The Response of Some Scholars To 's Thesis Regarding The Authenticity of Traditions Oieh : Akh. Minhaji (McGill University, Canada)

AkhmadMlnhaJiadalahDosendaiammatakuUah Umu Flqh pada Fakuttas Syarl'ah IAIN Sunan Kalljaga Yogyakarta. Lulus darl Fakultas Syarl'ah IAIN SUKA pada tahun 1984 dengan predlkat "tfulus Terbalk" sehlnggaJangsungditempatkansebagattenaga pengajartetappadaalmamaternya. Dllahlrkan dl Pamekasan-Madurapadatanggal19September ' 1958AlumnusterakhirPHIN YogyakartaInlketlka menulls artlkel Inl. sedang menyelesalkan Pro- gtamMasterdlMcGUIUniversityMontrealCanada dalam bldang "".

Joseph Schacht's "discovery" insight which has enable the author to come to his conclusion and support it so convincingly." regarding the authenticity of Islamic H. Ritter, Oriens 4 (1951), 312: "a thorough tradition-literature made a tremendous methodical and highly original book." Arthur impression on .some Islamic-scholars. Jeffery, Journal 5 (1951), 393 : When Schacht published his The Origins "...meticulous in detail, sober in judgment, and clear in exposition." ofMuhammadan Jurisprudence in 1950, the book immediately met with immense ^ Joseph Schacht (1902 - 1969) has devoted approval.^ His thesis, which is concerned a considerable part of his career to study the early with(among othertopics) the authenticity history and development of Islamic juristic thought. He has'written .quite a number of of legal traditions,has generatedone of the scholarly works to express his thesis, most 'serious debates among' Islamic nonetheless, it is clear that his main thesis js scholars.^ Pne of his most important elaborated in his two famous books. The Origins of Muhammadan Jurisprudence and An Introduction to Islamic Law, both of which i See th^ following remarks : W. works possess all the atributes of originality and Montgomery Watt, JRAS (1952), 91 : a "land profound thought. Brunschvig has tried to make mark a...study likely to be the basis of all future a detailed list of Schacht's scholarly publications work on the subject." J.N.D. Anderson, Well des in Studia Islamica (volume 31, 1970) divided 2 (1952), 136 : "a new land mark ...The into twelve different sections. An excellent validity of his main contentions appear ^ndtated bibliography of those publications is inescapable." James Robson, The Muslim World contained in Schacht's An Introduction to 42 (1952), 62: "one can only admire the critical Islamic Law, first published in 1964. , .

109 UNISIA NO. 13. TAHUNXIIITRIWULAN11 -1992 conclusions, and one which may peiliaps with some scholars who are of the opinion give pain to pious Muslims, is his notion that the birth of had almost nothing that "we shall not meet any legal tradition to do with pre-Islamic Arab tradition. from the Prophet which can positively be •However, it is also clear and undeniable considered authentic."^ What is more, that many basic aspects ofIslamic teaching Schacht himselfused to acknowledge right were derived from pre-Islaraic Arab up until his death in 1969, that his tradition, and the concept of is, conclusions only reconfirm and elaborate the grand theory set forth by his predecessor, Ignaz Goldhziher.'^ ^ Joseph Schacht, The Origins of Muhammadan Jurisprudence (Oxford : Clarendon Some scholars, however, have Press, 1959), 149. addressed various responses to Schacht's thesis, some of the more prominent one's ^ Ibid., 4-5. See also his article "A Revaluation of Islamic Traditions," JRAS being Fazlur Rahman, , Fuaf (1949): 143; Ritter, review of The Origins, 309; Sezgin, M. Mustafa Azami, and Zafar Robson, review of the'^ame book, 63; David F. Ish^ 'Ansari. The present essay is an Forte, "Islamic Law : The Impact of Joseph endeavour to, critically examine the Schacht," Loyola Los Angeles International and Comparative Law Annual 1,(1978): 2. response of these scholars to Schacht's thesis regarding the authenticity of legal ^ He was the first Director of Central Institute traditions. of Islamic Research, Karachi-Pakistan. He was also Professor of Islamic thought in the Fazlur Rahman^ is one of many Department of Near Eastern Languages and Civilizations at the . He Muslim scholars who have criticized is, according to George Weckman, "an eloquent Schacht's thesis concerning the spokesman for enlightened change within authenticity of traditions. According to Islam." He was (is) well-known by most of Muslim scholars, Denney writhes : "A measure of Rahman, Schacht has failed to draw a clear this leading thinker's [Rahman] impact is that ' conceptualdistinctionbetween sunnah and wherever I have traveled in the world-whether . As a result, Rahman emphasizes, here in North America, or to Egypt, Jordan, the Schacht come to the conclusion that the West Bank, the Peninsula, Bangladesh, Pakistan, Malaysia, Indonesia, or Europe- I have , sunnah of the Prophet, which is never met a Muslim scholar or other specialist considered one of the main sources of on Islam who has not heard of Fazlur Rahman or Islamic law, is not really the sunnah of the who is neutral about his contributions to the making sense of life in Islamic ways" (see Prophet, but rather 'a living tradition' of a Frederick Mathewson Denny, "Fazlur Rahman : certain local Muslim society.^ For this Muslim Intellectual," The Muslim World LXXIX, reason, Rahman starts his analysis by April 1989 : 101). He unfortunately passed away providing a clear distinction between in 1988. sunnah and hadith, and then brings up ^ Fazlur Rahman, Islamic Methodology in some important implications of this History (Karachi : Central Institute of Islamic distinction. Research, 1965), 5. See also his Islam, 45 - 7; his "Some Issues in the Ayyub Khan Era," in Essays on Islamic Civilization, ed. Donald P. Generally speaking, Rahman agrees Little (Leiden : E.J. Brill, 1976), 285.

110 Mihhadji, The Response ofsomescholars to Joseph

according to Rahman, one of the clear Prophetic hadfth is the carrier of the examples inpoinL^ Prophetic sunnah.

Rahman provides a definition of In addition, Rahman accepts Schacht's sunnah in order to distinguish it from the conclusion that according to historical concept of hadfth. Sunnah, according to examination most, if not all, of the him,is a "trodden path,"^ an "exemplary Prophetic hadfths which are accepted as the conduct,or a "model pattern of second authoritative ^source of Islamic behaviour," and he agrees with the view doctrine, were fabricated by later dominant among more recent Western generations.!^ Nonetheles, it is going too scholars that "Sunnah denotes the actual far to conclude, in Rahman's view, that practice which, through being long there is no intimate connection between the established over successive generations, later hai'lhs compiled in the six canonical gains the status of normativeness and books and the hadi"ths of the Prophet. For, becomes 'Sunnah'."^^ as stated previously, while sunnah is a continuous and progressive interpretation There is no doubt, in Rahman's view, of the ideal examples" (of the Prophet), that , as a Prophet, laid down hadfth is the carrier' of the sunnah, and some important rules of daily life as the guiding principles of his. ummah. "Rejection, of this natural phenomenon," says Rahman, "is tantamount to a grave ' Rahman, op. cit. 1-4. See also his Islam, irrationality, a sin against history."^^ 44. Another example given by Rahman is the practice of polygamy (see his "The Status of •However, Rahman reminds us, the phrase Women in klam," in Separate World : Studies of "Prophetic sunnah" does not denote Purdah in South Asia, eds. Hanna Papanek exclusively the exemplary conduct of the Gail Minault, Delhi : Kay Kay Printers, 1982, Prophet, but rather a continuous and 300; his Islam, 29). e. progressive interpretation of his ideal, ^ Rahman, Islam, 44. exmples "in terms of the new situation." Hence, the Prophetic sunnah contains "not ^ Rahman, op. cit., 2. only the general Prophetic Model but also regionally standardized interpretations of Rahman, Islam, 3. ' that ModeI."^3 !! Rahman, Islamic Methodology, 1. Hadfth, according to Rahman, is a !2 Ibid.. 32. religious term wich is different but which cannot be ''divorced" from sunnah. Hadfdi • '13 27, 74. literally means ' "tradition,and is "nothing but a reflection in'a verbal mode" Rahman, Islam, 14. of the actual practice (sunnah)A^ Rahman, op. cit., 74. Therefore, the Prophetic hadfth is nothing but a reflection in a verbal mode of the Ibid., 33. For the examples of the Prophetic sunnah. In other words, the fabricated tradition, see ibid., 17, 19 - 20.

Ill UNISIA NO. 13. TAHUN XIH TRIWULANII • 1992

represents "the interpreted spirit'of the concoction .of the' Muslim scholars is Prophetic teaching." somehow unclear. For eventhough he has John Burton makes Rahman's thesis shown the existence of the so-called an object of criticsm, and at the same time genuine Rahman failed to give a he supports Schacht's.^^ .Rahman, clear answer how to distinguish- the according to Burton, has tried to connect genuine hadfthfiom the forged one. On the the later (and ) with the contrary, through a variety' of data, Prophetic booths (and sunnahs). Schacht successfully investigates the However, Rahman cannot. avoid the historical development of traditions and consequence of his own thesis-that it is comes to the succinct conclusion that the difficult, if not iihpossible, to distinguish socalled Prophetic tradition is fabricated by between the content of hacfth as. the later generations and has nothing to do continuation of the Prophetic and with the Prophet himself. He even traces the content of hadfth which was really the origin of individual traditions. fabricated by later generations in order to. support their ideas. The situation is more In 1967 Nabia Abbott^ published her complex, for it is a historical fact that Studies in Literary Papyrf volume political, theological, and legal viewpoints 2 of which concerned with Qur'amc deeply,influenced the appearance of certain commentary and traditions. The purpose hadTths. To put it differently, by no ofthis book does not seem to be to dispute means are we able to distiiiguish the hadfth Schacht's thesis directly. Nevertheless, (sunnah) which really relies upon the when she come to the conclusion that the Prophetic teaching from the hadfth (sunnah) which was forged by certain' ^people to sup^rt their vested-interests or I*' Ibid., 29. which were the result of, to use Rahman's See his review of Islam^-by Fazlur words, the "tremendous stniggles and Rahman, in flSO/lS 31 (1968) : 392 - 5; conflicts against heresies and extreme sectarian opinion. "^0 Historical Ibid., 393 -4 examination demonstrates that many 20 Rahman, op. cif, 44-5 hadiths are spurious and were forged by classical Muslim scholars and, according Seepages footnote 17 above to Rahman himself, have nothing to do withProphetic hcdfth.'^^ On this point, Burton, review of Islam, 393^. according to Burton, Rahman has basically She was the first women faculty member of failed not only to realize the distinction the Department of Oriental Languages and the between the concept and the content of Oriental Institute of the University of Chicago. haif4h or sunnah, but also to "grasp the She became Travelling Fellow ^d Research Associate (1933-7), Assistant Professor (1938- theses of.... Schacht."^- 43), Associate Professor (1943-9), Professor of Islamic Studies (1949-63), and Professor . In short, Rahman's refutation of Emeritus in 1963 (see in the Schachts's main thesis that the Prophetic "Foreword" of Journal ofNetw Eastern Studies 40, hadfth {sunnah) is a second century July, 1981)

112 Ahmad Minhadji, Tha Responsa ofsomascholars toJoseph science of traditions is not simply an which, at least according to Robson,^^ is offshoot of the developing legal interests well designed to support her conclusion. ofthe community, and that traditions were Nonetheless, some important points must transmitted, both orally and in writing, be taken into account, and one of the Ifrom the very beginning of the first crucial issues concerns the written data Icentury of Islam,it is clear that she given by Abbott which are clearly dated jseriously challenges Schacht's thesis 'only after the first century of Islam. The regarding the autheticity of the Prophetic absence" of written documents" during the traditions. This tendency is obviously first century of Islam encourages the emphasized by ..her subsequent article appearance of intellectual speculation "Hadfth Literature ; Collection and among Islamic scholars to solve the Transmission of In this article, "mystery" surrounding'the era. Therefore, which depends heavily on her research in the result of Abbott's investigation is Arabic Literary Papyri, she argues that the nothing but one among other intellectual collection of traditions "was begun in speculations by scholars. Because of this ' Muhammad's lifetime" and was handed very reason, 'perhaps, Wansbrough, after down to the following generations until the evaluating her papyri documents, points era ofthe six famous canonical collections. out that "this is surely za'am, not burhdn."'^!^ Abbott's research has yielded some • Moreover, although Abbott, has important results which have, according to successfully demonstrated the whole Charles J. Adams, "set the stage for the nect steps" in the discussion of the authenticity of the Prophetic traditions.^^ See her Sludies in Arabic Literay Papyri, vol. 2, Qur'anic Commentary and Tradition The era chosen by Abbott to verify her (Chicago : The University of Chicago Press, 1967), 2. See also Adams, "Islamic Religious conclusion that the traditions originated in Tradition," in The Study of the Middle East : the lifetime of Muhammad fits into four Research and Scholarship in the Humanities and general periods. The first is the period Social Sciences, ed. L. Binder (New York : John during Muhammad's lifetime. The second Willey & Sons, 1976), 66. is the period after Muhammad's death In Arabic Literature to the End of the when there was a growth in the number of Umayyad Period, eds. A.F.L. Beeston and others traditions widely spread by the (Cambridge: Cambridge University Press, 1983), Companions until the coming to .the 289 - 98. Umayyad period. The third is the era of Adams, "Religious Tradition," 66. the Umayyads where the key position of Ibh Shihab Muhammad b. Muslim al- James Robson, review of Studies in Arabic Zuhn' (d. 124/742) is mostly emphasized. Literary Papyri, volume 2, by Nabia Abbott, in In the fourth period the formal and Journal of Near Eastern Studies 27 (1968): 143 - collections of traditions appeared in the 4. ' canonical books. J. Wansbrough, review of Studies in It is impossible here to discuss in Arabic Literary Papyri, volume 2, by Nabia detail Abbott's elaboration of each period Abbott, in BSOAS 31 (1968): 614.

113 UNISIA NO. 13. TAHUN XIIITRIWULANII• 1992 picture of the traditions as chronologically considers the family isnad as a genuine genuine, she cannot avoid the evidence transmitter of the traditions, Schacht that some of the traditions, are forgeries. considers it "not an indication of "[Tjhere were few dishonest and authenticity but only a device for securing unscrupulous men,", she says, its [tradition's] appearance."33 This view. "responsible for an occasional deception or is actually an elaboration of his general forgery or, as is alleged particularly in the conclusion that the isn ad were improved. case of sectarians, for wholesale By providing certain proofs^'^ he fabrication "29 Unfortunately, she does concludes that "the most perfect and not elaborate further as to how far those complete ofisnads are the latesL"^^ people had forged traditions. The number of the forged traditions is, of course, not As pointed out previously, Abbott so important. It could be many or just a does not directly dispute Schacht's few. However, when the practice , of discovery. Therefore, it is understandable forgery is known to have happened, and that she does not directly verify the the result of the practice has been handed evidenceof familyisnad given by Schacht, down to the following generations together but rather consistently bases her argument with the so-called genuine traditions, the on the critical analysis of her own data. generations which come after the era of the Further investigation is, of course, needed codified traditions from the forged ones. in order to clarify this issue. This is, for instance, clearly shown.by the collection of the Sahfh al-Bukhm, which, Another scholar who in recent years though considered the most genuine has thrown light on the problem of the among the six canonical collections, authenticity of Arabic literature including nevertheless is known lb contain a number traditions, is Fuat Sezgin. In the same year of weak traditions.^^ that Abbott published her Studies in Arabic

More interesting still is her treatment regarding the position of the family isnad ', 29 Abbott, Studies, 53. which strongly contradicts Schacht's See, for ecample, Rahman, Islamic conclusion. She is ofthe opinion that there Methodology, 72; G.H.A. Juynboll, The: was a positive parallel between the Authenticity of the Tradition Literature : development of traditions and the Discussion in Modem Egypt (Leiden : E.J. Brill, developmentof the family isnad relating to 1969), 1. the chronological transmission 'of the Abbott, Studies, 37. traditions.^ ^ Hence, the position of the family isnad is seen as a confirmation of 32 Ibid:. 39 her conclusion that there is a clear continuation of the traditions.^2 33 Schacht, Origins, 170. Se^e also his "Islamic Traditions," 147.

Schacht's conclusion concerning the 3^^ Schacht, Origins, 170 - 1. position of the family isnad is in opposition to Abbott's. While Abbott 35 Ibid., 165.

114 Ahmad Minhadji, The Response ofsome scholars toJoseph

Literary Papyri, he produced the first on the same lines as kitabah volume of his Geschichte des arabischen mukdtabah, and comes to the viewpoint Schrifttums?^ and it has beenseenas one which is supported by NawawT and Abu ofthe most signific^t contributions in the Nu'aim that the Umayyads forced al- field. In a lengthy analysis of the tradition Zuhn'Xand other traditionists) "not simply literature, Sezgin comes to the same to write the traditions down but to practice conclusion as Abbott.^'' By examining a the transmission procedure of large number of Arabic manuscripts, and mukdtaba."^^ by analysing the formulas u^d by the Sezgin's work, however, has been transmitters he insists that the common subjected to criticism. His data, as is the practice among Muslim scholars ofwriting case with other works in the field, are down traditions started earlier than seriously questioned on the basis of their Goldziher has suggested,^® and finally authenticity, for they were documents only comes to the conclusion that "the process of recording hadTth began during the lifetime of Muhammad and continued in an unintenipted in an uninterrupted fashion Leiden : EJ. Brill, 1967. Sezgin's work until the emergence of the great hadfdi has been seen as "expansion, correction, and updating of Brockelmann's basic study of the collections of thethirdMinth century."^^ history of Arabic literature," and covers "an - The word Idtdb has been seen as a key extensive manuscript concerning Qur'anic in Sezgin's analysis, proving that the sciences, tradition, history, law, dogma, and transmission of written sources, including mysticism'With special attention to translations from the Sanskrit, Pahlavi, Syriac, and Greek the traditions, had started from an early works" (see Adams, "Religious Tradition," 67, time in Islamic hsitory. The frequent and Nabia Abbott, review of Geschichte des statements ofthe word kitdb used in Arabic arabischen Schrifllums, by Fual Sezgin, in Journal ofNear Eastern Studies 29, 1970 : 57). literature, according to him, "must not be interpreted to signify an aversion to Because of her enthusiasm for supporting writing and an expression of prejudice in Sezgin's'work (in order to confirm indirectly her favor of oral transmission,"^ but rather own thesis) Abbott does not address even the slightest criticism to Sezgin's theories (see her is to be understood "as referring to an review of Sezgin's work, 57). instructional procedure {kitdb, kitdbah, mukdtabah) relying on written materials Juynboll, Authenticity, 3. provided by the teachen'^^^ He supports his thesis by referring to the report 39 David S. Powers, Studies in Qur.dn and Hadith : The Formation of the Islamic Law of concerning the statement made by al-Zuhri" Inheritance (Los Angeles : University of relating to his writing down "knowledge" California Press, 1986), 5. {'Urn) in response to requests by the Ummayads. A1Zuhrf said : Yunndnakrahu Franz Rosenthal, review of Geschichte des Arabischen Schrifitums, by Fiiat Sezgin, in JAOS fdtdb al-ilmi hattd akrahand 'alaihi hd'uld'i 89 (1969) : 294. al-'umardfara'aindanJd namna'ahu ahadan min al-musUmfn." Unlike Goldziher who 41 Ibid. interpreted kitab al-'ilm as process of fabrication, Sezgin interprets the term kit^ Juynboll, Authenticity, 113.

115 UNISIA NO. 13. TAHUN XHITRIWULANII • 1992 from after the first century of hijrah, and, meaning of the texts quoted, and according to JuynboU, the evidences misunderstanding of the method of themselves postdate the era of, as quotation ofearly scholars.^^ everybocly is bound to agree, wider-scale Schacht's conclusions regarding the forgery of tradition, either in. terais of ks authenticityof traditions, as we know, go matn or its isnad.'^^ hand in hand with his other conclusion Other correction addressed to Sezgin's regarding the origin of Islamic work concerns the author of the Kitcbal- jurisprudence, asshown cleariy inthetitle c£h 'aid al-Nabi. This woik, according to of his first book. Therefore it is Rpsenthal, is not by, as claimed by Sezgin, Abu Bakr Ahmad B. 'Amr al- Bazz^,but rather by Abu BakrAhmad b. G.H.A. Juynboll, Muslim Tradition : 'Amrb. Abr'Asiman-Nabfl.'^ ^ Studies in Chronology, Provenance and Authorship of Early Hadith .(Cambridge Perhaps we will agree with JuynboU'*^ Cambridge University Press, 1983), 4. that until the present time M. Mustafa Azami'*^ is the scholar who has provided 4^ Rosenthal, review of Geschichte, 294. "the most articulate critique" of Schacht's 4^ Juynboll, Muslim Tradition, 3, 207. thesis regarding the authenticity of tradition. Azami formulates his thesis in 4^ He is Professor of hadith science at King his Studies in Early Hadith Literature, Saud University, Saudi Arabia since 1973. He obtained -his Ph. D. in Islamic Studies from particularly in part one, chapters six and Cambridge University in 1967, and studied at al- seven, and elaborates his more serious Azhar University ofEgypt and at Daral-'Ulum of critique, of Schacht's thesis in his India- In 1980 he received the prestigious King subsequent book OnSchacht's Origins of Faisal Award from his research and presentations Muhanwnadan Jurisprudence.^ on the sunnah. Another interesting work of his the computerization of the hadith (see the back cover of his On Schacht's Origins of Azami successfully demonstrates that Muhammadan Jurisprudence, Saudi Arabia : King the process of collecting traditions had Saud University Press, 1985). begun during the timeof Muhammad. He 4^ His doctoral dissertation at Cambridge calculates, for instance, 47 cases and University in 1966, and published in Beirut in examples discussed by Schacht and 1968 by al-Maktab al-Isl^I which is now also examines 24. of them'*^ which leadhim to available in an Arabic translation-under the title Dirdsai ft al-Hadith al-Nabawi wa-Tdrikh the following conclusion: TadwJnih, published in Beirut in 1973, and in Riyad in 1976 and 1979. • ' Careful scrutiny of his [Schacht^s] examples andrepeated reference to the 48 Saudi Arabia : King SaudUniversity Press, original source material, however, 1985. reveals inconsistencies both within the theory it self and in the use of source 49 There is no clear explanation for why he material, unwarranted assumptions examines just 24 from the 47 cases listed in his and unscientific method of research, book. mistakes of fact, ignorance of the political and geo^aphical realities of Azami, Schacht's Origins, 116. See also the time, and misinterpretation of the his paraphrase of this conclusion in page3. \ 116 Ahmad Minhadji, The Response of some scholars to Joseph

understandable that Schacht concentrates The other point raised by Azami is his criticalanalysismore on legal traditions Schacht's suspicion about the isnai of instead of tradition in general. It is on this NEIik —Nafr —Ibn 'Umar which is based point that Azami challenges Schacht's on two grounds : the age of MSik and the approach. In Azami's view, it is quite position of Naff as the client of Ibn wrong to study traditions as a subject by 'Umar. Schacht writes : "But as Nafi' died limiting them to the legal tradition literature in A.H. 117 or thereabouts, and Malik in alone, and he emphasizes that "any A.H. 179, their association can have taken conclusion about the traditions, their place, even at the most generous estimate, transmission, or the isnai system, etc, only when MSik was litUe more than a based on the study of legal literature would boy.'"^3 Azami lays the blame on be faulty and unreliable."^^ However, it is Schacht's* omission of the birth date of very unfortunate that Azami, never touches NElik, which, according to him, "can lead on the reason given by Schacht as to why only to erroneous conclusions."^ Then he he concentrates his analysis more on legal writes: ' tradition. Schacht argues: I Had he [Schacht] consulted any Law is a particularly good subject on bibliographical work he would have which to develop and test a method •found that most of the scholars, even which claims to provide objective those who were bom a little earlier criteria for a critical approach to than M^ik, state that he was bom in Islamic traditions, and that for two 93 A.H; a fewput it in theearly moths reasons. Firstly, our literary sources of 94 'A.H., a few in 90 A.H. and a carry us back in law further than, say, few in 97. But there is ho one who in history, and for the crucial second maintains any date later than this. So, century they are much more abundant NElik was at least twenty years old, if • on law th^ on any other subject. not twenty-four or twenty-seven, Secondly, our judgment on the formal when Nafi' died.^^ and abstract problems of law and legal science islesslikelyto be distorted by This issue is very interesting and has given pre-conceived ideas (those expressed in our sources as well as our own), rise to certain questions' such as : why dtan if we had to judge directly on does Schacht not mention the birth date of issues ofpolitical and religious history of Islam.^2

M. Mustafa Azami, Studies in EarlyHadilh Schacht's method is certainly Literature (Saudi Arabia : King Saud University supported by the fact that the contents of Press. 1985). 222. the Mmva fro' ofMalik and the six books of cry Joseph Schacht, "Islamic Traditions," ^adition, al-kumb al-sittahy which have 144. traditionally been seen as the authoritative works in thefield, are obviously arranged Schacht, Origins, 176 - 7. in accordance withthe arrangement of the subject-matter of law, al-abwcb al- Azami. Studies, 245. fiqhiyyah. Ibid. ,

117 UNISIA NO. 13: TAHUNXIIITRIWULANII -1992

N^ik ? Does he consider the date as notv his career from King Abdul Aziz auAentic ? It is important to note here that University, Saudi Arabia. More than this, Schacht writes: "Nothing authentic is his Studies h^ been considered as, at least known ofMSik's date of birth,and he by Arberry, "one of the most exciting and does not say there is not any data relating original investigations in this field of to this issue. modem times.

To support his idea that the isnad of '• V6Iik~Nafi"--Ibn "Umar • is Schacht, Origins, 176 footnote 4.' ' unquestionable, Azami, challenges viewpoint conceming the position of Naff Azanti, Studies, "245. In the same way he as the client ofIbn "Umar in relation to the repeated this conclusion in a paraphrase form transmission of.traditions. Unfortunately, when he discusses the family isn^ (see his Schacht's Origins, 196 - 7). without analysing Schacht's argument, Azami provides only a general conclusion, See his Origins, 170 - 1, 176 - 9. Schacht saying : "....if a man is being accepted chooses the isnad group of Malik-Nafr-rlbn ^tlmar because of three reasons : the available ^ amongst his contemporaries pd among sources are most complete on 'the Medinese, the the later authorities as most trustworthy, Nafi^ traditions are the most important single then why should he be dishonest ? If a group of 'Medinese traditions, and the isnad ' statement of a father about his son or vice Malifc—Nafr—Ibn "^Umar is one of the best, if not the very best, according to the Muslim scholars. versa, or-a wife about her husband or a

friend about a friend of a colleague is See his article "Islamic Law". always unacceptable, then on what sources could a biography possibly be' written -See his article " Hadilh" in Th e ?."5' It is certainly beyond question that Encyclopedia of Religion, ed.- Mircea Eliade.

• Schacht's treatment of Nafi^'s position . See her article "Sunnah," laThe • obviously corroborates his general idea of Encyclopedia ofReligion, ed. Mircea Eliade.- the family isnai, and. the case of Nafi" leads support to his view that legal , See his "Schacht's Theoryin the Light of traditions originated in the first halfof the Recent Discoveries Conceming and the Origins of Arabic Grammar," Stadia Islamica 61 (1987) ; second century A.H.^® 31,-50. To my knowledge Azami's work has not received much attention from later See his "Religious Tradition." scholars such as David F. Foite,^^ L.T. When he cites some works which ' Librande,^P Marlyn Robinson contradict Goldziher's and ScHacl^'s viewpoints Waldman,^^ Rafael TalmOn,^^ CharlesJ. .he refers to the work of Abbott and Sezgin Adams,and Zafar Ishk} Ansan,^'^ to without mentioning the work of Azami at all (see mention just a few. Schacht never • his "The authenticity of Traditions : A Critique of Joseph Schacht's Argument e silentio,", Hamdard addressed Azami's woik. More interesting Istamicus 7, 1984 : 59 footnote 2). still is the absence of reviews of Azami's See Arberry's "Foreword" in Aza.mi's work by Westem scholars, when in facthe Studies. This is also cited by Muhammad is a recognized expert on the science' of Hamidullah in .his review of Azami's work in traditions and has received an award for Revue Des Etudes Islamiques 37 (1969): 373.

118 A^mad Minhadji, The Response ofsome scfiolars to Josepfi

Zaf^ Ish^ can also be a doctrine of his school...on the basis of a included among those scholars who have late fifth century book v/z., Sarakhsi, seriously ch^enged Schacht's thesis. His Mabsut."'^^ challenge is not execlusively addressed to Schacht's sceptical attitude towards the Aside form the fact that Ans^' has Prophetic traditions, but rather to Western thrown light on Schacht's inconsistencies, scholarship in general. Nonetheless, it is a he is also able to demonstratethe absurdity fact that most of his arguments, as far as of Schacht's thesis by turning the method the Prophetic traditions are concerned, are upside down, that is, by examining the addressed to Schacht's thesis. For, in his traditions found in early works that are not view, Schacht's thesis is "the most found in the later works. "This would impressive and the best argued mean, "AnsM" remarks," Working on the presentation" in Western scholarship.^'' His critique is primarily addressed to Schacht's argument e silentio,^^ and he has aptly remarked : "there were several He is Professor of History at University of considerations which sho.w that Petroleum and Minerals, Dhahran, Saudi Arabia. mechanical application of the e silentio He obtained his Ph. D. in Islamic studies from Institute of Islamic Studies McGill University in argument...is unjustified,"^^ then he 1966 (see Khurshid Ahmad and ^far Ishaq emphasizes this conclusive remark in his Aiisari, eds. Islamic Perspectives : Studies in • later Work, saying : "Schacht's Honour of Mawlana Sayyid Abul AId Mawdudi, Saudi Arabia : Saudi Publishing House, 1979, -'methodical rule' and his line of XV). argumentation arehighly sweeping."''^

I ^far Ishaq Ansari,. "The Early The argument e silentio, as we know, Development of Islamic in Kufah with Special Reference to the Works of and is the main approach used by Schacht to shaibani" (Ph.D. diss. Montreal : McGill examine Prophetic traditions and which, University, 1966), 235. on the basis of sufficient data, leads him to £ O the conclusion that "we shall not meet any He elaborates his critique in his legal tradition from the Prophet which can dissertation, 52 - 66 and 234 - 43. The last part be considered authentic."''^ ' (234-43), with some changes of words and/or sentences, appeared in his article "Authenticity." i This view is adopted later by Azami (see his Having analysed Schacht's argument Studies, 254 - 5, and his Schacht's Origins, 118 - and its data, An$m~ charges Schacht with 22). not being consistent in his own argument. For, acxording to Ansan", Schacht also uses AnsarT, "Early Development," 64. later sources (e.g. fifth century sources) to. Ans^T, "Authenticity," 53. support his viewpoint regarding certain doctrines which occurred in the first and Schacht, Origins, 149. For Schacht's use second centuries. Ansari" proves the of the argument, see, for ecample, his Origins, inconsistency ofSchacht's own argument, 140 - 1. by showing that schacht, for instance, See his "Early Development," 518 "cites an argument of Shaiban"in favour of footnote 214.

119 UNISIA NO. 13. TAHUNXIIITRIWULANII• 1992 reverse of Schacht's assumption."'^^ In traditions which were available in previous order to prove his argument, Ansan works, even though they could have conducted a test on four books : the supported their arguments, because of Muwatta's of Malik and of Shaibari", and their consideration that the traditions were the Ar^rjofAbu Yusuf and of Shaibari", not authentic. by examining the traditions which discuss the same issues. The result is quite Arsaif has also called Schacht's view impressive. There is a large number of that there is not a single Prophetic tradition traditions found in the Muwatta' of MSik considered genuine "grossly exaggerated," that are not found in the Muwatta' of while it is clear that, according to him, Shaibari",'''^ and a number found in the quite a number ofProphetic traditions are Aiftar of AbuYusuf that are not found in forged and fabricated by later theAihdr ofShaib^*.^^ An emphasizes generations,^^ However, it could also be tha fact that the Muwaua' of Shaibari" possible that later jurists did not mention appeared laterthan theMuwa tta' of MSik, some traditions which were available in and the Arfwr of Shaibari" appreared later previous works, even though they could than the A^r of Abu Yusuf. AnsM"'s have supported their arguments, because result, as a consequence, seriously of their consideration that the, traditions challenges Schacht's e silentio argument were not authentic.' which states : "The best way of proving Ansm" has also called Schacht's view that a tradition did not exist at a certain that there is not a single Prophetic tradition time is to show that it was not used as a considered genuine "grossly exaggerated," legal argument in a discussion which while it is clear that, according to him, would have made reference ta it quite a number of Prophetic traditions are imperative, ifit had existed.""^^ forged and fabricated by later Certain questions may be raised here as to why the later scholars'do not mention Ans^T, "Authenticity," 54. the traditions which are found in earlier works in their discussions of the same For more details, see his "Early issue. A variety of answers are highly Development," 237 - 40, and his "Authenticity," possible. Ansan may be correct in that 56-7. there is a great number of instances "where For more details, see his "Early a jurist recorded the doctrine of hisschool Development," 240 - 1, and his "Authenticity," on a legal questionbut did not careto cite 57. the tradition which was relevant to, and/or was supportive of his doctrine, even Schacht, Origins, 140. though it can be incontrovertibly shown See his "Early Development," 237; his that he knew that tradition.In fact, "Authenticity," 54. j according to him, there are many doctrines derived from the Qurian that were recorded See his "Early Development," 236; his without mentioning the relevant verses.''® "Authenticity," 54. However, it could also be possible that See his "Early Development," 58, 61, 65 - later jurists did not merition some 6.

120 Ahmad Minhadji, The Response ofsomescholars toJoseph generations,^^ nevertheless, this fact, he the Companions, fuqaha', and sometimes strongly argues, "does not exclude the also to the virtuous people (as a good possibility thatquitea numberof Prophetic example), he has failed in the end to draw traditions do genuinely go back to the a line between the sunnah of the Prophet Prophet.A clear criterion to and the other sunnahs. It is not an easy distinguish the genuine tradition from the task to do so, we believe. Nevertheless, it forged one is, in hiS'viewpoint, badly is a cause for great regret, for the most needed. Nonetheless, without clear controversial issue among scholars relating explanation, he refers to the science of to the authenticity of traditions is, among drdyah which, according to him, has long- others, the criteria for verifying the been well-known among Muslim Muslim claim that the Prophetic traditions scholars.^^ are undoubtedly rooted in the Prophet In 1972Ans^" published an article^^ himself. which, though it does not directly dispute Schacht's thesis, develops an argument 80 See his "Early Development," 66. that challenges Schacht's conclusions. In this article he is concerned with the Ibid., 418 footnote 94. semantic analysis of some of the important terms used infiqh during the early period "Islamic Juristic Terminology before of Islam, terms such as th, sunnah, SafiT :A Semantic Analysis with Special Reference toKufa," Arabica 19 (October 1972) : etc.®^ The most important result of his 255-300. This article is, actually, the first part notion that at the same time significantly of his dissertation, 120 - 177. contradicts Schacht's conclusion is his Ansari claims that this study is very notion that the phrases "hadith of the important to avoid the ambiquous understanding Prophet" and "sunnah of the Prophet" of the early history of Islam, e.g. Islamic have positively been used since early jurisprudence. This ambiguity is, according to him, sometimes shown by the use of certain a times, in fact from a period close to the term "in a multiplicity of meanings by one and lifetime of the Prophef.^ Moreover, there the same author and often in the same work." is an indication, according to him, that AnsarT examines the historical development of meaning of both hadith and sunnah through the since quite early times, at least amongthe following stages: 1. hadith: the use of the term muhaddithun, the terms \ydith and s\mnah in early Islamic literature (265), and of the works wereused interchangeably.®^ of the second century school such as Abu Yusuf and ShaibanI (256 - 8). 2. Sunnah : the literal Ans^'s analytical study of the meaning (259 - 61), the meaning used in the development of the terms sunnah through Qur^ (261 - 3), the meaning addressed to certain a variety ofsources, particularly the works people : ^Umar, al-Hassan al-BaCTi, and Abd. B. of Abu Yusuf and of Shaibm, is "Ibid (63-4), in the second century works of Ibn al-Muqaffa', Awza"T, Malik, Abu Yusuf, and undoubtedly important for any scholar ShaibanI (265-71). who studies the historical development of traditions. Unfortunately, even though he 84 See his "Islamic Juristic," 256-82. has successfully provided the positive 85 Ibid., 258, 273. athar, riwdyah, and proof that the term sunnah does not khabar were other terms used more less exclusively refer to the Prophet, but also to interchangeably with hadith (see ibid., 256).

121 UNISIA NO. 13. TAHUN XIIITRIWULMII • 1992

I Concluding Remarks. Some important -points should be I,* . * ^ • made here. The most crucial problem of Our discussion in this essay has tried our discussion is the absence of written to provide an analysis of the response of documents from the first century of Islam. some prominent scholars to Schacht's thesis regarding the authenticity of traditions. I would like to conclude with v Qur'an 16 (44) : "We have revealed unto thee the Remembrance that thou mayst explain the following remaiks. to. mankind that which hath been revealed for The central role ofMuhammad among them, and that haply they may reflect" (all of the , (^ur^ic verses in this essay ^e quoted from Muslims as the. expounder of the Mohammed Marmaduke Picthall, The Meaning of Qur'an,®'^ the legislator,the one to be , the Glorious Koran (Ontario : Penguin Books, obeyed,®^ and the example.of Muslim -n.d.). conduct and behaviour®^ iS certainly Qur'an 7 (157): "Those who follow the messenger, the Prophet who can peitherread nor beyond question. This suggests that the write, whom they will find described in the Rorah , guiding authority of and was and the Gospel (which are) with them. He will explicitly prescribed by Allah himself.^® enjoin on them that which is right and forbid them that which is wrong. He will make lawful A1 pious Muslims therefore areextremely for them all good things and prohibit for them eager to perfomi allthe activities pftheir only the foul; and he will relieve them of their dailylife in accordance withMuhammad's burden and^ the fetters that they used to wear. saying (qawl), action (fi^l)* and tacit- Then those who believe in him, and honour him, and help him, and follow the light which is sent approval (taqrTr), the body of which is down with him : they are the successful". well-known later as the Prophetic traditions. By the end ofthe third century, Qur'M 4 (64): "We sentno' messenger save of the Muslim era the final authoritative that he should be obeyed by Allah's leave." 3 (32): "Sty: Obey Allah and the obey the collections were complete. These messenger and those of you who are in aiuthority; collections of traditions (prepared by al- .and if ye have a dispute concerning any matter, Bukhari", Muslim. Abu D^ud, al-NasFf, refer it to Allah and the messenger if ye are (in truth) believers in Allah and theLastDay. That is Tinnidhf, arid Ibn Majah) are considered to better'and more seemly in the end." 4 (80): be the most reliable compilations as this ."Whoso obeyeth the messenger obcyeth Allah, source of Islamic law. and whoso tumeth away : We have not sent thee as a warder over them." In modem times, a serious debate has 89 Qur'^ 33 (21) : "Verily in the messenger raged as to whether or not traditions of Allah ye have a good example for him who orginated in their entirety with Muhammad Ipoketl^ unto Allah and the Last Day, and himself. Joseph Schacht has endeavoured rememberelh Allah much." ^ to examine the authenticity of the traditions 90 Qur'an 59 (7): "and' whatsoever the and conies to the convincing conclusion messenger giveth you, take it. And whatsoever that no single tradition originated' with he forbiddeth, abstain (from it). And keep your Muhammad. Rahman, Abbott, Sezgin, \duty to Allah. Lo! Allah is stem in reprisal." 4 (65): "But nay, by thy Lord, they will not Azami, and Ansan have provided various believe (in truth) until they make thee judge, of responses to Schacht's thesis and finally , what is in dispute between them and find within come to conclusions which are at odds themselves no dislike of that which thou with Schacht's. - decidest, and submit with'full submission."

122 '• .«9.

Ahmad Minbadji, Th$ Response of some scholars to Joseph

This situation has led to a polemical by quoting a passage from Coulson's viewpoint among Islamic scholars article "European Ciriticism of Hacfth concering the authenticity of traditions and Literature": Islamic history in general. In addition to this, Schacht and his opponents seem to be In such cases, then, it may be that persistent in advancing their own theories the truth lies somewhere between traditional Islamiclegaltheorymd the and base their analyses on their own rigorous historical approch of Schacht. examples and on data that suit their general At the same time it must, of course, be hypotheses and support the conclusions frankly recognized that the Muslim and which they have apparently made before the Western methods of Hafth undertaking their research. It is supported criticism are irreconcilable because by the fact that some of the scholars are they rest upon totally different premises. Between the dictates of selectively silent and do not analyse the religious faith on the one.hand and data of their opponents which do not secular historical critipism on the other support their own thesis. there can be no middle way of true objectivity.^3 Another point that needs to be raised here is the fact that the style of Arabic in the traditions deserves more research on SELECTED BIBLIOGRAPHY the part of scholars. Any one who is familiar with the Qur'an and the traditions Abbott, Nabia. "Hadfth Literature : would accept our general contention that Collection and Transmission of the Arabic style used in the Qur'an is Hadith" In Arabic Literature to the different from that used in the traditions. End of the Umayyad Period, eds. The Arabic style used in the Qur'an, A.F.L. Beestoa and others, 289- according to the report of historians, 98. Cambridge : Cambridge originated in pre-Islamic Arabia and is University Press, 1983. called "Qassical Arabic." On the other hand, ifwe agree that the traditions started after the first century A.H.. it will be clear G.R. Hawting present the general charasteristic of Classical Arabic and Middle that the Arabic style used in the traditions Arabic in his The First Dynasty of Islam is representative of "Middle Arabic," a (London: Groom Helm Ltd., 1986), 9-10. variety in which local language (in area conquered by Muslims), according to Guillaume has raised a good point, saying: "it seems somewhat mo drastic to postulate that Hawting, had affected the original 'every legal tradition from the prophet until the Arabic.^i Our assumption here would contrary is proved must be taken not as an seem to be in keeping with Schacht's authentic ' unless we are to understand that Dr. Schacht refers to the form father than, to the thesis that the traditions, or at least their substance of the tradition." (see his review of from if not their substance,^^ appeared Schacht's Origins, in Bulletin of the School of after the first century A.H. Oriental and African Studies 16, 1954: 176).

N.J. /Coulson, "European Criticism of 1can think ofno more appropriateway Hadith Literature," in Arabic Literature to the End of ending these concluding remarks than of the Umayyad Period, 321.

123 - UNISIA NO. 13. TAHUN XIIITRIWULAN II • 1992

Review of Geschichte des Beirut: al-Maktab al-IsIamT, 1968. Arabischen Schrifttums, by Fuat Burton, John. Review ofIslam, by Fazlur Sezgin. In Journal ofNear Eastern Rahman. In BSOAS 31 (1968); Studies 29{\916)\ 51. 392-5. Studies in Arabic Literary Papyri. Coulson, N.J. "European Criticsm of Volume 2. Chicago : The Hadfth Literature." In Arabic University of ChicagoPress, 1957. Literature to the End of the Adams, Charles J. "Islamic Religious Umayyad Period, eds. A.F.L. Tradition." In The Study of the Beeston and others, -317-21. Middle East: Research and Cambridge: Cambridge University Scholarship in the Humanities and . Press, 1983. Social Science, ed. Leonard Binder, Denny, Frederick Mathewson. "Fazlur 29-95. New York: John Wiley & Rahman: Muslim Intellectual." The Sons, 1976. Muslim LXXIX (April 1989): 91- Ahmad, Khurshid and Tatar Ish^ Ansan, 101. eds. Islamic Perspectives: Studies Eliade, Mircea, ed. The Encyclopedia of inHonour ofMawlana sayyid Abul Religion. London: Macmillan A'ldMawducf. Saudi Arabia: Saudi Publishing Company, 1987, s.v. Publishing House, 1979. "Hadfth," by L.T. Librande; s.v. Anderson, J.N.D. Review of The Origins "Sunnah," by Marilyn Robinson ofMuhammadan Jurisprudence^ by ' Waldman. Joseph Schacht. In Welt des Islams Forte, David F. "Islamic Law: The Impact , 2(1952):136. of Joseph Schacht" Loyola ofLos Areffl, Zaf ^ Ish^. "Islamic Juristic Angeles International and Terminology before Safi f :A Comparative Law Annual 1 (1978): semantic analysis with Special 1-36. Reference to ." Araft/ca 19 Guillaume, Alfred. Review ofThe Origins (October 1972): 255-300. ofMuhammadan Jurisprudence, by "The authenticity of Tradition: A Joseph Schacht. In BSOAS 16 Critique of Joseph Schacht's (1954): 176-7. Argument e silentio." Hamdard Hamidullah, Mohammad, Review of /5/am/cM5 7 (1984): 51-61." Studies in Early Hadfth Literature, i, "The Early Development of by M. Mustafa Azami. In Revue Islamic Fiqh in Kuf^ with Special Des Etudes Islamiques 37 (1969): Reference to the Works of Abu 373-4. Yusuf and Shaib^"." Ph.D. Diss. Hawting, G.R. The First Dynasty of Montreal : McGill University, Islam. London: Croom Helm Ltd., 1966. 1986. Azami, M. Mustafa. On Schacht's Origins Jeffery, Arthur. Review ofThe Origins of of Muhammadan Jurisprudence. Muhammadan Jurisprudence, by Saudi Arabia: King Saud University Joseph Schacht. In Middle East Press, 1985. Journal 5 {I95l)\ 392-4. Studies in Early Hadfth Literature. Juynboll, G.H.A. Muslim Tradition:

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Studied in Chronology, Provenance by.Nabia Abbott. In Journal .of and Authorship of Early Hadith. . Near Eastern Studies 27 (1968): Cambridge : Cambridge University 143 - 4. Press, 1983. , Review of The Origins of The Authenticity of the Tradition' ' Muhammadan Jurisprudence, by ' ' Literature'. Discussion in Modern ^ Joseph Schacht. In The Muslim Egypt. Leiden : E.J. Brill, 1969. WorldAl (1952): 61-3. Mahdi, ,Muhsin. "Foreword". Journal of Rosenthal, Franz. Review of Geschichte Near Eastern Studies 40 (July des Arabischenn Scrifttums, by 1981). ' Fuat Sezgin. In Journal of the Pickthall, Mohammed Marmaduke. The American Oriental Society 89 Meaning of the Glorious Koran. (1969): 293 - 5. Ontario: Penguin Books, n.d. Schacht, Joseph. An Introduction to Powers, David S. Studies in Qur'an and Islamic Law. Oxford : Qarendon ' Hadfth : The Formation of the Press, 1964. - Islamic Law of Inheritance. Los _ "A Revaluation of Islamic Angeles : University of California ' Traditions."/RAS (1949) : 143 - Pressi 1986. 54. Rahman, Fazlur. Islam! Chicago : The "Theology and Law in Islam/' In University of Oiicago Press, 1979. Theology and Law in Islam, ed. Islamic Methodology in History. G.E. von Grunebaum, 3 - 23. Karachi: Central Institute ofIslamic Wiesbaden : Otto Harrossowitz, Research, 1965. ' 1971. "Some. Issues in the Ayyub Khm The Origins of Muhammadan Era." In Essays on Islamic Jurisprudence. Oxford: Qarendon Civilization, ed. Donald P. Little, Press, 1959. • 284 - 302. Leiden: E.J. Brill, 1976. Talmon, Rafael. "Schacht's Theoryin the "The Status of Women in Islam : Light of Recent Discovery A Modernist Interpretation." In Concerning and the Origins of Separate World: Studies of Purdah Arabic Grammar." Studia Islamica m SoMf/i eds: Hanna Papanek 65 (1987); 31-50.- and Gail Minault, 285 - 310. Delhi: Watt, W. Momtgomery. Review of The Kay Kay Printers, 1982. Origins of Muhammadan Ritter, H. Review of The Origins of Jurisprudence, by Joseph Schacht Muhammadan Jurisprudence, hy In/RA5 (1952): 91. Joseph Schacht. In Oriens 4 (1951) Wansbrough, J. Review of Studies in : 308 - 12. Arabic Literay Papyri, volume 2, by Robson, James. Review of Studies in Nabia Abbott. Iri BSOAS 31 (1968)' Arabic Literary Papyri, volume 2, : 614.

125 RESENSI BUKU

Sudut Hukum Mengenai Tanggungjawab Keuaiigan Negara

Judul buku Mekanisme Pertanggungjawaban Keuangan Negara Su^u Unjauan Yuridis • Penulis- ArifinP. Soeria Atmadja Penerbit PT. Gramedia, Jakarta, 1986 . tebal 215 halaman.

Kalau orang berbicara tentang APBN di dal^ bukuini tetaprelevandengan apa atau anggaran negara pada umumya maka yang kita hadapi dan kita butuhkan dewasa biasanya bobot pembicaraan lebih ini. ditekankan pada angka-angka atau Masalahpengelolaandan pertanggung perhitungan ekonomi. Jarang didapat jawaban keuangan negara merupakan pembicaraan mengenai ini. Pembicaraan masalah sangat penting di dalam ini masih sangat jarang dilihat dari sudut administrasi pemeiintahan sebab keuangan hukum, lebih-lebih kaitannya dengan negara itu merupakan "uratnadi kehidupan pertanggung-jawaban. negara". Karenanya menjadi sangat Pada tahun 1983 Arifin P. Soeria penting pula adanya kepastian hukum Atmadja mempertahankan disertasi mengenai mekanisme pengelolaan dan didepanSenat UNPAD Bandung dengan pertanggungjawaban keuangan negara. judul "Segi Hukum Mekanisme Buku ini membedah masalah-masalah Pertanggungjawaban' Keuangan Negara yang penting itu dengan cukup tuntas. SuatuTinjauan Yuridis". Meskipuhsudah Permasalahan pertama yang diahgkat lampau selamalebih kurang9 tahun sejak dalam buku ini adalah adanya dualisme dipertahankan dan 6 tahun sejak hukum mengenai anggaran negara. dipublikasikan tetapi permasalahan, Dikatakan bahwa dalam rangka kesimpulan, dan rekomendasi yangdimuat penyelenggaraan pemerintahan'nitincukup

127 UNISIA NO. 13. TAHUN XIIITRIWULANII-1992 banyak dana yang dipergunakan yang hal yang sama tetapi secara prinsip sumbemya .bisa berasal dari luar negeri materinya tetap sama). Persoalannya maupun dari dalam negeri. Masalahnya, adalah : manakah yang harus di^ut secara dasar hukum pengelolaan anggaran itu yuridis dan praktis ? sekarang ada dua yaitu UUD 194^ (pasal Kalau saja kedua peraturan pemndang- 23) dan Indische Compatibiliteitswet undangah tersebut memuat materi yang (ICW) 1925 yang berlaku sejak jaman sama atau saling mlengkapi maka kolonial Belanda; dan pemberlakuannya itu pertanyaan tentang "manakah" itu tak perlu didasarkan pada aturan peralihan pasal II timbul. Namun keduanya disamping UUD 1945. Tentang keberlakuan ICW berbeda secara hirarkial, temyata memuat 1925 ini bahkan setiap UU APBN selalu pula peibedaan materi yang dalam buku ini menyebut secara eksplisit bahwa disebutkan, antara lain, adanya pergeseran ketentuan-ketentuan ICW 1925 yang wewenang. Jika didasarkan pada tata bertentangan dengan bentuk, susunan, dan urutan peraturan perundang-undangan isi UU APBN 1925 dinyatakan tidak sebagaimana diatur di dalam TAP MPR berlaku; artinya ICW tetap berlaku pada No. XX/1966 maka Kepres No. 14 A segi-segi yang tidak bertentangan dengan jelas derajatnya lebih rendah dari ICW UU APBN dalam bentuk, susunan, dan 1925 sehingga tak mungkin isinya. mengesampingkan ICW itu; apalagi Dari segi pengertian yuridis secara Kepres No. 14 A 1980 yaiig bersumber formal dan material ditegaskan bahwa pada UU PABN hanyalah memiliki bobot sebenamya aturan UU APBN dan ICW formal. Tapi secara hakiki Kepres No. 14 1925 terdapat perbedaan bobot sebab UU A 1980 ini telah menambah dan mengubah APBN hanya mempunyai bobot formal ketentuan material ICW. Lihatlah misalnya sedangkan ICW 1925 mempunyai bobot tentang pergeseran wewenang dan formal dan material sekaligus. Karena tanggung jawab : menumt Kepres No. 14 bobotnya yang seperti itu ICW dipandang A/ 1980 bendaharawan hanya sebagai UU Pelaksanaan UU APBN bertanggungjawab kepada. atasan sepanjang bentuk, susunan, dan isinya langsung, sedangkan menurut ICW (pasal tidak bertentangan dengan UU APBN itu. 77) bendaharawan itu bertanggungjawab Disinilah timbulnya . "dualisme" kepada BPK dan kepada atasan langsung. keberlakuan peraturan perundang- Begitu juga wewenang menjadi bergeser undangan tentang anggaran negara itu karena menurut Kepres 14 A / 1980 segera nampak; sebab sejak 1980 Presiden bendaharawan lebih berfungsi sebagai Juru telah mengeluarkan Kepres bernomor 14 A bayar atas perintah kepala kantor/satuan tahun 1980 yang temyata merupakan kerja/pemimpin proyek, pada hal menurut Peraturan Pelaksanaan terhadap APBN. ICW bendaharawan itu diserahi tugas Jadinya ada dua peraturan pelaksanaan menerima, menyimpan, dan atas perintah APBN yang berlaku secara bersama, mengeluarkan uang atau barang milik yaitu, ICW (karena bobot formal dan negara yang bertanggung jawab kepada materialnya) dan Kepres no. 14 A tahun BPK; namun demikian menumt ICW 1980 (Kepres ini sudah pemah diubah dan bendaharawan itu dapat menolak untuk diperbaharui dengan Kepres baru tentang menerima atau mengeluarkan uangA)arang

128 Moh. Mahfud MD, SudutHukum Janggungjawab Keuangan Negara atas perintah atasan seandainya dilihat sebagai perubahan dan tambahan bertentangan dengan ketentuan peraiuran terhadap materi ICW'1925. perundang-undangan. Arifin Kesimpulan pertama dari buku ini mengkhawatirkan timbulnya kolusi dari menyebutkan bahwa ICW sebagai UU konstelasi hubungan administrasi organik yang menjabarkan pasal 23 UUD keuangan negara yang sepejit ini. 1945 adalah tidak sesuai, baik ditinjau dari, Peisoalan yang juga muncul adalah ini: segi yuridis maupun dari sudut bagaimana mekanisme pertanggung- operasional, dalam konstelasi jawaban untuk mengimplementaslkan ketatanegaraan RI. Tetapi tetap berlakunya pasal 23 (5) UUD 1945 dan kepada ICW tetap melanggengkan dualisme lembaga negara mana pemerintah hukum yang kendati bersifat luwes dan mehyampaikan laporan pertanggung akomodatif sebenarnya akan menimbulkan jawaban keuangan ? Memang secara mikro dampak negatif dalam jangka panjang bendaharawan bertanggungjawab secara karena selalu dihadapkan pada pilihan veitikal dan secara makro (sesual pasal 23 yang lebih bersifat kebijaksanaan temporer (5) UUD 1945) BEPEKA memeriksa daripada peraturan perundang-undangan tanggungjawab keuangan negara yang yang mapan. Oleh karena itu penulis dikelola oleh pemerintah. Namun merekomendasikan dibuatriya UU tentang bagaimana mekanisme untuk itu tidak jelas perbendaharaan Negara yang dapat dukungan yuridisnya, dan kepada lembaga menggantikan ICW. yang sebenarnya negara mana pemerintah menyampaikan secara idiil dan konstitusional memang tanggungjawab keuangan negara itu belum sejak lama harus diganti. ada perumusan yuridisnya. Tampakjelas bahwa ada dilema dalam Hal lain yang disimpulkan oleh hal anggaran negara ini yakni dilema penulis, dan agaknya aneh Jika dilihat dari pelaksanaan Peraturan perundang- rumusan pasal 23 (5) UUD 1945, adalah undangan ICW 1925 dan Kepres No. 14 bahwa seharusnya Pemerintah sebagai A tahun 1980 (tentu dengan Kepres- pemegang kuasa dari DPR untuk Kepres yang memperbaharuinya) yang melaksanakan APBN mempertanggung- pada gilirannya berimplikasi timbulnya jawabkan pengelolaan keuangan negara itu dualisme hukum di bidang pengelolaan kepada DPR yang, memiliki hak dan pertanggung-jawaban keuangan bergrooting dan memberikan kuasa itu; negara. Hal ini tidak dapat dihindari jadi bukan kepada BPK. Mekanisme mengingat kenyataan pelaksanaan pertanggung]awaban APBN tersebut pembangunan tidak selalu sejalan dengan sebaiknya dituangkan di dalam Tap MPR^ keberlakuan suatu peraturan perundang- atau UU Perbendaharaan Negara (yang undangan. Kepres No. 14 A oleh penulis hendaknya segera dibuat), dan tidak dipandang sebagai terobosan yang sekedar didasaikan semata-mata pada dilakukan oleh pemerintah untuk mengisi satu pasal UU APBN yang hanya bersifat kesenjangan hukum yang dibutuhkan oleh formal dan temporal itu. pembangunan; dan Kepres tersebut dapat *** Moh. Mahfud MD.

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