Abstract
INDONESIA:
Formalisasi hukum Islam pada periode yang berkembang di Indonesia didahului dengan terbitnya Staatblad 1882 No. 152 di era Gubernur Van Den Berg atau cukup populer dengan teori receptio in complexu. Kenyataan seperti itu telah membawa bangsa ini kepada suatu kesadaran bahwa agama dan negara adalah hal yang tidak bisa dipisahkan dalam hal reformasi hukum. Munculnya UU No. 1 Tahun 1974 yang diikuti dengan KHI, UU No. 7 Tahun 1989 tentang Pengadilan Agama, dan baru-baru ini diterbitkan KHES Tahun 2009 adalah konsekuensi dari kebutuhan hukum bangsa ini sejak hari kemerdekaan Indonesia. Oleh karena itu, menurut konsep sistem hukum sipil eropa kontinental, hukum akan berlaku dan berdiri sendiri jika telah dikodifikasikan melalui lembaga legislatif.
Dalam studi hukum Islam, al-mashlahat al-mursalah adalah salah satu dari asas pembentukan hukum baru, yang tidak dapat ditemukan penjelasan detailnya baik dalam Al-Quran ataupun hadis. Atau dapat juga dikatakan bahwa pembentukan hukum di sini memiliki visi dan misi yang selaras dengan Al-Quran dan Hadis. Berasumsi padahal itu, pembentukan hukum baru yang mengacu pada konsep hukum sipil yang melewati proses legislasi di Indonesia adalah pada titik tertentu memiliki tujuan yang sama atau maqashid, yaitu pemberlakuan hukum pada khususnya, yang memang akan membawa mashlahah dan menutup mudhorot. Oleh karena itu, tesis ini menggunakan produk hukum lokal yaitu Peraturan Daerah Kota Probolinggo No. 2 Tahun 2009 tentang Kesejahteraan Lanjut Usia sebagai sumber hukum primer untuk dirumuskan permasalahannya, tentang bagaimana konsep kemakmuran dalam al-mashlahat al-mursalah diterima ke dalam fase perancangan perundang undangan Peraturan Daerah tentang Kesejahteraan Lanjut Usia? Dan Bagaimana nilai-nilai kesejahteraan hukum Islam diterjemahkan ke dalam bahasa undang-undang yang valid tentang Peraturan Daerah Kesejahteraan Hari Tua?
Pemahaman terpadu terhadap produk hukum seperti Peraturan Daerah dibutuhkan suatu pendekatan yang relevansi antara peraturan dan peraturan lainnya dapat dibaca secara menyeluruh dan utuh. Dengan memanfaatkan pendekatan undang-undang pemahaman hukum akan berfokus pada hirarki peraturan di mana secara bertahap aturan yang mengandung akan diatur lebih lanjut mulai dari tingkat pusat turun ke tingkat lokal. Pemahaman hukum ini tidak sempurna bila tidak menyangkut fase perencanaan undang-undang (legal drafting) atau Program Legislasi Daerah menurut istilah UU No. 10 tahun 2004. Oleh karena itu, dengan memanfaatkan metode penalaran hukum deduktif penelitian ini mencoba untuk mencari pola Resepsi al-mashlahat al-mursalah dalam Peraturan Daerah Kota Probolinggo No. 2 Tahun 2009 tentang Kesejahteraan Lanjut Usia.
Hasil Penelitian ini menunjukkan bahwa al-mashlahat al-mursalah, yang didefinisikan sebagai keselarasan visi dan misi dalam pembentukan hukum dengan visi misi Al-Quran, telah menempatkan konsep mashlahah melalui batasan atau partikel yang seharusnya ada. Kemudian, dengan mengikuti arah itu proses mashlahat mursalah secara tidak langsung telah dilalui sekaligus juga mengindikasikan adanya resepsi hukum Islam.
ENGLISH:
Islamic law formalization at its developing period in Indonesia was preceded by the publication of Staatblad 1882 Num. 152 in the era of Governor Van Den Berg or quite popular with the theory of receptio in complexu term. Such fact has brought this nation over consciousness that religion and state are things cannot be separated apart in term of legal reformation. The emergence of Code Num. 1 Year 1974 followed with KHI, Code Num. 7 Year 1989 about Religious Court, and recently published KHES Year 2009 were consequence of this nation’s legal requirement since the independent day of Indonesia. Therefore, according to European continental’s civil law system concept, the law will prevail and self-stood if was codified through legislative institution.
In the Islamic law study, al-mashlahat al-mursalah is one of new law making’s principles which cannot be found its detail explanation in either Koran or Hadith. Or also can be said that the new law making here possesses a shared vision and mission with the Koran and Hadith. By assuming on such, the new law making referred to civil law concept which is passing through legislation process in Indonesia is at certain point possessing the same purpose or maqashid, that is, the legal enactment in particular, would indeed be bringing the mashlahah and shutting mudhorot. Therefore, this thesis uses a local legal product namely the Local Regulation of Probolinggo City Num. 2 Year 2009 about Old Age Prosperity as primary source of law to be questioned about, of how is the prosperity concept within al-mashlahat al-mursalah received into legislative drafting phases of Local Regulation about Old Age Prosperity? And How is the prosperity values of Islamic law translated into a valid linguistic statutory of Local Regulation about Old Age Prosperity?
The integrated comprehension toward legal product such as Local Regulation requires any of approaches which relevancy between regulation and other regulation can be read thoroughly and intact. By making use of statute approach the legal comprehension will focus upon hierarchy of regulation where gradually containing rules to be regulated further starting from central going down to local level. This legal comprehension cannot complete if it is not co- relational with legal drafting phases or Local Legislation Program according to Code Num. 10 year 2004 term. By making use of deductive legal reasoning method, therefore, this research tries to find the reception pattern of al-mashlahat al-mursalah within Local Regulation of Probolinggo City Num. 2 Year 2009 about Old Age Prosperity.
This research’s result shows that al-mashlahat al-mursalah, defined as harmonious legal vision and mission within new law making with the Koran’s vision and mission, has placed the mashlahah concept through boundaries or particles ought to exist. Then, by following such direction the process of mashlahat mursalah has indirectly happened yet also indicated to the reception of Islamic law.
CHAPTER I
INTRODUCTION
A.
Background
of Study
In his age Umar bin Khattab
determined not to execute the hand cut penalty against thieves considering
people on such season were in hunger and poverty that happened in every places
because of harvest failure. Many of legal verses in their asbabun nuzul are
pertaining social circumstance and become 'illat of why have those been
determined. Indicating that, 'urf of local society motivates the determination
of law. 1 In the ushul fiqh, ‘urf is one of the sources to construct the law.
To Abdul Wahab Khallaf, ‘urf means something known commonly in society and
becomes tradition. 2 It becomes urgent element to be accounted with containing
the basic needs and what had 1Amiur Nurruddin, Ijtihad ‘Umar bin Al-Khaththab,
(Jakarta: PT. Rajawali Pers, 1991), 150. 2Abdul Wahhab Khallaf, Ilmu Ushul
Fikih, (Jakarta: Pustaka Amani, 2003), 117. 2 been approved in society.
Therefore, Ulama claim that the tradition is considered as law that has to be
preserved as long as it does not contradict with Sharia. Islam had intensively
been performing supervision on local tradition such as the prohibition against
alcoholic drinks. The prohibition was not applied directly yet revealed
gradually in order to prepare society's circumstances to receive the Sharia. In
fact, Syari' determines to preserve necessary tradition that assumed
appropriate with Sharia for example the preservation on commercial tradition.
However, the law that had been established over Arabic society through
revelation cannot be separated from the prophet role as mediator who is dependable
on local traditions. In addition, many of Koran’s verses use the general terms
indicating that the later explanation is given over second mandator after God.
Therefore, prophet Muhammad tried to construct the law, that has not been
certainly described in Koran’s legal verses neither quantities nor qualities,
through local custom parameter. Hence, Islamic Jurisprudence scientists
formulate the jurisprudence theorem (al-qawa’id alfiqhiah) al-‘aadatu
muhakkamah as the parameter of Islamic legislation in accordance with surah
Al-Baqarah verse 228 :
”And women shall have
rights similar to the rights against them, according to what is equitable
(ma'ruf)” (Al-Baqarah : 228). Al ma’ruf, that is, interpreted as custom which
is become standardized quality to measure the value of justice in society. It
reflects society's circumstance that is embodied into rules of customary law.
As also acknowledged in Islam that there are several rules of law in customary
law that show no further explanation, neither evidence indicating on its
admission nor evidence on its canceling. The concept is known as al-mashlahat
al- 3 mursalah term in Islamic law literature. That is, one of the methods to
construct the law concerning public welfare which is the Syari’ does not
confirm it nor proscribe it. Therefore, it is appropriate to be related with
the concept of ”adl-dlaraaru yuzaalu” that is necessitate to avoid whatever
heads to adl-dlarar or disadvantage. The living law which exists in society has
dynamically developed and changed, sometimes in certain place and time is
considered advantageous yet disadvantageous. Thus, in order to synchronize it
with the remaining law then it has to be systemized and codified. Imperialism
entered to Indonesia and had ruled for approximately 350 years. Its arrival
brought the newest and freshest nuance of legal culture and helps national
legal system to identify and to compile the legal sources including Islamic law
that began to be codified in the brink of 20 th century. For example, the
formulation of Stbl 1882 Num. 152 as derivation of Gibb's comprehension upon
Islamic law or its prominent term is the theory of receptio in complexu.
Lodewijk Willem Christian Van den Berg, an Islamic law expert and also a man who
promoted the theory of receptio in complexu, that used to be applied in
Indonesia, had found that Indonesian society had already been approving the
authority of Islamic law thoroughly. He tried to codify the Islamic law through
regulation that gave full authority over religious court, to judge. The using
of ”to codify” term refers to the concept of civil law legal system that
becomes worldly famous after French Revolution 1789 under Napoleon order. In
this concept, court is manifestation of the code that is Islamic Code or
Islamic Canon. Therefore, the code is created by the legislature's enactment
according to the civil law legal system and indeed necessitated to consider the
living law that exists in society. Indonesia as independent state acknowledged that
the sources of national law as living law system comprise three kinds of law,
namely; traditional law, Islamic law and 4 western law. Based on this the first
national seminar of law, that held in Jakarta at the hall of University of
Indonesia March 11 th 1963, was intensely organizing the national legal system
and put it at top priority by encouraging the experts and practitioner of law
to perform unification and codification of law. In 1974 the first Islamic code
in its regulation form has published. It was the Government Regulation Number 1
Year 1974 about marriage. The emergence of government regulation about marriage
brought a new face on Islamic law and also strengthened the foothold of
religious court authority in Indonesia. From that moment the discussions of
Islamic law formalization began, for instance the emergence of code of
pilgrimage, the code of wakaf, KHI and lately KHES (Kompilasi Hukum Ekonomi
Syariah) of Islamic economy. In 2004 the Code of Local Government Num. 32 year
2004 has published. It applied three years after UUD 1945's amendment in year
2001, which is one of its amendments lied on article 18 about Local Government
including Local Regulation. It makes sense that this regulation becomes the
mother of regulation to infuse elements or the Islamic values into Local
Government before finally formalized, such as Local Regulation Num. 2 about Old
Age Prosperity of Probolinggo 2009. Probolinggo lies in 7º 43’ 41” to 7º 49’
04” southern latitude and 113º 10’ to 113º 15’ eastern longitude with wide area
56,667 Km². Probolinggo becomes transit area connecting towns between eastern:
Banyuwangi, Jember, Bondowoso, Situbondo and Lumajang and western: Pasuruan,
Malang and Surabaya. In addition, Probolinggo is a coastal area with harbor
transit as one of local income sources. 3 3 “Letak Geografis,”
http://probolinggokota.go.id/index.php?option=com_content&task=view&id=21&Itemid=39,
(accessed in October 18 th , 2009). 5 According to the data published by BPS in
year 2001 from total amount 181718 of citizen in capital city of Probolinggo
there are 174043 of Moslem, 3068 of them are Christian, 3060 Catholic, 185
Hindus, and 1363 Buddhist. The amount will keep increasing as today in 2010.
Besides, Probolinggo has included as part of Eastern Salient (area tapal kuda).
It is the terminology to identify current area with the highest and deepest
comprehension about Islam that much colored by NU-ism spreading and grew strong
in Probolinggo. In 2009, referring to article 18 of Ground Constitution 1945,
Probolinggo has published the Local Regulation Num. 2 year 2009 about Old Age
Prosperity. The regulation generally contains about the developing live extent
whether in service form, aid and protection form as listed in article 8 of
scope subject of Local Regulation. As another regulation ought to be in
jurisprudence and legislation ruling in Indonesia, that the Local Regulation of
Old Age Prosperity has been through dialectical phases or dialectical processes
over social culture of Probolinggo citizen, that is Islamic law. Therefore,
this research tries to investigate such dialectical phases in local legislation
by assumption was it synch already with prosperity concept within al-mashlahat
almursalah of Islamic law. Based on those above, this research chooses the title
”THE RECEPTION OF AL-MASHLAHAT AL-MURSALAH WITHIN LOCAL REGULATION OF
PROBOLINGGO CITY NUM. 2 YEAR 2009 ABOUT OLD AGE PROSPERITY”.
B. Research Questions
1. How is the prosperity concept within al-mashlahat al-mursalah
received into legislative drafting phases of Local Regulation about Old Age
Prosperity? 2. How is the prosperity values of Islamic law translated into a
valid linguistic statutory of Local Regulation about Old Age Prosperity? 6 C.
Purpose of Study 1. To know the process of drafting phases of local regulation
about Old Age Prosperity. 2. To know the process of how the local regulation
draft of Old Age Prosperity determined into a valid linguistic statutory.
D. Significance of research
The research is hoped to
give the knowledge contribution to State Islamic University of Malang generally
and Sharia Faculty particularly. The research is also intended for officer or
local government practician, Probolinggo city particularly, in order to
consider sharia principles aspect within local regulation drafting. And last
for common society, the research hopefully gives a ground comprehension and how
significant to put sharia principles into Local Government policy.
E. Scope And Limitation Research
about The Reception of Al-Mashlahat Al-Mursalah Within Local
Regulation of Probolinggo City Num. 2 Year 2009 about Old Age Prosperity is the
research that tries to discuss the effectiveness of al-mashlahat al-mursalah
theory in Islamic law when it confronted with the legal positivism of
legislation tradition in Indonesia. The law making process itself has been the
aspect of what such research has always been emphasized in this research, about
how is Prolegda affecting the effectiveness of al-mashlahat al-mursalah while
they are performing synchronizing and harmonizing and how Islamic law’s
universalism values could also be displayed through linguistic statutory that
is not opposed against Pancasila’s principles. 7 Therefore, judging from the
situation above the boundaries can be established as follow: 1. This research
does not investigate the affecting extent of regulation upon society’s legal
awareness and their practice. 2. Neither the society’s response towards
regulation in term of legal aware culture. 3. Nor does investigate about legal
comparative between Islamic legal tradition and positive legal tradition.
F. Definition of Keywords Reception
: Is the term that usually
used in the theory of receptio in complexu. By borrowing such term in this
point will imply of reception which rooted or derived from the word receptio of
receptio in complexu theory in sensing of acceptance or absorbance (to
receive). Al-Mashlahat Al-Mursalah : Concisely, implied to indefinable law
indicating that its inexistency remains sense to whether had or have not been
in harmony with the prevailing law. To some extent it refers to the law with no
textual authority can be found on its validity or otherwise. G. Previous
Research According to the topic, where the research is held, there is one
research that had been in the same topic as the writer has. That is, Suud Fuadi
who writes a thesis entitled ”The Sharia Formalization Phenomena (The
Comparative Study of Local Regulation between Pasuruan Regency and Tangerang
City about Prostitution Banning).” Suud Fuadi’s research presented a few numbers
of polemics around the implementation of local regulation viewed from its
editorial denotation. Hence, Suud 8 tried to reform his reasoning with popular
theories at the moment and appeared to apply the thoughts on unstable fact
instead of ought to be. From few discussions of his thesis appears that the
problem tried to arise is a lively thoughts regarding Sharia Local Regulation.
Here forth, Suud was applying theories of Qodri Azizi combined with Syafi'e
Anwar's and Rahmad Rosyadi's thought to generate what brought on differential
penalty or prohibition between Pasuruan Regency and Tangerang City in each
local regulation with the same topic of prostitution prohibition. In addition,
such research characteristic has the quality of library based research which
means focusing onto regulations comparison. Suud's Research lacks pertaining
principal substance of Sharia Regulation. Also the research does lack in
discussing how its substance would applied in regulation. H. Organization of
Study The thesis will consist of five chapters. As general preview for reader,
the first chapter will discuss primarily the purpose and the problem of why
does it attracted to discuss concerning The Reception of Al-Mashlahat
Al-Mursalah within Local Regulation of Probolinggo City Num. 2 Year 2009 about
Old Age Prosperity. The chapter will begin with history of Probolinggo in how
society maintains the Shariah into law enforcement. It will then goes on to how
Islamic law received into normative legal system, in this case is mashlahat
mursalah, which is historically applicable in stbl 1882. The second chapter
will be devoted to the theories discussion about how Sharia perceived in the
viewpoint of law. Does it contain the tying force to apply legal system and if
it did how it works? The discussion continued with general description about
formulation of constitution in the central government environment and narrows
forth to the local government. 9 The third chapter will focus on the method of
research that explains the paradigm, approach and whatever relates with the
sources of law. At this chapter too, the thesis will adopt the expert’s
theories that may guide to collect the sources of law to the very detail. The
fourth chapter contains analysis of the collected sources of law. It will be
described prior according to the concept of document study. It will then
explain completely about local regulation material within Islamic view.
Furthermore, the analysis goes on to the Local Regulation of Old Age Prosperity
to how the reception takes process. The last chapter will be the closing. It
contains the conclusion from all discussion from the question of the first
chapter to analysis of fourth chapter.
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