Gita Armarosa Putri Sembiring 2010 / 295888 / HK / 18283 / HI International Undergraduate Program Faculty of Law Universitas Gadjah Mada

a Mid-term Test ISLAMIC LAW 1. In its simplest definition, Islamic law is what we can understand as the corpus of rule and principles that are derived from the Quran and Sunnah and aimed at regulating the spiritual and temporal conduct of Muslims in their relationship with God, with each other and with non-Muslims ( Mahdi Zahra, Characteristic Features of Islamic Law ). From the quotation above, could you explain the characteristic features of Islamic law, which we can not basically find in the other legal traditions? Answer: Understanding the Islamic law, it can be seen that Islamic law is distinguished by certain characteristics and unique qualities that are not shared by any other legal system. These characteristics caused the stability, growth, and relevance for over fourteen centuries. It is necessary for the Shariah to have certain unique qualities that afford to the continuity and stability that needs to deal with the ever-changing requirements of human life over vast stretches of time and space. Some of the unique characteristic of Islamic law are: a. The nobility of purpose Islamic law is not limited to regulating the interrelationships between individuals in society. It, first and foremost, regulates the relationship between the individual and the Creator by legislating different forms of worship like prayer, fasting, zakah and Hajj Moreover, it defines the rights and obligations each individuals with respect to others, so that the potential harm any individual might cause for other is might be avoided. In short, Islamic law aims at a great objective that realizing the benefits and best interest of both individual and society and warding off what is to their detriment, giving preference neither to the needs of the individual nor to those of society as a whole. b. Islamic law is divine revelation All injunctions of Islamic law are revelation from Allah, so

the one who is legislating for mankind is their Creator who knows best what will be of benefit to his creation in both this world and the next. Man-made law, on the other hand, is the product of the human intellect that has limited powers and is subjected to deficiency and error. Therefore, the legislation may not always suitable for human nature. c. Applying the injunctions of Islamic law constitutes obedience to Allah. As for man-made laws, the impetus to obey them is the fear of reprisal from the political authority. Likewise, disobedience to such laws does not instill a feeling of wrongdoing as long as it goes unnoticed by the authorities. Thus, there is nothing to discourage the society from the repetition of such wrongdoing. d. Islamic law holds the distinction of being comprehensive and general in its scope. Islamic law regulates three different factors which are the relationship between the individual and his Lord, between the individual and himself, and the relationship between the individual and others. If we compare Islamic law in this respect to any of the manmade law system, we will find that the latter only deals with the relationship between the individual and others. The comprehensiveness of Islamic law also manifests itself in its direct concern for every stage in an individuals life. e. Stability and permanence in principles and flexibility in application In carrying out the objectives of the Shariah, there is a great degree of flexibility and tremendous capacity for development. The permanence and stability of these basic principles and the flexibility allowed in their application give Islamic law a distinction not shared by any other modern legal system, because most of these other systems, while they attempt to respond to the needs of the day through continuous revision and reform, are sorely in need of a measure of substance and of sound principles, so hat change and reform do not lead to the demise of their basic principles and fundamentals. f. The absence of difficulty and the limitation of imposition. Islamic law does not impose any obligations of great severity or difficulty. Nothing in Islamic law is overly burdensome. g. The richness and fullness of Islamic law Anyone who studies Islamic law will find that it contains an abundance of material and a wealth of ideas. This is

evident in the various opinions of the jurist and the number of schools of thought. In spite of their large number, their differences and diversity, none of them go outside the general scope of the Shariah. 2. Many people misunderstood the meaning of the term Shariah, and many cases use the term interchangeably with the term fiqh. Would you please explain the meaning of the term Shariah and figh and also the difference and similarity between the two? You may refer your explanation in this case to the Encylopedia of Islam under the entry of Shariah.

Answer: Shariah literally means a way to the watering-place or a path apparently to seek felicity and salvation. Since Shariah is a path to religion, it is primarily concerned with a set of values that are essential to Islam. Islam stands on what is known as the five pillars, namely belief in God, ritual prayers, fasting, the hajj, and giving the poor ( zakah). The manner of worshipping God is also expounded in Shariah which is known as ibadat. While, fiqh originally meant understanding and knowledge . Other scholar also defined fiqh as the knowledge of Islamic law. The most comprehensive and precise definition of Fiqh that I found stated that: Knowledge of the injunctions of the Shariah that deal with the outward practice, derived from their specific proofs. It is often said that fiqh is an equivalent term to Shariah, however, these two words are not identical. Shariah is conveyed mainly through divine revelation ( wahy ) contained in the Quran and authentic hadith. While, fiqh refers mainly to the corpus jurist that is developed by the legal schools, individual jurists and judges by recourse to legal reasoning (ijtihad ) and the issuance of legal verdict ( fatwa ). 3. Islamic marriage law is considered as the most sacred are in Islam, proven with the many aspects of its rules which are resistant from the influence of modernity. Please show such a resistance by giving the example from the case of dowry and witnesses in marriage ceremony.

Answer: Dowry: Dowry in Islamic law refers of the gift that must be given by the husband to the wife at the time of wedding. There are many proportions ( dalil ) that supports the giving of the dowry as obligatory, such as in Surah al-Nisa, verse 24: So for whatever you enjoy [ of marriage ] from them, give them their due compensation as an obligation. So, the giving of dowry to the wife is a legal obligation. According to Abu Hanifah, the wife is entitled to a dowry as soon as the marriage contract is valid. As it is an obligation, then it has to be fulfilled. But, in the case that the man is incapable financially, hence the rates of dowry itself can be adjusted to the capability of the man. Islam does not set rates and maximum or minimum limits for the dowry. It depends on the circumstances ( uruf ) of the time, place and society. Nevertheless, Islam recommends moderation and not setting a rate that is too high or to low. As Rasulullah stated that: The best woman is the one whose mahar is the easiest to pay However, the husband is allowed to give the wife a dowry of high value, as stated in Surah al-Nisa, verse 20: You have given one of them a great amount [ in gifts ]. Based on this explanation, no matter of what happened, dowry is an obligation that must be fulfilled by the husband and resistant to be breached, regardless the situation because it can be fulfilled based on his capability and there is no such fix rates in giving of the dowry. Example: Timin is such a middle worker man who is about to marry Mimin. As they are moslems and about to conduct their marriage under the Islamic law, Timin is obliged to pay certain amount of dowry to Mimin. Timin is only capable to give Mimin a modest dowry. Even though, it is only a modest one, the dowry shall be given, as it is an obligation that implied towards the husband. Witness: Witness in Islamic marriage is deemed to be necessary, but it

differs from one interpretation to another. In Sunni Islam, a marriage contract must have two male witnesses, or in Hanafi school of jurisprudence, a marriage shall be witnessed by one man and two women. In Indonesia, we do not use any female witness, and a marriage must be witnessed by 2 men. Proper witnessing itself is necessary to the validation of the marriage. Witness also important as a protection against suspicions of adulterous relationship. Witnesses themselves also shall meet the requirements. A witness must be a moslem, mentally capable, physically capable, not blood-related to the bridegroom or the bride and mentally stable. Example: In Timin and Mimins marriage ceremony, Mr. Amin and Mr. Udin sat as the witness because they already met the requirements to witness the marriage. Therefore, the marriage between Timin and Mimin has been validated. 4. The influence of customary law of pre-Islamic Arabian people is indubitably one of the most factors shaping the tradition of Islamic law as we can see today. Do you agree with such a statement? If so, could you support your opinion from many aspects of rules in Islamic marriage law? Answer: There are few influences from pre-Arabian society on Islamic law, in the sense of marriage law, those are: In the matter of dowry or mahr In pre-Arabian society, it was an obligatory for a man to pay such amount of money or gave a way something ( such as cattle, or property ) as the price of the bride to the womans family, and not directly given to the woman. Up until today, dowry is applied, but with some adjustments into its values. If in the past, the dowry considered as the price of the bride , now dowry is considered in its symbolic meaning in ijab Kabul where woman and man becomes 1. Moreover, dowry is now given to the women directly rather than to the family. In Islam, dowry is now considered as a marriage gift from the bridegroom to his bride and becomes her exclusive property. Dowry comes as a way to elevate the woman status by respecting her. In the matter of divorce

It is believed that the marriage is commenced from the will, therefore, the marriage also can come into an end when there is a will to do so. In pre-Arabian society, only man that can do the divorce. Moreover, in the old fiqh, divorce only can be done under the discretion of the husband. So, if the husband does not want to be divorced, hence the marriage can not come into an end. In present days, woman now has their own power in divorce. Woman now are empowered to commence and suggest to end the marriage through khulu. The impact of khulu itself is that she has to give back all the dowry she got in marriage. But, in khulu, woman can only suggest while the final discretion comes from her husband. In the matter of reconciliation after the third level of divorce In Islam, the divorce is divided into two, those are reconciliable divorce and non-reconciliable divorce. Reconciliable divorce is a divorce that still can be saved and the woman and man still can get together again. While, nonreconciliable divorce is a divorce that can not be saved again because the divorce already got into the third and last level of divorce. But, in pre-Arabian society, there is a mechanism entitled muhalil that can reconcile the non-reconciliable divorce. Muhalil is mechanism comes from the pre-Arabian society which the woman has to marry to another man first before she can get together with her previous husband. This mechanism is desigenated in order to purify the womb of the woman and to ensure in the case of pregnancy. In the matter of proofs and witnesses As quoted from Wikipedia.com, it is known that: They were sold into marriage by their guardians for a price paid to her family. Based on this statement, it is noted that in marriage there should be some witnesses and proofs. It is happened in the pre-Arabic society where the woman came into a marriage delivered by her family ( called guardian ) for certain amount of money. Today, we have the similar mechanism but with different values. In marriage, woman indeed still has to be accompanied by her wali, and the marriage also shall be witnessed. Proper witnessing itself is necessary to the validation of the marriage. Witness also important as a protection against suspicions of adulterous relationship. It is also related to the present civil bureaucracy that required every marriage shall be witnessed and registered to the civil registry office.

5. Divorce in Islamic law is basically viewed as the right owned solely by husband although its initiative may come from the wife. Please explain in detail the law of divorce in Islam especially in concern of the influence of patriarchalism pertinent in Arabian society when Islam was revealed and how Islam has tried to subsume it to Islamize the customary divorce. Answer: Quran states as regard grounds of divorce in very general terms, And if you fear that the two [ husband and wife ] may not be able to keep the limit ordered by Allah, there is no blame on either of them if she redeems herself [ from the marriage tie ] ( 2 : 229 ) It means that even if divorce is most dislikes by Allah ( as noted from book of tradition of Abu Daud ), divorce is permitted when one or both parties in the marriage are doubt or in fear that they may not be able to maintain the marriage. Islamic marriage law is influenced a lot by the pre-Arabian society, so does the divorce law that applied in Islam nowadays. Pre-Arabian society was very patriarchal, so that the husband has such a very strong discretion towards the marriage, including related to the divorce. In pre-Arabian society, the position of woman was so weak. Women did not have any power related to the marriage. Everything should up to the husband. It is shown the patriarchalism that happened in the society. In Islamic law, now law of divorce has been maintained in order to uphold the gender equality within both parties in marriage. This maintenance can be shown in few mechanisms that can be done by the couple in order to take their marriage into an end. The traditional divorce can be done through the pronouncement of such words to show that this woman is no longer his wife. This usually called as talaaq. The wife herself may only suggest and ask to her husband to be divorced but the final discretion shall be based on the husbands decision. The divorce that commenced by the suggestion or the ask of the wife named khulu Through this mechanism, we can see that there is such mixture within the customary law applied in pre-Arabic society

to the values of Islam which tries to promote such gender equality in the marriage. Furthermore, there is a limited interpretation issued by Shias and Sunnis regarding the divorce by wife. This mechanism named Talaaq-i-tafweez. In this mechanism, the husband is free to delegate his power of pronouncing divorce to his wife or any other person. This delegation must be clear, to whom the delegation is given. The delegation is may given to the wife and this kind of delegation is perhaps the most potent weapon in the hands of Muslim wife to obtain freedom and decide to end a marriage. Based on this mechanism, we can see that there is such a mixture and influence within Islamic thinking and pre-Arabian customs which are very patriarchal. In the present practice, women can get the power by the delegation of his husband, therefore the women have bigger chance and empowered in the marriage.