ISLAMIC LAW AND SOCIAL CHANGE: A COMPARATIVE STUDY OF THE INSTITUTIONALIZATION AND CODIFICATION OF ISLAMIC FAMILY LAW IN THE NATION-STATES EGYPT AND INDONESIA (1950-1995) Dissertation zur Erlangung der Würde des Doktors der Philosophie der Universität Hamburg vorgelegt von Joko Mirwan Muslimin aus Bojonegoro (Indonesien) Hamburg 2005 1. Gutachter: Prof. Dr. Rainer Carle 2. Gutachter: Prof. Dr. Olaf Schumann Datum der Disputation: 2. Februar 2005 ii TABLE OF RESEARCH CONTENTS Title Islamic Law and Social Change: A Comparative Study of the Institutionalization and Codification of Islamic Family Law in the Nation-States Egypt and Indonesia (1950-1995) Introduction Concepts, Outline and Background (3) Chapter I Islam in the Egyptian Social Context A. State and Islamic Political Activism: Before and After Independence (p. 49) B. Social Challenge, Public Discourse and Islamic Intellectualism (p. 58) C. The History of Islamic Law in Egypt (p. 75) D. The Politics of Law in Egypt (p. 82) Chapter II Islam in the Indonesian Social Context A. Towards Islamization: Process of Syncretism and Acculturation (p. 97) B. The Roots of Modern Islamic Thought (p. 102) C. State and Islamic Political Activism: the Formation of the National Ideology (p. 110) D. The History of Islamic Law in Indonesia (p. 123) E. The Politics of Law in Indonesia (p. 126) Comparative Analysis on Islam in the Egyptian and Indonesian Social Context: Differences and Similarities (p. 132) iii Chapter III Institutionalization of Islamic Family Law: Egyptian Civil Court and Indonesian Islamic Court A. The History and Development of Egyptian Civil Court (p. 151) B. Basic Principles and Operational System of Egyptian Civil Court (p. 159) C. The History and Development of Indonesian Islamic Court (p. 170) D. Basic Principles and Operational System of Indonesian Islamic Court (p. 192) Differences and Similarities: A Comparative Analysis on the Institutionalization of Islamic Family Law (p. 201) Chapter IV The Codification of Islamic Family Law in Egypt and Indonesia The Codification of Islamic Family Law in Egypt: Background, Process and Style of Formulation (p. 211) The Codification of Islamic Family Law in Indonesia: Background, the Compilation of Islamic Law and the Process of its Legal Drafting (p. 216) A. The Formal Writing of Marriage: Religious Marriage or Secular Marriage? (p. 225) B. The Minimal Standard of Age for Getting Marriage: The Ruler's Administrative Policy (p. 231) C. The Ownership of Goods During Marriage: Local Tradition and the Invention of Law (p. 235) D. The Definite Position of Husband and Wife in Family: Inequality, Ambiguity and Ambivalence (p. 238) iv E. Polygamy: The Denied Women Right (p. 241) F. Divorce: Problem of Procedure and Women Right (p. 244) G. Husband, Wife and the Right of Children: Who should be the Real Mother and Father? (p. 259) The Codification, Gender Equality and the Contextualization of Islamic Values: Responses and the Development of an Alternative Discourse in Egypt (p. 262) The Codification, Gender Equality and the Contextualization of Islamic Values: Responses and the Development of an Alternative Discourse in Indonesia (p.269) Comparative Analysis of the Codification of Islamic Family Law in Egypt and Indonesia: Differences and Similarities (p. 278) Concluding Remark (p. 290) Bibliography (301) v Introduction 2 introduction CONCEPT, OUTLINE AND BACKGROUND In order to understand clearly the detail from this dissertation, we need to know first the basic concepts and problem mapping as a context and perspective in the discussion of the writing which has inter-relative and inter-complementative character. Understanding of this concept, problem mapping and perspective in the same time can be hopefully the major key descriptions of terminologies and definitions, which can be used as the gateway to understand the writing and conclusion, comparative analyses from chapter to chapter as a whole. Šari>’a and Fiqh Theoretically, although Islamic jurisprudence normally is known as the Islamic law, detail observation shows that the above terminology is not absolutely correct, or at least too general. In the Islamic jurisprudence concept, there are differences between the mutable and immutable law. The mutable, due to historical demand or evolution, is grouped into fiqh, the immutable is grouped into šari>’a. However, in this writing, the both terms are used in the general sense. Thus, Islamic law then will signifiy the terms šari>’a and fiqh as identical or synonym.1 For Muslims, šari>’a is understood as a framework of values (in terms of ontology, epistemology and practice) which comes directly from al-Qur’a>n and narrated from prophet Muhammad's sayings and deeds (h}adi>t). On the other hand, fiqh can be more understood as the framework and derivative values in practical manner. The fiqh is thus, more affected by the human effort and human formulation processes through 1 For the comprehensive definition of Šari>’ah and fiqh, see ; Fazlur Rahman, Islam (Chicago: The University of Chicago, 1975), pp. 100-101; Abdul Wahhab Khallaf, 'Ilm Us}u>l al-Fiqh (Kuwait: Dar al-Qalam, 1978), p. 11. Introduction 3 understanding and jurisprudential indication from the holly texts (al-Qur’a>n or h}adi>t), which is systematically restructured later on by prominent figures or early Islamic law scholars through a series of interpretation, method, analogy, local tradition and religious practices before Islam especially from the Jews and Christians that lived in the Arabian region.2 Further observation shows that in the next hiytorical development of the Islamic law, the difference between šari>’a and fiqh is also complex and sometimes paradoxical. To distinguish which aspects are changeable and unchangeable in the Islamic law is not a simple matter. As a matter of fact there are some basic differences between scriptural Islam and reformist one. With the scriptural Islam, there is a claim that whatever in the Al-Qur’a>n (texts) and the deeds and speeches of the Prophet Muhammad are all-inclusive or contain all aspects of the teachings of human life and show practices and examples of the final models. On the other hand, the reformist Islam (especially the neo-modernist) assumes that holly scripture and the prophet Muhammad's h}adi>t contain only ethical points and moral attitudes, which its technical detail application can be formulated according to the needs of the spaces and time.3 2 The points derived from; Ahmad Hasan, The Early Development of Islamic Jurisprudence (Islamabad: Isalmic Research Institut, 1988), p. 5; Joseph Schacht, The Origins ofMuhammadan Jurisprudence (Oxford: Clarendon Press, 1953), p. 5; Schacht, An Introduction to Islamic Law (Oxford: Clarendon Press, 1984), p. 23; Schacht, "Pre-Islamic Background and Early Development of Jurisprudence", in Madjid Khadduri and Herbert J.Liebesny, Law in the Middle East (Washington DC: The Middle East Institute, 1955), I, p. 40. 3 For the coverage of latest development and streams in the Islamic theology and its sociological relevance, see Fazlur Rahman, "Islamic Modernism: Its Scope, Method and Alternatives," International Journal of Middle East Studies, I, No. 4 (October 1970), 317-333; Rahman, "Revival and Reform 4 introduction In the Muslims perception, the Islamic law itself is not regarded as law as in the modern secular world, which governs and covers only the physical human activities. The Islamic law contains not only secular aspects but also religious or spiritual aspects. The Islamic law is believed by its follower to contain spiritual law concerning common ritual such as the s}ala>t, hağğ, psychological, and material ablution.4 Besides, many Muslims believe that the law could function as the source of conflict resolution in a governmental or justice system as well as modus vivendi from conflicts in society or in a family. Moreover, in many cases, Islamic law issues appear as a fascinating jargon, symbol or political rhetoric that form an independent and basic political constituent.5 Behind the Islamic law issues, there are sometimes intentions to maintain social-political structure of a country or regime or dynasty as shown later on in the detail of the following chapter. Hierarchy of the Sources of Islamic law As mentioned above, the major source of the Islamic law that has been agreed upon by Islamic jurists (especially of the Sunnite) is the al-Qur’a>n then the prophet Muhammad's sayings in Islam," in P.M. Holt et al. (eds.), The Cambridge History of Islam, Vol. 2. Cambridge: Cambridge University Press, 1970; David Sagiv, Fundamentalism and Intellectuals in Egypt, 1973-1993 (London: Frank Cass, 1996); Mahmud A. Faksh, The Future of Islam in the Middle East: Fundamentalism in Egypt, Algeria and Saudi Arabia (Westport, Connecticut, London: Praeger, 1997); Javaid Saeed, Islam and Modernization: A Comparative Analysis of Pakistan, Egypt, and Turkey (Westport, Connecticut, London: Praeger 1994). 4 Coulson, Noel, J., A History of Islamic Law (Edinburgh: Edinburgh University Press, 1964). 5 Sagiv, Fundamentalism, pp. 17-27; Faksh, The Future, pp. 23-40; Saeed, Islam and Modernization, pp. 69-71. Introduction 5 and deeds (h}adi>t), followed by consensus of Islamic law theoreticians and leading Islamic socio-political figures (iğma>‘). The next sources of Islamic law is the analogy method (qiya>s), which is accepted by some Islamic jurists, and the more controversial one, that is a quasi-opinion (aqf), which is normally formulated in terms such as mas}lah}ah, mashalih murshalah, istishhab, s}ad al-dari>a>h.6 The position of al-Qur’a>n in the process of deriving the law and as the source of the Islamic law is central and fundamental. Although more specific observation reveals that the al-Qur’a>n itself is not a book of law with all detail and explanations of the technical aspects of law. Only about 500 verses in al-Qur’a>n (from total of 6666 verses) contain explicitly or implicitly legal materials and instructions.