Sharia in Secular State
The Place and Models for Practicing Islamic Law in Indonesia
Nurrohman Syarif, Tajul Arifin and Sofian Al-Hakim
UIN Sunan Gunung Djati Bandung, Jl.AH Nasution 105,Bandung, Indonesia
Keywords: Constitution, caliphate, ideology, Islamic state, legal system.
Abstract: In Islam, the complexity and uniqueness of relation of state and religion can be traced back in history of the
relation of Islamic law and state. The purpose of this study is to describe the place of Islamic law in Unitary
State of Republic Indonesia and the models or alternatives that can be used to practice Islamic law. This
research is a kind of non doctrinal qualitative legal research which included some problems, policy and law
reform based research. The subject of this study is the substance and norms of sharia that has been
accommodated by Indonesia legal system or has been applied through its protection. Data was collected
from the book or documents. From this study, it can be concluded that although officially, Indonesia is not
religious state, philosophically the purpose of sharia has been accommodated in Indonesia legal system,
legally there is no obstacle to absorb sharia values and norms into positive law as long as it is not contrary to
the constitution. This study also concluded that practically, there are some alternatives that can be used by
Muslims in practicing sharia. This result implies that there is no need for Muslim to establish an Islamic
theocratic state in order to practice comprehensive sharia.
1 INTRODUCTION
Relation of state religion is a complicated and
unique throughout its history. In Islam, the
complexity and uniqueness can be traced back in
early history of this religion. All Muslims agree to
made the prophet Muhammad SAW (Peace be Upon
Him) a role model for them. However, they differ in
determining what the main mission of the prophet
Muhammad is, and how to make the prophet a role
model?
Personally, Muhammad himself stated that he
was sent to complete morals. In other words, his
mission is ethical and moral not a political.
However, when he immigrated to Medina, he was
entrusted with the position that some experts
considered the position of a head of state.
Through his book entitled Muhammad Prophet
and Statesman, Montgomery Watt argues that
Muhammad was not only a Prophet but also a
statesman. (Watt, 1961: 94-95). This is a unique
role. Because it seems that Muhammad combined
spiritual religious as well as worldly political
authority. The impact of this uniqueness, experts are
different in many respects. For example, is the state
of Medina a religious or a civil state? Whether
Muhammad political or religious leader.
Ali Abd al-Raziq in his book Islam and The
Principles of Government (al-Islam wa Ushul al-
Hukmi) argued that the Prophet Muhammad
remained a moral leader not a political leader. (Abd
al-Raziq, 1985). But some other experts asserted that
Muhammad SAW, at Medina has actually become a
statesman or head of state.
In the modern age, Muslims broadly still divided
into two: a groups who want to make Islam as
political ideology and the other who want to place
Islam as a source of ethic, moral and spiritual
guidance. Further differences can be traced in
various things such as in determining the form of the
state of Medina; relation of religion and state;
relation of Islamic law and state; definition of
Islamic State; the way of Muslim countries placed
Islamic law in their respective constitutions of the
state; as well as the model of Islamic sharia
implementation in each country.
The Islamism movements that make Islam an
ideology both nationally and globally always pursue
the aspirations and demands to implement sharia
totally (kaffah) and formally through state
52
Syarif, N., Arifin, T. and Al-Hakim, S.
Sharia in Secular State - The Place and Models for Practicing Islamic Law in Indonesia.
In Proceedings of the 2nd International Conference on Sociology Education (ICSE 2017) - Volume 2, pages 52-60
ISBN: 978-989-758-316-2
Copyright © 2018 by SCITEPRESS – Science and Technology Publications, Lda. All rights reserved

instruments. Islamism grows out of a specific
interpretation of Islam, but it is not Islam: it is a
political ideology that is distinct from the teaching
of the religion of Islam. (Tibi, 2012:1)
According to Pew Research Center (2013) there
are 72 % of Indonesian Muslims who favor making
Islamic law the official law in their country. In other
words, there are some Muslims who feel that legal
system of Indonesia not yet fully accommodate
sharia law.
The problem always arises when in its effort to
fight for the formalization or transformation of
Islamic law into national law, they use only one
model, the rigid, exclusive, conservative, literalist
one. Base on research by Pew Research Center
(2013) there are 45 % of Indonesian Muslims who
say hat sharia has single interpretation. Muslims
who hold this opinion tend to see the other
interpretation was wrong. As a result they prone to
be exploited by Islamism radical ideology who
always use sharia as one of their agenda. Survey
conducted by Pew Research Center (2015) finds that
4% of Indonesian Muslims supported the radical
ideology carried out by ISIS (Islamic State in Iraq
and Syria). If translated into real population, it is
about 10 million Muslims (Kompas, 2015). For
them, sharia cannot be fully implemented in
Indonesia because Indonesia is secular state.
Arskal Salim in his book Challenging the
Secular State; The Islamization of Law in Modern
Indonesia 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).
Contrary to what is said by Salim, this study
argues that what is tightly confined is just one of
several model of sharia implementation, that rigid
exclusive and literalist model. This study aims to
explain the place of Islamic law in Secular Unitary
State of Republic Indonesia and the models that can
be used to practice Islamic law.
The fundamental theory used in this research is
the theory of secular state presented by Ahmet T.
Kuru and the theory of the relationship between
Islam and state presented by Munawir Syadzali.
Ahmet T. Kuru, in his book Secularism and State
Policies toward Religion divided the state base on its
legislature and its policy toward religion into three
classifications; religious state such as Iran, Saudi
Arabia, Vatican, secular state and anti religious state
such as North Korea, China and Cuba. Secular state
can be divided into two: secular state with an
established religion and officially favor one like
Greece, Denmark, England, secular state that
officially favor none like United State, France,
Turkey. (Kuru, 2009:8). See Table 1.
Lubna A Alam in his article Keeping The State
Out: The Separation of Law and State in Classical
Islamic Law said that the classical era of Islamic
history, which ended at the beginning of the
sixteenth century, saw the rise of Islamic states as
well as the formation of a complex system of Islamic
law. From its very beginnings, the content of Islamic
law developed largely free from political influence
and pressure (Alam, 2007).
Khaled Abou El Fadl in his article, Islam and the
State: A Short History said although, historically,
jurists played important social and civil roles and
often served as judges implementing the sharia and
executive ordinances, for the most part, government
in Islam remained secular. Until the modern age, a
theocratic system of government in which a church
or clergy ruled in God’s name was virtually
unknown in Islam. (Abou El Fadl, 2003:14).
According to Sjadzali, among Muslims there are
three schools of relations between Islam and the
state. Firstly, those who hold that Islam is not merely
a religion in the Western sense, that is, only
concerning the relationship between man and God,
Islam is a perfect religion that governs all aspects of
life, including the life of the state. Supporters of this
school include Hasan Al-Banna, Sayyid Qutub,
Muhammad Rashid Ridha and Al-Mawdudi.
Secondly, those who hold that Islam is a religion in
the Western sense, which has no relation to state
affairs. According to them, the Prophet Muhammad
was just an apostle like the previous apostles, with
the task of bringing people back to a glorious life
with high regard for noble character, and the prophet
was never meant to establish and head one country.
Supporters of this flow are Ali Abd al-Raziq and
Thaha Husein. Third, those who hold that in Islam
there is no constitutional system, but there is a set of
ethical values for the life of the state. Supporters of
this school include Mohammad Husein Haikal.
(Syadzali, 1990:1)
Theoretically or conceptually, sharia is God’s
Will in an ideal, general and abstract form, while
Islamic law (fiqh) is the product of human attempt to
understand God’s Will. Khaled Abou El Fadl in his
book Speaking in God's Name: Islamic Law,
Authority and Women, said that the sharia is God’s
Will in an ideal and abstract fashion, but the fiqh is
the product of the human attempt to understand
God’s Will. In this sense, the sharia is always fair,
Sharia in Secular State - The Place and Models for Practicing Islamic Law in Indonesia
53

just and equitable, but the fiqh is only an attempt at
reaching the ideals and purposes of sharia.
According to the jurists, the purpose of sharia is to
achieve the welfare of the people, and the purpose of
fiqh is to understand and implement the sharia.
(Abou El Fadl, 2014). In his book entitled Islam and
the Challenge of Democracy, Khaled Abou El-Fadl
said that sharia as conceived by God is flawless, but
as understood by human beings is imperfect and
contingent. (Abou El-Fadl, 2004:34) In his article,
Sharia in the Perspective of a Legal State Based on
Pancasila (Syariat Islam dalam Perspektif Negara
Hukum Berdasar Pancasila) Nurrohman Syarif said
that sharia or Islamic law has a number of
characters. First, it contains a sacred value and
personal because it comes from God and related to
faith. Secondly, it has a moral content. It doesn’t
only speak of rights and obligations but talk about
what should be or recommended to be done and
what should not be done through the inner
conscience by a mature and sane person (mukallaf).
The thirdly, Islamic law is not totally dependent on a
particular country. Because, it was developed by
legal experts independently. The fourth, Islamic law
is flexible and dynamic. Because it can basically
change if there is social change. It is dynamic
because it can develop in accordance with the
development of human civilization. The fifth, it is
rational, because it generally can be understood and
in line with common sense or scientific explanation.
(Syarif, 2016).
Although Islamic law is a ‘sacred
law’
, it is by no means essentially irrational; it was
created not by
irrational process of 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,1983:4)
In his book Philosophy of Islamic Law (Filsafat
Hukum Islam), Hasbi Ash Shiddieqy said that
Islamic law should be guided and developed based
on a number of principles, namely: 1) eliminate
narrow-mindedness (nafyu al-kharaj). 2) minimize
burden (qillatu al-taklif). 3) in line with human
welfare 4) realizing equitable justice 5) putting the
mind over the text of sharia in case of conflict
between the two. 6) each person assumes his own
responsibility. (Ash Shiddieqy, 1975: 73-92).
In his book Maqashid al-Shari’ah as Philosophy
of Islamic Law, A Systems Approach, Jasser Auda
quoted Ibn al-Qayyim’s (d. 748 AH/1347 CE)
statement: “Shari’ah is based on wisdom and
achieving people’s welfare in this life and the
afterlife. Shari’ah is all about justice, mercy,
wisdom, and good. 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
Shari’ah, even if it is claimed to be so according to
some interpretation” (Auda,2007).
In general, the application model of Islamic
sharia in some countries can be divided into three
namely: exclusive-textual, inclusive-substantial, and
combination. These models cannot be separated
from the role of religion in politics. In his article,
Religion within The Nation of Pluralistic Society
(Agama dalam Pluralitas Masyarakat Bangsa,)
Masykuri Abdillah said the role of religion in
politics can be classified into three forms. Firstly,
religion as a political ideology; secondly, religion as
ethical, moral and spiritual base and third, religion
as sub-ideology. Countries that place religion as
ideology tend to practice religious teachings
formally as positive law and take a structural
approach to socialization and institutionalization of
religious teachings. Countries that place religion as
an ethical, moral, and spiritual source tend to
support cultural approaches and reject structural
approaches in terms of socialization and
institutionalization of religious teachings. This
means that the implementation of religious teachings
should not be institutionalized through legislation
and state support, but enough with the consciousness
of religious people themselves. Countries that place
religion as sub-ideology 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.
(Abdillah, 2000) See Table 2.
2 METHODS
This research is a kind of non doctrinal qualitative
legal research which covered some problems, policy
and law reform based research ((Dobinson and
Johns, 2007:20)
The subject of this study is the substance and
norms of sharia, both private and public, that has
been accommodated by Indonesia legal system or
has been practiced through its protection. Data was
collected from the book or documents that have been
published. The main data are drawn from the
Indonesian constitution (UUD 1945) and laws
designed to fulfil the aspirations of Muslims in
general or to fulfil the demands of political parties
that carry Islamic ideology. Data will be classified
and analyzed to explain the place of Islam and its
sharia in Indonesia legal system and the model for
practicing sharia in Indonesia. The place of sharia
ICSE 2017 - 2nd International Conference on Sociology Education
54

was be analysed by comparing the constitution of
Indonesia with others. While the model of practicing
sharia was be analysed through cultural, structural
and combination model. This study was based on
assumption that practicing sharia is not the same
with formally implement sharia.
3 RESULTS AND DISCUSSION
3.1
Results on the Place and Models for
Practicing Sharia
The study shows that although Indonesia is a secular
state, sharia occupies an important position in the
national legal system in Indonesia. The ideology of
the State of Indonesia is Pancasila. Literally, the
word Pancasila means five principles (from a
Sanskrit word: pance, five, and sila, principle). In
fact, the term Pancasila was used by Empu Prapanca
in his well-known book entitled Negarakertagama,
and likewise by Empu Tantular in his famous work
entitled Sutasoma. These two writers were great
thinkers and poets who lived under the Hindu
Kingdom of Majapahit during the reign of Hayam
Wuruk. (Ismail, 1995:4)
However, it can be accepted by Muslims as the
final ideology because all its principle in line with
Islamic teachings. Substantively, the objective of
Islamic law is to provide protection for freedom of
thought (hifdzu al-aqli), religious freedom (hifdzu
al-din), property rights (hifdzu al-mal), family rights
(hifdzu al-nasl) and the right to life (hifdzu al-nafs)
has been included in the Indonesian constitution.
The value of justice, benefit, wisdom and mercy had
also been included in the Indonesian Constitution.
Compared with the constitution of Medina, the
Indonesian constitution substantially contains a
number of the same principles such as the principles
of monotheism, unity and togetherness, equality and
justice, religious freedom, defending state,
preserving good tradition, supremacy of sharia and
the politics of peace and protection.
Like Pancasila which can be a paradigm for all
citizens in their life as citizens, sharia is also a
paradigm for all Muslims in private life and
community. If the sharia as ethical and moral
guidance for Muslims is born out of belief,
Pancasila is the ethical and moral guideline born
from the agreement of the founders of the nation.
In line with the role of religion in political life,
the model of Muslims in practicing sharia in
Indonesia can be divided into three, exclusive
textual, inclusive substantial, and combination.
The first model is usually trying to implement
sharia as mentioned in the text of the Qur'an, prophet
tradition or in the text of standard works recognized
by its authority in explaining Islamic law. This
model is based on the assumption that the sharia has
perfectly regulated all aspects of life. Sharia after the
prophet Muhammad no longer experiences the
process of evolution. Therefore, the duty of Muslims
is to apply it when the provisions are clear in the text
of the Qur'an or prophet tradition (al-Sunnah). If
there is no provision, then they can use analogy or
individual reasoning (ijtihad). Muslims do not need
to take other legal systems outside of Islam. Sharia
is a law of God that can not be known its true
content except by the experts, i.e. Jurist (faqih,
mujtahid). Therefore, any legislation made by a
legislature must be approved by a sharia expert, and
the sharia expert has the right to veto any laws
deemed inconsistent with the sharia. The first model
is commonly practiced privately in private matter.
The second model, it is try to practice the Islamic
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 in
accordance with the times and places. This model is
based on the assumption that every legal provision
in Islamic law has its reasoning and purpose.
Therefore, the proponents of this model do not
object if Islamic law undergoes evolution. They are
also relatively easy to accept any legal system as
long as the legal system upholds justice, equality,
freedom, brotherhood and humanity which are the
core of sharia. Sharia is applied openly through
accepting "external elements" such as local custom
and thoughts coming from outside Islam. There is no
monopoly in the interpretation of sharia, and
therefore, there is no need for "sharia supervisory"
institutions that monopolize the interpretation of
sharia. The second model was commonly practiced
in public life.
The third model is combination. In practicing
sharia, they divided it into two; purely religious
teaching that should be done without any question or
reasoning ,( ta'abbudi) and what is understood by
reason ( ta'aqquli). They sort the sharia into two,
private and public. In private law, they tend to be
textual exclusives because it is part of ta'abudi, but
in public law, they tend to be substantially inclusive.
The choices taken by each person, community or
country will depend on the legal politics embraced
by them. See Table 3
Sharia in Secular State - The Place and Models for Practicing Islamic Law in Indonesia
55

3.2 Discussion on the Place and Models
for Practicing Sharia
Why philosophically, sharia occupies high level in
Indonesia legal system? Philosophically, the
substance of Islamic law is in line with the substance
contained in the Indonesian Constitution. The
constitution of Indonesia and the constitution of
Medina in the time of the prophet have the same or
similar principles according to Harun Nasution and
Munawir Sjadzali.
Harun Nasution, in his paper Islam and the
System of Government as Developing in History
(Islam dan Sistem Pemerintahan Sebagai yang
Berkembang dalam Sejarah) said that the principle
of monotheism is mentioned in article 22,23,42,47 in
Medina Charter, it also mentioned in the first
principle of Pancasila, article 9 and 29 of Indonesia
Constitution (UUD 1945). The principle of unity
and togetherness is mentioned in article 1,15,17,25
and 37 of Medina constitution as well as mentioned
in the third principle of Pancasila, article 1 verse 1,
article 35 and 36 of UUD1945. The principle of
equality and justice is mentioned in article 13, 15,
16,22,24,37 and 40 of Medina Constitution. It also
mentioned in the fifth principle of Pancasila, article
27, 31, 33 and 34 of Indonesia’s constitution. The
principle of religious freedom is mentioned in article
25 of Medina Constitution it also mentioned in
article 29 verse 2 of UUD 1945. The principle of
defending state is mentioned in article 24, 37, 38 and
44 of Medina constitution. It also mentioned in
article 30 of Indonesia’s constitution. The principle
of preserving good tradition is mentioned in article 2
until 10 of Medina constitution. It also mentioned in
article 32 Indonesia’s constitution. The principle of
supremacy of sharia is mentioned in article 23 and
42 of Medina charter. (The disputes are ruled based
Allah rules and the judgment of Muhammad SAW).
This principle is not explicitly mentioned in
Indonesia’s constitution, but religious norms was
adopted as logical consequence of implementing the
first principle of Pancasila and article 29 of
Indonesia’s constitution. The principle of politics of
peace and protection is mentioned in article
15,17,36,37,40,41,47 (peace and internal protection)
as well as in article 45 (peace and external
protection) of Medina constitution. In Indonesia’s
constitution, this principle mentioned in preamble,
article 11and 13. (Nasution, 1985). See Table 4
Munawir Sjadzali, in his book Islam and
Government (Islam dan Tata Negara) said the
foundations laid down by Medina Charter as the
basis of state for the plural society in Medina are : 1)
all Muslims although from different ethnic or tribe
are one community 2) the relationship between
Muslims community and others is based on
principles (a) good neighboring (b) to help each
other in facing common enemy (c) defending who
are persecuted (d) giving advice to each other and
(e) respecting religious freedom. In addition,
Sjadzali said that Medina charter that often called by
many political scholars as the first constitution of
Islamic state not mentions state religion. (Sjadzali,
1990). In the Medina charter, the meaning of the
ummah is extended, it includes not only the Muslim
community but encompasses all citizens. (Al-Syarif,
1972)
If compared to other Muslim countries in placing
Islamic law in their constitution, Indonesia can be
paced in the third grade. (Nurrohman, 2002:17) See.
Table 5.
Indonesia is like Turkey in choosing secular state
for a Muslim-majority society. In fact, in the Muslim
world, twenty out of forty-six Muslim-majority
states are secular, including Indonesia, as they at
least, do not declare Islam as official religion, and
Islamic law does not control their legislative and
judicial processes. (Kuru, 2009). However, in
Indonesia Islamic law has entered into the life of the
state through structural and cultural processes,
through the transformation of values, norms or
symbols. As a source of ethics, morals and
spirituality, sharia for Muslims is a living paradigm
that can enter into various aspects of life, including
when they live in a secular state.
There is no correlation between the degrees of
state in placing the sharia formally in their
constitution with the degree of the state in practicing
sharia. For instance, although Indonesia placed only
in the third grade, but the values of sharia which are
practiced in Indonesia are better than Iran. Base on
Islamicity index made by Rehman and Askari,
Indonesia ranked at 140, higher than Pakistan that
ranked at 147, Egypt 153, and Iran at 163. (Rehman
and Askari: 2010). This is because sharia actually
can be flexibility practiced as long as it is directed to
achieve its purpose.
The acceptance of Muslims to the secular state
with Pancasila as its ideology, in which the word
sharia is not mentioned, not a one-off process, it
requires a long process as described by Faisal Ismail
(Ismail, 1995). Concerning the diversity of Muslims
in practicing sharia, H.A.R.Gibb as quoted by
Hamid Enayat said that in the Sunni community
there is no one universally accepted doctrine of
caliphate. What is does lay down is a principle: that
caliphate is that form of government which
safeguards the ordinances of sharia and sees that
they are put into practice. So long as that principle is
applied, there may be infinite diversity in the manner
of its application. (Enayat, 1982). Theocratic
caliphate cannot be accepted in a country that has
ICSE 2017 - 2nd International Conference on Sociology Education
56

embraced the principle of democracy like Indonesia.
(Nurrohman, 2007)
Therefore, it is true when Hallaq said that the
idea of the Islamic State in the form of a theocratic
caliphate in a modern democratic country is an
impossible. (Hallaq, 2013). Because it will hinder
the emergence of what is called “pragmatic
eclecticism” in Islamic law. (Ibrahim, 2015:10).
Viewed from general legal system in the world,
what is going on in legal policy in Indonesia is what
is described by Palmer, Mattar and Koppel as a
mixed legal system, a legal system that combines
civil law, common law, customary law and Islamic
law. Under these conditions, all legal systems have
an opportunity to contribute. (Palmer, Mattar and
Koppel, 2015:279). So, the problem for practicing
sharia in Indonesia actually only belong to parties
who will imposed sharia formally, literally, and
structurally through the instrument of the
authoritarian state.
In Indonesia, a number of experts have different
views in explaining the theory of how the sharia is
applied in the context of the national legal system.
Juhaya S Praja for instance, mentioned various
theories such as credo theory, the theory of legal
authority and the theory of reception in complex.
According to these theories a Muslim is obliged to
implement all Islamic law as a consequence of his
creed. Islamic law is fully applicable to Muslims,
because they have embraced Islam even though in
practice there are still deviations. This theory
became a reference in the colonial policy since 1855.
(Praja, 2009: 107),
Christian Snouck Hurgronye (1857-1936)
developed a theory called receptive theory.
According to Hurgronye, 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 of 1929 Article
134 paragraph 2.
A Qadri Azizy developed the theory which he
called the theory of the positivization of Islamic law.
According to this theory, the application of Islamic
law is no longer determined on the basis of
acceptance by customary law. Because Islamic law
has basically become a positive law for Indonesian
Muslims. The main reference of this theory is: UU
No.1 th 1974 about marriage, PP No.28 of 1977 on
Endowment (Perwakafan), Law Number 7 of 1989
on Religious Courts, Presidential Decree No.1 of
1991 on Islamic Law Compilation, Law No.17 of
1999 on Zakat Management.
4 CONCLUSIONS
From this study it can be concluded that Indonesia
remains a secular state. Although philosophically,
Islamic law occupies an important position in
Indonesia legal system but formally in the
constitution, the word sharia or Islamic law was not
mentioned. However, Muslims have a great
opportunity to practice Islamic law fully as long as
they use many alternatives. There are many models
for practicing sharia in Indonesia.
As a source of ethics, morals and spirituality, the
sharia for Muslims is a paradigm. When viewed
from philosophical perspective what happens in
Indonesia is the sharia-ization of Pancasila or
Islamization of law, but when viewed from formal
legal perspective, what happens is Pancasila-ization
of sharia. For all laws and regulations promulgated
in Indonesia must be openly prepared to be tested in
conformity with the constitution.
This study impacted that Muslims in Indonesia
didn’t need a theocratic state of caliphate. This study
also impacted that Indonesian Muslim didn’t need
Islamic Ideology to replace Pancasila as state
ideology. Because, by following the provisions and
principles contained in the constitution of Indonesia,
Muslims in Indonesia has actually followed the
Prophet Muhammad model in state affairs. Further
research is directed to identify how the values
contained in Pancasila and sharia are practiced by
the Indonesian people, including by Muslims, in
everyday life.
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APPENDIX
Table 1: The types of state according to Ahmed Kuru.
Religious
state
Secular State Anti
Religious
state
Legislature
and
judiciary
Religious
based
Secular Secular
The state
toward
religion
Officially
favour one
Officially
favour one
or none
Officially
hostile to
all or
man
y
Examples Iran, Saudi
Arabia,
Vatican
Greece,
Denmark,
England
(officially
favor one)
United State,
France
,Turkey
(officially
favor none
)
North
Korea,
China,
Cuba
Number of
the state
12 60
(Officially
favour one)
120
(Officially
favour none
)
5
Table 2: The role of religion in politics according to
Masykuri Abdillah.
Types Description
Religion as
Political
Ideology
Countries that place religion as ideology
tend to practice religious teachings
formally as positive law and take a
structural approach to socialization and
institutionalization of religious
teachings.
Religion as
ethical,
moral and
spiritual
base
Countries that place religion as an
ethical, moral, and spiritual source tend
to support cultural approaches and reject
structural approaches in terms of
socialization and institutionalization of
religious teachings.
Religion as
sub-
ideology
Countries that place religion as sub-
ideology tend to support a cultural as
well as structural approach by involving
religious teachings in public policy
makin
g
in a constitutional, democratic
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58

and non-discriminator
y
manner.
Table 3: The models for practicing Sharia.
Descri
p
tion Assum
p
tions
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
Sharia has
perfectly
regulated all
aspects of
life. Sharia
after the
prophet
Muhammad
no longer
experiences
the process of
evolution
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.
Combination 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
Table 4: The comparison between Indonesia constitution
and medina charter according to Harun Nasution.
The elements
of
Medina Charter Indonesia
Constitution
(1)Monotheism Article
22,23,42,47
The first
principle of
Pancasila, and
article 9, 29
(2) Unity and
togetherness
Article
1,15,17,25,37
The third
principle of
Pancasila,
article 1 verse
1, article 35,
and 36
(3)Equality
and justice
Article
13,15,16,22,23,
24,37,40
The fifth
principle of
Pancasila,
article
27,31,33,34
(4)Religious
freedo
m
Article 25 Article 29
(5) Defending
state
Article
24,37,38,44
Article 30
(6) Preserving
good tradition
Article
2,3,4,5,6,7,8,9,10
Article 32
(7) Supremacy
of sharia
Article 23,42 The first
principle of
Pancasila, and
article 29
(8) Politics of
peace and
p
rotection
Article
15,17,36,37,40,
41,45,47
Preamble of
constitution and
article 11,13
Sharia in Secular State - The Place and Models for Practicing Islamic Law in Indonesia
59

Table 5: The place of Sharia in the constitution of Muslim
countries according to Nurrohman.
The
g
rade
The position of sharia Example of
the state
1 A country whose
constitution recognizes
Islam as a state religion
and makes sharia the
main source of legislation
Saudi Arabia,
Libya, Iran,
Pakistan and
Egypt
2 A country whose
constitution declares
Islam as a state religion
but does not mention
sharia as the main source
of legislation means that
sharia is only seen as one
source of some legal
sources of le
g
islation
Iraq and
Malaysia.
3 A country that does not
make Islam a state
religion and does not
make sharia the main
source of legislation but
recognizes the sharia as a
living law in the
community.
Indonesia
4 States that declare
themselves as a secular
state and seek to make the
Islamic sharia not affect
its le
g
al s
y
stem.
Turkey
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