-758-458-9
Copyright
c
 2020 by SCITEPRESS – Science and Technology Publications, Lda. All rights reserved
1075

By assuming that sharia is a law that is always
suitable for all places and times for it can change
according to the changing times, places, intentions
and circumstances, the objective of this study was to
formulate: 1) the meaning and the purpose of sharia
2) the model for practicing sharia in the Muslim
worlds 3) the model for practicing sharia in secular
democratic state of Indonesia , so it can brought
justice for all.
2 THEORY
There are some theories that was used to
explain the models for practicing sharia in
Indonesia. Among others are the theory of maqashid
al-sharia, presented by Jasser Auda, the theory for
exploring the values and norms in sharia, the theory
of the role of religion in politics presented by
Mayskuri Abdillah, the theory for practicing sharia
in general presented by Nurrohman, the theory of the
relationship between sharia and local customs
presented by Van Den
Berg, Snouck Hurgronye and
A Qadri Azizi. The theory of eclectic choices
introduced by Tahir Mahmood and Mahfud MD, as
well as Fazlur Rahman's theory of ijtihad in the
modern era are used to reform Islamic law.The
theory of justice used in this study is the justice
proposed by John Rawls well konown as the shared
justice.
3 MATERIALS AND METHODS
This research is a kind of non doctrinal
qualitative legal research which covered some
problems, policy and law reform based research (5)
This is a kind of library research supported by field
data collected through interview. The purpose of
research is to find the model for practicing sharia in
Indonesia that will brought justice for all. The
subject of this study is the meaning and purpose of
sharia, the model for practicing sharia in the Muslim
world and the model for practicing sharia in
Indonesia. Data was collected from the book or
documents that have been published particularly the
book that discussed the meaning and purpose of
sharia, the model for practicing sharia in the Muslim
world and the model for practicing sharia in
Indonesia. Field data obtained from Muslim leaders
in West Java as well as in Aceh who were picked
purposively. Data was analyzed and compared to
find the problems and impact of each model as well
as to find the possible model for practicing sharia in
Indonesia, so it able to brought justice for all,
Muslim as well as non –Muslim.
4 SHARIA; ITS MEANING AND
PURPOSES
The term sharia in Arabic literally means a
path or a way (Qur’an chapter :45 verse:18). From
this reading, sharia generally means the way or path
that Muslims take to lead their lives — be it as
individuals, as a society or as a religious
community.The term sharia is often used in present
discourse as if it were synonymous with Islam itself,
as the totality of Muslim obligations in both the
private, personal religious sense and vis-à-vis social,
political, and legal norms and institutions (An-
Na‘im, 2014).
From the perspective of Islamic
jurisprudence, sharia refers to “Islamic law” which
many assume as consisting of mainly criminal laws
and penalties. As the sacred law of Islam, Islamic
law is an all-embracing body of religious duties, the
totality of Allah’s commands that regulate the life of
every Muslim in all its aspect (Schacht, 1964).
Although Islamic law is a ‘sacred law’, it is by no
means essentially irrational; it was created not by an
irrational process of continuous revelation but by a
rational method of interpretation, and the religious
standards and moral rules which were introduced
into the legal subject-matter provided the framework
for its structural order (Schacht, 1964).
As God’s plan for mankind consisting of His
prescriptions for human behavior, sharia is a rather
abstract concept which leaves ample room for
various concrete interpretations by human beings.
The classical sharia is the body of Islamic rules,
principles and cases compiled by religious scholars
in search of God’s will during the first two centuries
after Muhammad. In this sense, sharia can be found
in the classical works of the religious scholars of the
dominant legal schools (madhab), and is therefore
more concrete. The historical sharia includes the
entire body of all principles, rules, cases and
interpretations developed and transmitted throughout
a history of more than one thousand years across the
entire Muslim world. In this context sharia is plural.
Historically, sharia has been influenced by time and
place.The contemporary sharia contains the full
spectrum of principles, rules, cases and
interpretations that are developed and applied at
present, throughout the Muslim world. New
technologies of information and communication
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have decreased the dominance of the legal schools
of classical sharia. The variety of meanings of sharia
has given rise to a flexible, multi-interpretable
discourse about sharia and law which moves
smoothly from one meaning of sharia to another.
Therefore, the theological assumption that sharia is a
fixed set of norms that apply exclusively to all
Muslims must be dismissed on the basis of both
legal and empirical evidence.”(Otto, 2008).
Although there is a flexible, multi-interpretable
discourse about sharia, it has an objective.
The first objective of sharia is protecting
basic human rights for all members of the
community irrespective of race, religion and culture.
There are seven basic human rights that must be
protected by the State or society, ie: 1) the right to
life and its enjoyment 2) the right to believe 3) the
right to gain knowledge 4) the right to disagree, 5)
the right to consultation, 6) the right of equality and
justice 7) the rights of the oppressed (Al-Jabri,
2009).
The second objective of sharia is establishing
justice between Muslims and the rest of humanity.
Equality is among the key messages of Prophet
Muhammad in his Last Sermon. Qur'anic legislation
in the field of private and public life has social
justice and the building of an egalitarian community
as its end. (Rahman, 1984)
The third objective of sharia is providing
benefits (maslahah) for human beings and removing
hardships (al-usr) from them. Bringing about
benefits and removing harm is essential in
establishing a harmonious society. Thus, any ruling
that replaces justice with injustice, mercy with its
opposite, common good with mischief, or wisdom
with nonsense, is a ruling that does not belong to the
sharia, even if it is claimed to be so according to
some interpretation (Auda, 2007).
5 THE MODEL FOR
PRACTICING SHARIA IN THE
MUSLIM WORLD
In practicing sharia, Muslims in the world
were influenced by many factors. Beside influenced
by past complex relation between religion and state
in history, they are also influenced by how they
explore the meaning of sharia, they apply sharia in
daily life, they put sharia in state or political life,
their state puts sharia in the constitution. In
exploring the meaning and the content of sharia, at
least there are three theories , bayani, irfani and
burhani, Table.1. In bayani method, the truth was
obtained through linguistic approach that produced
correspondence truth. The source of truth is religious
text and the method is juristice reasoning. In Islamic
history , this method was often used by jurists and
theologians. In irfani method, the truth was
obtained through psychognostic approach that
produced inter subjective truth. The source of truth
is intuition and the method is ilumination. Gnosis
refers to knowledge based on personal experience or
perception. In religious context, gnosis is mystical or
esoteric knowledge based on direct participation
with the divine. In Islamic history , this method is
used by mysticians. In burhani method, the truth
was obtained through logical approach that produced
coherence or consitence truth. The source of truth is
ratio and the method is analytical discourse. While
these three methods actually had been used in the
Muslim world, burhani method which put forward
the way of demonstrative-philosophical thinking not
developed optimally by Muslim thinkers and
scientists.(Widodo, 2007)
Table 1: Theories for exploring the meaning and the content of sharia
The name
of theory
The Theories for exploring the meaning and the content of sharia
Source Method Approach
The validity of
truth
Bayani Religious text
Istidlal/
juristic reasoning
Linguistic
Correspondence
Irfani Intuition
Kasyf/
illumination
Psychognostic
Inter-subjective
Burhani Ratio Analytical discourse Logic
Coherence/
consistence
Source : modification from http://habibisir.blogspot.co.id/2013/04/epistemologi-bayani-burhani-dan-irfani.html
Legal Justice for All and Anti Discrimination: Models for Practicing Sharia in Democratic Secular State of Indonesia
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In applying sharia in their life in general,
there are three model; exclusive textual, inclusive
substantial and combination (Nurrohman, 2002),
Table 2.
.
Table 2: The models for practicing sharia
Type of
Model
The Models for Practicing Sharia
Description Assumptions Example
Exclusive
textual
trying to implement sharia as
mentioned in the text of the
Qur'an, the prophet tradition or
in the text of standard works of
expert recognized by its
authority in explaining Islamic
law
a
Sharia has perfectly
regulated all aspects of
life. Sharia after the
prophet Muhammad no
longer experiences the
process of evolution
Cutting the hand
of the thief is
under-stood
physically
Inclusive
substantial
Trying to practice sharia by
looking at the concepts or
ideas that exist behind the text.
If the main idea has been
captured, then its application
can be carried out flexibly.
Every legal provision in
Islamic law has its
reasoning and purpose.
Therefore, Islamic law
undergoes evolution.
There is no monopoly in
the interpretation of
sharia.
Cutting the hand
of the thief is not
under-stood
physically. It just
metaphor
Combinati
on
In practicing the sharia, they
divided it into purely religion
(ta'abbudi) and ta'aqquli (be
understood by reason). They
sort the sharia into two, private
and public.
Some sharia has a reason
and experiences
evolution, and the other
ones are should accepted
without reason and not
experience evolution
In private matter
or pure religion
tend to textual,
for instance daily
prayer should be
in Arabic, but in
public matter
accept substantial
meaning.
From Nurrohman, end note 15
There are three types of the role of religion
in political life; as a political ideology, as an ethical,
moral and spiritual base and, as a sub-ideology
(Abdillah, 2000), Table 3.
Table 3: The Role of religion in politics
Type of Role
The Role of Religion in Politics
Description Explanation Example
As an ethical,
moral and
spiritual base
as an ethical, moral, and spiritual
source the imprtance one of religion is
to build consciousness of religious
people themselves through cultural
approaches and reject structural
approaches in terms of socialization
and institutionalization of religious
teachings.
a
the implementation of
religious teachings
should not be
institutionalized
through legislation and
state support.
Secular state
such as Turkey
as a political
ideology
as an ideology religious teaching
should be formally endorsed to be
The implementation of
religious teaching is
State that places
sharia as the
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Type of Role
The Role of Religion in Politics
Description Explanation Example
positive law by taking structural
approach to socialization and
institutionalization of religious
teachings
become state obligation primary source
of
legislation,such
as Egypt and
Pakistan
as sub-ideology
as sub-ideology relgion tend to support
a cultural as well as structural approach
by involving religious teachings in
public policy making in a
constitutional, democratic and non-
discriminatory manner
When the norms of
religion will be used to
made public policy it
should be adjusted so,
the content is really
bring justice for all
State that has
it’s own
ideology such
as Indonesia
Modified from the end note 16
In the way, Muslim countries puts sharia in
their constitution, at least there are four model;
formally mention Islam and sharia as primary source
of legislation such as Iran and Egypt , formally
mention Islam as official religion but not mention
sharia as primary source of legislation such as
Malaysia, not mention Islam as state religion and
also not mention sharia as primary source of
legislation but acknowledged sharia as living law in
the country ,such as Indonesia, and state declared
himself as secular state like Turkey(Syarif, 2016).
The choice of models taken by individuals and
society was influenced by legal policy of the state. For
instance, although Bassam Tibi (Tibi, 2005) refused to use
Islam as political ideology, and distinguished
between
Islam and Islamism (Tibi, 2012), in reality there are
some Muslims in the world who used it. Prohibiting
Islam as an ideology contrary to the principle of
democracy, in democratic state any ideologies
should be allowed to be contested. Although from
the world perspective , Indonesia was grouped by
Ahmed T Kuru in secular
state (Kuru,2009), it is by
no means that it lest Islamic than other countries
which formally declared themselves as an Islamic
state in their constitution. Based on research
conducted by Rehman and Askari, the Islamic index
of Indonesia is better than the index of country
which formally declares itself as an Islamic state or
makes Islam a state religion like Egypt, Pakistan and
Iran. Based on this index, Indonesia ranked 140,
Pakistan ranked 147, Egypt ranked 153 and Iran
ranked 163. (Rehman,2010).
6 THE MODEL FOR
PRACTICING SHARIA IN
INDONESIA
The model for practicing sharia in Indonesia
is a combination. Some provisions of sharia are
practiced exclusively, but the others are practiced
substantively and inclusively. In the private aspect,
sharia tends to be practiced exclusively textually. But
in the public domain, sharia tends to be transformed
substantially inclusively. In Indonesia, some experts
explained how the sharia is applied in the context of
history through religious or sharia court, Table 4.
Tabel 4: Theories for practicing sharia in Indonesia
The name
of theory
The Theories for Practicing Sharia in Indonesia
Description Implication Notes or reference
Receptio in
complexu
Muslims should adhere sharia
norm as consequence of their
religion.
a
Sharia norms directly
applied to Muslims without
waiting whether its
accepted by custom or not.
Applied in religious
court since 1855
Receptie
"In the case of civil cases
among fellow Muslims, will
be resolved by the judges of
Islam if their customary law
The application of sharia
norms depend on the
acceptance of customary
the reference of colonial
policy since 1929
Legal Justice for All and Anti Discrimination: Models for Practicing Sharia in Democratic Secular State of Indonesia
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The name
of theory
The Theories for Practicing Sharia in Indonesia
Description Implication Notes or reference
wants it."
law
Possitivisati
on
Islamic law has basically
become a positive law for
Indonesian Muslims
the application of Islamic
law is no longer determined
on the basis of acceptance
by customary law
The main reference of
this theory is: UU No.1
/ 1974 about marriage
From the end note 23
According to receptio in complexu theory
supported by Van Den Berg (1845-1927), Muslims
should adhere sharia norm as consequence of their
belief or religion. This theory became a reference in
the colonial policy since 1855 (Praja,2009).
According to the receptie theory,supported by
Snouck Hurgronye (1857-1936) Islamic law in
Indonesia only applies if customary law requires it.
This theory became the reference of colonial policy
since 1929 through the Indische Staatsregeling (IS)
of 1929. Article 134 paragraph 2 of IS said: "In the
case of civil cases among fellow Muslims, will be
resolved by the judges of Islam if their customary
law wants it." The theory of the positivization of
Islamic law said that in civil law, the application of
Islamic law is no longer determined on acceptance of
customary law. Because Islamic law has basically
become a positive law for Indonesian Muslims. The
main reference of this theory is: UU No.1 year 1974
about marriage. The supporter of the theory is A
Qadri Azizy.(Syrif,2016).
So, If Whitehead in his book call religion in
the making, (Whitehead,1927) sharia as a religious
norm base on faith also still in the process of
development. It is what Hallaq said the evolution of
Islamic law (Hallaq, 2005). There is no exact model,
including what is practiced in Aceh. Professor Alyasa
Abubakar, an Islamic law expert who was involved
in the reconstruction of Islamic law in Aceh from the
beginning acknowledges it (Interview in Banda
Aceh, 2005).
7 THE PROBLEM TO BRING
JUSTICE FOR ALL IN
SECULAR DEMOCRATIC
STATE
It is not easy to brought legal justice for all
in practicing sharia in Indonesia. The first obvious
problem or challenge to realize sharia as legal justice
for all is the emergence of authoritarianism in
understanding sharia. Authoritarianism is the act of
“locking” or captivating the Will of the Divine, or
the will of the text, into a specific determination, and
then presenting this determination as inevitable,
final, and conclusive. (El-Fadl, 2001)
The second problem is ambivalence attitude
or inconsistency of some Muslims in accepting the
constitution and the law that has accommodated the
values of Islamic law. If Muslims acknowledged that
there is no contradiction between the principles of
sharia and the principles of constitution then each
law that not contradict to constitution should be
accepted by Muslims. This means that, in the
context of state life, the constitution must be made
the highest law, but in reality, it is not always the
case. While legal system consists of three elements;
structure, substance and culture (Friedman, Hayden,
2017), sometime the culture of society not supported
the substance or the structure. For example, although
marriage legislation in Indonesia has made
provisions that the marriage age is 16 years for
women and 19 years for men but in the community,
there is still a frequent occurrence of underage
marriages.
The third problem is the conflicting
provision among the laws in Indonesia, for instance
the age of children. According to Law No. 35 of
2014 on Child Protection, article 26 (1), parents are
obliged and responsible for preventing marriages
from occurring at the age of the Child. According to
this law the child is someone who is not 18
(eighteen) years old. However, according to Law
No. 1 of 1974 on marriage, a woman who is 16 years
old and a 19-year-old man can get married. As a
result, child marriages still occur in Indonesia. Child
marriage is a nation's problem, which can violate
children's rights to get education, health, growth and
others.
In order to overcome rigid, authoritarian
interpretation, Muslims need to be introduced to
various interpretation of sharia. The norms of sharia
was created not by an irrational process of
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continuous revelation but by a rational method of
interpretation.(Schach, 1964) The Islamic legal
maxim said: “It may not be denied that laws will
change with the change of circumstances” (la yunkar
taghayyur al- ahkam bi taghayyur al-zaman wa al-
ahwal).(El-Fadl h, 2014)
In order to overcome the ambivalent
attitude, some parts of the family law need to be
revised or reformed. For example, if the marriage
principle according to marriage law is monogamous,
polygamy is only possible in an emergency after
someone who will to conduct it obtaining permission
from the court. If this provision violated the marriage
should be declared invalid and the perpetrator should
be punished. In personal or family law, Muslim
countries take different model of reformation. Some
countries take progressive reform such as Tunisia and
Turkey. For instance, based on the Turkish Civil
Code 1926, polygamy is strictly prohibited and if it
happens then the marriage is declared invalid. (Huda,
2017)
The conflicting provision among the laws is
morally unacceptable because it is violated the
principles of morality of law. There are some
standards of morality of law such as the clarity of law
and not containing contradictions in laws. Rules that
its formula is not clear, or contained contradictions
between one and another are immoral rules. (Fuller,
1969).
In order to reform sharia law in Indonesia,
eclectic choice need to be used. Eclectic choice not
only proposed by Tahir Mahmood but also by
Mahfud MD. According to Mahfud, the formation of
national law should be processed through an eclectic
process in legislative institutions by preserving the
objectives of sharia which include public benefit and
justice (MD, 2018) The eclectic process is in line
with the concept of ijtihad according to Fazlur
Rahman. For Rahman, ijtihad must be multiple effort
of thinking minds – some naturally better than other,
and some better than other in various areas – that
confront each other in open arena of debate, resulting
eventually in an overall consensus.(Rahman, 1979)
The ideal concept of justice is justice for all
proposed by John Rawls which well known as shared
justice. (Latif, 2007) This concept should be used by
citizens to "regulate their political affairs and
interpret the constitution" (Rawle, 2005). Rawls
believes that, in modern conditions, a conception of
justice can achieve stability only if it can be the
object of an overlapping consensus, that is, only if it
can be morally endorsed by citizens who are also
committed to diverse and partially conflicting moral,
religious, and philosophical worldviews (Poge,
Kosch, 2007). The best way to functionalize Islamic
values, according to Hefner is through democratic
constitutionalism (Hefnerh, 2011). Hefner’s view is
in line with the opinion of Rachmat Syafe’i, the
chairman of West Java Council of Ulama (MUI). For
Syafe’i, a concrete manifestation of the absorption of
the aspirations of Muslims to include the values and
norms of sharia through political policies is carried
out every five years, when Muslims through their
representatives who sit in the legislative body
formulate laws that will be applied in
Indonesia.(Interview, 2018)
8 CONCLUSIONS
This study concluded that sharia for
Muslims is paradigm. As paradigm it is rather
abstract concept which leaves ample room for
various concrete interpretations. This study also
concluded that while there is no single model of
Muslims in understanding and practicing sharia in the
world, there is also no single model in understanding
and practicing sharia in Indonesia. Theological
assumption that sharia is a fixed set of norms that
apply exclusively to all Muslims not supported by
legal and empirical evidence. From three models of
practicing sharia, inclusive, exclusive and
combination, Indonesia tends to use combination
model by dividing sharia into private and public. The
great design of the implementation of sharia in
Indonesia is the national legal system in the form of a
democratic constitutional state. The assumption that
in a secular state, sharia cannot be fully implemented
is only true for those who take Islam as ideology and
take an exclusive textual model in implementing
sharia. Since the model of practicing sharia in
Indonesia is still in the making, the following studies
of sharia must be directed to realize the objectives of
sharia by using more objective indicators and
measurements in order to achieve justice for all
without any discrimination among citizens.
ACKNOWLEDGMENTS
This study may not be completed without
support from many parties. Thanks are given to all
parties who have provided support for this research,
especially to the Institute of Research and
Community Service (LP2M) UIN Sunan Gunung
Djati Bandung which has provided financial support
for the 2018 fiscal year.
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Legal Justice for All and Anti Discrimination: Models for Practicing Sharia in Democratic Secular State of Indonesia
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