THE BASIC OF ISLAMIC

LAW
Syllabi
Before Mid-Semester
Introduction to Islamic Law
Principles of Islamic Law
Source of Islamic Law
Zakat Law
Wakaf Law
Islamic Marriage Law
After Mid-Semester
Islamic Marriage Law
Islamic Inheritance Law
Islamic Economic Law
a. Islamic Banking Law
b. Islamic Insurance Law
Reference

 Mohammad Daud Ali, Islamic Law: Introduction to Islamic Jurisprudence and

the Legal System in Indonesia, PT RajaGrafindo Persada, Jakarta, 2016.
 Mohammad Hashim Kamali, Shari’ah Law : An Introduction, Oneworld
Publications, Oxford.
 Wael B . Hallaq, An Introduction to Islamic Law, Cambridge University Press,
2009.
 Abdul Ghofur and Yulkarnain Harahab, Hukum Islam Dinamika dan
Perkembangannya di Indonesia,Yogyakarta, Total Media, 2008.
 Amir Syarifuddin, Hukum Perkawinan Islam di Indonesia Antara Fiqh
Munakahat dan Undang-undang Perkawinan, Jakarta: Kencana, 2009.
 Destri Budi Nugraheni dan Haniah Ilhami, Pembaruan Hukum Kewarisan
Islam di Indonesia, Yogyakarta : Gadjah mada University Press, 2014.
 Khotibul Umam, Perbankan Syariah : Dasar-dasar dan Dinamika
Perkembangannya di Indonesia, Rajawali Pers, 2016.
Misconception on Islamic Law

Study of Islamic Law = Study of Islamic Llaw ≠

Islam as Religion Islam as Religion

1 2
Considers that the study Considers that the study
of Islamic religion is of Islamic law only in the
fully within the scope of scope of legal study,
religious totally seperated from the
scope of religious
 1 Historical Reason

1
Why should
we study 2 Citizen Reason
Islamic Law
in Faculty 3 Juridical Reason
of Law? 4 Constitutional Reason

5 Scientifical Reason
Historical reason

Dutch Period Independence

Islamic Law has been a After our

compulsory subject in independence, it was
Faculty of Law since the changed into Islamic
Dutch Period by the Law as Compulsory
name of Subject
Mohammaddaansch
Recht.
 Citizen Reason

Population by Region and  The majority of

Religion 2010* Indonesians are
Muslims and use
3% 2% 1% 0% 0%
Islam Islamic law in their
7%
Kristen legal activities i.e. in
Katolik Marriage
Hindu
Budha
 Islamic Law is the
Kong Hu Cu living law, it lives
Lainnya factually in
Indonesian society
88%

*http://sp2010.bps.go.id/index.php/site/tabel?search-
tabel=Penduduk+Menurut+Kelompok+Umur+dan+Agama+yang+Dianut&tid=320&search-
wilayah=Indonesia&wid=0000000000&lang=id
Juridical Reason

 The application of Islamic Law is based

on the strength of every Muslim's
belief (iman)
Normatively  There are no any interventions from
government

The implementation of Islamic Law is

conducted and based on formal
regulations. It shows the intervention by
government.
Formally i.e. Zakat, by Law No.21 year 2011
Wakaf, by Law No.41 year 2004
 Constitutional Reason
Article 29 paragraph (1) The Constitution of Republic
Indonesia:

The State shall be based upon the belief in the

One and Only God

Hazairin interprets thisarticle:

1. In Indonesian System of Law, it is should be no law that
contradict with Religion Norms nor Morality Norms
2. Government must provide all facilities so that every Religious
Law may be accomplished
Scientifical Reason
Implementation in Islamic Law

Object : the whole of human life

Methode : Legal Interpretation Method = Ijtihad

Characteristics
of Scientific : Complete and interrelated
Knowlegde Ex: Family Law System, set from the
Systematical provisions of marriage, to the
inheritance
: Applies to all Muslims regardless of
Universal territorial / country boundaries

Islamic Law has been studied scientifically

Basic Framework of Islamic
Law
 A strong belief , faith, of every Muslim and
AKIDAH (BELIEF) exist as the guidance of life

 Is a system of norm, come from Allah to

set 3 kind of relationship in human’s life:
1. Relationship between Human and God
2. Relationship among human themselves
SYARIAH (ISLAMIC 3. Relationship between human and
LAW) nature around him
 Syariah specified into 2 parts:
1. Worship / Ibadah Norm
2. Muamalah Norm

The rule concerning behavior or manners of

AKHLAK (ETHIC) human
Syariah (Islamic Law) & fiqih
(Islamic Jurisprudence)
The Basics of Islamic Law
SYARIAH & FIQIH

General Concrete

In practice
LEGAL SYARIAH FIQIH
NORM
(Islamic specified (Islamic
Law) Jurisprudence)
Relation : Syariah & Fiqih

Basic

SYARI’AH FIQIH
Manifestation

 Consequences:
- Fiqih should not conflict with Syariah
- Fiqih can not eliminate Syariah
 Differences : Syariah & Fiqih

SYARI’AH FIQH

The origin of Syariah is Al Qurán Fiqih may be found in many Fiqih

and Al Hadits, Books

Fundamental, has a wider scope Fiqih is instrumental, has a

since it is also managing akidah limited scopeFiqih is
and akhlak. instrumental, has a limited scope

Syariah is the provisions from Allah Fiqih is the result of human

and brought by Rasulullah, it studies, it is not eternal, may
applies eternally. change from time to time
 SYARI’AH FIQH

while Fiqih may be more

Syariah is only one, that one school of thought /
Madhzab

Syariah shows the unity of while Fiqih shows diversity

Islam, of islam
Islamic Legal Norm
 Islamic Legal Norm

“ Al Ahkam Al Khamsah”
5 categories of law which became principles to measure
the activities of human, both in the field of worship /
Ibadah and Muamalah
 Types of Islamic Legal Norm

HARAM MAKRUH MUBAH SUNNAH WAJIB

Absolute Undesirable Freedom to Strongly Obligation
Prohibition do Suggested
Al Maqasid Al Khamsah

General
Objectives
of Islamic
Law
Specific

Al Maqasid Al
Khamsah
 Al Maqasid Al Khamsah

To Protect & to preserve:

FAITH SOUL MIND GENERATION WEALTH

The use of Syariah

Provision of Prohibition
performing Prohibition Prohibition Prohibition of of stealing
Shalat in of Murder &
of Drunk Zina other’s
various Suicide
conditions property
 Relation : Al Ahkam Al Khamsah & Al Maqasid
Al Khamsah
Deciding Al Ahkam Al Based on Al Maqasid Al
Khamsah Khamsah
1. Prohibition of marriage between siblings
Al Ahkam Al Khamsah HARAM
because....
Al Maqasid Al Khamsah Will cause disabilities to children.
Give disadvantage to next generation
2. Provision of Impeded Heirs
Al Ahkam Al Khamsah HARAM
because....
Al Maqasid Al Khamsah Damaging other’s soul
Protection of Soul
The scope of islamic law
 SCOPE OF ISLAMIC LAW

Islamic Law covers 2 main areas

Ibadah / Closed Norm.

Worship :
All ways and procedures for human to make a
contact with Allah by doing Ibadah has been arranged
perfectly. It is prohibited to add any changes (Bidáh)
ISLAMIC Basic principle : Haram
LAW

Muamalah : Open Norm.

Basically, all activities regarding Muamalah is may be
done, except for the activities that are already
prohibited clearly under the provisions of Al Qurán
Islamic Law in and Sunnah)
Faculty of Law
Basic principle : Jaiz / Mubah
 AREA OF MUAMALAH

1. Munakahat : marriage law

Civil Law : 2. Wirasah or Faraidh : inherintance
3. Muamalah in special meaning.
Also known as Muamalah Khas. Related to
property & Material Rights.
MUAMALAH i.e: law about ownership, Trade law, Rent Law

1. Jinayat : Criminal Law

Public Law :
2. As Siyasah : Constitutional Law
3. Siyar : International Law
4. Mukhasamat : Procedural Law
The sources of islamic law
The sources of Islamic Law

AL QUR’AN
Scale of
AS SUNNAH priority

AR RA’YU
Al Qur’an
The sources of Islamic Law
Position of Al Qur’an

Al Quran as the Holy Al Quran as the

Book Source of Law

Al Qur’an as the Al Qur’an as the First

“manual” of life for dan the Foremost in
every muslim the settlement of Legal
Issues
The Anatomy of Al Qur’an
114 Surah
91 Surah
MAKKIYAH
• Start with “O, mankind”=
adressed to human being
• Short sentences
• Contains the Principles of
Faith & Ethics
23 Surah
MADANIYAH
* Start with “O, you who believe”
= adressed to moslem
• Long sentences
• Contains the Rules about
relationship between :
• God & Human, and
• Human beings
Legal Verses
Bagian-bagian Al Qurá n

Al Qur’an

MUHKAMAAT
 Clear & definite meaning,
 Easy to understand
MUTASYABIHAAT
• “Analogy verses”
• Need a depth knowledge of
Islam to understand its
meanings

Legal Verses
As Sunnah / Al hadits
 What is As Sunnah/Al Hadits

All practices, sayings, approvals (both in word or

Definitions in silence) of Prophet Muhammad

• As the interpreter of Al Qurán

• As a complement of Al Qurán
Position = as a secondary source of Islamic Law after Al
Qurán

Defining the general provisions of Al Qurán.

Without as sunnah, muslim will have difficulty in
Importance implement a provisions of Al Qurán
Types of As Sunnah

Sunnah Qauliyah • Words

Sunnah Fi’liyah • Actions

Performed
directly by
Rasulullah
Sunnah Taqririyah • Approval SAW

Sunnah Hammiyah • Wish

Recorded and narrated in Al Hadits

Components of Hadits
A Hadits is composed of 2 parts : Sanad / Isnad and Matan

Sanad/
Chain of Narrators
Isnad

Matan Material / content

Sanad / Isnad is a base to determine

the quality of a hadith, it is a series of
people who narrated from generation
to other generation hereditary
 example

Al-Bukhari reported that: Yahya ibn

Bukayr narrated to us from Al-Layth Sanad/
from `Uqayl from Ibn Shuhba from Isnad
`Urwah from `A'ishah who said,

“Whenever the Prophet was given an

option between two things, he used to
select the easier of the two as long as it Matan
was not sinful; but if it was sinful, he
would remain far from it”
 Types of Al Hadits

By the number of By the Qquality of

Narrator Narrator
1. Hadits Mutawattir 1. Hadits Shahih
2. Hadits Masyhur 2. Hadits Hasan
3. Hadits Ahad 3. Hadits Dhaif
 By the Number of Narrator
1. Hadits Mutawattir
It is reported by such a large number
of narrator that it is impossible that
they should have agreed upon
falsehood
2. Hadits Masyhur
It is reported by one, two, or more
narrators but not as much as Hadits
Mutawattir. However, in the second
and third generation, it was narrated
by such a large number as narrator
in Hadist Mutawattir.
3. Hadits Ahad
It is reported by one, two, or more
narrators but not as much as Hadits
Mutawattir. In the second and third
generation, it was also narrated by a
little number as the generation
2. Quality of the narrator

5 categories in measuring the quality of Hadits (Bukhari &

Muslim) :
1. The strength of memory & accuracy of the narrator

2. Personal integrity of the narrator

The transmission should be continued from generation to
3. generation completely
4. No defects in the content / material

5. No irregularities in the composition of language

 • Narrated by trusted narrators (who always spoke the
truth and stay away from forbidden deeds),
Hadits • Have perfect accuracy,
• Transmission (sanad) continued served to the Prophet
Sahih Muhammad,
• Have no defects and was not too different from other
reliable narrators
• Narrated by trusted narrators but less accuracy,
Hadits • Transmission (sanad) continued served to the Prophet
Muhammad,
Hasan
• Have no defects and was not too different from
othenarrtors reliable
Hadits Does not meet the requirements to be Sahih nor
Dhaif Hasan
Ijtihad
 THE METHODS OF IJTIHAD

Ijma’ (consensus)
Qiyas (reasoning by analogy)

Mashalih al-Mursalah (public interest)

Istihsan (juristic preference)

Istishab (presumption of continuity)

‘Urf (custome)
 Ijma’ (consensus)

Definition
A consensus of opinion of the Muslim scholars of a
particular age on a question of law.

Important • Consensus = unanimity

Provisions • By all scholars, not limited by place nor nationality
 So, it’s hard to do Ijma’ in modern life

Example
A consensus by scholars that decide not to read Bismillah
in Al-Fatihah when performing pray
 Qiyas (analogy)

Definition
measuring or ascertaining the length, weight or
Literally quality of something

Terminology Reasoning based on analogy.

 Decide something based on the similarity with
existing provision which has a clear provision.
 How to do Qiyas?

Existing Provision
≠ New Problem

Legal Reason

=
Value of Law Value of Law

Example:
≠
Khamr Drugs

May cause
intoxicating
effect

HARAM = HARAM
 Masalah al- Mursalah (public
interest)
Definition Deciding new law based on the consideration on
behalf of public interest or benefit

“Interest / Al-Maqasid Al-Khamsah + advantages for society (umat)

Benefit”
Religion – Soul – Mind – Generation – Property –
any advantages for society

Example Provision to register a marriage

 Istihsan (juristic preference)

Definition Deciding new law which is different from its general

legal norm on behalf of public interest
(deviation)
 How to do Istihsan?

Existing Provision = New Problem

Legal Reason

Value of Law
≠ Value of Law

Example:
Joint Property = Joint Property

Protection of
Women’s right

≠
Mixed Separated :
Husband’s individual property
Wife’s Individual Property
 Istishab

Definition
Presumption of Continuity.
Application of existing law as long as it hasn’t been
cancelled yet.
 Example

Presumption of status in marriage.

A B Conclusion:
Leaving B
The marriage can’t be held
without divorce Proposing B to because the status of B is
marriage
presumed as a wife of A
C and still legally bound in an
existing marriage

Presumption of Life Status in Inheritance.

inheritance
Left for
unknown period

A B C D
 ‘Urf (custom)

Definition Recurring practices which are acceptable as a custom

or habit to people and not contrary to Islamic law

Conditions • Must be common and recurrent

• Must be in practice at the time

Must not contrary with

= Law
Al Qurán and As Sunnah

Example Clothes for woman

Custom = 2 pieces of clothes

Not contrary with

= Allowed
Al Qurán and As Sunnah
Islamic Legal Maxims (al-qawa’id al
fiqhiyah)
 Inductive conclusion from particular law, that has
similar ratio legist (illah).
 The result of new law from implementing this, still
need the justification from Qur’an/prophetic
tradition.
 5 main Islamic legal maxims(al-
qawa’id al-asasiyah)
1. Result/consequence depend on the purposes (Based on: the
result/consequences based on the intention, H.R : Qutubus Sitah)
2. Certainty could not be derogated by uncertainty (Based on: the
prophetic tradition, when he/she forgot the amount of praying, H.R
Muslim).
3. Difficulty must be changed by easily (Verse: The God want to be easily
and didn’t want to be difficulty, Q.S: Al-Baqarah: 185)
4. The dangerous must be eliminated (Based on prophetic tradition:
forbidden arise dangerous or disadvantages, H.R: Malik, Baihaqi,
Daruquthni, and Ibnu Majah)
5. The good custom as a law / al-Adatu Muhakamah (based on: whatever
good things for Muslim, also good for the God, H.R. Ahmad)
Istinbat al-Hukm ( Finding new Law)

• Ijma
• Qur’an Ra’yu• Qiyas Legal To predict
Nash/text
• Sunnah (Ijtihad)
• Istihsan maxims new law

• Dst

Al-Ahkam
al-
khamsah

Al-maqashid al-
khamsah
The implementation in
Indonesian legal system
The Sources of Islamic Law
Implementation in Indonesian Legal System
Implementation
in Formal Law
Implementation in
Procedural Law in
Religious Court
ie:
- Procedural Law in
Talak/ Divorce Lawsuit
Implementation
in Material Law
Implementation on
principles in Islamic Law in
regulations
Ie:
- Provision of Iddah
(waiting Time in Law of
Marriage)