1. THE MAIN TERM OF ISLAMIC LAW AND THE CHARACTERISTIC OF ISLAMIC LAW
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In Islamic law, we have to be able to differentiate these main terms:
1. hukum
2. hukm and ahkam
3. syariah or syariat
4. fiqh
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(1) Hukum (Law)
Simply, hukum (law) is a set of norms that governs the human behaviour in the society, consist of the law that grew and developed in the society and the law that made with any method and enforced by the government.
The form of the law may be unwritten like the custom law, or written like the western law. The law in the conception of western law is the law that made by human to govern their interests in the society. In this conception, the law governs the human relationship with other human and the objects in the society.
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In Islamic Law, the base concept and structure is set by Allah SWT. It governs not only human relationship with other human and the objects in the society, but also other type of relationships, considering that human in his life has various relationships: human and God, human and his self, human with other human, human with the objects in the society and the environment around him. These various of interactions regulated by a set of behaviour measurement that called hukm (singular), ahkam (plural).
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(2) Hukm and Ahkam
The Indonesan word “hukum” derived from the Arabic word “hukm”. It means the norm, the principle, that is the measure, measure standard, standard rule, directory that used to appraise the behaviour of human and objects.
In the system of Islamic Law, there are five hukm that used to measure human behaviour in the field of ibadah (worship) and muamalah.
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6. Ja’iz or Mubah or Ibahah Sunnat Makruh Wajib Haram
These five principles called al-ahkam al-khamsah or the five classification of law (Sajuti Thalib, 1985: 16), meanwhile in Islamic bibliography, it is called taklifi law (Masyfuk Zuhdi, 1987: 5).
al-Ahkam al-Khamsah
Ja’iz or Mubah or Ibahah
Sunnat
Makruh
Wajib
Haram
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(3) Syariat
Syariat means the way to the fountain, the straight way that must be followed by every Muslim.
Syariat contains Allah’s and the Prophet’s wills.
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(4) Fiqh
Fiqh means understanding. The science of fiqh is the science that determine and clarify the basic norms in the Al Qur’an and Hadits. This science helps us to understand the law in the Al Qur’an and as-Sunnah, so that the law can be implemented in mature and healthy (mukallaf) human’s behaviour who responsible to do the Islamic law. Then, the result of understanding process about Islamic law prepared systematically in fiqh books and called fiqh law (Islamic jurisprudence).
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9. The Differences Between Syariat and Fiqh
Syariat lies in Al Qur’an and Hadits. It means, syariat is the revelation of Allah SWT and the Sunnah of Muhammad SAW. Meanwhile, fiqh lies in the fiqh books. Fiqh is the understanding of qualified person about syariat and the result of his understanding.
Syariat is fundamental and has a larger scope, considering that the experts put aqidah and akhlaq into syariat. Meanwhile, fiqh is instrumental and has a limited scope in the law which governs the human behaviour that usually called legal act.
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Syariat is the provision of Allah SWT and the provision of His Prophet, so syariat is everlasting. Meanwhile, fiqh is the human creation which is not eternal and could be changed from time to time.
Syariat is solus, meanwhile fiqh perhaps more than one. For example, the mazhab.
Syariat shows the unity of islam,meanwhile fiqh shows the diversity..
(Asaf A.A. Fyzee, 1955: 17, H.M. Rasjidi, 1958: 403, Ahmad Ibrahim, 1965: 2, M. Khalid Masud, 1977: 22, S.H. Nasr, 1981: 60, Masyfuk Zuhdi, 1987: 1)
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11. The Differences Between Syariat and Fiqh
Syariat lies in Al Qur’an and Hadits. It means, syariat is the revelation of Allah SWT and the Sunnah of Muhammad SAW.
fiqh lies in the fiqh books. Fiqh is the understanding of qualified person about syariat and the result of his understanding.
Syariat is fundamental and has a larger scope, considering that the experts put aqidah and akhlaq into syariat.
fiqh is instrumental and has a limited scope in the law which governs the human behaviour that usually called legal act.
Syariat is the provision of Allah SWT and the provision of His Prophet, so syariatis everlasting
, fiqh is the human creation which is not eternal and could be changed from time to time.
Syariat is solus from Allah SWT,
fiqh perhaps more than one. For example, the mazhab.
Syariat shows the unity of Islam
fiqh shows the diversity..
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12. THE CHARACTERISTIC OF ISLAMIC LAW
1. It is the part and based on Islamic religion. 2. It has a tight and inseparable relationship with Islamic faith (aqidah) and ethics (akhlaq). 3. It has two keywords: (a) syariat and (b) fiqh. 4. It contains of two main fields: (a) worship (ibadah), and (b) muamalah in large scope.
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5. It is stratified that contains of: (a) nas or the text of Al Qur’an, (b) Sunnah (for syariat), (c) the result of the ijtihad by the qualified person about the revelation and Sunnah, (d) the practical implementation in (i) decision of judge or (ii) practices by the adherent of Islam in the society (for fiqh). 6. Precede the responsibilities/obligation from the rights.
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7. It can be divided into (a) taklifi law (al-Ahkam al-Khamsah), and (b) wadh’i law that contains the reason, conditions, obstruction of the occurs or the establishment of legal relationships.
8. It is universal, stand for everlasting time for the adherent of Islam wherever and whenever.
9. It respects human dignity as an unity of soul and body, spiritual and physical, and humanity as a whole.
10. Its practical implementation moved by faith (aqidah) and akhlaq of the adherent of Islam.
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