The Law Giver
Judge is important issue in Ushul Fiqh, because connected with “Who make a law in islam substantively?”, “Who determine law in islam?”, “Can human intelligence determine good thing or bad thing before revelation given to prophet Muhammad SAW?”. Human being given by Allah SWT potential of life (thaqotul hawiyah) such as defends their self, make generation and etc. Beside that Allah give potential of body (hajatul Adlawiyah) such as hungry, sleepy, thirsty and etc. Human do their life with those potential, but if they didn’t know what is good thing and what is bad thing they can’t life with prosperity, peaceful and happy. So, human must know about law and the important thing is who make the law itself.
B. Definition of judge ( الحاكم )
Etymologically, judge have two definition:
v واضع الأحكام ومثبتها ومنشئها ومصدرها
“Maker, settler, establisher, source of law”
From the first definition, judge is Allah SWT. Because Allah SWT who make law and the only one source of law. No law in Islam except from Allah SWT either it is taklifi law (wajib, sunah, mubah, makruh and haram) or wadh’I law ( sebab, syarat, sah and batal, ‘azimah and rukhsoh, and mani’). All of law based on Allah SWT, from the revelation given to prophet Muhammad SAW or from the result of mujtahidin agreement such as ijma’ and qiyas. Ulama of Ushul Fiqh‘give principle:
لا حكم إلاّ لله
“No law except from Allah SWT”
‘Ulama’s reason to support that principle is:
SEE : AL-MAIDAH, 49
SEE : AL-MAIDAH, 49
And this (He commands): Judge thou between them by what Allah hath revealed, and follow not their vain desires, but beware of them lest they beguile thee from any of that (teaching) which Allah hath sent down to thee. And if they turn away, be assured that for some of their crime it is Allah.s purpose to punish them. And truly most men are rebellious. (Al-Maidah : 49, translation by : Abdullah Yusuf Ali).
SEE : AN-NISA, 59
SEE : AN-NISA, 59
O ye who believe! Obey Allah, and obey the Messenger, and those charged with authority among you. If ye differ in anything among yourselves, refer it to Allah and His Messenger, if ye do believe in Allah and the Last Day: That is best, and most suitable for final determination. (An-Nisa : 59, translation by : Abdullah Yusuf Ali).
This verse tells that if we want to search solution of problem in Islamic law, we must come back to Al-Qur’an and Sunnah.
v الذي يدرك الأحكام ويظهرها ويعرفها ويكشف عنها
Who found, explain, introduce and reveal law.
From the second definition, ‘Ulama of Ushul Fiqh divide into two parts:
1. After Rasulullah SAW deliver revelation and teach about Islam.
‘Ulama compromised that the judge is law given by Allah SWT to Rasulullah SAW. What Allah’s said that is halal, the law is halal and what Allah’s said that is haram, the law is haram. Halal called by hasan (good), there are advantages for human being. Haram called by qabih (bad), there are disadvantages for human being.
2. Before Rasulullah SAW deliver revelation and teach about Islam.
There are different argument from ahlussunah wal jama’ah and mu’tazilah. ’Ulama of ahlussunah wal jama’ah said that periode before prophet Muhammad SAW there aren’t law because law can’t be obtained except by Rasulullah, while their mind can’t achieve it. ‘Ulama of mu’tazilah said that judge is Allah SWT, but human being can find Allah’s law and explain it before Rasulullah SAW deliver revelation and teach about Islam. This problem called by tahsin wa attaqbih, the meaning is clarify those thing is good or bad.
C. Tahsin and Taqbih
There are some definition from Ushul Fiqh ‘Ulama about hasan and qabih.
First, al-husnu (الحسن) is all deeds appropriate with behavior of human. Such as give some money to beggar, help our friend make an assignment and etc. Qabih is thing that human being dislike with it. Such as stole money, rob and etc.
Second, al-husnu (الحسن) is perfect characteristic, like knowledge and glory. Qabih is negative characteristic, like stupid and greedy. All of ‘Ulama agree that two definition of hasan and qabih can be achieved by intelligence.
Third, al-husnu (الحسن) is thing that can be did by human, they know the goodness and capable to do it. Whereas qabih is thing forbidden for human to do it and can’t be achieved by intelligence.
Fourth, if someone do good thing, the others will proud with him and get reward in the hereafter, like obedient to Allah’s command. If someone do bad thing, the others will insult him and get torture in the hereafter.
Asy’ariyah ‘Ulama think that “hasan and qabih” in third and fourth definition have syar’I characteristic and must be determined by syara’. ‘Ulama of Mu’tazilah think that all of human deeds can be achieved and determined by intelligence. Intelligence can determine what goodness is and what badness is.
D. Connection between intelligence and revelation
There are three opinion from Ushul Fiqh ‘Ulama:
1) Ahlussunah wal Jama’ah said that human’s intelligence can’t determine law before Rasul deliver revelation. Human’s intelligence can’t know what goodness is and what badness is. Their reason is Allah’s saying in holly Al-Qur’an :
SEE : AL-ISRA, 15
SEE : AL-ISRA, 15
Who receiveth guidance, receiveth it for his own benefit: who goeth astray doth so to his own loss: No bearer of burdens can bear the burden of another: nor would We visit with Our Wrath until We had sent an apostle (to give warning). (Al-Isra’ : 15, translation by : Abdullah Yusuf Ali).
This verse indicate that responsibility and calculation to human being will be done after Allah send messenger to deliver revelation. Logically, Ahlussunah wal Jama’ah thing that no obligation for Allah to determine good thing which is good in human mind, and no obligation for Allah to determine bad thing which is bad in human mind. Allah have absolute desire, without dependence the others. He can do anything although it is no advantage, but we know that what Allah command is true and content advantage, and what Allah forbid content disadvantage.
2) Mu’tazilah said that human’s intelligence can determine law before Rasul deliver revelation. Human’s intelligence can determine goodness and badness without messenger. Therefore, goodness and badness can be achieved and applied by intelligence. They translate this verse “nor would We visit with Our Wrath until We had sent an intelligence”. Mu’tazilah principle in that problem is hasan and qabih product by intelligence. Consequence from this opinion is human who haven’t come to them syari’at and messenger, will be given obligation to do what on their mind is good. Mu’tazilah also thing what Allah’s saying can be achieved by intelligence.
3) Maturidiyah try to make solution about those differences. They think that there are words or deeds basically good or bad. Allah command to human being not to do badness and command to do goodness. Essence of goodness and badness not in words and deeds itself but syara’ have authority to determine it. So, their opinion same with Mu’tazilah opinion.
Implication from these differences is law problem, where intelligence position in ijtihad, “can intelligence become law sources?” Ahlussunah wal Jama’ah and Maturidiyah think that it can’t become source of Islamic law but intelligence have important function to solve many problems in Islam. Muhammad Abu Zahrah said that all of fiqh products are result from human intelligence but this intelligence must be conduct with Al-Qur’an and sunnah. While Mu’tazilah and Syiah Ja’fariyah said that intelligence is third Islamic law resources.
E. Islamic problem related to intelligence and revelation
1) Wearing headscarf
Quraisy Shihab said that wearing headscarf is not obligation for muslimah because the important thing in muslimah dress is respectable, therefore no one disturb her. But this argument contradictive with Dr. Ahmad Zain An-Najah, he said that Quraisy shihab argument “respectable dress” have not clear constraint. If people in a country think that wearing bikini is respectable dress, but in other country it is not respectable dress. So, definitions of respectable in some country, institution or company have different explanation. Islamic law to muslimah is to wearing headscarf, the reason is to close genitals and the advantage is no one disturbs her. So, every muslimah who wearing headscarf appropriate with Islamic constraint, she have done what Allah’s saying to close genital.
Basically, there is no clear source mention that smoking is haram. Imam syafi’I theorem mentions that everything is mubah basically (الأصل فى الأشياء الاباحة), except there is argumentation that thing is haram. Smoking can be categorized to isyraf in Islam that is including in haram basically. Imam ibn Hazm give definitions about isyraf : wasting money for not useful activities, over shopping and include smoking. Allah say in holly Al-Qur’an:
This verse explain that Allah don’t love human who excessive. There are some ‘Ulama said that smoking is haram : Syekhul Islam Ahmad as-Sanhuri al-Bahuti al-Hambali, and from mazhab Maliki is Ibrahim al-Laqqani (both of them from Mesir) and Abdul Ghats al-Qasysy al-Maliki (from Maroko). Abdurahman Nafis, one of manager MUI East Java said that smoking depend on two elements, intoxicated (muskir) and dangerous (mudhir). Same with food that contain chemicals and it is danger to human body. If it’s content over chemicals and dangers to human body, MUI agree that is haram. Because there is not explicit and specific argumentation, smoking include in makruh.
3) Having boyfriend or girlfriend
There are many opinion about having boyfriend or girlfriend. Some of them said forbidden and the others said that it be permitted but in Islamic way. First argument forbidden having girlfriends or boyfriend is in Qur’anic verse:
SEE : AL-ISRA, 32
SEE : AL-ISRA, 32
Islam forbid to zina , forbid to close it moreover to do it. Now, in modern era have girlfriend or boyfriend different from some years ago. Previous time, there aren’t time too long to have boyfriend or girlfriend because after it they get married. But in this time not like that, we can see many student of senor high school have sex before married and some institution try to survey girl student to know is she still virgin or not. The fact is most of them is not virgin. This is argument that forbid to having boyfriend or girlfriend. People who said that it be permitted but in Islamic way have argumentations, if people want to married, he have to know women to be married. If they don’t know each other, maybe their family will be broken in the future.
Judge in Islamic law is Allah SWT. Because Allah SWT who make law and the only one source of law. Although there are many differences about judge before Rasulullah SAW deliver revelation and teach about Islam that said intelligence can become source of Islamic law but intelligence can’t against Allah’s dominance. Connection between intelligence and revelation make many ‘ulama have different opinion about it and it becomes references from ‘Ulama in this era to solve many problems that connect with intelligence and revelation.
Haroen, Nasrun. 1996. Ushul Fiqh . Jakarta: Logos Publishing House.
Al Munawar, Said Agil Husin. 2004. Membangun Metodologi Ushul Fiqh. Jakarta: Ciputat Press.
Khalaf, Abdul Wahab. 1996. Kaidah-Kaidah Hukum Islam. Jakarta: RajaGrafindo Persada.