Islamic Law as Legal Tradition and Cultural Identity of the People of

Indonesia

Prawitra Thalib, Faizal Kurniawan, Hilda Yunita Sabrie

Private Law Department, Faculty of Law, Universitas Airlangga, Indonesia

Keywords: Benefits, Islamic, Law, Business, Norms.

Abstract: Islamic Law in Indonesia has become the identity of the Indonesian society. Islamic Law has grown and

developed prior to the establishment of the State and have deeply rooted in all aspects of community life.

Although Indonesia is not an Islamic State, it is not a barrier in applying Islamic law in Indonesia, due to the

values contained in Islamic law which represent as a pulse in every aspect of Indonesian public life, where

in these values are sometimes interpreted into norms by the contemporary legal experts. Islamic Law in

Indonesia using a parameter of benefit about whether or not a law required in a particular issue, besides its

primary role to ensure that every Islamic law being standardized is not conflicting with the Quran and

Sunnah, by applying the Islamic law into every attempt of making or any interpretation of a law, hence it

can be ascertained that the law meets the standards to be applied into Indonesian society. As such, it is not

feared that the law will lead to new problems or incurring a conflict of norms in the application.

1 INTRODUCTION

Among the traditions and religions that exist in this

world, no one can give influence and impact of such

a large and deep in various aspects of human life as

well as Islam. As an Islamic belief, it is not just a

series of worship and command or everything

relating to morals affairs. It also regulates the rules

of human relationships as well as the rights and

obligations of each individual human being in all

circumstances and conditions. The dynamism of

Islam in responding to all demands at times when it

faces an endless stagnant period, Islam is regarded

unable to solve new problems that arise along with

the times, which indirectly has triggered a setback of

Muslims in present time. Shibli Syumayyil have

carefully suggests that a setback of Muslims at the

present time is caused by deviation in the Islamic

teachings by Muslims, not from the teachings of

islam itself (Muthahhari, 1995).

Islamic law has become the identity of Indonesia

long before of the republic of Indonesia establish on

1945, Indonesia is not Islamic state, although

majority of Indonesia citizens is moslem that living

peace with other non-Islam citizens, Islamic law is

not laws formal in Indonesia, but in certain aspects

life Islamic law fixed applied in the life of the

moslem community Indonesia covering the aspects

of family, marriage, heirs and economic Islamic. As

time progress and technology so implementation of

contemporary Islamic law in Indonesia always

growth follow the development and legal issues that

appears .Islamic law is perennial fixed and rigid but

on one side Islamic law can being flexible and

dynamic they can adjust with the developments of

the times, as for who became instrument renewal

Islamic law this is Islamic legal a maxim or qowaidh

fiqiyyah.

Islam has a good ability of adaptability in facing

all the demands of the times, therefore the Qur'an as

a source of supreme law in Islam, only regulate

matters of the principal issues wherein further

interpretation carried out by the Apostle through his

Sunnah and Ijtihad efforts by muftis and scholars,

therefore.the role of sense is very decisive in this

effort. Due to the above, in a sense of Islam as a

blessing from Allah SWT. Need to be kept,

maintained and protected. As for the notion that in

line with the development period, which brought

changes towards progress in a society represents

anything comes from the West is the most

misleading ideas.The reason is, long before the

Western found the momentum of alteration, the

Eastern world, in particular the Islamic world, have

led the world through a tremendous influence in

228

Thalib, P., Kurniawan, F. and Sabrie, H.

Islamic Law as Legal Tradition and Cultural Identity of the People of Indonesia.

DOI: 10.5220/0010051102280236

In Proceedings of the International Law Conference (iN-LAC 2018) - Law, Technology and the Imperative of Change in the 21st Century, pages 228-236

ISBN: 978-989-758-482-4

knowledge development at that period of time.

However, due to the deviation occured in the Islamic

teachings as stated previously by Syibli Syumayyil

(Ridwan,2007). Then Muslims are not leading the

development of the times anymore. Consequently,

the momentum was taken over by the Western

world. Therefore, it can be said that science and

knowledge can lead men towards the perfection,

however on the other hand the human's character

and greediness can bring people towards destruction

and misuse of the existing moral values.Character-

building and human greed is what makes science as

a tool for its own sake and as a means to satisfy their

lust. A Muslim should be developed in line with the

development of time, and must fight against the

destruction and deviation from the Islamic teachings.

The discussion on Islamic law and qowaid

fiqhiyyah (foundation of fiqh) are two of the most

important thing, especially in comprehending any

Islamic law. This is due to the mastery of the rules

of fiqh will be a common thread to the settlement or

from any emerging problems suitable to the different

place, time and habits. Therefore the actual qowaid

fiqhiyyah would make the Islamic law always

flexible in response to any social, economic,

political, cultural and legal issues. Pertaining to the

above view, a question of whether there is an

obligation for Muslims to formally. Impose Islamic

law emerges, With regard to this issue, it can be

affirmed that there is no necessity to establish an

Islamic State. It is clearly envisaged in Q.S. A

Maidah ayat 44, that Islam requires each follower to

follow and apply Sharia Law, but not to be

performed in the form of establishing an Islamic

State or in form of formal Islam. The reason if

Islamic law is believed to be general. However. The

Islamic law is specifically embodied in fiqh and can

be applied differently according to the place, time

and situation. Therefore, fiqh can be changed

according to the conditions under which fiqh be

applied. It can be proved in the history of Islam

wherein there is a fact that the fiqh can vary from

one place to another and between one time period to

another. For example during the reign of the first

Caliph Abu Bakr As-Siddiq and Umar bin Khatthab

as the second caliph. In the government period of

Umar there were a lot of ijtihad-ijthad created as the

renewal of Islamic law, such as termination of

almsgiving or charity to muallaf (persons converted

to Islam), the distribution of inheritance that is

possible to be equal parts between men and women,

even a prohibition on marriage between Muslims

and the scribes. It means that at some level of certain

law in the social life of society, the existence of an

Islamic law that are built exclusively is made

possible in compliance with the demands of the

time, appropriate, the circumstances, but the general

values of Islam is not allowed to be eliminated. The

same thing also apply in the application of

contemporary Islamic law. It does not matter

whether the country's form is monarchy or republic

as long as the values of Islam in general is within the

system of the State then it is not an issue. Therefore

on this issue the rules of fiqh namely "al ibrah fil

Islaam bil bil madzhar Jawhar laa "meaning the

basic guidelines in fighting Islam is the substance

not the symbols. Hence, al-Shahrastani is absolutely

correct when he stated that the sword was not drawn

because of religious matter, yet the sword will be

drawn because of political problems in every age

(Shahrastani et.al.). This inclusive view may be

important considering that Indonesia is ideologically

established and built as a religious country, not as an

Islamic State. In this concept Indonesia is not a

Country that is blank of religion but also not based

on a certain religion. All religions are protected for

their rights and obligations by the State without

differentiating the number of adherents. Therefore,

based on Pancasila, Indonesian Muslim already feel

accommodated for their rights and obligations, and

are able to perform their religion without any

obstacle. As a result, Muslims do not need

Indonesian Islamic State because Indonesia as

Pancasila-based country which is a religious country

may be accepted as a concept that is in line with the

fiqh siyasah that ties Muslims without any

exception.

In fact, understanding the Islamic law can not be

separated from the terminology of qowaid fiqiyyah,

in which by etymology the word qowaid comes from

the Arabic word al-Aqidah which means the

foundation that later emerging the word qaidah,

meaning the basis, while qowaid is the plural of

qaidah, hence it has the meaning of basics. (Warson,

1997) As to the terminology of fiqhiyyah derived

from the Arabic language fiqh sourced from Q.S.

At-Taubah verse 122, "liyatafaqqahu fiddin" which

means to deepen their knowledge about religion, ..

tafaqqahu ... this is what emerge the concept of fiqh

as an al-fahmu or understanding. As the result, fiqh

can be considered as an understanding about syariah

(sharia), or the science of understanding sharia as the

rules stipulated by Allah for His mankind.

Fiqh talks over Islamic law, therefore if Islamic

law is inseparable from qowaid fiqiyyah then

qowaid fiqiyyah will not be separated from the fiqh

because fiqh is a product of Islamic law. Overview

on the specificity of fiqh and public qowaid

Islamic Law as Legal Tradition and Cultural Identity of the People of Indonesia

229

fiqhiyyah can be described as follows, fiqh is a

general understanding of the principles of Islam and

the laws contained therein. An understanding of the

legal issues are divided specifically according to the

assessment of each certain legal issues. For instance

marriage law is stipulated in fiqh munakahat, the

inheritance law is arranged in fiqh faraidh, the civil

law is set in fiqh muamalah, and many other areas of

law regulated in different fiqh. Each branch of fiqh

have a separate discussion that is different from one

another, for example fiqh muamalah governing civil

cases only while th fiqh faraidh regulate the issue of

inheritance, both fiqh that stand on their own

without interfering each other, because the field of

understanding and addressing issues are legally

different, this is why fiqh is said to have special

characteristic (Thalib, 2013) The basic science of

fiqh as an understanding derived from Q.S. At-

Taubah paragraph 122 "liyatafaqqahu fiddin" which

means "to deepen their knowledge on the religion",

is what underlies the birth of al fiqh formulation as

an al-fahmu or al science, fiqh can specifically be

regarded as an understanding or knowledge of the

sharia, the science that is used to understand sharia

as the rules of Allah God Almighty for His mankind.

However it is important to understand that Sharia is

general, absolute, eternal, holy and sacred because it

comes directly from Allah, therefore it can not and

should not be modified by any human. As to fiqh is

a science that is specific, relative and greatly

influenced by the condition of the place and time

(qabil lin niqash, qabil lit taghyir) (Fanani. 2009).

Currently, the science of fiqh often be attached to

hermeneutics. It was because same as fiqh

hermeneutics, basically not intended to develop rules

and procedures in order to understand the text of

law, however hermeneutics have a philosophical

goal which try to connect the thoughts and intent as

well as the direction and purpose of a text between

contemporary readers in the past and with the

current readers (contemporary),this is then attracted

to what is called a tripartite hermeneutical process or

three hermeneutical process consists of

understanding, interpretation and hermeneutics. The

first process including understanding (exegesis)

research on the original meaning of the text based on

the time and place of origin, while the second

process is interpretation, which is trying to track the

contemporary meaning of the original meaning

contained in the text. In other words, this process

trying to translate the original meaning of the text

based on the time and accurate origin into a meaning

adapted to the existing traditions which is currently

developing, followed by a heremeneutics process,

which is an effort that seeks to formulate the rules

and methods used in the relocation process from

where the original understanding leading to the

current or contemporary meaning. Both the science

of fiqh and hermeneutics has been proven to be used

as an attempt to understand the texts of scripture that

once referred to by humans. His is what causes both

have a the links between each other.

Islamic law and qowaid fiqhiyyah are

interrelated with each other, it is due to the

dynamism of Islamic law embodied in fiqh is highly

dependent on qowaid fiqhiyyah, in this case the

characteristics of the generality of the principles

make Islamic law can be applied to all conditions in

every time and age. Qawaid fiqhiyyah makes fiqh

becomes a specific science, relatively and greatly

influenced by the condition of the place and time

(qabil lin iqash, qabil lit taghyir), how it could not

be, indirectly the development of society, culture,

science and technology have influenced the

development of Islamic law, shariah can not be

changed because it is eternal, changing the shariah is

tantamount to changing the existing provisions in the

Quran and Sunnah, but the interpretation of the

Shariah can be adjusted with the times, where it is

bridged by qowaid fiqhiyyah as a parameter in

understanding the meaning contained in the Quran

and Sunnah which is outlined in fiqh, as a form of

contemporary application of Islamic law.

2 METHODOLOGY

Research Subject. Islam has two main sources of

law, Quran and Sunnah, which is often mentioned as

the primary propositions of Islamic law (Weiss,

1992) beside Quran and Sunnah, there are also some

supporting propositions of Islamic law, those are

ijma', qiyas, istihsan, masalahah mursalah, urf and

syar’un man qoblana, which are alternative ways to

understand the true meaning contained in the Quran

and Sunnah. Talking about Islamic law, there are

two main forms, sharia and fiqh. Sharia is Islamic

law in an extensive meaning which covers aspects of

faith, morals and amaliyah, and the norm in Islam,

so that’s why it is more extensive. Meanwhile fiqh is

more practical as Islamic law, comes from the

detailed propositions or tafsily which regulates a

particular field of law(Hidayatullah), in other words

it can be understood that sharia is the law of God

which is sent to humans as the guidelines of life

when dealing with God, human and the

environment, whereas science which discuss the

sharia we called as fiqh (Shomad, 2010). So we can

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say that fiqh as a spesific Islamic law. As to the

differences between shariahh and fiqh can be

described as follows, (Thalib, 2013).

i. Sharia has anextensive scope covering all the

actions and deeds of human, while fiqh refers

only to what is understood as a human’s

action generally that is based on legal or

illegal thing;

ii. Sharia is the rule that contains several

provisions in Quran and sunah that covers

three main components; they are aqidah,

ahlaq and fiqh while fiqh is only one of

shariah components;

iii. Sharia has perfect and unchangeable

characteristics, while the fiqh has

characteristics that always changes by the

changing of time, space and place where fiqh

is applied;

iv. Sharia is based on the revelations that only

comesfrom the Quran and Sunnah, whereas

fiqh is the result of jurists’ reasoning and

deduction based on theknowledge

evolutionthat passes continouslywith the

changing times;

v. Sharia has several action levels covers the

allowed and forbidden matters, while the fiqh

only regulates legal and illegal actions.

Data Collection. Yusuf Musa explained the three

differences between sharia and fiqh in his book

entitled al Madkhal li Dirasah al Fiqh al Islamy

included, (Supriyatni, 2011).

i. In some cases, shariah has more extensive

coverage than fiqh, because sharia covers all

the religions aspects such as aqidah, worship

and law, while fiqh only regulate the actions;

ii. Looking fromt he subject, Allah SWT is the

subject of sharia or al Syar'i, while in fiqh is

human or al faqih, therefore the truth of

sharia as the creation of Allah SWT is perfect

and eternal, while fiqh is changeable in

accordance with the understanding of the

faqih which is caused by social, cultural and

historical factors;

iii. From the use of the term, we can also find

difference, the term “Sharia” has been used

since the beginning of the development of

Islamic history, while the term “fiqh” has just

used after the branches of Islamic divinity arose

in the second century of Hijriyah.

The phenomenon of the contemporary Islamic

legal thought is a response to social conditions after

the falling of the Ottoman Empire, the emergence of

the Islamic reform movements such as the Tanzimat

and Salafism has influenced the development of

contemporary Islamic law, the influence of

secularism and colonialism, also the defeat of the

Arabic states to Israel in the Six Day War in June

1967 which led to the signing of the Camp David

agreement, all factors have given effect to the

development of Islamic law either directly or

indirectly, and led the Islamic world in conditions

such as loss of a role model globally, it caused

Moslems were scattered systematically and lived in

their own way. This then led to the fact of thinking

about the need to reform the Islamic law, so it could

deny the skeptical thought that Islamic law was

obsolete..

3 DISCUSSION

As a perfect religion, Moslems believe that Allah

created humans accompanied by the creation of laws

and rules that serve as guidelines to regulate their

life, in this case there are two conceptions of law in

general, the first is the law which derived by God

directly which is the origin of Islamic law and the

second is a human-made laws. The concept of

Islamic law itself is basically an attempt to

understand which one is good and which one is bad,

this is because human as a mortal creature will never

know which one is good and which one is bad unless

guided by Allah SWT through the intercession of

His Messenger, this two concepts are later known as

husn (good) and qubh (bad) (Laldin, 2006).

Sharia is the road leading to the oasis, in this

case sharia is interpreted as law of Allah which was

revealed to the Prophet Muhammad, while fiqh is

the thought result of mujtahid or Islamic law experts

who interpret the real meaning of the law contained

in the Sharia those are the Qur'an and Sunnah, so

this can also be defined fiqh as sharia in the strict

meaning. Imam Hanafi defined fiqh as someone's

knowledge about his rights and obligations included

laws relating to faith, morals and amaliah. This

concept arose because in the time of Imam Hanafi

lived, fiqh was not the separated branch of science

from other Islamic sciences, while the separation of

aspects of Islamic teachings occurred and fiqh

became one of sharia branches along with other

branches of science such as Sufism and ushul fiqh.

Therefore it can be understood that the discussion in

the fiqh science are all matters relating to all human

activity aspects tot he Creator, the human activity to

one another or human to the State, while the aspect

related to the moral development was assessed

separately in tassawuf as a separated part of the fiqh

science (Zuhaili, 1993).

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231

Through the separation so the definition of fiqh

as a science which discussed sharia becomes limited

to the knowledge of sharia law related to human

deeds based on the propositions in the Quran and

Sunnah as a result of istinbat or ijtihad. While the

term siyasah derived from the word “sasa” which

has meaning to drive, control, controler, way to

control, manage, handle and govern, besides siyasah

can also mean government, politics and

administration. So based on that, siyasah can be

defined as an attempt to make a political or

governmental policies or efforts to regulate, control

or govern a government or the administration of a

government (Khalaf, 1994), the term siyasah is not

found in the Quran, but can be found in some

Sunnah (Ridwan,2007).

According to Ashiddiqy, Islamic law has

characters immortal, eternal and unchanging and

categorized in three categories: First, takamul means

perfect, comprehensive and complete. It means that

Islamic law configurates people in a comprehensive

provision, although they are from different nations

and tribes, but they are an unsparated unity. Second,

wasathiyah (harmony) means Islamic law takes the

middle path, the balanced path and not biased,

nottend to the right by concerning the psychiatric

aspects or to the left by concerning the differences.

Islamic law always aligns between reality and facts

with the ideal of purposes. Third, Harakah

(dynamic) means Islamic law has the ability to move

and develop, has the power of life and be able to

establish themselves in accordance with the

development and progress of the times. Islamic law

is strayed from deep and broad sources, giving the

human a number of positive laws and can be used at

any place and time (Ash-Shiddiqy).

The major problem on understanding of Islamic

law to be applied in Indonesia are basically related

to attitude toward tradition (turats) on one hand and

the attitude toward modernization (hadatsah) on the

other hand. If the traditional thought needed to

address the modernization with the priori for

conservation, the opposite is modern thought needed

to address the tradition as something that must be

eliminated to achieve the progress, because the

tradition is assumed as a barrier blocking the

progress of the process itself. In this case, the

concept of Contemporary Islamic law is stuck in a

critical dispute between tradition and modernization

where both face each other as a form of

contemporary challenges.

Secularization in modern times has slowly

influenced contemporary culture at this present time.

Since the 18th century, science and technology in

human society have made people move into a more

effective and efficient. The development of

technology beginning with the invention of the

steam engine by James Watt has provided a

significant effect, especially in terms of technology.

When in modern times appear personal things that

separate away from the public sphere. It will have

developed the thought of secularization

automatically which separates the private affairs

with public affairs. Talking about secularization was

originally pioneered by the separation between the

powers of Church and State, which automatically

religious life of the people is no longer regulated by

the State. It is true that secularization has partially

contributed to the development of contemporary

Islamic law, but remember that Islamic law must not

lose its true spirit as God's revelation that comes

from Allah SWT. The purity of Islamic law derived

from the religion of Islam must be maintained, the

norms contained in the Quran and Sunnah must be

applied into all aspects of life of Moslems in every

place, epoch, and time, qawaid fiqhiyyah attempts to

bridge the contemporary meaning effort of the

values contained in the texts (Quran and Sunnah), so

that Islamic law remains alive in contemporary

dimensions without diminishing its meaning and

essence as a revelation.

The scope of the fiqh is very extensive, it is

because fiqh includes various branches (furu'),

which causes the need for the main foundation

which serves as the root that sustains those branches,

the stronger the roots, the stronger the branches and

surely can produce shade leaves, beautiful flowers

and plentiful fruit, in addition, strong roots will

make a solid tree that no need to worry if its

branches buffeted by strong winds. Similarly,

branches of fiqhin Islamic law will be stronger and

no need to worry when the storm of the times and

technology come. Because its branches stand on the

solid roots, then the branches will also be sturdy.

Contrarily, if the roots are weak, the branches

definitely would collapse if storms attack no mater

how good and beautiful the branches. In

consequence, it is true if the book al Faraid al

Bahiyah mentioned that "indeed branches of fiqh

can only be mastered with the rules of fiqh, so

memorizing the rules is very important (Abd.

Rahman). The phrase above illustrates that a

mujtahid can know the contemporary law problems

by understanding and exploring the principles of

fiqh.

About the principles of fiqh, we can say that

qawaid fiqhiyyah can accommodate the syara’ laws

of the various different issues, so Nadwi stated that

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the universal fiqh foundation contained general

syara’ law, to the various events also within the

scope of the qowaid fiqhiyyah (Ali Ahmad al –

Nadawi). We can conclude that qawaid fiqhiyyah in

the formation of Islamic law has roles as follows

(Hidayatullah, 2012).

i. Deepening of the rules of fiqh will make an

Islamic law expert can really understand the

science of fiqh and capable to analyze a wide

range of contemporary issues, which can be

prescribed by the law of the problem later;

ii. Understanding of the qowaid fiqhiyyah can

facilitate the process of determining the law

against a new problem, by postulating the

existence of equations illat and not contrary to

the provisions laid down in advance;

iii. Understanding of the qowaid fiqhiyyah make

Islamic law always flexible, because qowaid

fiqhiyyah serves as a filter that ensures in order

that contemporary fiqh which has been made to

solve the problems of the contemporary is not

contrary to the provisions contained in the nash

(Quran and Sunnah).

The Four-Imam (Hanafi, Hambali, Maliki dan

Syafií) really realized of the importance of

understanding the qawaid fiqhiyyah, this is because

the science of fiqh rules is one of the most important

branches of science sharia, when studied by

someone it will make that person will be a faqih or

someone who master the science of fiqh, even

according to famous ulamas the secrets of fiqh in

essence lies on the rules that it contains, besides

mastering fiqhiyyah qawaid will ease a mujtahid to

issue a fatwa, so it can not be denied that the main

cause of backwardness of Islamic law developments

is caused by a lack of attention to the science of

qowaid fiqhiyyah.

Basically the rules of fiqh which are established

and agreed upon by the ulama are many, but in

practice, famous ulamas remain guided to five main

basic principles or better known with the term

qawaid sasiyyah al khams, this five basic principles

then generate various branch rules which are still a

part of the overall qawaid fiqhiyyah, in its progress,

then IbnNujaim added one new basic principle to the

previous five-basic principles, so it was named as

qawaid al kubra, however the use of five basic

principles qawaid asasiyyah al khamsis more

popular than the use of basic principles qawaid al

kubra, this five-basic principles a guideline which

ensures that the human created fiqh must not

contrary to what Allah SWT has determined, values

in fiqh rules are universal, afford to adapt to the time

and all problems attached to it, the rules can

generate the branch rules that are more specifically

related to the issue to be resolved. The basic rules of

the science of jurisprudence consist of (Ibnu Nujaim)

i. First Rule, "All matters depend on the

intention".

ii. Second rule, "Confidence can not be eliminated

or removed by doubt".

iii. Third Rule, "Every adversity will give

conveniences".

iv. Fourth Rule,"harm and danger must be

eliminated".

v. Fifth Rule "Tradition must be affirmed".

Five points above are the rules of the

principal called the qawaid asasiyyah al khams.

(Prawitra 2016)

As to the explanation of each application of the five

rules of fiqh that can describe below:

i. Explanation of the first rule, "All matters

depend on the intention", this rule emphasizes

the importance of intention in doing any

business, if the intention is good, the result will

be good, but on the contrary, if the intention is

not good then the result will not be good. In

conducting an ijtihad, it is important to

understand that such efforts must be begun in

good intentions, so that the results of ijtihad

will be good, but if ijtihad is done not with

good intentions then it will certainly have a bad

impact, in another word ijtihad is conducted

because need a solution, not because orders or

requests from the interests of people which

does not give the goodness for the majority of

people. Sample of application of these rules

is,to conduct istinbath to validity of financial

transactions using electronic cards, the Al-

Quran and Sunnah do not organize it in detail,

but there are basic commerces that can be used

as guidance in making the new rules through

the efforts of ijtihad, then in this case ijtihad is

conducted to accommodate the interests of

Moslems toward financial transactions using

card because the times are allowing payments

using card, ijtihad is done solely for the good

of the Muslims in the deal, not because of the

request of bank or other hand, because the

intention is to facilitate Muslims trade and as

long as no directions in Al-Quran and Sunnah

and not contradict to the two main sources so

the fiqh of electronic transaction are allowed

according to Islamic sharia.

ii. The second rule, "Confidence can not be

eliminated or removed by doubt,” means the

emphasis on a condition that everything that

has been set up can not change, this rule then

Islamic Law as Legal Tradition and Cultural Identity of the People of Indonesia

233

generate the branch rules "al aslumakana la

makana" which can be interpreted that indeed

everything already exists can not change

forever, in etymology the belief is a science

that there is no doubt in it, furthermore its truth

is undeniable obviously [40-41].

iii. Third Rule, "Every adversity will give

conveniences". This rule is clear evidence that

Islam is not intended to complicate the human

but on the contrary Islam as rahmatan lil

Alamin aims to bring human to the goodness,

existing laws should not distress and encumber

humans but always adapted to human

capabilities, as it is mentioned in Q.S. Al

Baqarah verse 286 , the jurists then make this

rule to solve a variety of problems and

determine the legal, that in formulating the law

should not be too incriminating, but tend to the

goodness, therefore it is appropriate if Asqalani

said that Islam is an easy religion compared

with the previous heavenly religions (Al

Asqalani).

iv. Fourth Rule,"harm and danger must be

eliminated". Understanding of this rule is

initiated by the strong meaning that someone

should not harm others, as stipulated in Q.S. Al

Araf verse 56 and Q.S. Al Qasas verse 77, The

two verses contain the word "tufsidu wala fil

ardh", which has meaning do not make

mischief on earth. The explanation can be

understood that every human being is

prohibited to make mischief on the earth in any

form, as well as in interpreting the meaning

contained in the Quran and Sunnah, the

damage here is not only superficial damage or

visible damage physically, but more than that

such damage also includes moral, mindset,

behavior and mental damage. On this basis, so

this fourth main principle arose.

v. Fifth Rule "Tradition must be affirmed". The

tradition here means a habit or urf that can be

accepted by the healthy nature and done

repeatedly, in this case when a habit is not

contrary to the texts (nash) contained in the

Qur'an and Sunnah then the habit can be done

and should be no longer disputed, in this case

the parameters of the tradition is the

nothingness of conflict with the Quran and

Sunnah, if a tradition conflicts to the Quran and

Sunnah then automatically the tradition can not

be applied and used as guidance in interpreting

the law. The application of tradition till

becomes a living law in a society focuses on

two main points: the first, does not conflict to

the Quran and Sunnah and the second, to bring

benefit to mankind, in consequence, if an act is

not forbidden in the Qur'an and Sunnah, but did

not bring benefit at all should not be done,

because it can only lead to wastefulness and

futility course, other case is about doubtful

(subhat)actions which its halal and haram are

not obvious, that if someone faces this situation

he should avoid, as the Prophet Muhammad

said “those who are stuck in a doubtful

(subhat)case, then surely he was trapped in the

case of the unlawful(haram)”.

4 RESULT

In the beginning, the Islamic legal thought grew

flexibly and dynamically follow the demands of the

times, but besides that, it also retained the

unchanged basic principles namely as a revelation

from Allah SWT revealed to Prophet Muhammad.

This dynamic and sturdy nature later became

characteristic of Islamic law throughout the ages,

where the dynamism makes Islamic law becomes

flexible, and always adaptable to the developments

and changing of times, meanwhile the rigidity of

Islamic law makes it insoluble totally to the

demands of the times, so still can maintain its purity

without losing its identity. But in practice, the pace

of the time development runs too fast, so it is not

able to be accompanied by the pace of ijtihad

development which can be considered too slow. To

actualize the flexibility, we can utilize qawaid

fiqhiyyah or fiqh principles which can function as a

parameter of the formatting the fiqh in contemporary

Islamic law, it is done in order that the fiqh has the

legal force and not conflict with nash or goodness,

so it can be applied in everyday life. In detail,

qowaid fiqiyyah is a collection of some guidelines

which contains values that should become the basic

foundation of the establishment of Islamic law;

therefore qowaid fiqiyyah can be grouped into five

basic principles/main Islamic laws, known by the

term qowaid asassiyyah al khams. The five basic

principles regulate the subject matters that should be

followed in the effort to isthinbath (make output) a

law in fiqh. In practical terms, it can be said that the

Islamic law in fact is fiqh, namely the fuqaha’s

efforts in applying Islamic Sharia in accordance with

the needs of recent society. Islamic law has a special

characteristics in the adjustment to the times. The

specificity of the characteristics of Islamic law is

takamul (perfect), wasathiyah (harmony), and

harakah (dynamic). Because the bigotry to the

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foregone mahzab caused the taqlid, and the taqlid

was one of the obstacle factors in the process of

Islamic law reformin accordance with recent

situation. Because the demands of the times and the

awareness of Islamic scholars, then appears Islamic

law reformation movement with various thoughts.

Islamic legal reform requires the role of ijtihad and

public awareness in receiving updates Islamic law.

Qowaid fiqhiyyah are universal principles which

contain same subjects, which can be grouped in the

same outline that later generates various branches of

fiqh. Qawaid fiqhiyyah has been agreed by famous

ulama as a base as important as the principal

propositions and supporting ones existing in Islamic

law, this is because qawaid fiqhiyyah can ease a

mujtahid to understand Islamic law. So someone

does not deserve to be considered as mujtahid, if not

master qowaid fiqhiyyah. In short, the understanding

of the rules of fiqh is necessary to perform ijtihad.

The role of ijtihad is very big in the reform of

Islamic law. The reform can not be carried out

without a qualified mujtahid. Talking about reform

in Islamic law and ijtihad in Islamic law, like two

sides of a coin that can not be separated from one

another, it is mutually complementary. If the process

of ijtihad can be implemented in the process of

reform of Islam correctly, so the laws of the ijtihad

process will answer all the problems due to the

demands of the times.

Thus the discussion about qowaid fiqhiyyah, and

examples of its application, the five basic rules are

desperately needed in the process of applying the

contemporary Islamic law, regarding to the

universality and generality of the Quran and Sunnah,

so it needs a method as a analitical knife to find the

essentials based on the two main Islamic law

sources, beside that with qowaid fiqhiyyah then

Islamic law can be adapted indirectly to the changes

and developing of the times through an instrument

called fiqh, but the flexibility of Islamic law can

only apply to the mundane problems, whereas the

problems about tauhid (monotheism) involves

aqidah and worship can not be interpreted further

because it can lead to heresy (bid’ah) and slander

(fitnah) in understanding the true teachings of Islam.

5 CONCLUSIONS

The attempts to find out the true meaning of the

Quran and Sunnah can be bridged by qowaid

fiqhiyyah. This is because the values in the rules of

fiqh are an outline that must be followed when

formulating fiqh. if ushul fiqh is a method for

formulating fiqh, then qowaid fiqhiyyah is the

approach way used in these methods, so fiqh

produced can certainly not contrary to the arguments

set out in the Quran and Sunnah as well as to answer

all the problems that arise in every aspect of

people’s life. Qowaid fiqiyyah should be a guideline

in making a fiqh of Islamic law, this is because

qowaid fiqiyyah not only strive to ensure that fiqh is

not contrary to the texts (nash), as contained in the

Quran and Sunnah, but more than that qowaid

fiqiyyah also makes every fiqh have each illat which

distinguishes between a fiqh with each other, in

which the illat appear as a result of their legal

rationing which generates other law in Islamic law.

It is very important to remember every law there

must be basic, because without illat that the law is

not perfect, even with this illat laws contained in the

texts, become flexible and dynamic, so it can answer

and resolve all problems in every age. The

application of contemporary Islamic law is very

dependent on the application of qawaid fiqhiyyah in

ushul fiqh, as raw predefined rules then this should

be a major concern when discussing the

contemporary Islamic law, it also aims to break the

stigma that Quran and Sunnah have been irrelevant

to recent time, because indeed Al-Quran and Sunnah

were relegated by God to answer all problems in all

ages, and as a revelation to the Prophet Muhammad

the last prophet would never have outdated, it's just

that the human mind is sometimes unable to

understand perfectly the meaning of the Divine

contained in the Quran and the Sunnah so often

creates a negative stigma to it. Therefore qawaid

fiqhiyyah is an adapter between the perfection of the

Divine with the mortal human thought in

understanding the intent of the creator of the

universe Allah SWT.

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