The Urgency to Incorporate Maqasid Shari’ah as an Eludication of

‘Benefit’ as a Purpose of Law in Indonesia’s Legal Education

Nurizal Ismail

, Fajri Matahati Muhammadin

and Haninditio Danustya

Sekolah Tinggi Ekonomi Islam Tazkia, Bogo, West Java, Indonesia

Faculty of Law, Universitas Gadjah Mada, Yogyakarta, Indonesia

PT. Garuda Maintenance Facility Aero Asia Tbk, Banten, Indonesia

Keywords: Introduction to Jurisprudence, Purpose of Law, Legal Education, Maqashid Al-Shari’ah, Indonesia

Abstract: The Indonesian legal system is a religious one. However, there is strong traces of secularism in the legal

education in non-Islamic universities. This article observes the teaching of purposes of law in the

‘Introduction to Jurisprudence’ course (ITJ) at the top law schools in Indonesia, particularly on the

‘Purposes of Law’ Chapter via the most used textbooks. It finds that there is little space for religiosity there

especially on one of the main purposes of law according to all the textbooks: ‘utility’ primarily based on

Jeremy Bentham’s utilitarianism theory. It is argued that the current approaches to utility is a secular

approach which does not conform to the character of Indonesia. This article argues further that the

Maqashid Al-Shari’ah is more appropriate to explain ‘utility’ in context of the Indonesian legal system, and

should take its place among the ‘purposes of law’ chapter in the Indonesian legal education.

1 INTRODUCTION

Is it not strange when a nation has a religious

legal system, but a secular legal education? There is

no question that Indonesia is a religious nation. The

first pillar of the State Ideology i.e. Pancasila is

Ketuhanan Yang Maha Esa (Belief in the One and

Only God). Further, the entire Pancasila itself was

greatly a contribution of the Muslims and Islamic

teachings (Rohman, 2013). From such ideology, a

religious legal system was established. The 1945

constitution is religious, starting from its preamble

(see para 3-4), and key provisions such as Article 29

and 28J. Then, the entire statutory regulations and

all legal products and any judicial decisions will

always start by mentioning Ketuhanan Yang Maha

Esa.

This is a manifestation of the character of the

Indonesian society which is Religio-Magis. The term

religio-magis means that Indonesians are religious

and spiritual by nature, and believe in an ‘unseen

world’ and that it affects the material world

(Wiranata, 2005). This is a direct contradiction

towards secularism which holds a worldview that the

material world is all there is (Al-Attas, 1993 dan

Cox, 2013). However, secularism is one of the

intellectual hegemonies imposed by ‘The West’ via

colonialism (Daud, 2013) with Indonesia as one of

the victims.

Centuries of Dutch colonialism eroded the pre-

existing established legal traditions in Indonesia

including Islamic law (Ramlah, 2012). Although, in

time, the Indonesian legal system managed to keep

and develop parts of the Islamic tradition in its legal

system, as mentioned earlier and further in the

establishment of the Religious Court and others such

as the Islamic Banking Act etc.

However, the legacy of secularism remains in

Indonesia’s legal education, and this paper aims to

help de-secularize it. This paper observes the

Introduction to Jurisprudence (ITJ) course which

sets the foundation of law students’ understanding of

the concept of law, taught at the first semester. A

previous study has observed the ‘Classification of

Norms’ chapter and found that it establishes a

secular mindset to perceive the law: ‘legal norms’

and ’religious norms’ are separate (Muhammadin

and Danusatya, 2018).

Continuing the aforementioned study, this paper

explores the ‘purposes of law’ chapter of ITJ. More

particularly, this paper further focuses on the

‘purpose to achieve benefit’ theories used in the ITJ

1084

Ismail, N., Muhammadin, F. and Danustya, H.

The Urgency to Incorporate Maqasid Shari’ah as an Eludication of ‘Beneﬁt’ as a Purpose of Law in Indonesia’s Legal Education.

DOI: 10.5220/0009923110841091

In Proceedings of the 1st International Conference on Recent Innovations (ICRI 2018), pages 1084-1091

ISBN: 978-989-758-458-9

textbooks. It is found that that this, too, inclines

towards a secular understanding of law and does not

conform to the religious character of the Indonesian

society and legal system. As an alternative solution,

this paper proposes to include the Maqashid Al-

Shari’ah in the ‘purpose of law’ chapter of ITJ. This

inclusion will help conform to the religious character

of the Indonesian society and legal system.

Hopefully, also, this is one more step towards the

de-secularization of Indonesia’s legal education.

2 METHOD

This paper uses a literature research, analyzing

the purpose of law which involves the nature of law

and formulation of legal doctrines. As this paper

intends to observe the teaching of the ‘purpose of

law’ chapter in the ITJ course in Indonesian law

schools, then the most used textbooks by the top law

schools in Indonesia (according to the rankings of

the Ministry of Research and Higher Education)

would be the object of observation. This paper

chooses three textbooks, i.e. Pengantar Ilmu Hukum

by Sudikno Mertokusumo (Mertokusumo, 2006),

Menguak Tabir Hukum by Achmad Ali (Ali, 2015),

and Pengantar Ilmu Hukum by Peter Mahmud

Marzuki (Marzuki, 2008), from which to compare

from. Other than that, relevant literature will be used

as tool to analyze.

3 FINDINGS AND DISCUSSIONS

The idea of ‘purpose of law’ is to identify what

the law is aimed to achieve, so that therefore law

would later be understood and interpreted in a way

so that it achieves such aim. In the ITJ Course, this

is generally taught the same way in different

textbooks, albeit some differences in ways of

explanation. They all usually come down to three

general purposes of law i.e. achieve: justice, benefit,

and certainty(Ali, 2015; Marzuki, 2008;

Mertokusumo, 2006).

3.1 Purposes of Law in the ITJ Course:

Achieving ‘Benefit’

This paper focuses more on the second purpose

of law i.e. to achieve benefit. The textbooks mostly

explain this with Jeremy Bentham’s theory of

utilitarianism. Sudikno Mertokusumo, for example,

argues that the main purpose of law is to achieve

order and balance (Mertokusumo, 2006, p. 77) and

there are three theories to explain how to achieve

that purpose. Utilitarianism is Mertokusumo’s

second theory on purposes of law (the first theory is

‘theory of ethics’ or ‘justice’) (Mertokusumo, 2006,

p. 80). He explains generally what utilitarianism is

(i.e. to achieve happiness to as much people as

possible), then notes how this theory lack balance –

albeit not elaborating why he thought so.

The third and last theory on purpose of law

according to Mertokusumo, however, is ‘combined-

theory’. It seems that the purposes of law under this

category of theories would combine the two other

theories (i.e. justice and utility). Under this third

heading, he cites a number of theories: (a) law must

achieve order and justice depending on the character

and era of the society, and (b) law must achieve

interpersonal and intrapersonal peace, and to achieve

the purpose of the nation which is to provide

happiness and prosperity towards the society

(Mertokusumo, 2006).

Peter Mahmud Marzuki proposes four purposes

of law: benefit, morality (justice), peace/welfare, and

certainty of law (Marzuki, 2008). In explaining

utility as a purpose of law, Marzuki relates

Bentham’s utilitarianism with Weber’s high

efficiency and productivity as a society’s need. He

emphasizes how the scholars explain that

utilitarianists would see that a legal system is a

means towards an effort to increase an efficient

allocation of resources (Marzuki, 2008). He notes

that, other than to fulfill physical/material needs, law

must more importantly fulfil ‘human existential’

needs (which relates to ‘justice’ as another purpose

of law) (Marzuki, 2008).

Marzuki’s third purpose of law is to achieve

‘peace/welfare’ which can also, to some extent, be

categorized as ‘benefit’ under the scope of this

paper. Citing Thomas Hobbes who argues that the

purpose of law is to achieve order, Marzuki explains

that peace and welfare can be achieved when the law

regulates fairly. What he means by ‘fair’ is that the

law regulates all the interests to be protected in a

good balance so that everyone can achieve their

share as much as possible (Marzuki, 2008).

Achmad Ali explains the theories of purposes of

law by categorizing the eras of the theories. The first

era is the ‘conventional’ theories, i.e. ethics (justice),

benefit, and normative-dogmatic (certainty of law)

(Ali, 2015). Particularly on benefit as purpose of

law, Ali is very critical towards utilitarianism. He

argues that not all forms of happiness can be

accepted because: priorities must be made so that

not all happiness are accepted, and that happiness

The Urgency to Incorporate Maqasid Shari’ah as an Eludication of ‘Beneﬁt’ as a Purpose of Law in Indonesia’s Legal Education

1085

does not always satisfy the society’s sense of justice

so it must be balanced also with considerations of

justice (Ali, 2015). In essence, according to Ali,

utilitarianism cannot stand alone as a purpose of law.

The second era on theories of purposes of law

according to Ali is the modern theories. The mod ern

theories rely on Gustav Radburch’s view that law –

at the same time—has three purposes: justice,

benefit, and certainty (Ali, 2015) which may be

applied in a fixed hierarchy between the three, or no-

fixed hierarchy so that different cases may

necessitate different priorities. Ali also cites an

‘Eastern purpose of law’ theory, which holds peace

as the main purpose of law. Under this theory, for

example, criminalization can be avoided if the

victim and perpetrator has managed achieve an

amicable settlement (Ali, 2015).

3.2 Man, Polity, Civilization, and Diin

It is very difficult to truly analyse the extent of

proper ‘benefit’ without first exploring the nature of

man, polity, and civilization. Surely, it is common

sense that any theory of ‘benefit’ should be

consistent with that nature. This subsection in

particular explains the collision between two

worldviews, i.e. secular and religious, where the

fundamental difference in explaining ‘benefit’ is the

position of diin or religion.

In secularism, there is no true place for

religion. Secularism is not merely a political stance,

but an entire worldview which separates the material

or empirical world from the metaphysical one and

ignoring the relevance of the latter (Al-Attas, 1993;

Cox, 2013). This is closely linked with scientism,

which is a theory that states that knowledge only (or

primarily) is obtained from sensory or empiric

experience (Elliot Sober, 2010). This cannot be

separated from August Comte’s (d.1857) who argues

that the most advanced level of man is when he

utilizes knowledge only from positively tested

through objective verification, free from anything

metaphysical (Comte, 1998; Kumar, 2006).

However, as Elliot Sober notes, such a view is

always painfully limited to see and analyze what can

be observed materially (Elliot Sober, 2010). The

truth is that many others exist as a truth beyond

empirical and material realities, such as morality and

intuition (Johnson, 2013) subjective consciousness

(Chalmers, 2010), and others (Tzortzis, 2016).

Therefore, secularism will forever be woefully

incomplete and lack holistic nature at an

epistemological level and includes the same

weakness in every knowledge derived from it

(Husaini and Kania, 2013). Especially, as will be

explained in the following paragraphs, in the

position and importance of diin or religion which

secularism ignores. Much especially in Indonesia,

where scholars have noted the characteristics of the

Indonesian people as religio-magis as explained in

the introduction of this paper.

Syed Naquib Al-Attas explains that a man exists

with a dual nature, where “…he is both a body and

soul” (Al-Attas, 1995). The latter clearly being

beyond the material realms of reality and beyond

what secularism may comprehend or consider. Al-

Attas further explains that there are two levels of

human souls, i.e. the higher rational soul (al-nafs al-

natiqah), and the lower animal soul (al-nafs al-

hayawaniyyah), where the former should rule –but

not destroy—the latter (Al-Attas, 1993). While the

latter inclines to fulfil worldly biological needs, the

former inclines to search and worship God intimate

relation as a form of spiritual happiness (Al-Attas,

1995).

Therefore, to fulfil the true needs of a man, one

must not only fulfil the worldly materialistic needs

but also that of the spiritual needs. This is where diin

comes in. The word diin is usually translated as

‘religion’, but the true word covers more than a mere

theological concept of God’s existence. From the

Arabic word al-diin rooting from the trilateral dal-

yaa-nuun, numerous interrelated derivative

meanings can be found such as ‘religion’, ‘a

particular law/statute’, ‘a way/course/manner of

conducting/acting’, ‘indebted’, and so much more

(Mukhtār, 2008). And, in fulfilling the human soul

inclination to worship God, diin comes with total

submission (istislam) to God (Al-Attas, 1995). This

show how diin is very central.

When man organizes themselves into a society

and inevitably with a political structure, they

become a polity. The Arabic term Madinah needs to

be discussed here. While the word literally means

‘city’, where there is a ruler, the word Madinah in

Arabic has its roots derived from the word diin as

well (the word ‘ruler’ is also termed as dayyaan

which also roots from diin) (Al-Attas, 1995; Faris,

1979). And this is why, as mentioned also in the

Introduction, the entire legal system and statutory

regulations and other legal products in Indonesia

always mentions Ketuhanan Yang Maha Esa.

Further, the ideal goals of a utopian society as a

civilization is usually termed as ‘civil society’.

Indonesia has its own concept of ‘civil society’

which is borrowed from an Islamic concept called

‘masyarakat madani’ or Madani society. It must be

seen how there is an important relation between

man, polity, and civilization here. A man organizes

himself into a polity and aspires to advance

civilization towards a certain ideal, which is to

achieve the ‘civil society’ or Madani society.

ICRI 2018 - International Conference Recent Innovation

1086

Therefore, there has to be a certain connectivity

between all those variables.

The term ‘civil society’ in the Western concept is

secular and therefore does not include the

fundamental nature of man, therefore to say that

‘civil society’ and Madani society are synonymous

(as some, like Nurcholis Madjid claim) is incorrect

(Alatas, 2010). The word ‘Madaani’ in Arabic refers

to the people of Madinah (at the time of Prophet

Muhammad), and –alike the word Madinah—is

derived from the root word diin (Manzhur, 1414).

In fact, even the word ‘civilization’ in Arabic is

tamaddun which, also, is derived from the word diin

(Al-Attas, 1995). This shows that the concept of an

ideal Madani society cannot be merely set by

Western standards of tolerance, democracy, and

‘nation state’ as writers such as Nurcholis Madjid

proposes (Alatas, 2010). It has to also include

especially the true nature inclination of the human

soul to worship his God. All this shows how diin is

central and should be at the heart of understanding

the nature and need of a man either individually,

when organized in a polity, and in viewing the

utopian civilization. Diin is the centre of what bonds

man, society, and governance as one integral unit

(Muhammadin and Danusatya, 2018). No theory of

achieving ‘benefit’ can truly be complete when it

does not incorporate diin. Therefore, secularism (and

its derivatives), would miss out on a very important

element.

3.3 Maqashid Al-Shari’ah as a Purpose

of Law

In Islamic Jurisprudence or UÎul al-Fiqh,

Maqashid Al-Shari’ah is one of the legal theories to

understand the law from a purposiveness

perspective. The general idea is that the Al-Shariʿah

(or God’s rules) has certain aims and purposes

(maqasid) which is to realize benefit or interest of

the people (maslaha), essentially by promoting

benefit and removing harm (Ali, 2014, p. 517;

Ismail, 2014, pp. 5–6). Therefore, maslaha becomes

the ‘illah (cause) of legal rules. This far, Maqashid

Al-Shari’ah may seem to serve a similar purpose to

utilitarianism. However, the approach it takes would

be different.

Ibn Ashur defines Maqashid Al-Shari’ah as the

purposes (al-ma’ani) and wisdoms (al-hikam)

considered by the Lawgiver in all or most of the

areas and circumstances of legislation, which are not

confined to a particular type of the Maqashid Al-

Shari’ah commands (Ashur, 2006). ‘Alim uses term

‘hadf’ that he means Maqashid Al-Shari’ah purposes

(maqasiduha) which are to be achieved by

legislation of the rules/laws in the form of masalih

(benefits/welfares) for humankind both in this world

and the hereafter either by the way of promoting

benefits and removing harm (Alim, 1994). Ibn Abd

al-Salam relates maslaha with the obtaining

enjoyments (al-ladzzah) and happiness (al-afrah) in

here and the hereafter (Abdal-Salam, 1994).

The Maqashid Al-Shari’ah divides maslahat into

two categories, i.e. benefits of the hereafter and

benefits of the world, further divided into five

essentials i.e. in order of preference: preservation of

religion, life, reason, progeny and property (Al-

Atawneh, 2011; Al-Ghazali, 1971; Al-Shatibi,

1997). On the five essentials, there is a discourse on

whether or not the essentials are limited to those

five. Some scholars like Ibn Taymiyyah, Al-Qarafi,

Al-Qardhawi, and others, argue that there could be

more than five, such as preservation of honor,

fulfilment of trustworthiness, justice, and others

(Attia, 2008; Duderija, 2014; Zahrah, 1957). On the

other hand, other scholars such as Imam Ghazali,

Fakhr al-Din al-Razi, al-Āmadi, and Imam Shatibi

limit the scope of maqasid in five essentials (Attia,

2008), so that everything else are actually

derivatives of the five essentials.

Maslaha is further put into three levels, which

are: imminent necessities (al-dharurat), ordinary

necessities (al-hajat) and luxuries (al-tahsiniyat),

considered together with the order of the five

essentials (Munir, 2017; Naim, 2016). Also, there is

a division between individual and collective

necessities. With all these classifications, the

different classifications and levels would interact

with each other, sometimes necessitating preference

of one over the other depending on the situation

(Nyazee, 2003). This is how Maqashid Al-Shari’ah

operates as a cause of the law in achieving benefit.

However, within all the aforementioned

classifications of essentials, scholars generally agree

that the preservation of religion (hifz al-din) is the

most paramount and is the soul of the other

essentials, despite differences in how they are

elaborated in concept and application (Al-Ghazali,

1971; Naim, 2016; Nyazee, 2003). After all, the

general idea of maslaha is guided by the Al-Shariʿah

(God’s law, i.e. the Qur’an and Sunnah), and

anything against it is rejected (Al-Ghazāli, 1324).

This is because, in the worldview of Islam, true

success is achieving paradise in the hereafter

(Quran, 3: 185). It is also important to also live well

in the world (Quran, 67:15), while making the world

as a means to achieve paradise (Al-Jawziyah, 2010).

The Urgency to Incorporate Maqasid Shari’ah as an Eludication of ‘Beneﬁt’ as a Purpose of Law in Indonesia’s Legal Education

1087

3.4 Maqasid al-Shari’ah vs Utility in

the ITJ Course

Utilitarianism is a theory attributed to the

English jurist and philosopher Jeremy Bentham

(1748-1832), and is one of the widely used theory on

purpose of law. Bentham believed that all systems –

legal systems included—should be evaluated with

the principle of utility which obeys three axioms: 1)

The society’s interest in the sum of the interests of

the members of society; 2) That every man is the

best judge of his own interest; 3) and that every

man’s capacity of happiness as a great as any other’s

(Eldin, 2013). To Bentham, the purpose of the law is

the law can give a guarantee of happiness to new

individuals of people, as his ‘fundamental axiom’

dictates: “It is the greatest happiness of the greatest

number that is the measure of right and wrong”

(Bentham, 1977; Burns, 2005)

The main problem with Bentham’s theory roots

even as deep as his own axioms. For example, axiom

2 (every man is the best judge of his own interest) –

which is a popular assumption by much of the

common-folk—is clearly based on empiricism. After

all, it is hard to find anyone experiencing about a

person more than her/himself. It has been explained

in Section III.B how empiricism is a very limited

perspective, unable to consider the metaphysical

reality which is a fundamental part of man. Yet, this

is expected of Bentham as an atheist and as secular

positivist who felt very strongly against religion and

believed it to be an enemy to human happiness

(Crimmins, 1986).

This is not to mention how it is difficult to truly

compare the happiness of different unique

individuals (Veenhoven, 2010), especially how the

empiric method cannot observe the subjective

consciousness as also touched in Subsection B,

where the experience of happiness lies. In fact,

happiness is truly a religious-spiritual experience

therefore a mere empiric approach to it can never

touch its essence (Al-Attas, 1995). As explained in

Section III.B also, the higher soul of a man can only

be satisfied when it fulfills its purpose to worship

her/his God.

Therefore, utilitarianism can never ultimately

fulfill the benefits towards the society which it

promises. It does not provide the apparatus required

to consider the need of God, much less towards a

society which its character and legal system puts the

belief in God on the highest and fundamental esteem

like Indonesia. On the contrary, the Maqashid Al-

Shari’ah does put hifz al-diin as an important

apparatus which is the most primary one and is the

soul of other essentials of the law. It provides the

instrument from which to apply religious spirituality

in understanding and applying the law towards a

religious society, which utilitarianism can never do

(Setia, 2016).

The aforementioned is a direct display of

compatibility of the Maqashid Al-Shari’ah towards

the soul of the Indonesian society legal system.

There is a reason why it is Ketuhanan Yang Maha

Esa which is the first pillar of Pancasila, and always

mentioned at the header of all products of law. The

main religious organizations, such as Nahdlatul

Ulama in their Deklarasi tentang Hubungan

Pancasila dengan Islam Scholars have even argued

that Pancasila, which is the state ideology and source

of all sources of law, is essentially a contemporary

application of the Maqashid Al-Shari’ah (Acac,

2015).

In terms of morality, Bentham’s theory is value-

neutral and knows no other indicator but pleasure

and happiness versus pain and displeasure caused to

others while sanctioning legislation and

criminalization (Bentham, 2000). This train of

thought will only result in a subjective morality

meaning that there is no absolute truth (Arif, 2016),

and the ignorance towards true objective and a

universal morality. This means that numerous

immoralities may be lawful if the people like it.

Such a train of thought is acceptable under

utilitarianism, while a people who believe that there

are universal and objective moral issues will not

agree with this. Minority opinions are subjugated

merely by virtue of being a minority and

utilitarianism justifies this.

On the contrary, Maqashid Al-Shari’ah answers

this problem. The belief in God leads to a universal

objective morality and makes it epistemologically

possible. When Euthyphro’s dilemma “Is something

morally good because God commands it, or does

God command it because it is morally good?” (the

former: is God therefore a tyrant? The latter: is there

a higher law binding God –thus He isn’t ‘Almighty’)

is settled by the Islamic response: God, as a defining

character of Himself and His commands, is good

(Akhtar, 2008; Tzortzis, 2016). Through hifz al-diin,

universal objective morality originating from God as

believed by the religious society can be introduced

in legal reasoning in understanding the laws.

With utilitarianism, the jurist cannot truly

understand or accommodate religiosity in religion-

based laws. A true testament to this is the debate

concerning the religious blasphemy laws. In the

Indonesian Constitutional Court Judgment No.

84/PUU-X/2012, para 3.13 displayed a very

utilitarian response of the Judges to justify

criminalizing religious blasphemy, i.e.

decriminalizing it may cause social disorder

(Crouch, 2011). While the court’s view may not be

entirely incorrect, it does not truly capture the true

ICRI 2018 - International Conference Recent Innovation

1088

purpose of the blasphemy laws. Further, an equally

secular view would then respond that this is the

character backwards society as per Comte’s law of

three stages which puts religiosity as the most

primordial stage of man (Comte, 1998). Note also

that Bentham’s student and fellow utilitarianist John

Stuart Mill seems to agree with Comte on this

(Kumar, 2006). Such view was actually sounded by

the Office of the United Nations High Commissioner

for Human Rights in response to the Jakarta

Governor blasphemy case in 2017 (OHCHR, 2017).

This is not an explanation that befits the true nature

of blasphemy laws and its place in a religious

society.

Even further, Mills’ harm principle dictates that

criminalization can only be done when there is harm

towards another person (Gray, 1996, p. 3). Thus, this

principle in addition to the secular ideology limits

criminalization only to ‘concrete’ and ‘tangible’

materialistic reasons for criminalization. This does

not fare well in the Indonesian ideology and legal

system. However, the Maqashid Al-Shari’ah

provides the proper apparatus to explain blasphemy

laws better. With hifz al-diin as an essential, the

concept of ghirah and can be introduced in context

of law. Ghirah is a sense of self-respect and honour,

from which without ghirah towards the religion a

man is as if without religion (Al-Jawziyah, 1997).

Ghirah towards the religion means that one’s heart

and soul will, by nature, be angry when the religion

is disrespected (Quthb, 2002), not too dissimilar

with the offense taken when one’s nation’s pride is

insulted. In context of Islam, blasphemy is a sign of

kufr (disbelief) and dishonours the basis of the

religion which is to glorify God (As-Sa’di, 2002).

Unlike the case of utilitarianism, concrete or

material damage caused are not required. The

damage, if one were to assume to be any, is

immaterial and is on the level of values. Meanwhile,

among the essences of secularism (which

utilitarianism is based on) are the desacralization and

the deconsecration of values (Al-Attas, 1993).

Further, Bentham’s concept of rewards for

‘moral acts’ (i.e. inflicting happiness and pleasure)

seems to only include personal satisfaction (which

ceases upon death), and the commemorations by

fellow citizens and future generations (which the

person does not experience) (Crimmins, 1986). This

means that true happiness which can be experienced

as a reward for ‘moral acts’ are very limited within

Bentham’s own logic which, as he claims himself, is

based on happiness.

Clearly, Maqashid Al-Shari’ah provides better

by recognizing rewards of the hereafter. Islam

teaches that deeds can be good despite being

unpleasant, as stated in the Qur’an in 2: 216 “…But

perhaps you hate a thing and it is good for you ….

And Allah Knows, while you know not..”. The verse

speaks of jihad, but similarly there are many deeds

which seem to be unpleasant but very virtuous (e.g.

charity, sacrifice, etc) which are important in a

society but utilitarianism provides no incentive for it

as it recognizes no hereafter.

While Islam is the majority religion in Indonesia,

all religions seem to believe in some form of

hereafter and the relevance of this material life to

achieve it. This is the religio-magis character of the

Indonesian society in general, where diin is central

in shaping a man, polity, and civilization. How

curious is it to not teach and utilize any theories that

do incorporates diin, and instead teaches and utilizes

a theory that has no place for diin?

4 CONCLUSION

While utilitarianism is the central theory used to

explain benefit-related purposes of law as elaborated

in Section III.A, it fails to capture the most essential

part of man. This essential part of man is religion or

diin, which is the connecting point between man,

polity, and civilization. Therefore, at best, maybe

ITJ can refer to it as a mere historical or comparative

view. However, utilitarianism should not be taught

as a main theory to explain benefit as a purpose of

law. On the other hand, the Maqashid Al-Shari’ah is

the more appropriate theory to explain benefit as a

purpose of law. While it is also a theory to explain

human necessity as a purpose and cause of law, it

recognizes diin as the central and most important

soul. This is the tool needed by jurists to interpret

and apply the law in accordance with the spirit and

values of the Indonesian ideology. There are all the

reasons to include this theory in the ITJ textbooks as

a main theory to explain benefit as a purpose of law.

Indonesia is not an Islamic State and not all

Indonesians are Muslims (albeit an overwhelming

majority). However, it is clear that the belief in God

and Islam –to some extent—is an integral part of the

fabric of the society and legal system. If scholars

saw it fit to transplant much of the Dutch legal

systems and relevant principles into the legal system

and education, it should be even more appropriate to

transplant Islamic legal principles and theories.

More so when these Islamic teachings, in this case

the Maqashid Al-Shari’ah, explains and helps

understand the law better within the paradigm of the

Indonesian value.

The Urgency to Incorporate Maqasid Shari’ah as an Eludication of ‘Beneﬁt’ as a Purpose of Law in Indonesia’s Legal Education

1089

REFERENCES

Abdal-Salam, M.I. ibn, 1994. Qawaidul Ahkam fi

Mashalihil Anam. Mahfudhoh Lil Nasyir, Al-Qahirah.

Acac, M.T., 2015. Pancasila: A Contemporary Application

of Maqasid al-Shari‘ah? Journal of Indonesian Islam 9,

59–78.

Akhtar, S., 2008. The Qur’an and the Secular Mind.

Routledge, Abingdon.

Alatas, S.F., 2010. Ideology and Utopia in the Discourse

on Civil Society in Indonesia and Malaysia, in:

Saravanamuttu, J. (Ed.), Islam and Politics in

Southeast Asia. Routledge, New York.

Al-Atawneh, M., 2011. Wahhabi Legal Theory as

Reflected in Modern Official Saudi Fatwas: Ijithad,

Taqlid, Sources, and Methodology. Islamic Law and

Society 18, 327–355.

Al-Attas, S.M.N., 1995. Prolegomena to the Metaphysics

of Islam: An Exposition of the Fundamental Elements

of the Worldview of Islam. Institute for the Study of

Islamic Thought and Civilizations, Kuala Lumpur.

Al-Attas, S.M.N., 1993. Islam and Secularism. ISTAC,

Kuala Lumpur.

Al-Ghazali, I., 1971. Syifa’al-Ghalil fi Bayan al-Syabah

wa al-Mukhil wa Masalik al-Ta’lil. Mathba’ah al-

Irsyad, Baghdad.

Al-Ghazāli, I., 1324. Al-Muṣtaṣfa Min ‘Ilm al-Uṣūl. Al-

Amiriya Press, Cairo.

Ali, A., 2015. Menguak Tabir Hukum, 2nd Editio. ed.

Penerbit Kencana, Jakarta.

Ali, M., 2014. Child sexual abuse: can the doctrines of al-

maqasid al-shariah and maslahah assist in challenging

the honour ideology? The International Journal of

Human Rights 18, 508–526.

Alim, Y.H., 1994. Al-Maqasid Al-’ammah Lil-Shari’ah

Al-Islamiyah, 3rd ed. Al-Ma’had al-‘Alami al-Fikri al-

Islami, Riyadh.

Al-Jawziyah, I.I.A.-Q., 2010. ’Uddatush Shabirin. Qisthi

Press, Jakarta.

Al-Jawziyah, I.I.A.-Q., 1997. Al-Jawab al-Kafi. Dar al-

Ma’rifah, Al-Maghrib.

Al-Shatibi, I., 1997. Al-Muwafaqat. Dar Ibn Affan, Al-

Khubar.

Arif, S., 2016. Ilmu, Kebenaran, dan Keraguan: Refleksi

Filosofis -Historis, in: Orasi Ilmiah Dalam Rangka

Memperingati Ulang Tahun Ke-13 INSISTS. Institute

for the Study of Islamic Thought and Civilizations,

Jakarta.

Ashur, I.I., 2006. Treatise on Maqasid al-Shariah. IIIT,

London.

As-Sa’di, A., 2002. Taisirul Karimirrahman fi Tafsiri

Kalamil Manna. Dar al-Hadith, Cairo.

Attia, G.E., 2008. Nahwa Taf’il Maqasid al-Shari’ah. IIIT,

Virginia.

Bentham, J., 2000. An Introduction to the Principles of

Moral and Legislation. Batoche Books, Kitchener.

Bentham, J., 1977. A Comment on the Commentaries and

A Fragment on Government, in: Burns, J.H., Hart,

H.L.A. (Eds.), The Collected Works of Jeremy

Bentham. Oxford University Press, London.

Burns, J.H., 2005. Happiness and utility: Jeremy

Bentham’s equation. Utilitas 17, 46–61.

Chalmers, D., 2010. The Character of Consciousness.

Oxford University Press, Oxford.

Comte, A., 1998. Plan of the Scientific Work Necessary

for the Reorganisation o f Society, in: Jones, H.S.

(Ed.), Comte: Early Political Writings. Cambridge

University Press, Cambridge.

Cox, H., 2013. The Secular City: Secularization and

Urbanization in Theological Perspective. Princeton

University Press, New Jersey.

Crimmins, J.E., 1986. Bentham on Religion: Atheism and

the Secular Society. Journal of the History of Ideas 47,

95–110.

Crouch, M.A., 2011. Law and religion in Indonesia: The

constitutional court and the Blasphemy Law. Asian

Journal of Comparative Law 7, 1–46.

Daud, W.M.N.W., 2013. Islamization of Contemporary

Knowledge and the Role of the University in the

Context of De-Westernization and Decolonialization.

UTM Press, Johor Baru.

Duderija, A. (Ed.), 2014. Maqasid al-Shari’a and

Contemporary Reformist Muslim Thought: An

Examination. Springer.

Eldin, S.I.T., 2013. Maqasid Foundations of Market

Economics. Edinburgh University Press, Edinburgh.

Elliot Sober, 2010. Empiricism, in: Psillos, S., Curd, M.

(Eds.), The Routledge Companion to Philosophy of

Science. Routledge, London.

Faris, A. al-H.A. bin, 1979. Mu’jam al-Maqayis fi al-

Lughah. Dar al-Fikr, Bayrūt.

Gray, J., 1996. Mill on Liberty: A Defence, Second Edi.

ed. Routledge, London and New York.

Husaini, A., Kania, D.D. (Eds.), 2013. Filsafat Ilmu:

Perspektif Barat dan Islam. Gema Insani Press,

Jakarta.

Ismail, N., 2014. Maqashid Syariah Dalam Ekonomi

Islam. Smart WR, Yogyakarta.

Johnson, R., 2013. Rational Morality: A Science of Right

and Wrong. Dangerous Little Books, Great Brittain.

Kumar, S.S., 2006. Reassessing JS Mill’s liberalism: The

influence of Auguste Comte, Jeremy Bentham, and

Wilhelm von Humboldt. London School of Economics

and Political Science (United Kingdom).

Manzhur, I., 1414. Lisan al-Arab. Dar al-Shadir, Bayrūt.

Marzuki, P.M., 2008. Pengantar Ilmu Hukum.

Prenadamedia Group, Jakarta.

Mertokusumo, S., 2006. Mengenal Hukum: Suatu

Pengantar. Liberty Press, Yogyakarta.

Muhammadin, F.M., Danusatya, H., 2018. De-

Secularizing Legal Education in Indonesian Non-

Islamic Law Schools: Examining The ‘Introduction to

Jurisprudence’ Textbooks On The ‘Norm

Classification’ Chapter. Ulul Albab: Jurnal Studi dan

Penelitian Hukum Islam 1, 135–158.

Mukhtār, A., 2008. Mu‘jam Al-Lughah Al-‘Arabiyyah

Mu‘aṣirah. ’Alam al-Kutub, Cairo.

Munir, M., 2017. Shari’ah and the Nation-State: The

Transformation of Maqasid Al-Shari’ah Theory.

Hazara Islamicus 6, 1–14.

ICRI 2018 - International Conference Recent Innovation

1090

Naim, W., 2016. Protecting the Religion (Maqsad Hifz al-

Din) in Malaysian Political Islam: A Preliminary

Analysis. Islam and Civilisational Renewal (ICR) 7.

Nyazee, I.A.K., 2003. Islamic Jurisprudence. The Other

Press, Selangor.

OHCHR, 2017. Blasphemy law has no place in a tolerant

nation like Indonesia – UN rights experts. Office of

the High Commissioner of Human Rights.

Quthb, S., 2002. Tafsir Fi Zhilalil-Qur’an Di Bawah

Naungan Al-Qur’an. Gema Insani Press, Jakarta.

Ramlah, 2012. Implikasi Pengaruh Politik Hukum

Kolonial Belanda Terhadap Badan Peradilan Agama

Di Indonesia. Jurnal Kajian Hukum Islam 12, 43–64.

Rohman, M.S., 2013. Kandungan Nilai-Nilai Syariat Islam

Dalam Pancasila. Jurnal Studi Agama Millah 13, 205–

215.

Setia, A., 2016. Freeing Maqāṣid and Maṣlaḥah from

Surreptitious Utilitarianism. Islamic Sciences 14, 127–

157.

Tzortzis, H.A., 2016. The Divine Reality: God, Islam and

the Mirage of Atheism. FB Publishing, San Clemente.

Veenhoven, R., 2010. Greater Happiness for a Greater

Number: Is That Possible in Germany? Journal of

Happiness Studies 11.

Wiranata, I.G.A.B., 2005. Hukum Adat Di Indonesia:

Perkembangannya dari Masa ke Masa. Citra Aditya,

Bandung.

Zahrah, M.A., 1957. Usul Al-Fiqh. Dar al-Fikr al-ʻ Arabi,

Al-Qahirah.

The Urgency to Incorporate Maqasid Shari’ah as an Eludication of ‘Beneﬁt’ as a Purpose of Law in Indonesia’s Legal Education

1091