Unit One

What is Law?

It is easy to assume that the “law” can be found in one book; that somewhere there is a book,

which will give you the answer to every legal question you might pose. If this were true there would be

little need for lawyers. Clearly it is not true. So a fundamental legal skill must be the ability to find the

law.

To anyone other than philosopher, the question “what is law?” may seem rather strange. In fact,

if you are new to studying law it is an extremely important one. The ability to find the law presupposes

that we know how to identify it: this leads us back to that fundamental question: “what is law?” This

reading answers that question by looking at the “institutional” source of law. This is the easiest way of

beginning to define “law”, and the most practical, though it does not pretend to tackle the philosophical

problems attached to the question of defining law in the abstract. We shall present our definition in two

stages. first, we shall briefly distinguish law from other (what we call “social”) rules; then we shall

explain what we mean by an “institutional” source, and how that helps us identify laws.

Legal rules and social rules. Law, in the sense that we are using it, is definable as a system of

rules. It guides and directs our activities in much of day to day life: the purchases we make in a shop; our

conduct at work and our relationship with the state are all built upon the foundation of legal rules. Of

course, any society is governed by a mass of other rules, which are not laws in the formal sense, but

merely social conventions --perceptions of “proper” behavior.

In reality, these are also means of controlling social conduct, but the different mechanisms employed to

enforce these rules reflect different social values regarding the behavior in question. Thus, while most of

us would accept that anyone stealing the possessions of another should be liable to a penalty under the

criminal law, we might be rightly surprised to see someone in court for eating peas off their knife!

Regulating the latter is not really so important to our society as to require the force of law.

Why some rules should be given the force of law and others not is another of those

philosophical questions to which we do not have a full answer. Law certainly is not the same

everywhere; it will reflect different values in different cultures and different epochs. Take laws

governing adultery for example; in modern English law, a person who has sexual relationship with

another’s spouse will incur no legal penalty (though he or she may end up being cited in a divorce case if

the other found out). In Islamic law, the Qur’an prohibits adultery by making it a crime, and subjects the

parties to the hudud punishment of flogging or stoning (though the evidential requirements are so

stringent that, unless the adultery is confessed, it is unusual for the full punishment to be handed out);

in Ancient Greece, to give an historical example, a man who seduced another man’s wife could face a

claim for compensation, since he had violated the “property” rights of his lover’s husband. In a more

deterrent mode, the seducer risked other physical penalties --the most widely used of which involved

pushing radishes up his backside, or pulling out his pubic hair.

 Thus, the different laws on adultery could be said to exist as a reflection of different religious or

moral standpoints taken by the law; perhaps they also reflect diverse views of human sexuality, or the

different status of men and women in a society. This cultural dimension of law can be quite important in

developing our understanding of why particular legal rules have developed, or why different legal

traditions have evolved in different countries. (Source: James A. Holland and Julian S. Webb (1991),

Learning Legal Rules: A Student’s Guide to Legal Method and Reasoning, Blackstone Press Limited,

London, pp. 1-2).

 UNIT TWO

THE SOURCES OF LAW

Generally, laws are identifiable by the fact that they take a form, which distinguishes them from

those social conventions. Their form tells us that they are derived from an “institutional” source that is

socially recognized as having the power to create law. Only laws so created can be said to be legally

binding upon the individual, or even upon the state itself.

In Indonesian law especially law applied in the Islamic Judiciary there are six main institutional

sources which we shall consider: (1) the Qur’an, (2) the Sunnah, (3) Ijma` (consensus), (4) Parliament,

(5) the Courts, and (6) Custom.

The Qur’an is the sacred book of the Islamic faith, containing the collection of revelations made

by Allah to His Prophet Muhammad (p.u.h.) in the early part of the 7th century A.D./1st century A.H. It is

made up of 30 juz (sections), 114 surah (chapters), 6.236 ayah (verses), 74.437 kalimah (sentences),

and 325.345 hurf (characters). It is on this that is founded the Islamic code of conduct both towards

Allah and to one’s fellow man. The Qur’an is considered the main source of Islamic law. Yet, there are

no more than 200 verses concerned with what we would term “law” in the western sense. For the Sunni

majority at least, the Qur’an provided a limited modification of the existing Arabian customary law

rather than an entirely new system of law.

Only the law of succession which was perhaps the most radical change from the pre-Islamic tribal laws

of Arabia imposed by Islam, receives anything like a detailed treatment, and institutions which one

would point to as characteristic of Islamic jurisprudence such as waqf (religious endowments of

property) are not even mentioned in the Qur’an.

The Sunnah or practice of the Prophet Muhammad (p.u.h.) is the second source after the

Qur’an. This includes the exemplary conduct, speeches and proofs of the Prophet Muhammad (p.u.h.).

As the medium --the human medium-- through which the divine law was revealed, he was the one best

qualified to explain the meaning of the Qur’an and to decide problems not directly covered by the

Qur’anic texts, of which there were many. In the classical theory, the sayings of the Prophet are

infallible. But like the Qur’an, these sayings provide nothing like a comprehensive legal regime; like the

Qur’an they appear ad hoc to meet specific problems presented to the Prophet for solution.

Ijma` (consensus) in the classical theory is the agreement of the qualified legal scholars of a

given generation, and such agreement is deemed infallible. In a sense, ijma` is the most important

source of law for only those interpretations of the Qur’an and the Sunnah which are ratified by the

ijma` are authoritative, and the interpretation put into them by ijma` is definitive. A saying of the

Prophet is related that “my community will never agree on an error”. Once an ijma` is reached on a

matter it cannot in practical terms be dissented from or changed.

 Parliament is significant for three reasons. First, it is the originator of what is probably the single

most important modern source of law, that is, statute law. Secondly, through its legislative powers,

Parliament is able to give law-making powers to other bodies, such as local councils and Government

departments. This results in a form of law that is referred to as delegated, or secondary legislation.

Thirdly, Parliament’s delegation powers are being increasingly used to create sets of informal rules,

which operate within the framework of formal rules created by statute. A statute law is a document,

which contains laws made by Parliament.

The courts are not only important as interpreters of legislation, but they are also the fertile

source for the development of the Common Law. The term of “Common Law” is used to describe all

those rules of law that have evolved through court cases as opposed to those which have emerged from

Parliament such as the Law of Marriage 1974. Despite the growth of statute, Indonesian Law is still

generally understood in Common Law terms. By this, we mean that the way in which we think about

law, and categories laws, is till heavily influenced by Common Law forms of action which determine

what types of problem we now call “contract”, “tort”, etc.

Before the advent of Islam in the twelfth century no common family law was followed in

Indonesia. In each of the islands, people had their own customs and usages. The concept of a uniform

law was foreign to them. Their local customs represented “norms of social behavior of small isolated

communities”. Islam came as unifying factor in the social life on the islands.
The Indonesians then came to know of Islamic family law, which conflicted, with many of their ancient

customary practices. The latter were, however, so deeply rooted in the Indonesian society that an

overnight switch on the Islamic institutions was not possible. In the course of time Islamic family law,

mainly of the Syafi`i school, replaced customs and usage in various parts of Indonesia. Nevertheless,

some customs and usage survived and still continue to have the force of law. These are now described,

in contradistinction with Islamic principles, as the adat. Therefore, Indonesia came to have an

admixture of Islamic legal concepts and local customs, which are not in contradiction with the Islamic

values. (Main source: Keith Hodkinson, (1984), Muslim Family Law: A Sourcebook, Croom Helm, London,

pp. 2-5).
 UNIT FIVE

the principle of ownership in Islam, capitalism and socialism

Capitalist society believes in the private individual form of ownership, i.e. private ownership. It

allows individuals private ownership of different kinds of wealth in the country according to their

activities and circumstances. It only recognizes public ownership when required by social necessity and

when experience demonstrated the need for nationalization of this or that utility.

Socialism society is completely contrary to that. So common ownership is the general principal,

which it is applied to every kind of wealth. However, the basic characteristic of both societies are not

applicable to Islamic society because Islamic society does not agree with capitalism in the doctrine that

private ownership is the principle, or with socialism in its view that common ownership is a general

principal. Rather it acknowledges different forms of ownership at the same time. Thus it lays down the

principle of multi-faceted ownership. That means from Islamic viewpoint ownership is accepted in a

variety of forms-instead of the principle of only one kind of ownership, such as, private ownership,

public ownership and state ownership.

For this reason, it would be a mistake to call Islamic a capitalist society, even though it allows

private ownership of a number of kinds of property and means of production, because in its view private

ownership is not the basic rule. In the same way it would be a mistake to use the term "socialist society"

for Islamic society, even though it has adopted public ownership and state ownership for some kinds of

wealth and property, because in its view the socialist form of ownership is not the general rule.
 According to Quaranic verses, every thing in this universe belongs to God Almighty. "Whatever is

in the heavens and whatever is in the earth belongs to Allah." [Al-Baqarah, 2: 284]. He is the real owner

of everything "And Allah’s is the kingdom of the heavens and the earth, and Allah has power over every

things." [Ali- ‘Imran, 3:189].

Sadr (1994: 98-114) made clear that individual ownership, state ownership, and public

ownership are three parallel forms in Islamic law. Real ownership belongs to Allah, man holds property in

trust for which he is accountable to Him, in accordance with rules clearly laid down in the Shari’ah

Islami’iah [Islamic Teaching] underlined above.

Siddiqi (1981: 191-209) explained that acquisition of property as well as its use and disposal are

subject to limits set and should be guided by the norms laid down by Allah. Absolute ownership of man

is a concept alien to Islam, as it belongs to Allah alone. There are definite obligations towards others

attending upon the individual rights of ownership. The respective scopes of the three kind of ownership

are not rigidly defined but left to be determined in the light of certain principles, depending on the

needs and circumstances. (Quoted from: Mohammad R. Taheri, www.parvez-vedeo.com).

 UNIT SIX

Real Economics- Zakâh, First Universal Welfare System

The economics of zakâh and its relevance to modern times is a hotly debated issue among both

religious and liberal Muslims. Contrary to the beliefs of both religious and secular Muslims, the

Prophet's achievements were based not on ephemeral but on the permanent values of the Qur’an. He

brought about the greatest revolution - even an economic and political miracle - in human history. In a

very short time after the prophet migrated to Medina and implemented the system of shalâh and zakâh,

the economic condition of the people changed.

The Prophet (pbuh) is reported to have said: If a single person were to sleep hungry in a town,

then God's protection is lifted from such a town. [Musnad Imam Ahmad ] This hadith emphasizes that no

one (Muslim or non-Muslim) under this system should go hungry. Thus this zakâh system created the

first universal welfare system in human history. It also gradually transformed the existing slave-based

economy to a universal welfare-based economy. By the end of the Prophet's period, the entire Arabian

Peninsula enjoyed economic as well as political security. This system reached its pinnacle during Khalifa

'Umar's time, a time when, history tells us, hardly anyone was in need of charity.

What has occurred then in the intervening years that the Muslim masses are suffering economic

deprivation even though they live in areas with plenty of natural resources? (Quoted from Anonymous:

www. netmuslims.com).
 For this reason, it would be a mistake to call Islamic a capitalist society, even though it allows

private ownership of a number of kinds of property and means of production, because in its view private

ownership is not the basic rule. In the same way it would be a mistake to use the term "socialist society"

for Islamic society, even though it has adopted public ownership and state ownership for some kinds of

wealth and property, because in its view the socialist form of ownership is not the general rule

According to Quaranic verses, every thing in this universe belongs to God Almighty. "Whatever is

in the heavens and whatever is in the earth belongs to Allah." [Al-Baqarah, 2: 284]. He is the real owner

of everything "And Allah’s is the kingdom of the heavens and the earth, and Allah has power over every

things." [Ali- ‘Imran, 3:189].

 UNIT TEN

SOCIAL IMPACT OF THE APPLICATION OF SYARI`AH LAW IN MUSLIM COUNTRIES

Muslim countries in this context are defined as the countries in which most of the populations

are Muslims. Since only some Muslim countries which apply Syari`ah law have availability source of

data, in examining the social impact of the application of Syari`ah law this paper will refer to the case of

the Kingdom of Saudi Arabia.

The application of non-Syari`ah law in many Muslim countries has a long historical background.

Take Indonesia as an example. Even though Indonesia has the biggest number of Muslim citizens in the

world, this country does not apply Syari`ah. This is primarily due to the Western colonialism. Another

factor in the case of Indonesia is the political domination by Western educated thinkers (nationalists)

who have sought to secularize this country through their political authorities since the Soekarno to

Soeharto regimes.

Muslim Middle East countries have had similar experiences. Since the Napoleonic invasion of

Egypt (1798-1801), the countries of the Middle East, with exception of parts of Saudi Arabia, were

directly or indirectly subjected to the force of European Imperialism (Peretz, 1988; Andersen, et al,

1990). Unavoidably, in the beginning of their awakening, they adopted a Western model of progress and

development, and even borrowed Western law.

Until the 1970s the countries of the Muslim Middle East seemed to be embarked on a program of

modernization in the Western style that would inevitably lead to ever-greater secularization (Binder,

1964; Mayer, 1987).

Saudi Arabia is a leading country in the Middle East which has applied Syari`ah. Crime statistic

reveals very low official crime rates in the Kingdom of Saudi Arabia, only one a year in every 100,000

population.

To strengthen the truth of the deterrent effects of the application of Syari`ah law on crime rates

in Saudi Arabia, we compare the crime rates of Saudi Arabia with six neighboring countries which do not

apply Syari`ah. The reason to compare the crime rates of Saudi Arabia with those six neighboring

countries, that is, Syria, Sudan, Egypt, Iraq, Lebanon, and Quwait, is due to the cultural similarity,

common social and religious beliefs, and the availability of data.

The result of the analysis shows that the murder rates in Saudi Arabia is the lowest among the

seven Muslim Middle East countries. The murder rates per hundred thousand population is less than

one-sixth the second lowest rate in the countries of Kuwait and Egypt; less than one-seventh the rate of

Syria; less than one-ninth the rate of Sudan; less than one-sixteenth the rate of Iraq; and less than one-

twenty-fifth the highest rate of Lebanon. With exception of Lebanon, the murder rate in Saudi Arabia

stood about one-ninth the median rate among the other five countries. These data, clearly indicate the

deterrent effects of the application Syari`ah on crime in Saudi Arabia.

 The deterrent effects of the severity of Syari`ah criminal law on crime will much clearer if the

crime rate of Saudi Arabia where Syari`ah law is applied compared to world rates.

Crime statistic indicates that for murder, the world rate is about four times the rate in Saudi Arabia. For

property crimes, the world rate is about six hundred fifty times the rate in Saudi Arabia. And for sexual

Offences, the world rate is about five times the rate in Saudi Arabia. Clearly, the data indicates the

deterrent effects of the severity punishment of Syari`ah criminal code on crime rate in the Kingdom of

Saudi Arabia. This finding strongly support the previous study, which argued that punishment, has

deterrent effects on crime (Source: Tajul Arifin, “Social Impact of the Application of Islamic Criminal Law

in Saudi Arabia”, Khazanah, 2003).