Al-Risalah P-ISSN: 1412-436X E-ISSN: 2540-9522 Forum Kajian Hukum Dan Sosial Kemasyarakatan

JM Muslimin et al Al-Risalah p-ISSN: 1412-436X e-ISSN: 2540-9522 Forum Kajian Hukum dan Sosial Kemasyarakatan

Vol. 20 No. 2, December 2020 (pp. 163-179)

ISTISḤSĀN AND ISTIṢHĀB IN ISLAMIC LEGAL REASONING: Towards the Extension of Legal Finding in the Context of Indonesia

JM. Muslimin, M. Abdul Kharis UIN Syarif Hidayatullah Jakarta, Indonesia Jl. Ir. H. Djuanda No. 95 Ciputat, Tangerang Selatan, Indonesia e-mail: [email protected]; [email protected]

DOI: 10.30631/al-risalah. v20i2.589 Submitted: September 03, 2020; Revised: November 19, 2020; Accepted: November 24, 2020

Abstract: This article explores the debate among Muslim jurists on istiḥsān and istiṣhāb and the ability of both to solve Islamic legal cases in Indonesia. The research is done through normative legal approach by referring to various literatures in the elaboration of legal concepts. The concepts of law (istiḥsān and istiṣhāb) are discussed and become the central topic. At the end, those concepts are applied in the cases to draw normative conclusions. The result of this research shows that though istiḥsān and istiṣhāb are still debatable, both of the two have a strong influence and relevance to be applied. In the Indonesian context, istiḥsān and istiṣhāb reasoning, may be combined or separated, can be used to promulgate the obligatory registration of marriage, the application of health protocol of Covid-19 during prayer in the mosque in the time of pandemic, and possibility of using credit card and e-commerce for transaction, the acceptance of Pancasila as the basis of the Republic of Indonesia, the legitimacy of 1945 constitution, democracy, and current principles of modern jurisprudence (such as the principles of pre-assumption of innocent). That is due to the fact of their virtues for public life (maṣlaḥah muḥaqqaqah), and no exact prohibition is found in al-Qurʼan and Hadith (ibāḥah aṣliyyah). In short, by using istiḥsān and istiṣhāb, such mentioned recent cases may be solved and logics of legal reasoning can be extended. Keywords: Istiḥsān, Istiṣhāb, Istinbāṭ, Legal Case, Legal Reasoning

Abstrak: Tulisan ini mendiskusikan perdebatan ulama seputar istiḥsān dan istiṣhāb sekaligus menyajikan bukti-bukti relavansi keduanya dalam menyelesaikan berbagai persoalan hukum Islam di Indonesia. Untuk mencapai tujuan tersebut, tulisan ini menggunakan metode penelitian hukum normatif berbasiskan riset kepustakaan dimana istiḥsān dan istiṣhāb yang diperdebatkan tesebut kemudian diterapkan dalam suatu kasus untuk mencari kesimpulan normatif. Tulisan ini menunjukkan bahwa walaupun keduanya masih menjadi perdebatan hangat di kalangan ulama, namun pada kenyatannya, keduanya berpengaruh dan sangat relevan dalam penyimpulan hukum Islam. Dalam konteks Indonesia, melalui istiḥsān dan istiṣhāb, dikombinasikan

Istisḥsān and Istiṣhāb in … atau secara terpisah, dapat menyelesaikan persoalan hukum seperti kewajiban pencatatan pernikahan, mengikuti protokol kesehatan selama pandemi covid-19 di saat menunaikan shalat di masjid, kebolehan menggunakan kartu kredit, perdagangan digital sebagai alat transaksi, legitimasi penerimaan Pancasila sebagai dasar Negara Republik Indonesia, Undang-Undang Dasar 1945, dan asas-asas perundang-undangan modern (semisal asas legalitas), karena terbukti kuat adanya kebaikan di dalam konsep tersebut, dan tidak ada ayat atau hadits yang secara eksplisit melarangnya (barāʼah aṣliyyah). Ringkasnya, melalui penalaran istiḥsān dan istiṣhāb, pesan-pesan Islam dapat teraktualisasikan, kasus-kasus terkini dapat diselesaikan dan logika penalaran hukum Islam dapat diperluas pijakannya. Kata Kunci: Istiḥsān, Istiṣhāb, Istinbāṭ, Kasus Hukum, Penalaran Hukum

Introduction Due to the dynamic of current problems in public as well as in private matters, the elabo- In the study of Islamic jurisprudence, inter- ration of the existing istiḥsān and istiṣhāb as pretation of the legal texts and even changes of key concepts of legal reasoning is necessary. the legal conclusion may occur and sometimes Hence, the purpose of this article is to prove are inevitably have to be done. This is because that as the key concepts, both of the two are of the changing times, places and cases.1 In logical receipts and can potentially combine general, al-Qur'an and al-Hadith as main- the essence of reason and revelation. They are sources of Islamic law denote several legal useful to solve Indonesian legal problems, methods, concluded by ʻulamāʼ, such as qiyās such as the mandatory of written marriage, e- (analogy) and ijmāʻ (consensus), istiḥsān and commerce, pandemic prevention of disease istiṣhāb. (covid-19), Pancasila as fundamental consen- From generation to generation, the new sus of nation as well as the acceptance of 1945 problems of jurisprudence that arise have constitution. never been able to be solved by only referring The research problems are: a. the debate on to the text (naṣṣ). It demands the ʻulamāʼ to these concepts among Muslim jurists; b. the conduct ijtihād (legal finding) similar to conventional and expanded application of is- Muʻādh ibn Jabal who carried out the ijtihād tiḥsān and istiṣhāb as a tool of legal reasoning and was legitimized by the Messenger of Allah to solve contemporary legal cases, especially (RasūluʼLlāh), to which this concept was within the Indonesian context. continued by the scholars from time to time. The effort of doing ijtihād, endorses Muslim In the light of normative approach, the scholars to have public academic debate of research will begin by debating the ontological every creative legal concept, referring to the and epistemological concept and arguments of sacred texts. The debate pushes the creation istiḥsān and istiṣhāb among madhāhib as and emergence of several schools of thought methods of legal reasoning: (for example), (madhāhib). Those madhāhib often have specific why Hanafite are in agreement to istiḥsān, methods of reasoning, such as istiḥsān and whereas Shafiʻite are accusing that people in istiṣhāb. favour of istiḥsān are creating legal norms out of Al-Qur‟an and Hadith. After the debate, the writing tries to show the practicality of istiḥsān and istiṣhāb in day-to-day life: some legal cases 1 Karen Taliaferro, "Ibn Rushd and Natural Law: mentioned above will be solved by using both Mediating Human and Divine Law," Journal of methods of legal reasoning. In turn, by doing Islamic Studies 28, no. 1 (2017): 1.

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JM Muslimin et al so, the next step of elaboration will inform that to the general proposition. Indeed, istiḥsān is those methods can be proven and derived as a prioritizing the benefits of al-mursalah over mode of knowledge production and a qiyās’.6 legitimate framework of legal solution. Lastly, The Hanbalite interpreted istiḥsān as „turn- some fundamental remarks as conclusions of ing away from a legal provision to other the research will be presented. provisions that are stronger than the previous‟.7 If there is a conflict between maṣlaḥah and qiyās, then maṣlaḥah is taken and Ontology and Epistemology of Istiḥsān practiced. It is also reinforced by Ibn Qudamah with his statement that istiḥsān is 1. Definition: Searching Fundamental the transfer of law to a problem from which it Meaning has similarities, due to certain arguments Istiḥsān has the literal meaning of “to (originating from the Qurʼan and Hadith).8 consider good”2, whereas according to the Therefore istiḥsān is always related to one term, istiḥsān is the turning (moving) of a of two things, leaving the real qiyās and mujtahid from clear deductive analogy (qiyās practicing vague qiyās or leaving general laws jalī) to vague (qiyās khafī) or from general law and practicing exceptions. If there is a problem (kullī) to the law of exclusion (istisnaʼī) because that is not found by law that comes from the of the existence of the proposition that favor to argument of the texts, both from the Qur‟an move.3 and Hadith, there are two ways, namely first Imām Abū al-Ḥasan al-Karkhī added that to solve a case by looking at it from the per- istiḥsān is a legal determination of a mujtahid spective of literalism and secondly looking at on an issue that is not in accordance with the it from the perspective of a different per- existing legal provisions because there are spective, by which another law is found. The stronger reasons for wanting to apply a law latter is named by istiḥsān. that is not in accordance with the original law.4 From these explanations it can be concluded Agreeing with him, Imām al-Bazdāwī, one that istiḥsān is sourced from qiyās and the of the Hanafite scholars, said: Istiḥsān is movi- purpose of the existence of istiḥsān is benefit ng from the provision of qiyās to stronger qiyās for humanity and practicing an action in or exclusion of qiyās based on a stronger pro- accordance with its conditions. Istiḥsān is done position.5 From the scholars of Malikite, Imām in the presence of an argument which is logical-Shāṭibī provided the definition of istiḥsān as ally acceptable and can be justified. „practicing a special benefit when it is contrary 2. Between Revelation and Reason: Debate on Istiḥsān 2 Ibn Mandẓūr, Lisān al-‘Arab (Beirut: Dār al-Kutub al- ʻIlmiyyah, 1999), p. 269; M.H Kamali, Privciples of Istiḥsān is one of the debated legal methods. Islamic Jurisprudence (Cambridge: Islamic Text Thus, there are two groups of scholars who Society, 2003); Shaheen Sardar Ali, „Resurrecting Siyar through Fatwas? (Re) Constructing “Islamic International Law” in a Post–(Iraq) Invasion World‟, 6 Al-Shāṭbī, al-Muwāfaqāt fī Uṣūl al-Sharīʻah (Beirut: Journal of Conflict and Security Law 14, no. 1 (2009): Dār al-Maʻrifah, 2004), p. 116. 119. 7 „Abd al-Karīm ibn „Alī ibn Muḥammad Al-Namlah, 3 ʻAbd al-Wahhāb Khallaf, ‘Ilm al-Uṣūl al-Fiqh Itḥaf Dhwī al-Basāʼir bi Sharḥ Rawḍat al-Nāẓir wa (Indonesia: al-Haramayn, 2004), p. 79. Jannat al-Manāẓir (Riyāḍ: Dār al-ʻAṣīmah, 1996), p. 4 Muh}ammad Abū Zahrah, Uṣūl Fiqh (Kairo: Dār al- 289. Fikr al-ʻArabī, 1958), p. 262. 8 Ibn Qudāmah, Rawḍat al-Naẓīr wa Jannat al-Munāẓīr 5 ʻAbd al-ʻAzīz al-Bukhārī, Kashf al-Asrār fī Uṣūl al- (Riyaḍ: University of Muhammad ibn Saʻud, 1993), Bazdāwī (Beirut: Dār al-Fikr, 1982), p. 1223. p. 407.

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Istisḥsān and Istiṣhāb in … has different views on this legal basis. The it”. The Prophet also said:“Something that is first, who consider istiḥsān as a method of legal considered good by Muslims, so it good in the ijtihād, among which are scholars from the sight of Allah.”11 (Narrated by Aḥmad ibn group of Hanafite, Hanbalite and Malikite. Ḥanbal) While the second group, namely Shafiite, From some of the arguments above, the fiqh Dzahirite, Muktazilite and Shiite who does not experts from the Hanafite and Malikite stated istiḥsān recognize as a part of Islamic legal that istiḥsān is included as legitimate method. arguments (ḥujjah sharʻiyyah). They use it not Many scholars use istiḥsān as an argument to follow their passions but based on strong or method in solving new problems in Islamic arguments. Doing istiḥsān is better than qiyās, law.9 Some scholars argue that istiḥsān is a because there is a stronger argument. In addi- very wise method to avoid harm and bring tion they also argue that istiḥsān is not only benefit to humans. Istiḥsān enacts new laws done when there are two arguments that are that have values of urgency, making it more contradictory, but istiḥsān can also be done responsive and progressive. when there is an emergency situation. Imām Ḥ istiḥsān Legal experts from the Hanafite, Malikite Abū anīfah used which did not qiyās istiḥsān and some from the Hanbalite stated that istiḥ- violate texts or . He chooses be- sān is one of the methods used by scholars to cause it prioritizes the benefit of people. perform ijtihād and that its legal results can be The method used by Imām Abū Ḥanīfah in practiced. The Qur‟anic verses that can responding to the problems of the Iraqi people strengthen their reasoning, among them are began with the use of texts from both Al- surah al-Zumar verse 18: “Those who hear the Qur‟an and Hadith, then the statement of words then follow what is best among them. companion (qawl al-ṣaḥābah), and if it is still These are the people whom Allah has instruct- could not be solved then he would continue ed and those who are resourceful”. with qiyās. Finally, if it is not found, he uses ʻ According to the scholars who justify the ratio by referring to the Qur an and 12 istiḥsān, particularly Imām Abū Ḥanīfah stated Hadith. that this verse contains praise and adulation to On the other hand, there is a group that servants of God who follow good things. The clearly rejects istiḥsān. Among them is Imām verse also contains the strengthening of istiḥ- Shāfiʻī who bases his argument with Surah al- sān as a legal validity (ḥujjah).10 Qiyāmah verse 36: “Does man think that he There is a related argument in surah al- will be left alone?”. Zumar verse 39: “Say: O my people, work In his book, al-Umm, Imām Shāfiʻī explains shows the ُس ًدى according to your circumstances, in fact I will a lot about this verse. Lafaẓ work (also), then one day you will know”, meaning of "in vain", so that the above verse Then strengthened again with al-Zumar verse has the meaning that humans living in the 55: “And follow well what has been revealed world will not be abandoned by God in vain. to you from your Lord before the doom comes God will not leave the things of the world in to you suddenly, while you are not aware of vain without a strong legal basis and foundation. While according to him, istiḥsān 9 Ḥusayn Muḥammad Mallah, Al-Fatwā: Nashʼatuhā wa Taṭawwaruhā – Uṣūluhā wa Taṭbiqatuhā (Beirut: Dār al- Kutub al-ʻIlmiyyah, 2001), p. 200. 11 Aḥmad Ibn Ḥanbal, Musnad Aḥmad Ibn Ḥanbal (Cairo: 10 Eka Sakti Habibullah, "Pandangan Imam Abu Mu‟assasah al-Qurtūnah, 2001), p. 199. Hanifah dan Imam Syafi‟i Tentang Al-Istihsan," Al- 12 Muḥammad Salām Madhkūr, Al-Ijtihād fī al-Tashrīʻ Mashlahah Jurnal Hukum Islam dan Pranata Sosial 4, al-Islāmī (Beirut: Dār al-Nahḍah al-ʻArabiyyah, 1989), no. 07 (2017): 456. p. 37.

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JM Muslimin et al includes vain deeds and he refused because However, further study on Imām Shāfiʻī there is no argument for underlying it.13 indicates that in many occasions he also use istiḥsān He has confidence that the right to use to set various laws. But he did not call istiḥsān istiḥsān is behavior that follows the subjective it . For him all problems that are not ʼ passions as if it has made a new sharia, contained in the Qur an and the Hadith can be qiyās 17 istiḥsān whereas only Allah has the authority to make resolved with . While itself is qiyās it. Even one of his students, al-Qāḍī al-Bayḍā- part of the . Indirectly there are similari- wī in his book al-Wuṣūl ilā ʻIlm al-Uṣūl ties between Shafiite and Hanafite. They agre- istiḥsān positioned istiḥsān in the chapter of the ed that could be accepted if it was not based on lust and had a strong argument rejected propositions (al-adillah al-mardūdah).14 which was used as a foothold in ijtihād. They Furthermore, Imām Shāfiʻī said that the only differ in naming the term. Prophet Muhammad in giving guidance had never used lust and also did not use istiḥsān. 3. Axiology of Istiḥsān: Conventional Shafii‟s schools prefer to use qiyās rather than Types and Examples istiḥsān when giving legal decisions on issues not found in the Qur‟an or Hadith. They The Hanafite scholars who mention istiḥsān assume that istiḥsān has no clear boundaries as a method of legal conclusion are divide it and criteria as a standard for good and bad.15 into several types, namely: Imām Shāfiʻī worries about the chaos caused by istiḥsān. For example, if there is a judge a. Istiḥsān Qiyāsī who determines a problem that does not have This group favours qiyās khafī rather than a predetermined text using the istiḥsān method qiyās jalī based on an argument.18 When a (his personal opinion), then there is a high problem arises which then prompts two probability that many people will oppose the conflicting qiyās so that a mujtahid will be legal provision using the istiḥsān as well. confronted with explicit argument (ilḥāq ẓāhir), Naṣr Ḥāmid Abū Zayd illustrates the which is usually used as the basis for Shāfiʻī‟s thought on istiḥsān. The ʻulamāʼ such determining the law with implicit argument as Imām Mālik and Imām Abū Ḥanīfah used (ilḥāq khafī) which is then seen as having istiḥsān differently from Imām Shāfiʻī who stronger influence than ilḥāq ẓāhir. Thus, ilḥāq disagreed with it. He reasoned that if the law khafī is preferred because of its strong athar was adopted using this method, there would (influence).19 For example, a woman who is be many differences in legal conclusions and about to give birth but there is only one male opinions about the same legal problem. Every obstetrician. Sharia law in general says that all judge or muftī in a city will give multiple members of a woman's body are ʻawrat, so it is judgements in a case.16 Thus, istiḥsān jeopardiz- unlawful to be seen by an uknown and es the standard of law. unrelated man. But in this condition, a doctor is allowed to do his job with the excuse of removing difficulties and giving aid to people. 13 Muḥammad ibn Idrīs al-Shāfiʻī, Al-Umm (Beirut: Dār al-Kutub al-„Ilmiyyah, 2002), p. 267. 14 Shams al-Dīn Muḥammad ibn Yūsuf al-Jazīrī, Mi’raj al-Minhāj Sharḥ Minhāj al-Wuṣūl Ilā ʻIlm al-Uṣūl Li al- Qāḍī al-Bayḍāwī (Beirut: Dār al-Kutub al-ʻIlmiyyah, 1993), p. 237. 15 Abū Zahrah, Uṣūl Fiqh, p. 267. 17 Noorwahidah Noorwahidah, "Istihsan: Dalil Syara` 16 Léon Buskens and Annemarie van Sandwijk, eds., Yang Diperselisihkan," Syariah: Jurnal Hukum Dan Islamic Studies in The Twenty-First Century: Pemikiran 16, no. 1 (10 October 2017): 18. Transformations and Continuities (Amsterdam: 18 Khallaf, ‘Ilm al-Uṣūl al-Fiqh, p. 80. Amsterdam University Press, 2016), p. 183. 19 Abū Zahrah, Uṣūl al-Fiqh, p. 263.

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Istisḥsān and Istiṣhāb in … b. Istiḥsān whose driving factors are from benefits of urgency (ḥājiyah), it is permissible outside qiyās khafī.20 to take part of the body of the deceased with In other words, this form of istiḥsān is a greater kindness and benefit, namely to heal contradiction between ʻillat qiyās and pro- the blindness of a living person so that the positions other than qiyās. There are three pro- person is able to carry out his daily life 21 positions in this istiḥsān: perfectly.

1) Istiḥsān by Sunnah Istiṣhāb: Ontological and Epistemological There is a Sunnah stipulation that requires Aspects leaving the qiyās of the case in question. As is the validity of someone‟s fasting who eats Al-Qur'an and Hadith as a source of Islamic during the day because of forgetfulness. law are not as comprehensive as the growing problems of the Ummah. Both of these litera- 2) Istiḥsān by ijmāʻ ture are very limited in number, while the complexity of problems in daily life is un- ʻ Abandoning the qiyās because of the ijmā limited. Therefore we need another source to ʻ ʼ al- ulamā (the consensus of the ulama) stipula- solve the problems that arise. It is istiṣhāb. tes a different law from the qiyās, for example buying and selling with an order system, 1. Definition buying and selling online, and so forth. Istiṣhāb in the literal Arabic translation which is looking for ,طلب المصاحبة Istiḥsān by emergency (ḍarūrah) means (3 assuming friends), or) اعتبارالصحابة friendship or looking for friends). The intention) طلب الصحبة Istiḥsān is done because of a dangerous is to compare things and bring them الصحبة situation. For example a person eats pork of because he does not find other food and if he closer.22 If we pay attention to the meaning of does not eat then he will die. the language above, istiṣhāb can be interpreted The development of science and technology as an effort to approach one legal event with cannot be denied. Renewal of Islamic law another, so that both posses the same legal needs to be done to answer new problems that value. have no legal provisions or replace existing In its terminology, istiṣhāb has a few laws that are not in accordance with the different meaning according to a few dissent- demand of current times. The flexibility of ing scholars of uṣūl al-fiqh. Such as Al-Asnawī, Islamic law is needed in accordance with the who stated that istiṣhāb is the application of the current condition of society, so that the role of law to a problem that exists in the future by Islamic law is to regulate people's lives and referring to the previous applicable law, ensure their benefits can be realized properly. because there is nothing that causes changes The condition of the community environment (the legal problem).23 While Al-Shawkānī argu- must be made as one of the considerations of es that istiṣhāb is something permanent (law), Islamic law reform. By doing so, the law is effective and the purpose of benefit can be obtained. 21 Farid Naya, "Mengurai Titik Temu Antara Istihsan dan Pembaharuan Hukum Islam," TAHKIM 12, no. 1 As exemplified by corneal transplant from (2017): 116. an old man to someone who suffers from 22 ʻAlī Ḥasbullāh, Uṣūl al-Tashrīʻ al-Islāmī (Cairo: Dār al- blindness. For the sake of maintaining the Maʻārif, 1971), p. 197. 23 ʻAbd al-Raḥmān ibn Ḥasan al-Shāfiʻī al-Asnawī, Sharḥ Minhāj al-Uṣūl (Beirut: ʻĀlam al-Kutub, 1982), 20 Ibid., p. 264. p. 131.

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JM Muslimin et al as long as there is no other argument that 2. Model of Reasoning of Istiṣhāb: Funda- changes it.24 Wahbah al-Zuḥaylī in his book al- mental Implication in Legal Ruling ṣ Wajīz said that isti hāb is the creation of law or Istiṣhāb is the determination of the law of a the elimination it, both in the present and the case, be it a legal case or a case of an object in future, that is in accordance with the pro- the present or future based on what has been visions of the law in the past because there is established or applied before. According to the 25 no argument that changes the law. While explanation of the scholars in the hierarchy of ṣ Imām Ibn al-Subkī interpreted isti hāb as ijtihād, istiṣhāb is the last grip or proposition of establishing the law on the second legal issue, a mujtahid in establishing or confirming a law, based on the first law because there was no when no proof is found in the Qurʼan, Sunnah, 26 proof that changes it. This is in line with ijmāʻ or qiyās. This is reinforced by Al- Imām Ibn al-Qayyim al-Jawziyah who believes Shawkānīʼs opinion who stated: “istiṣhāb is the ṣ that isti hāb is preserving the law by establish- last method used in devotion. If there is a ing laws based on existing ones, or nullifying fatwa (muftī) faced with a legal question, then laws on the basis of the absence of previous he is obliged to look for the answers in the 27 laws. Qurʼan, then the Sunnah, then the ijmāʻ, then In the book of al-Ashbah wa al-Naẓāʼir, it is the qiyās. If he has not obtained (the law there), also explained that istiṣhāb is: establishing a then he (may) set his law by appealing to the clear law that is beyond doubt (will never enforcement of the past law in the present loss).28 Imām al-Ghazālī also gave an under- (istiṣhāb al-ḥāl). If he doubts that the law will standing of istiṣhāb, namely the determination not apply the original principle, then the law of the law by holding on to the mind that had still can be applied...”30 done the research and finding no argument Then, to find out whether istiṣhāb can be a 29 that changed the initial law of a case. ḥujjah for the process of determining the law, From the description above, it can be the ʻulamāʼ of uṣūl al-fiqh experts in this case concluded that istiṣhāb is to establish or are divided into three groups, namely: The confirm a law on the basis that the law had first group that says istiṣhāb is the legitimate already existed beforehand, and eliminating a proposition (ḥujjah) in the determination or law if it did not exist before or there is no disclaimer of a law. Among the scholars argument. In other words, istiṣhāb is not a included in this group are the number of matter of formulating new laws, but rather scholars from the Malikite, Hanbalite, Majority looking for current laws based on the old laws. of Shafiite scholars, and some Hanafite. The propositions that strengthen their opinions (include surah al-Anʻām verse 145): “Say:

24 Muḥammad ibn ʻAlī ibn Muḥammad al-Shawkānī, Have I do not received in the revelation reveal- Irshād al-Fuḥūl Ilā Taḥqīq al-Ḥaq Min ʻIlm al-Uṣūl ed to me, something which is forbidden to (Beirut: Dār al-Fikr, 1992), p. 396. those who want to eat it, except if the food is 25 Wahbah al-Zuḥaylī, al-Wajīz fī Uṣūl al-Fiqh carcass, or blood is flowing or pork - because (Damaskus: Dār al-Fikr, 1999), p. 113. actually it is dirty - or animals slaughtered in a 26 ʻAlī ʻAbd al-Kāfī al-Subkī, Al-Ibhāj (Beirut: Dār al- Kutub al-„Ilmiyyah, 1404), p. 173. name other than Allah, whoever is in a state of 27 Muḥammad ibn Abī Bakr ibn Qayyim Al-Jawzī, compulsion, while he does not want it and Iʻlam al-Muwaqqiʻīn (Beirut: Dār al-Jīl, 1973), p. 339. does not (also) exceed the limits, then surely 28 Zayn al-ʻĀbidīn ibn Ibrāhīn Ibn Nujaym, al-Ashbāh your Lord is Forgiving, the Most Merciful”. wa al-Naẓāʼir ʻAlā Madhhab Abī Ḥanīfah al-NuʻMān (Beirut: Dār al-Kutub al-ʻIlmiyyah, 1980), p. 73. 29 Abū Ḥāmid Muḥammad ibn Muḥammad al-Ghazālī, Al-Mustaṣfā Min ‘Ilm al-Uṣūl (Lebanon: Dar al-Kutub 30 Al-Shawkānī, Irshād Al-Fuḥūl Ilā Taḥqīq al-Ḥaq Min al-ʻIlmiyyah, 1993), p. 410. ‘Ilm al-Uṣūl, p. 237.

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The above proposition (according to them) hūr al-ʻulamāʼ) is the stipulation of a law in the explains the principle of origin, that every- previous period where there is no factor that thing is permissible until it comes to a pro- requires the abolition of the law which makes position that shows its prohibition. This is the allegations of the law very strong (al-ẓann indicated in the fragment of Surah al-Anʻām al-rājiḥ}). A strong allegation in Islamic law is a verse 145; "Say (O Muhammad) I did not find legal argument (ḥujjah), therefore istiṣhāb is ..." where the meaning can be interpreted as if ḥujjah. Vice versa, if a law is established in the when there are no new provisions, the old pro- past on the basis of belief, then the abolition of visions will apply. the law must also be based on faith, this is al-yaqīn lā yuzāl bi Then, the above opinion is not only strengt- based on the legal maxim of al-shakk hened by the argument of the Qur'an, but also or a strong assumption is not erased 32 reinforced by the words of the Prophet who by a weak allegation. said: "Verily, Satan goes to one of you (in his The second group states that istiṣhāb must prayer) and then says: you have a heart, you not be used as an absolute ḥujjah (argument), have a body then (if so), do not leave your both in establishing or denying the law. This prayer until you hear the sound or smell opinion was widely followed by the majority (fart)." (narrated by Ahmad). of Hanafite scholars.33 The propositions that This hadith shows that the Prophet Muham- reinforce their reasons are: mad taught us to be sure of our sacred 1) Using istiṣhāb is tantamount to doing condition, when we were about to pray, even something without any argument, and is though satan whispered doubts about the considered vanity. Thus, istiṣhāb is ablution. And the Prophet forbade us to leave something that is considered as vanity. the prayer, if we have not found concrete 2) Istiṣhāb will cause an opposition because evidence of the abolition of ablution like the of the absence of proof. Everything with- sound of a voice or the smell of farts from us. out the argument is vanity. It means that This is called the essence of istiṣhāb. when someone is allowed to set the law ṣ Out of the two arguments above, namely al- using the isti hāb method, then others Qurʼan and Hadith, there are other arguments can also set laws that are contrary to the istiṣhāb that support this opinion with ijmāʻ and method as well. rational theorem. Where, the scholars have The third group says that istiṣhāb is a ḥujjah consented on the basis of istiṣhāb on some fiqh that is used when disputing someone who issues that have been determined, that is if in views the occurrence of the law in the past someone there is doubt whether he has done (barāʼat al-dhimmah), and istiṣhāb is not a ḥujjah the purification (by ablution/bathing), then (argument) if it is used to establish a new law. the person is declared as unpure and cannot This opinion came from the majority of recent perform prayers. This is predictable, because it Hanafite scholars and some Malikite refers to the original law that is not purified. scholars.34 Conversely, if someone doubts whether the The arguments explained by the three ablution that he did was annulled or not, then opinions are actually very clear. Among these he can be still categorized as clean and holy

(no ablution canceled).31 32 Umar Muhaimin, "Metode Istidlal Dan Istishab Furthermore, the argument of ’aqlī or logic (Formulasi Metodologi Ijtihad)," YUDISIA : Jurnal that confirms and reinforces this opinion (jum- Pemikiran Hukum Dan Hukum Islam 8, no. 2 (8 April 2018): 342. 33 Muḥammad Amīr Badsah, Taysīr al-Taḥrīr (Beirut: 31 Shaʻbān Muḥammad ʻIsmāʻīl, Uṣūl al-Fiqh al- Dār al-Fikr, n.d.), p. 176. Muyassar (Cairo: Dār Al-Kitāb al-Jamīʻī, 1415), p. 112. 34 Al-Bukhārī, Kashf al-Asrār fī Uṣūl al-Bazdāwī, p. 390.

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JM Muslimin et al three opinions, the first opinions have strong 2. Istiṣhāb al-ibāhah al-aṣliyyah arguments and a very strong basis in making These are istiṣhāb rules which are based on ṣ ḥ isti hāb as an argument ( ujjah) in establishing the original law. For example, the permissi- ṣ or denying a law. Because, isti hāb is some- bility to eat giraffe meat because of the absence thing that is understandable for human, which of the characteristics of the animals in the if no evidence or an evidence is found that giraffe's uncleanness. The rules related to this the original law) األصل في األشياء اإلباحة :changes the origin of the law into another law, type are ʼ then the first law applies. Therefore, fuqahā in all things is mubāḥ (permissability)). اليقين agreed on the principles of jurisprudence اليزال بالشك (al-yaqīn lā yuzāl bi al-shakk) where 3. Istiṣhāb al-ḥukmī these rules became the strong foundation of istiṣhāb. This is the determination of law which is based on existing law and applies until there is another argument that changes it. This rule ,basically) األصل بقاء ما كان على ماكان :Axiology of Istiṣhāb: Conventional Types reads and Examples something that already has certain legal provisions will remain as it is). As in the case According to Abī Sahl al-Sarakhsī and of a person who intends to fast and eats sahūr Muhammad Abū Zahrah, istiṣhāb is divided and he doubts whether it is dawn or not, so he into four types: can still fast because there is no evidence that dawn has come. 1. Istiṣhāb al-barāʼat al-aṣliyyah 4. Istiṣhāb waṣf That is istiṣhāb which is based on the law of origin of something that is mubāḥ (permitted). This is the determination of the law based Legal provisions of mubāḥ as the law of origin on the presumption of the nature of something اليقين ال are based on the verses of al-Qur'an surah al- that is known and believed. The rule is يزال بالشك Baqarah verse 29: “He is the God who made (strong knowledge cannot be dispell- everything on the earth for you”. ed or defeated with doubt). For example the law of holy water will not change as long as In this verse Ibn Jarīr al-Ṭabarī interpreted there is nothing that makes it unclean, the that everything created by Allah on this earth status of a person's life is categorized lost until are for human to be used for their lives.35 In the body is found as evidence that he died. addition, the scholars then formulated the In addition to the examples above, there are األَ ْص ُل َب َرا َء ُةال ِّذ َّم ِةُ :principles of fiqh which read (everyone is basically free from dependence still many more examples of cases that can be ṣ (obligation). An example for the implemen- solved using the isti hāb method, including: tation of that formulation is Toni's words that 1) The heir status of a missing person. Rosi has a debt of one million rupiahs, but 2) The marital status of a man and woman. Rosi was evasive and did not admit that he They may engage in marital relations if it had a debt. So in this issue, it was Rosi's ack- can be proven by a marriage certificate. nowledgement that was considered true and 3) Status of a defendant who is considered valid, since Toni has no reasonable proof of innocent until there is evidence that the debt. states he is guilty.36

35 Muḥammad Ibn Jarīr al-Ṭ}abarī, Jāmiʻ al-Bayān fī 36 Husnul Haq, "Penggunaan Istishab Dan Taʼwīl al-Qurʼān (Beirut: Muʼassasah al-Risālah, Pengaruhnya Terhadap Perbedaan Ulama," Al 2000): 7. Hurriyah : Jurnal Hukum Islam 2, no. 1 (2017): 25–27.

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4) Lawful for tambourines as long as it does ʻulamāʼ in muʻāmalah affairs have the initial األصل ) not lead to evil. rule that everything is basically a mubāḥ Unlike the field of worship that .(في األشياء اإلباحة It is permissible for a contract of buying (5 and selling fruits that are still unripe.37 is taʻabbudī and emphasizes the text. They are Some of the examples above shows how based on the principle that worship is basically .(األصل في العبادة التحريم) influential istiṣhāb in solving problems that ḥaram have just arisen in the midst of society, The influence of the istiṣhāb method in the especially Islamic society. Rapid development positivization of Islamic law is very visible in of the times is a demanding requirement for several cases of state legislation. Both in the Muslims to always be ready to face problems field of al-aḥwāl al-shakhṣiyyah (marriage and that are progressive in accordance with the family), criminal law and civil law. development of everyday life. Awareness and thorough knowledge of emerging problems, In the field of marriage law, for example is especially social ones, is needed. Law Number 1 of 1974, precisely in article 2 paragraph 1 and 2 which reads: 1) Marriage is legal, if it is done according Expanding Legal Reasoning: New Cases to the law of each religion and that belief. and Current Indonesian Context 2) Each marriage is recorded according to In the book Bidāyat al-Mujtahid, Ibn Rushd the applicable laws and regulations. gave motivation to Muslims to always imple- This law, which was promulgated by the ment ijtihād by saying that the Qur‟an as God‟s president on January 2, 1974, shows the revelation (kalām Allāh) and Sunnah as the success of the ijtihād of the ʻulamāʼ. Islamic explanation is very limited to be a source of marriage law is a legal law in the Indonesian Islamic law, because the problems of the state based on the Pancasila and the 1945 people are always developing and there is no Constitution.40 The ʻulamāʼ applied the istiḥsān limit.38 So that new ideas and varied methods and istiṣhāb methods in compiling these laws. of extracting the law are needed to overcome Especially in paragraph 2 "Every marriage is emerging problems. Actualization of the law recorded according to the applicable laws and must always be done and professionalism in regulations". In the Islamic rule, marriage does ijtihād continues to be developed so that the not require a marriage book/marriage dynamics of the law are able to become a foot- certificate. However, the Indonesian contem- hold in overcoming proportional problems. porary ʻulamāʼ considered good (istiḥsān) the Istiṣhāb is one of the breakthroughs‟ of existence of marriage records in order to ulama’ who are expected to be able to give a minimize the existence of behaviors that are different view in responding to existing not in accordance with religious norms, such problems, especially concerning the field of as contract marriages, sirrī (unregistered) social interaction (muʻāmalah), since in this marriages and so forth. field, benefit is the main consideration.39 The The initial legal determination (male and female are free, in the sense that there is no 37 Maskur Rosyid, "Istishab Sebagai Solusi Pemecahan marriage bond) is still valid until there is Masalah Kekinian," Syariah: Jurnal Hukum Dan evidence of a marriage certificate stating that Pemikiran 18, no. 1 (30 June 2018): 59. the two of them were married. This is where 38 Muḥammad ibn Aḥmad ibn Rushd al-Qurṭūbī, Bidāyat al-Mujtahid wa Nihāyat al-Muqtaṣid (Indonesia: Dār Iḥyāʼ al-Kutub al-ʻArabiyyah, 2003), p. 2. 40 Arso Sosroatmojo and A. Wasit Aulawi, Hukum 39 Musṭafā Zayd, al-Maṣlaḥah fī al-Tashrīʻ al-Islāmī wa Perkawinan Di Indonesia (Jakarta: Bulan Bintang, Najm al-Dīn al-Ṭūfī (Cairo: Dar al-Fikr, 1964), p. 125. 1978), p. 11.

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JM Muslimin et al the role of istiṣhāb takes place in compiling the can be sanctioned are only actions that have article. been regulated and formulated by the law Marriage registration required by the state before the action is carried out. Second, if there is not without purpose, instead there are many is a person suspected of committing an act of benefits to be achieved by state law with a violation of criminal law, they should not be marriage certificate. Among them is as eviden- sentenced to a sentence as long as there is no ce of guarantees from the government to those concrete evidence incriminating and declaring who carry out marriages, especially for the that he is guilty. These two points have some- wife to avoid the behavior of the husband who thing in common in the principle of legality of is less responsible and for the benefit of their Islamic criminal law: the existence of strong ال حكم ألفعال العقالء قبل ورودالنص children. Thus, all their rights are fulfilled, legal evidence. .43 In since there are many negative implications other words, there are no penalties for people that are feared will arise in the future if who have sense (adults) before the provisions marriage records are not carried out, especially of the applicable legislation. This principle is for women when she cannot inherit her also in accordance with the formulation of husbandʼs wealth if there is no official record Paul Johan Anselm von Feuerbach written in nullum delictum noela poena sine stating that the two of them are married. Latin, namely praevia lege poenal.44 Marriage is the first step in establishing muʻāmalah social relations. Therefore, it is necessary to Thus, it can be concluded that all have formal legality as proof and footing given (social) activities carried out by Muslims are by the government on a marriage bond so that allowed as long as there are no legal rules that no party is harmed in the future. Formally a prohibit and do not contain elements that are muʻāmalah marriage cannot be proven without written detrimental to other parties. Among evidence. Abandonment of a wife and child is that is prohibited is: an example of a case which would be sufficient 1) Buying and selling goods that are addic- to be a solid foundation for building the tive such as marijuana concepts of rules in marriage.41 2) Conducting transactions that contain basically every elements of fraud or harm to other) األصل براءة الذمة The rule of human being is free from dependents /- parties, such as the existence of elements obligation) seems also to be one of the of tyranny, fraud, usury, bribes, gambling and inappropriate contracts.45 inspirations in criminal law in Indonesia.42 This is proven by the existence of the presumption The popular mode of muʻāmalah done by of innocence in the Criminal Code article 1 modern society today is e-commerce. That is paragraph 1 which reads: one use of the internet which in this case “An act cannot be convicted, except based relates to activities in the economic field. More on the strength of pre-existing criminal clearly, e-commerce is a trading activity in the provisions.” form of goods or services carried out with In this article several important points are explained, namely, first, criminal actions that 43 ʻAbd al-Qādir ʻAwdah, al-Tashrīʻ al-Jināʼī Muqāranan Bi al-Qānūn al-Waḍʻī, (Beirut: Dār al-Kutub al- 41 Aisyah Arsyad, "Menuju Fikih Gender: Analisis ʻIlmiyyah, 1968), p. 122. Hadis Tentang Perintah Mengumumkan 44 P. A. F. Lamintang, Dasar-dasar untuk Mempelajari Pernikahan," Tahdis: Jurnal Kajian Ilmu Al-Hadis 8, no. Hukum Pidana yang Berlaku di Indonesia (Citra Aditya 2 (31 January 2019): 144. Bakti, 1997), p. 132. 42 Moeljatno, Asas-Asas Hukum Pidana (Jakarta: Rineka 45 Fathurrahman Azhari, Qawaid Fiqhiyyah Muamalah Putra, 2000), p. 1. (Banjarmasin: LPKU Banjarmasin, 2015), 151–54.

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األصل في المعاملة :internet access or other digital technologies.46 era. But in muʻāmalah rules the basic principle) اإلباحة إال أن يدل دليل على تحريمها -Digital trading activities (online) are develop ed in the current era because they are conside- in muʻāmalah is permissible (mubāḥ), unless red to have great prospects for the future. E- there is an argument that shows its prohibiti- commerce is considered to be an effective way on. of trading because it covers a very broad and Therefore, e-commerce is still permitted unlimited market. since there is no prohibition on the system. This trading system emerged along with Besides, e-commerce when viewed in terms of time, especially the rapid development of understanding and layout, these purchases science and technology. The sophistication of have many similarities with buying and selling technology is very helpful towards activities agreements.48 Among the similarities is the that were originally difficult to be easy. Tech- similarity of the seller, buyer, medium of ex- nology can alleviate geographical challenges, change or money (although suspended) and making everything to be more accessible and the goods being traded (both limited to des- eliminating any impediment of distance. The cription or characteristics). 49 In addition, bayʻ world is easier to reach with these techno- al-salam and e-commerce have a fundamental logical capabilities and innovation. difference, namely bayʻ al-salam carried out The current legislation has been implement- conventionally face-to-face while e-commerce ed by the government to protect online uses a digital or online system. But this differ- businesses. The Ministry of Communication ence is not really a problem. The most import- and Information who is responsible for this ant thing is the absence of elements that harm case has officially issued Law No. 11 of 2008 the consumer such as fraud, gambling and muʻāmalah concerning Information and Electronic Trans- other elements. So that this law is bayʻ al-salam actions (ITE) and Government Regulation (PP) still permitted by equating the ماقرب الشيء No. 82 of 2012 concerning the Implementation law in accordance with the rules: Something approaching him was) يعطي حكمه of Electronic Transactions and Systems.47 The punished with the same law (istiṣhāb model). purpose of these regulations is to protect business parties, especially consumers who are Likewise, the application of the democratic vulnerable to fraud. system in Indonesia. Various pros and cons This legal guarantee does not necessarily emerge on the existence and relevance of the make e-commerce run smoothly without government system. Many consider that obstacles. There are several problems that still democracy is the result of Western thoughts becomes a polemic and rise from the online that are not in accordance with the teachings trading system. One of them is e-commerce of Islam, so it must be replaced with a system status in a review of Islamic law. When view- that is in accordance with the teachings of ed in terms of Islamic law, this online trading Islam remembering Islam is the religion that system has no legal clarity either from the Al- dominates in Indonesia. Qur'an or the Sunnah because it is a contem- However, the actual democracy in Indo- porary problem that only arises before the 4.0 nesia is not a system adopted from the West, but democracy that is implemented as a family

46 Annisa Dwi Kurniawati, "Transaksi E-Commerce Dalam Perspektif Islam," El-Barka: Journal of Islamic 48 Muḥammad ibn Qāsim al-Ghāzī, Fatḥ al-Qarīb Economics and Business 2, no. 1 (16 June 2019): 94. (Indonesia: Dār Iḥyāʼ al-Kutub al-ʻIlmiyyah, n.d.), p. 47 Larasati Dhinarti and Firda Amalia, "E-Commerce 31. Dalam Perspektif Fiqh Muamalat," Proceeding of 49 Azhar Muttaqin, "Transaksi E-Commerce Dalam Conference on Islamic Management, Accounting, and Tinjauan Hukum Jual Beli Islam," Ulumuddin 7, no. 1 Economics 2, no. 0 (23 August 2019): 163. (10 January 2013): 463.

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JM Muslimin et al democracy that was born from the conscience the Qurʼan in surah al-Ikhlāṣ which explains and characteristics of Indonesian society based about monotheism which is believed by on consultation.50 So it cannot be denied that Muslims that there is only one God in the democracy is in accordance with the principles universe. of the Islamic order that is deliberation, al- Then the second point of fair and civilized َوالَّ ِذي َنُ ا ْس َت َجا ُبوا لِ َر ِّبهمُ Shūrā verse 38 is explained: ْ ِ humanity means that every Indonesian citizen َوأَ َقا ُموا ال َّص َال َةُ َوأَ ْم ُر ُهمُ ُشو َر ىُ َب ْي َن ُهمُ َو ِم َّما َر َز ْق َنا ُهمُ ُي ْن ِف ُقو َنُ And has freedom of human rights, so that the) ْ ْ ْ (for) those who accept (obey) the call of their purpose of protecting the soul (ḥifẓ al-nafs) can Lord and establish prayer, while their business be carried out property. Mutual respect and (is decided) with the deliberation between good deeds regardless of ethnicity, race and them; and they spend part of the fortune that religion is one way for human relations to we give them). work in accordance with the guidance of Indeed, during the reign of the Prophet and religion and the state. his companions there was no such thing as Furthermore, the third principle of the unity democracy, but when seen from the similarity of Indonesia is that they want all citizens to of the contents of the verse and the principles unite and create a comfortable, safe and of democracy that exist in Indonesia, it is very prosperous life. So that future life can go well clear that the Islamic order affected the course and children and grandchildren can feel a of democracy in Indonesia. So that democracy better life (ḥifẓ al-nasl). The fourth precepts can still be implemented and must always be aims at deliberation as a middle way to solve maintained. any problems that arise. Then it takes a One of the national issues which is also healthy mind to make wise and fair decisions. widely discussed in the Islamic world is about This is the relevance of the value of Pancasila Pancasila. Many questions that arise from with the preservation of the function of reason Islamic thinkers are about the relevance of the (ḥifẓ al-ʻaql). While the latter is the culmination values of Pancasila with the goals of life of of the four precepts, which is to realize the Muslims. So that not a few people or groups four precepts so that social justice for all Indo- who try to weaken and even depose the positi- nesian people can be created. This is in on of the Pancasila as one of the pillars of the accordance with maqāṣid al-sharīʻah, namely Indonesia. They consider that Pancasila is no guaranteeing the assets (ḥifẓ al-māl) of each longer able to unite and regulate Muslim life individual so that social inequality does not in accordance with the teachings of the Qurʼan occur which makes people dissatisfied with and Sunnah. the government. But in fact the values contained in Pancasila These are the five precepts that serve as really reflects the characteristics of Indonesian guidelines for the lives of Indonesian citizens Muslims. For example, in the first point, who are very much in accordance with maqāṣid Pancasila has the intention of preserving the al-sharīʻah. Both between Pancasila and maqāṣid religion (ḥifẓ al-dīn), which is to guarantee the al-sharīʻah want benefit for every individual freedom of its citizens to embrace a religion living in Indonesia, both benefit protecting the they believe in and is not allowed to discrimi- religion (ḥifẓ al-dīn), protecting the soul (ḥifẓ nate against people of different faiths. Even al-nafs), protecting the offspring (ḥifẓ al-nasl), the first precepts that read the Almighty God protecting the reason (ḥifẓ al-ʻaql) and is very much in accordance with the content of protecting the property (ḥifẓ al-māl).51

50 Inna Junaenah, "Kontribusi Tatanan Islam Terhadap Demokrasi Permusyawaran di Indonesia", AHKAM: 51 Umi Kulsum, "Konstelasi Islam Wasathiyah Dan Jurnal Ilmu Syariah 16, no. 2 (11 December 2016): 170. Pancasila Serta Urgensinya Dalam Bernegara

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Therefore Pancasila is one of the foundations implement social distancing and lock down to of the Indonesian state that must remain prevent the virus from spreading. upright so that the goals of the benefit of life With the automatic social restrictions and istiḥsān can be realized. The method lockdown of religious activities in the form of acknowledges the way to the goodness as the congregation which must be temporarily pro- best way. A Fair e-commerce system and hibited; including prayers. Friday prayers are Pancasila as a state foundation lead to such not performed in congregation at the mosque. practicality and goodness. Hence they are per- This is done for the good of the people, so that istiṣhāb missible and legally binding. Whereas the virus can be suppressed and for the sake of postulate concludes that what is not regarded the public health. Maintaining public health is ḥaram as , remains permissible. No single good (istiḥsān), applying method to suggest Qur‟anic verse regards an individual as well as and promote social involvement and to com- ḥaram social contract as . Even it is suggested bat the spreading of Covid-19 is not pro- for the sake of prosperity. E-commerce is done hibited. It definitely remains to be permitted through individual or collective contract and (istiṣhāb). Pancasila is created through social deliberation. Therefore, both are permitted, suggested and are legally binding. Conclusion Istiḥsān and istiṣhāb are also applied by From the research and understanding of some ʻulamāʼ of the MUI (Indonesian Ulama Coun- previous points, it is evident that since the cil) in responding and dealing with the corona time of the Prophet Muhammad there have virus problem (Covid-19).52 Covid-19 disease is been sources of thought on the methods of a disease caused by a group of viruses that can istinbāṭ of law which were only composed by be transmitted to animals or humans. This the scholars long after the Prophet's passing. disease causes infections in the respiratory They were the ulamas’, especially the experts of tract from the flu, cough to Middle East Respi- uṣūl al-fiqh who compiled the rules related to ratory Syndrome (MERS) and Severe Acute istiḥsān and istiṣhāb as model of legal reasoning Respiratory Syndrome (SARS).53 One of these associated in ʻilm al-uṣūl by referring and viruses can be transmitted by interacting considering Quranic texts and the ways that directly with people exposed to covid-19.54 had been done by the Prophet Muhammad. Therefore, the government made efforts to From the formative years of istiḥsān and istiṣhāb, there were intensive debates of their Perspektif Maqasid Al-Syari‟ah," Journal of Islamic ontology, epistemology, axiology, acceptance Civilization 2, no. 1 (30 April 2020): 57. and refusal as methods of legal reasoning. 52 Majelis Ulama Indonesia, “Penyelenggaraan Ibadah Hanafite and Mailikite tended to be in favor of Dalam Kondisi Terjadi Wabah Covid-19,” Majelis Ulama Indonesia, 2020, https://mui.or.id/wp- istiḥsān, whereas Shafiite refused it. However, content/uploads/2020/03/Fatwa-tentang-Penye- the need to solve the actual problems, en- langgaran-Ibadah-Dalam-siatuasi-Wabah-COVID- couraged people to make use of istiḥsān and 19.pdf. istiṣhāb, creating very little room to reject these 53 "Novel-Coronavirus", n.d. methods. 54 Waleed Alhazzani et al., “Surviving Sepsis Campaign: Guidelines on the Management of In the Indonesian context, because of public Critically Ill Adults with Coronavirus Disease 2019 virtues (istiḥsān) and no exact texts of pro- (COVID-19),” Intensive Care Medicine 46, no. 5 hibition of Qur‟an and Hadith (istiṣhāb ibāḥah (2020): 854-87; Julio Torales et al., “The Outbreak of ṣ COVID-19 Coronavirus and Its Impact on Global a liyyah) Pancasila as state basis, the 1945 Mental Health,” International Journal of Social constitution, democracy, the principles of pre- Psychiatry 66, no. 4 (2020): 317–20.

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JM Muslimin et al assumption of innocent, written document of Indonesia.” AHKAM: Jurnal Ilmu Syariah 16, marriage, the practice of digital transaction are no. 2 (11 December 2016): 163–70. well-accepted and in confirmation to Islamic Kulsum, Umi. “Konstelasi Islam Wasathiyah law. Thus, istiḥsān and istiṣhāb as methods of Dan Pancasila Serta Urgensinya Dalam Ber- legal thinking pave the wider extending ways negara Perspektif Maqasid Al-Syari‟ah.” and opportunities for legal discovery. Further research on istiḥsān and istiṣhāb could be done Journal of Islamic Civilization 2, no. 1 (30 in order to enlarge the flexibility of Islamic law April 2020): 51–59. in critical and analytical perspectives. Kurniawati, Annisa Dwi. “Transaksi E-Com- merce Dalam Perspektif Islam.” El-Barka: Bibliography Journal of Islamic Economics and Business 2, no. 1 (16 June 2019): 90–113. Journals Muhaimin, Umar. “Metode Istidlal Dan Isti- Ali, Shaheen Sardar. “Resurrecting Siyar shāb (Formulasi Metodologi Ijtihād).” YU- through Fatwas? (Re) Constructing “Islamic DISIA: Jurnal Pemikiran Hukum Dan Hukum International Law” in a Post–(Iraq) Invasion Islam 8, no. 2 (8 April 2018): 330–50. World.” Journal of Conflict and Security Law Muttaqin, Azhar. “Transaksi E-Commerce Da- 14, no. 1 (1 March 2009): 115–44. lam Tinjauan Hukum Jual Beli Islam.” Ulu- Arsyad, Aisyah. “Menuju Fikih Gender: Ana- muddin 7, no. 1 (2013). lisis Hadis Tentang Perintah Mengumum- Naya, Farid. “Mengurai Titik Temu Antara kan Pernikahan.” Tahdis: Jurnal Kajian Ilmu Istihsān Dan Pembaharuan Hukum Islam.” Al-Hadis 8, no. 2 (2019). TAHKIM 12, no. 1 (2017). Dhinarti, Larasati, and Firda Amalia. “E-Com- Noorwahidah, Noorwahidah. “Istihsān: Dalil merce Dalam Perspektif Fiqh Muamalat.” Syara` Yang Diperselisihkan.” Syariah: Jur- Proceeding of Conference on Islamic Manage- nal Hukum Dan Pemikiran 16, no. 1 (10 Octo- ment, Accounting, and Economics 2, no. 0 ber 2017): 13–24. (2019): 162–69. Rosyid, Maskur. “Istishāb Sebagai Solusi Habibullah, Eka Sakti. “Pandangan Imam Abu Pemecahan Masalah Kekinian.” Syariah: Hanifah dan Imam Syafi‟i Tentang Al- Jurnal Hukum Dan Pemikiran 18, no. 1 (30 Istihsān.” Al-Mashlahah Jurnal Hukum Islam June 2018): 45–64. dan Pranata Sosial 4, no. 07 (2017). Taliaferro, Karen. “Ibn Rushd and Natural Haq, Husnul. “Penggunaan Istishāb Dan Law: Mediating Human and Divine Law.” Pengaruhnya Terhadap Perbedaan Ulama.” Journal of Islamic Studies 28, no. 1 (January Al Hurriyah : Jurnal Hukum Islam 2, no. 1 2017): 1–27. (2017). Waleed Alhazzani et al. “Surviving Sepsis Julio Torales et al., “The Outbreak of COVID- Campaign: Guidelines on the Management 19 Coronavirus and Its Impact on Global of Critically Ill Adults with Coronavirus Di- Mental Health.” International Journal of Social sease 2019 (COVID-19).” Intensive Care Med- Psychiatry 66, no. 4 (2020): 317–20. icine 46, no. 5 (2020): 854-87. Junaenah, Inna. “Kontribusi Tatanan Islam

Terhadap Demokrasi Permusyawaran di

Al-Risalah Vol. 20, No. 2, December 2020 177

Istisḥsān and Istiṣhāb in … Books Azhari, Fathurrahman. Qawaid Fiqhiyyah Mua- Abū Zahrah, Muḥammad. Uṣūl Fiqh. Kairo: malah. Banjarmasin: LPKU Banjarmasin, Dār al-Fikr al-ʻArabī, 1958. 2015. Al-Asnawī, ʻAbd al-Raḥmān ibn Ḥasan al-Shā- Al-Zuḥaylī, Wahbah. al-Wajīz fī Uṣūl al-Fiqh. fiʻī. Sharḥ Minhāj al-Uṣūl. Beirut: Ālam al- Damaskus: Dār al-Fikr, 1999. Kutub, 1982. Badsah, Muḥammad Amīr. Taysīr al-Taḥrīr. Al-Bukhārī, ʻAbd al-ʻAzīz. Kashf al-Asrār fī Uṣ- Beirut: Dār al-Fikr, n.d. ūl al-Bazdāwī. Beirut: Dār al-Fikr, 1982. Buskens, Léon, and Annemarie van Sandwijk, Al-Ghazālī, Abū Ḥāmid Muḥammad ibn Mu- eds. Islamic Studies in The Twenty-First Cen- ḥammad. Al-Mustaṣfā Min ‘Ilm al-Uṣūl. tury: Transformations and Continuities. Ams- Lebanon: Dār al-Kutub al-ʻIlmiyyah, 1993. terdam: Amsterdam University Press, 2016. Al-Ghāzī, Muḥammad ibn Qāsim. Fatḥ al- Hamzani, Achmad Irwan. Asas-Asas Hukum Qarīb. Indonesia: Dār Iḥyāʼ al-Kutub al- Islam: Teori Dan Implementasinya Dalam ʻIlmiyyah, n.d. Pengembangan Hukum Di Indonesia. Thafa Al-Jawzī, Muḥammad ibn Abī Bakr ibn Qay- Media, 2019. yim. Iʻlam al-Muwaqqiʻīn. Beirut: Dār al-Jīl, Ḥanbal, Aḥmad Ibn. Musnad Aḥmad Ibn Ḥanbal. 1973. Cairo: Muʼassasah al-Qurtūnah, 2001. Al-Jazārī, Shams al-Dīn Muḥammad ibn Yū- Ḥasbullāh, ʻAlī. Uṣūl al-Tashrīʻ al-Islāmī. Cairo: suf. Mi’rāj al-Minhāj Sharḥ Minhāj al-Wuṣūl Dār al-Maʻārif, 1971. Ilā ʻIlm al-Uṣūl Li al-Qāḍī al-Bayḍāwī. Beirut: Ismāʻīl, Shaʻbān Muḥammad. Uṣūl al-Fiqh al- Dār al-Kutub al-ʻIlmiyyah, 1993. Muyassar. Cairo: Dār al-Kitāb al-Jamīʻī, 14- Al-Namlah, ʻAbd al-Karīm ibn ʻAlī ibn Mu- 15. ḥammad. Itḥāf Dhawī al-Baṣāʼit bi Sharḥ Raw- Kamali, M.H. Privciples of Islamic Jurisprudence. ḍat al-Nāẓir wa Jannat al-Manāẓir. Riyāḍ: Dār Cambridge: Islamic Text Society, 2003. al-ʻAshīmah, 1996. Khallaf, ʻAbd al-Wahhab. ʻIlm al-Uṣūl al-Fiqh. Al-Subkī, ʻAlī ʻAbd al-Kāfī. Al-Ibhāj. Beirut: Indonesia: al-Haramayn, 2004. Dār al-Kutub al-ʻIlmiyyah, 1404. Lamintang, P. A. F. Dasar-dasar untuk Mempela- Al-Shāfiʻī, Muḥammad ibn Idrīs. al-Umm. Bei- jari Hukum Pidana yang Berlaku di Indonesia. rut: Dār al-Kutub al-ʻIlmiyyah, 2002. Citra Aditya Bakti, 1997. Al-Shāṭibī. Al-Muwāfaqāt fī Uṣūl al-Sharīʻah. Madhkūr, Muḥammad Salām. al-Ijtihād fī al- Beirut: Dār al-Maʻrifah, 2004. Tashrīʻ al-Islāmī. Beirut: Dār al-Nahḍah al- Al-Shawkānī, Muḥammad ibn „Alī ibn ʻArabiyyah, 1989. Muḥammad. Irshād al-Fuḥūl Ilā Taḥqīq al-Ḥaq Mallah, Ḥusayn Muḥammad. Al-Fatwā : Nash- Min ‘Ilm al-Uṣūl. Beirut: Dār al-Fikr, 1992. ʼatuhā wa Taṭawwaruhā – Uṣūluhā wa Taṭbīq- ʻ Al-Ṭabarī, Muḥammad Ibn Jarīr. Jāmiʻ al-Bayān ātuhā. Beirut: Dār al-Kutub al- Ilmiyyah, fī Taʼwīl al-Qurʼān. Beirut: Muʼassasah al- 2001. ʻ Risālah, 2000. Manẓūr, Ibn. Lisān al- Arab. Beirut: Dār al-Ku- ʻ ʻAwdah, ʻAbd al-Qādir. al-Tashrīʻ al-Jināʼī al- tub al- Ilmiyyah, 1999. Islāmī Muqāranan bi al-Qānūn al-Waḍʻī. Bei- Moeljatno. Asas-Asas Hukum Pidana. Jakarta: rut: Dār al-Kutub al-ʻIlmiyyah, 1968. Rineka Putra, 2000. “Novel-Coronavirus”, n.d.

178 Vol. 20, No. 2, December 2020 Al-Risalah

JM Muslimin et al

Nujaym, Zayn al-ʻĀbidīn ibn Ibrāhīm Ibn. al- Websites Ashbāh wa al-Naẓāʼir ‘Alā Madhhab Abī Ḥanī- Indonesia, Majelis Ulama. “Penyelenggaraan fah al-NuʻMān. Beirut: Dār al-Kutub al- Ibadah Dalam Kondisi Terjadi Wabah ʻIlmiyyah, 1980. Covid-19.” Majelis Ulama Indonesia, 2020, Qudāmah, Ibn. Rawḍat al-Naẓīr wa Jannat al- https://mui.or.id/wp-content/uploads/- Manāẓir. Riyāḍ: University of Muḥammad 2020/03/Fatwa-tentang-Penyelanggaran- ibn Saʻūd, 1993. Ibadah-Dalam-siatuasi-Wabah-COVID-19- Qurṭūbī, Muḥammad ibn Aḥmad ibn Rushd .pdf. al-. Bidāyat al-Mujtahid wa Nihāyat al-Muq- taṣid. Indonesia: Dār Iḥyāʼ al-Kutub al- ʻArabiyyah, 2003. Soekanto, Soerjono. Sosiologi : Suatu Pengantar. Jakarta: Rajawali Pers, 1992. Sosroatmojo, Arso, and A. Wasit Aulawi. Hu- kum Perkawinan Di Indonesia. Jakarta: Bulan Bintang, 1978. Zayd, Musṭafā. al-Maṣlaḥah fī al-Tashrīʻ al- Islāmī wa Najm al-Dīn al-Ṭūfī. Cairo: Dār al- Fikr, 1964.

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