ISLAMIC LAW SOURCES AGREED BY COVERS: AL-QUR’AN,
AL-SUNAH, IJMA ’AND QIYAS
Nurrochmah Soviani (17110102)
Fadlilah Novia Rohmah (17110198)
Students of Maulana Malik Ibrahim State Islamic University of
Malang
e-mail : Nurrochmah.soviani@gmail.com
Abstract
The word source comes from the Arabic mashdar. The source of
Islamic law or mashadir al ahkam al syar’iyyah ’means a container from which
legal norms are drawn. contemporary literature usually equates the meaning of
the source and the proposition. The meaning of a guide can be interpreted as a
guide that guides us in finding God's law. Jumhur scholars 'agreed that the
Qur'an, Hadith, Ijma' and Qiyas are sources and propositions of Islamic law.
Manna 'Qattan defines the Qur'an as kalamullah which was revealed to the
Prophet Muhammad sallallaahu alaih wasallam, and reading the Qur'an is worth
worship. The truth of the Qur'an as the main source of Islamic law is based on
the argument of QS Al An'am verse 57. The hadith experts believe that the
hadith is anything that was despised from the messenger of Allah, whether in
the form of words, deeds, actions, taqrir, end or inner characters. Also the
journey of his life since from before being sent to be an apostle like when he
survived in the cave of Hira, and also after his appointment as an apostle. The
authenticity of the hadith can be decided from the basis of the Qur'an, the
basis of the faith and the basis of the ijmma 'friend. Al-Ghazali argues, ijma
'is the agreement of the people of Muhammad specifically on matters relating to
religion. One of the conditions of ijma ’is based on one of the words of the
Prophet," Verily, Allah will not gather my people, or he said the people of
MuhammadSAW for error ". According to Wahbah az-Zuhaili, qiyas is
connecting a problem that does not have a syara text 'about the law with a
problem that has the legal text, because there is a partnership between the two
in terms of divine law. Basic Qiyas used as an argument one of them based on QS
An Nisa 'verse 59.
Keywords: Source of
Islamic Law
A. Introduction
The word 'source' in fiqh law is a
translation of lafaz mashdar, plural of the word mashadir. Lafaz mashdar or
complete ‘mashadir al ahkam al syar’iyyah’ is usually only found in some
contemporary literature. While the classical literature uses the word theorem
or complete ‘al adillah syar’iyyah’. However, etymologically, actually mashdar
and the proposition are not synonyms. Mashdar means that it is a container, it
can be interpreted as a forum from which legal norms are drawn. While the
proposition means guidance, it can be interpreted as a guide that guides us in
finding God's law.[1]
Prof. Dr. H. Amir Syarifuddin in his
book, Usul fiqh Volume I, argues that the word source in this sense can
actually only be used for the Qur'an and Sunnah, because both of them are
containers that can be drawn from the syariah law ', but this word should not
be used for ijma 'and qiyas, because neither of them is a place to draw law.
While the word proposition can be used for the Qur'an and Sunnah, as well as
for ijma ’and qiyas, because all four are instructions that lead to the
discovery of God's law. But once again, contemporary literature has usually
used the words proposition and source as synonyms.
Jumhur scholars 'agreed that the
Qur'an, Hadith, Ijma' and Qiyas are sources and propositions of Islamic law.
There are certain characteristics and categories in making Al Qur'an, Hadith,
Ijma ’, and Qiyas as sources and legal propositions. This paper tries to
discuss the four sources and propositions of Islamic law.
B. Al-Quran
Understanding the Qur'an
The scholars of the Qur'an give
different definitions of the Qur'an according to their respective backgrounds.
The following is an understanding of the Qur'an according to the terms
described by experts[2]:
1.
Manna
'Qattan defines the Qur'an as kalamullah revealed to the Prophet Muhammad SAW,
and reading the Qur'an is worth worship.
2.
While
Khudlari Beik defines that the Qur'an is
It is the
Qur'an, the word of God revealed to the Prophet Muhammad SAW in Arabic lafadz
which was written to the next generation with mutawattir, written in the
mushaf, read it worth the reward, starting from the Surah Al Fatihah and closed
with Surah An Nas.
3. Explanation from Hasbi al Shiddiqi, that
the Qur'an is kalamullah which was revealed to the Prophet Muhammad sallallaahu
alaih wasallam, written in Arabic text, is conveyed to us mutawattir, and
begins with Al Fatihah, ending with An Nas.
Use of the Holy Qur'an and the Types of Law
Based on the position of the Qur'an
as the basic source of Islamic teachings, then the basic sources of other
Islamic teachings, such as Ijma, Qiyas, and others must also be sourced
basically, namely the Qur'an. The Creator says in surah Al An'am verse 57:
قُلْ إِنِّي
عَلَىٰ بَيِّنَةٍ مِنْ رَبِّي وَكَذَّبْتُمْ بِهِ ۚ مَا عِنْدِي مَا
تَسْتَعْجِلُونَ بِهِ ۚ إِنِ الْحُكْمُ إِلَّا لِلَّهِ ۖ يَقُصُّ الْحَقَّ ۖ
وَهُوَ خَيْرُ الْفَاصِلِينَ
Say: "Verily, I am on the real proof (Al Quran) of my Lord,
while you are lying. There is nothing to me what (the Penalty) that you are
asking for his arrival to be hastened in. Establishing the law is only Allah's
right. He explains the truth and He Gives the best decision".
Therefore, legal experts agree that
the Qur'an is a holy book that can be used as a basis for argumentation, proof,
law enforcement for every Muslim, and all the laws in it are rules that must be
followed by Muslims. The strength or blasphemy of the Qur'an is muthlaq and
qath'i, or certainty.
There are several kinds of laws
contained in the Qur'an which can be summed up into three parts[3]:
a.
I'tiqadiyyah
law, are laws about what must be believed by every believer, such as faith in
God Almighty, angels, apostles, destiny, and at the end of the day.
b.
The
law of morality, is the laws about the character or behavior of a Muslim, how
to associate with good ethics, upholding values and norms.
c.
Amaliyyah
law, are the laws relating to the practical worship of a mukkallaf. This is
often called the Qur'anic Fiqh.
Regarding amaliyyah law is divided into two things[4]:
1.
Laws
regarding worship, such as prayer, zakat, pilgrimage, fasting, the relationship
is between a servant and his Lord.
2.
The
law regarding muamalah, for example buying and selling, jinayah, munakahat,
everything that is related is between a mukallaf with other mukallaf. This law
about muamalah is further divided into sections:
a.
Ahwal
as syakhsiyyah, namely the law regarding kinship. For example marriage,
divorce, reconciliation, fasakh and others. In the Qur'an, there are 70 verses
that discuss the salamhsiyyah ahwal.
b.
Ahkam
al madaniyyah, namely civil law. Like leases, buying and selling, debts, liens
and others. There are 70 verses that discuss the matter of ahkam al madaniyah.
c.
Ahkam
al iqtishdiyyah qa al maliyyah, namely economic and financial law. There are 10
verses in total.
d.
Ahkam
ad Dauliyyah, is the law regarding international relations. There are 25 verses
that discuss this matter.
e.
Ahkam
ad dusturiyyah, is the constitutional law. There are 10 verses that discuss
this law.
f.
Ahkam
al murafa'at wal al ijra'at, is the law regarding witness and justice. The
number of verses is 13.
g.
Ahkam
al jinayah, is a law regarding crime. There are 30 verses that discuss about ahkam
al jinayah.
Distribution of Legal
Proofs and Their Explanations[5]
a. From the side of origin, there are two types:
1.
Theorem
of the texts, are the verses of the Qur'an and mutawattir Hadith.
2.
The
proof of ra'yu, are general provisions developed by scholars from the
propositions of the Qur'an and the Hadith through the ijtihad method.
b. In terms of power coverage, there are two types:
1.
The
universal kulliy postulate, is the proposition of the texts which contains many
legal units, even most of the law. For example:
هُوَ الَّذِي
خَلَقَ لَكُمْ مَا فِي الْأَرْضِ جَمِيعًا ثُمَّ اسْتَوَىٰ إِلَى السَّمَاءِ
فَسَوَّاهُنَّ سَبْعَ سَمَاوَاتٍ ۚ وَهُوَ بِكُلِّ شَيْءٍ عَلِيمٌ
He is God, Who made everything on earth for you and He created the
heavens, then made seven heavens. And He is All-Knowing everything.
Verse 29 in Surah Al Baqarah shows the legal law of various types
of food and drinks for humans, even this verse has determined the principle of
law which states that everything on this earth is halal status, except that is
forbidden by Allah and His messengers. Taken from this principle, what is
included in the Kulli argument is the Shari'ayah rule, namely the general rule
that covers all branches of the fiqh mmasaah and serves as a guideline for
determining the law in every fiqh event, both of which are indicated by the
Sharih Maupu. . For example the rules:
اَلْأَصْلُ
فِي الْأَشْيَاءِ الإِبَاحَةُ
Basically everything is permissible
2. The
argument of juz'iy (partial), is the proposition which shows only the legal
unit. For example in surah Al Maidah verse 96:
أُحِلَّ لَكُمْ
صَيْدُ الْبَحْرِ وَطَعَامُهُ مَتَاعًا لَكُمْ وَلِلسَّيَّارَةِ
It is permitted for you sea animals and the food contained therein.
c. In terms of quality, this proposition is further divided into
two jennies:
1. Theorem
of qath'iy, is a convincing argument and is clearly sourced from syara ’. The
scholars have different opinions on this matter:
·
Opinions
of Muslim scholars state that what is included in the argument of Qath'iy are
the Qur'an and the Mutithith Hadith.
·
The
opinion of the Hanafi group states that the argument of qath'iy, namely the
Qur'an, the tradition of worrying, and the hadith of the Sunday.
2. Theorem dzanniy, is the proposition that
derives a strong form of institution from shara', which is the hadith of
Sunday.
The division is based on the process and the way to which an
argument, through the path of mutawattir or the way of Sunday, is needed to
know the extent of the validity of an argument. Therefore, the dalalah or
instructions contained in the two jennies of the arguments mentioned above are
as follows:
a. Qathhiyyah dalalah is a proposition whose legal guidance
is certain to be correct because the text directly refers to what is intended
so that it is clear to understand.
b. Dzanniyyatud dalalah is a proposition whose texts contain
several interpretations which are strongly suspected that the instructions are
correct. For example the interpretation of Surah Al Baqarah verse 228:
وَالْمُطَلَّقَاتُ
يَتَرَبَّصْنَ بِأَنْفُسِهِنَّ ثَلَاثَةَ قُرُوءٍ
And women who are barred, then they should refrain for three times
the quru ’
Interpreting the verse, legal experts give their opinions differ.
There are interpreting the quru ’is a holy period, aa interpreting the quru’ is
the menstrual period.
C. Al-Sunnah
The word hadiits
is the word mufrad of the jama ', al ahaadiits which is basically the word
tahdits, which means' talk'. The hadith from the language side has several
meanings or synonyms, including the following:[6]
a.
Al
jadid, new one. Opposite words from al qadim, which has long been, are
usually interpreted as the book of God.
b.
Al
Khabar, news.
c.
Ath
Tariq, Street.
d.
As
sunah, travel.
While in terms
of terms, the understanding of the hadith varies because experts provide
understanding in accordance with their scientific backgrounds. For example, the
hadith experts give a definition that the hadith is
a.
Everything
that was surrendered from Allah's messenger, whether in the form of words,
deeds, taqrir, end characters and his mind. Also the journey of his life since
from before being sent to be an apostle like when he survived in the cave of
Hira, and also after his appointment as an apostle.
b.
All
the sayings of the Prophet sallallaahu alaih wasallam, nevertheless his actions
and matters of the matter.
c.
What
is relied on the Prophet sallallaahu alaih wasallam in the form of words,
deeds, taqrir, or his nature.
Whereas the usul experts define that the hadith are:
All the sayings of the Prophet sallallaahu alaih wasallam, also the
actions and taqrir relating to the laws of sharia 'and its provisions.
The jurists also stated the definition of hadith is different:
Everything that is determined by the Prophet sallallaahu alaih
wasallam, but not included in the chapter fardlu and mandatory. The decree was
in the form of a journey of life that became a role model in religious affairs,
neither fardlu nor compulsory.
Honesty of the Hadith / Sunnah
Jumhur ulama and the majority of
Muslims agree that the hadith are a source of tasyri 'and serve as a hujjah in
terminating the sharia laws regarding the practice of mukallaf. This is based
on several propositions, such as originating from the Qur'an surah An Nisa
'verse 59:
يَا أَيُّهَا الَّذِينَ آمَنُوا أَطِيعُوا اللَّهَ وَأَطِيعُوا
الرَّسُولَ وَأُولِي الْأَمْرِ مِنْكُمْ ۖ فَإِنْ تَنَازَعْتُمْ فِي شَيْءٍ
فَرُدُّوهُ إِلَى اللَّهِ وَالرَّسُولِ إِنْ كُنْتُمْ تُؤْمِنُونَ بِاللَّهِ
وَالْيَوْمِ الْآخِرِ ۚ ذَٰلِكَ خَيْرٌ وَأَحْسَنُ تَأْوِيلًا
O you who believe, obey Allah and obey the apostles also Ulil Amri.
If you are at odds, then return it to God and His apostles, if you truly
believe in Allah and later days. That is more important (for you) and better
consequences.
The second basis is taken from the
message of the Prophet peace be upon him narrated by Imam Ahmad,
تَرَكْتُ
فِيْكُمْ أَمْرَيْنِ لَنْ تَضِلُّوْا مَا تَمَسَّكْتُمْ بِهِمَا : كِتَابَ اللهِ
وَ سُنَّةَ رَسُوْلِهِ
I leave with you two things which, if held
firmly to both, will never go astray: the book of Allah is also my sunnah.
The next basis[7] is
the basis of faith, which is the consequence of the shahada that has been
embedded in the heart of a Muslim, is to believe that there is no god but Allah
and Muhammad is His messenger. So following what the Prophet (peace be upon
him) taught was a consequence of the believer. Because the Prophet sallallaahu
alaih wasallam is not possible to say with the encouragement of his passions,
as Allah Almighty said in Surah An Najm:
وَمَا يَنْطِقُ
عَنِ الْهَوَىٰ
إِنْ هُوَ
إِلَّا وَحْيٌ يُوحَى
And he (Muhammad) did not say according to
his passions, but rather what was said was a revelation given.
Prof.
Quraish Shihab in his magnum opus, Tafsir Al Mishbah, interprets that maa
yanthiqu / he is not saying, in terms of speech it means to cover
everything that is said by the Prophet Muhammad sallallaahu alaih wasallam.
This is corroborated by a history which states that Abdullah Ibn Am said,
"I wrote everything that I heard from the Prophet sallallaahu alaih
wasallam, but my friends from the Quraysh tribe forbade me. Then I stopped
writing and reported this to the Prophet sallallaahu alaih wasallam. Then he
said, ‘Write it! There really isn't anything that comes out of me except the
truth” While the word alhawa, means a tendency towards something without reason
consideration.[8]
The next
basis is ijma 'friends. The Companions of the Prophet were people who were near
the Prophet. They witnessed how the Prophet sallallaahu alaih wasallam obtained
revelation, believed him, and accompanied the Prophet sallallaahu alaih wasallam
in his da'wah.
Muadz ibn
Jabal said, 'If I do not find an answer from a law that I want to decide in the
book of Allah, then I make the decision with the sunnah of the Prophet
sallallaahu alaih wasallam'. That was also the case with Abu Bakr, when he met
with a problem and did not know the legal basis, he asked, "Are there any
of you who have memorized the Sunnah of our Prophet about this incident?"
What
strengthens the hadith / sunnah as the second legal basis after the Qur'an is
the command of Allah Azza wa Jalla which obliges Muslims to worship fardlu, but
the form of the command in the Qur'an is still global. For example, the command
of prayer that can only be done by knowing the procedures taught by the Prophet
sallallaahu alaih wasallam.
Functions of the Hadith / Sunnah in
Relationship with the Qur'an
Although
Al-Quran Al Karim is a foundation that builds important jurispudential
principles, the relationship between the Qur'an and the Sunnah is a
relationship that perfects one another. In research on Shari'a judges it is
imperative to look closely at each other and explore the Qur'an and the Sunnah
at the same time, in addition to the comments of the Companions and Muslim
scholars of the texts of the Qur'an and As the Sunnah.[9]
Some functions of the hadith in relation to
the Qur'an include:
1. Strengthening and emphasizing the laws
mentioned in the Qur'an or called ta'kid and taqrir functions. In the form of
this ta'kid function, the sunnah is just like repeating what is mentioned in
the Qur'an[10].
For example the words of Allah Azza wa Jalla in Surah Thaha:
لِذِكْرِيْ الصَّلٰوةَ وَاَقِمِ
“And establish prayer to remember me ’’
Strengthened by the words of the Prophet
sallallaahu alaih wasallam
بُنِيَ الإسْلاَمُ عَلَى خَمْسٍ : شَهَادَةِ أَنْ لاَإِلَهَ إِلاَّ
اللهُ وَ أَنَّ مُحَمَّدًا رَسُوْلُ اللهِ وَإِقَامِ الصَّلاَةِ وَإِيْتَاءِ
الزَّكَاة...
"Islam is founded on five foundations,
namely: a testimony that there is no god but Allah and Muhammad is the
messenger of Allah, establishes prayers, performs alms ..."
2. Provide an explanation of what is meant in the Qur'an (Bayan
Tafsiriy). The Sunnah functions to detail what is still global in the Qur'an
(bayan aal mujmal), explain vague meanings, limit what is mentioned in the
Qur'an in general terms (taqyid al muthlaq), exclude verses that are is still
common (takhshishiul am) and gives meaning to things that are difficult to
understand in the Qur'an (taudlih al musykil)[11].
Examples of sunnah detailing the verses of
the Qur'an which are still global, for example in Surah An Nisa ’verse 103:
إِنَّ الصَّلَاةَ كَانَتْ عَلَى الْمُؤْمِنِينَ كِتَابًا مَوْقُوتًا
‘Indeed, prayer is a fardlu which is
determined by the time of the believers’ ’
عَنْ عَبْدِ اَللَّهِ بْنِ عَمْرِوٍ رَضِيَ اَللَّهُ
عَنْهُمَا; أَنَّ نَبِيَّ اَللَّهِ – صلى الله عليه وسلم – قَالَ: – وَقْتُ
اَلظُّهْرِ إِذَا زَالَتْ اَلشَّمْسُ, وَكَانَ ظِلُّ اَلرَّجُلِ كَطُولِهِ مَا
لَمْ يَحْضُرْ اَلْعَصْرُ, وَوَقْتُ اَلْعَصْرِ مَا لَمْ تَصْفَرَّ اَلشَّمْسُ,
وَوَقْتُ صَلَاةِ اَلْمَغْرِبِ مَا لَمْ يَغِبْ اَلشَّفَقُ, وَوَقْتُ صَلَاةِ
اَلْعِشَاءِ إِلَى نِصْفِ اَللَّيْلِ اَلْأَوْسَطِ, وَوَقْتُ صَلَاةِ اَلصُّبْحِ
مِنْ طُلُوعِ اَلْفَجْرِ مَا لَمْ
تَطْلُعْ اَلشَّمْس
From ‘Abdullah bin‘ Amr radhiyallahu
‘anhuma, the Prophet sallallaahu‘ alayhi wa sallam said, “The time of the
Forbearance begins since the sun has slipped until a person's shadow is the
same height as before he entered the Asr time. When the Asr prayer during the
sun the light is not yet yellow. The Maghrib prayer time during syafaq (red
light) has not disappeared. The time of Isha prayer 'till midnight and the time
of the Fajr prayer starts from the dawn until the sun rises. " (HR.
Muslim) [HR. Muslim, no. 612, 173]
Whereas the
example of the sunnah limits the meaning of the verses of the Qur'an in general
form, for example concerning inheritance rights in Surah An Nisa ’verse 11:
يُوصِيكُمُ
اللَّهُ فِي أَوْلَادِكُمْ ۖ لِلذَّكَرِ مِثْلُ حَظِّ الْأُنْثَيَيْنِ
Allah prescribed to you about (the distribution of heirlooms for)
your children. Namely: the portion of a boy is the same as the share of two
daughters.
This verse is limited by the hadith which states that 'there is no
inheritance for murderers', so not all children inherit.
Example taudlih al musykil is the word khaith in the verse of
fasting:
وَكُلُوا
وَاشْرَبُوا حَتَّىٰ يَتَبَيَّنَ لَكُمُ الْخَيْطُ الْأَبْيَضُ مِنَ الْخَيْطِ
الْأَسْوَدِ مِنَ الْفَجْرِ
Then, the Hadith explains that khaith al
abyadl is bayadlun nahaar, he explained in the afternoon. And khaith
al aswad is sawadul lail meaning the darkness of the night.
3. The Sunnah establishes a law that is not
contained in the Qur'an (bayan tasyri)
An example is in the Qur'an mentioning the
prohibition of carcasses, blood and flesh. Then the Holy Prophet (peace be upon
him) also mentioned the forbidden beast and bird of prey in the hadith of Abu
Hurairah according to Muslim history:
كُلُّ ذِي نَابٍ مِنْ السِّبَاعِ فَأَكْلُهُ حَرَام
Every animal that is forbidden is forbidden
to eat
D. Ijma ’
Definition of Ijma ’
In language,
ijma ’has two meanings.[12]
First, ijma 'which means the determination to do something.
Understanding ijma in the context of this meaning is found, including the words
of Noah US to his people contained in QS Jonah verse 71:
فَعَلَى ٱللَّهِ تَوَكَّلْتُ فَأَجْمِعُوٓا۟ أَمْرَكُمْ وَشُرَكَآءَكُمْ ...
"Then I put my trust in Allah,
therefore round up your decisions and (gather) your allies (to destroy
me)" (Surah Yunus: 71)
Second, ijma 'which means agreement on something. This
understanding is seen in the word of God:
"When they brought Joseph and agreed to put him in the well
(then they put him in), and when he was in the well) We revealed to Joseph:
Surely you will tell them this, while they do not remember anymore" (Surah
Yusuf: 15)
From the two meanings above in
principle there are differences. When using the first meaning, the subject of
ijma 'is only one person, but by using the second meaning ijma' must involve
more than one person.
In the terminology of usul fiqh,
there are several definitions. Al-Ghazali argues, ijma 'is the agreement of the
people of Muhammad specifically on matters relating to religion.[13]This
definition gives an understanding that ijma 'does not have to be in the form of
agreement of the mujtahids, but lay people can also play a role in the process
of forming ijma' in matters known to lay people and certain circles (ulama)
called ma'lum dlaruri, such as the obligation to establish five daily prayers,
fasting, alms and hajj. Meanwhile, in matters which are not considered ma'lum
dlaruri, in his opinion lay people cannot be involved in the ijma process'.
Because they are not competent people in the effort to attain the truth of the
law in various religious matters.
Meanwhile, the popular understanding
among ushul fiqh experts, ijma 'is the agreement of the mujtahid (fuqaha) of
the Muslims at a time after the death of Rasulullah SAW on shariah law
regarding an event.[14]
From this definition it is clear that ijma only applies after the Prophet
Muhammad's death. Ijma ’that happened in his lifetime was not considered valid
and could not be used as evidence. Because while the Prophet was still alive,
all problems would be directly asked and he was the one who immediately became
the reference and source of legal references. Such is the opinion of the
majority of scholars.
Legal Basis of Ijma
Ijma is a strong source of Islamic
law after al-Qur'an and al-Sunnah. This means ijma 'is the third level in the
order of the source of Islamic law. The legal basis of ijma ’is al-Qur'an,
sunna and ra'yu.
- Al-Qur'an
Allah says in Surah
an-Nisa verse 59
"O you who believe, obey Allah and His Messenger and ulil
amri among you ..." (QS an-Nisa: 59)
The word amri in the above verse
means things, circumstances or matters that are general in nature, including
world affairs and religious affairs. Ulil Amri in world affairs is the leader
or head of state (ruler). While ulil amri in religious affairs are mujtahid.
From the above paragraph, if Ulil Amri has agreed on a law, then the agreement
must be implemented and obeyed by the Muslims. Because it has become his
obligation.
- Sunna
From Ibn Umar, the Messenger of Allah said "Surely Allah will
not gather my people or He said: uma Muhammad is above error, and Allah's hand
is with the congregation, and whoever is alone will be alone in hell."
(HR. Imam At-Tirmidhi)
- The foundation of ijma ’based on logic is according to custom, if
there has been an agreement between a large group of scholars about the law of
a problem, while the agreement is the result of serious research and study they
have done, then the agreement will not be wrong.[15]
The Elements of Ijma ’[16]
1.
There
is an agreement of all mujtahids from among Muslims (ulama)
2.
The agreement
made must be clearly stated
3.
The one
who made the agreement was mujtahid
4.
The agreement
occurred after the death of the Prophet
5.
agreed
upon is sharia law ’regarding a particular problem or legal event.
Development Period Ijma '
When the Prophet lived, the legal authority was directly held
by him. So when there is a problem, you can directly ask the Prophet and there
is no potential for error. But after the Prophet Muhammad died, the legal
problems faced by Muslims were increasingly complex. This is the reason for the
appearance of ijma '. Abu Bakr, Umar bin Khattab and other friends took the
initiative to seek an agreement when they did not find the back of the Qur'an
and al-sunnah on the problem that occurred.
Ijma needs not only stop at the time
of friends. Because along with the times, the problem will be more complex and
new events that also require new legal decisions when the Qur'an and al-Sunnah
specifically do not discuss the problem.
It was also stated that the
essential ijma ’was only possible during the second period of Khulafaur
Rashidin (Abu Bakr and Umar) and part of the reign of the Caliph Uthman. Now
ijma 'only means the agreement or concordance of opinion in a place regarding
the interpretation of certain verses (laws) in the Qur'an. Because now it is
difficult to find a way and means that can be used to obtain the approval of
all experts on a problem at a time in a different place. This is due to the
vast part of the world inhabited by Muslims, the diversity of history, culture
and environment. For example in Indonesia, ijma ’regarding the ability to marry
more than 1 person based on QS. An-Nisa paragraph 3, with certain conditions,
apart from the obligation to apply fairly referred to in that paragraph is set
forth in the Marriage Law.[17]
Kinds of Ijma '
According to Abdul Karim Zaida, seen
from the way of obtaining ijma 'is divided into two, namely[18]:
1.
Ijma
’sharih is a strict agreement from the mujtahids where each of them stated
agreed to that conclusion.
2.
Ijma
'sukuti, that is, some mujtahid scholars express their opinions, while the rest
of the ulemas are silent without comment.
If seen from dalalah (pointer) it is also divided into 2 types
namely[19]:
1.
Ijma
'qath' dalalah the law: meaning that the appointed law can be ascertained the
truth.
2.
Ijma
'dzanni dalalah against the law: meaning that the law produced the truth is
relative or suspected. Because it is still open for further discussion and does
not cover the possibility of other ijtihad, the results of the open ijtihad are
the opinions of all mujtahid scholars.
Ijma Necropology
Jumhur Ulama believes that ijma ’is
a qath’i (definite) hujjah. That is, ijma ’is the basis for establishing a
binding law and must be obeyed and practiced. That is why Jumhur ulama put ijma
'as the source and the proposition of the third law after the Qur'an and
Sunnah. This is because it is based on the following reasons:
-
QS.
An-Nisa: 115
“And whoever opposes the Apostle after the truth is clear to
him, and follows the path that is not the way of the believers, We leave him
free of the error he has mastered and We put him in Jahannam, and that Jahannam
is as bad as the place back. "(Surat an-Nisa: 115)
The verse threatens those who oppose the Messenger of Allah and
follow the path of those who are not believers. This means that it is
obligatory to follow the path of believers to follow their agreement.
- QS. Al-Baqarah: 143
وَكَذَٰلِكَ
جَعَلْنَاكُمْ أُمَّةً وَسَطًا لِّتَكُونُوا شُهَدَاءَ عَلَى النَّاسِ وَيَكُونَ
الرَّسُولُ عَلَيْكُمْ شَهِيدًا
It means: "And likewise (likewise) We have made you (Muslims),
a just and chosen people so that you will be a witness to man's (deeds) and
that the Apostle (Muhammad) will be your witness (deeds) ...." (QS. Al-Baqarah:
143)
The word al-wasath in the above verse means fair and chosen.
Because ijma 'was born of these just and elected Muslims, then what ijma
produced' was the truth.
- QS. Ali Imran: 110
كُنْتُمْ خَيْرَ أُمَّةٍ أُخْرِجَتْ لِلنَّاسِ
تَأْمُرُونَ بِالْمَعْرُوفِ وَتَنْهَوْنَ عَنِ الْمُنْكَرِ وَتُؤْمِنُونَ
بِاللَّهِ
It means: "You are the best people who are born for human
beings, command the forgiving, and prevent the evil, and believe in Allah
..."(QS Ali Imran: 110)
This verse includes praise given by Allah to Muslims. Therefore,
the ijma ’they produce is hujjah.
- Hadith of the Prophet, the history of Abu Daud and Tirmidhi
From Ibn Umar, Rasulullah SAW said, "Surely Allah will not
gather my people, or he said the people of Muhammad SAW for error (HR.
Tirmidhi)
F. Qiyas
Understanding Qiyas
Etymologically means to estimate or
equalize.[20]
When there is an expressing qi, this means the same as estimating or equating
something with something else.
Meanwhile, terminologically there
are several definitions formulated by the scholars, including[21]:
1.
According
to Ibn as-Subkhi, qiyas is to equate the law of something with the law of
something else because of the similarity ‘illah of the law of a mujtahid who
equates his law.
2.
According
to Wahbah az-Zuhaili, qiyas is connecting a problem that does not have a syara
text about the law with a problem that has the legal text, because there is a
partnership between the two in terms of divine law.
Although the editors are different,
but in essence there are similarities in meaning. Put simply, qiyas means
applying the legal equivalent of one thing to another, the same illat. And
qiyas is included as the fourth source of Islamic law agreed upon, after
al-Qur'an, al-Sunnah, and ijma ’.
Qiyas function
to explain the law of a case for which there is no legal clarity
from both texts and ijma ’.
Pillars of Qiyas
Qiyas is only considered valid if it
fulfills the basic elements for the perfection of a thing. There are four
pillars, namely[22]:
1.
Ashl
Ashl is an old
case which is used as an object of likeness, or a case which has a legal
stipulation in text or ijma ’. Ashl is often referred to as musyabbah bih or
likened, maqis ‘alayhi or mengkikan place. So, ashl cases are used as a
benchmark, comparison.
Some terms of the matter, as stated by scholars are:
a. al-asl is not mansukh.
b. syariah law ’
c. not an excluded law
an example of this first element is the illegitimacy of khamr. As
contained in the QS. Al-Maidah verse 90 forbidden khamr can be al-ashl to
stipulate other illicit drink laws.
2.
Al-Far'u
(branch)
Al-far'u is a matter of fi-qiyas which does not have a nash provision
stipulating the law. This element is also called maqis, or expensive ash-syabh.
The conditions are:
a.
before
it was revealed there was never another text that determined the law.
b.
there
is a similarity between the god found in al-ashl and in al-far'u.
c.
there
is no proof that the content is opposite to al-far'u
d.
the
law contained in al-ashl is the same as the law contained in al-far'u
For example liquor other than khamr, which is wine made from
roomie.
3.
Ashl's
law
Ashl law is syara law which is determined by a text and it is
desirable to assign that law to its branches. An example of this third element,
related to the first and second elements, is the illegitimate law of khamr.
4.
‘Illat
According to the language
interpreted as a reason, sometimes also called a cause.
The conditions are
a.
The
illat must be a clear quality.
b.
the
illat is dhabit. This means that illat does not make mistakes related to a
person, situation, or place.
c.
stay
in touch between law and the nature seen as illat.
d.
illat
does not conflict with other texts.
For example if it is related to the previous elements is the
intoxicating nature that exists in khamr. This property is real, can be
measured, appropriate as the nature of the wisdom of the prohibition of
drinking khamr, and there are other intoxicating drinks.
The foundation of Qiyas as the Rule of Law
a. Theorem of the Qur'an
-
QS.
An-Nisa: 59
Through this verse Allah commands that if there is a difference of
opinion about a problem among Muslims, to seek a solution to the problem by referring
to Allah (al-Qur'an), Rasulullah (sunnah), the way to recite it is by the qiyas
method.
-
QS.
Joseph verse 111
لَقَدْ كَانَ
فِى قَصَصِهِمْ عِبْرَةٌ لِّأُو۟لِى ٱلْأَلْبَٰبِ
In fact, in
their stories there is teaching for people who have reason.
b. The proposition of the sunnah
Hadith narrated by al-Bukhari no 2878.
"Has told us Musaddad has told us Yahya he said; I heard Al
A'masy ... and it has been narrated from another path: Having told us Muhammad
bin Al 'Ala`, told us Abu Mu'awiyah and Al A'masy in a meaningful way, from
Muslim Al Bathin from Sa' en bin Jubair, from Ibn Abbas that a woman had come
to the Prophet sallallaahu 'alaihi wasallam and said; in fact my mother has a
one-month fast. Can I fast it for him? Then he said: "If your mother had a
debt dependent would you fulfill it?" He said; yes. He said: "So the
debt of Allah is more entitled to be fulfilled."
In this hadith, the Messenger of Allah illustrates that he answered
the question by making a debt between his fellow humans and his debt to Allah.
Therefore, qiyas is a source of Islamic law.
c. The Proposition of Atsar ash-Shahabi
The appointment of Abu Bakr became the first caliph in Islam.
Previously there was a debate, then there was a friend who submitted a qiyas
argument. His argument was that the Messenger of Allah had appointed him the
Imam in the prayer which was a matter of religion and finality. So naturally if
he was also appointed as a priest to lead in world affairs.[23]
F. Closing
Based on the explanation above, we know that there are four sources
of Islamic law agreed by all scholars, namely al-Qur'an, as-Sunnah, al-ijma
’and al-qiyas. Al-qur'an and as-sunnah are direct sources of naqli law from
Allah. Then ijma and qiyas are sources of aqli law which indeed interpret
things with human reason. the use of this legal resource cannot be changed.
That is, it must be used sequentially.
References
Ali, Mohammad Daud. 2005. Hukum Islam: Pengantar Ilmu Hukum
dan Tata Hukum di Indonesia. Jakarta: PT RajaGrafindo Persada
Dahlan, Abd Rahmad. 2010.
Ushul Fiqh. Jakarta: Amzah.
Efendi, Satria. 2005.
Ushul Fiqh. Jakarta: Kencana.
Hayatudin, Amrullah. 2019. Ushul Fiqh: Jalan Tengan Memahami
Hukum Islam .Jakarta: Amzah.
Koto, Alaiddin. 2004. Ilmu Fiqh dan Ushul Fiqh. Jakarta:
PT RajaGrafindo Persada.
Shihab, M. Quraish. 2002. TAFSIR AL-MISBAH Pesan, Kesan, dan Keserasian Al-Qur’an (Vol. 13. Jakarta:
Lentera Hati
Sienny, Dr.
Saeed Ismaeel. penrj. Kaserun AS dkk. 1997. Ushul Fiqh Aplikatif. Malang:
Darul Ukhwah Publisher.
Syarifuddin , Prof. Dr. Amir. 1997. Ushul Fiqh
Jilid I. Ciputat: Logos Wacana Ilmu.
PP Lirboyo, Pokja Forum
Karya Ilmiyah 2004 Madrasah Hidayatul Mubtadi-ien. 2008. Kilas Balik Teoritis Fiqh Islam. Kediri: Purna
Siswa Aliyyah 2004 Madrasah Hidayatul Mubtadi-ien.
Zein, Dr.
KH. Ma’shum M.A. 2013. Menguasai Ilmu Ushul Fiqh. Yogyakarta:
Pustaka Pesantren.
Catatan:
Dalam karya ilmiah, penulisan gelar dihilangkan
[2] Dr. KH. Ma’shum Zein, M.A., Menguasai Ilmu Ushul
Fiqh, (Yogyakarta: Pustaka Pesantren, 2013) p. 60
[5] Ibid.,
p. 67
[8] M. Quraish Shihab, TAFSIR AL-MISBAH Pesan, Kesan, dan Keserasian
Al-Qur’an (Vol. 13) (Jakarta: Lentera Hati, 2002), hlm. 499
[9] Dr. Saeed Ismaeel Sienny, penrj. Kaserun AS dkk, Ushul
Fiqh Aplikatif, (Malang: Darul Ukhwah Publisher, 2017) p. 77
[12] Abd
Rahmad Dahlan, Ushul Fiqh, (Jakarta: Amzah, 2010) p. 145
[13]
Pokja Forum Karya Ilmiyah 2004 Madrasah Hidayatul Mubtadi-ien PP Lirboyo, Kilas
Balik Teoritis Fiqh Islam, (Kediri: Purna Siswa Aliyyah 2004 Madrasah Hidayatul
Mubtadi-ien, 2008) p. 77
[14]
Alaiddin Koto, Ilmu Fiqh dan Ushul Fiqh, (Jakarta: PT RajaGrafindo Persada,
2004) p. 79
[15] Abd.
Rahman Dahlan, p. 151
[16] Abd.
Rahman Dahlan, p. 146-147
[17]
Mohammad Daud Ali, Hukum Islam: Pengantar Ilmu Hukum dan Tata Hukum di
Indonesia, (Jakarta: PT RajaGrafindo Persada, 2005) p. 120
[18]
Satria Efendi, Ushul Fiqh, (Jakarta: Kencana, 2005) p. 129
[19]
Amrullah Hayatudin, Ushul Fiqh: Jalan Tengan Memahami Hukum Islam ,
(Jakarta: Amzah, 2019) p. 58
[20]
Amrullah Hayatudin p.58
[21] Abd
Rahman Dahlan p. 161-162
[22] Ibid
p.162-165
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