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DOI: https://doi.org/10.33258/birci.v5i3.6465
Position of the Quran as a Source of Law and Legal Proposal Perspective of the 1945 Constitution
Ahmad Fadhly Roza1, Faisar Ananda2
1,2Universitas Islam Negeri Sumatera Utara [email protected]
I. Introduction
Al-Qur'an is kalamullah which for Muslims contains a guide to the truth for humans.
In the view of Muslims, according to Sayyed Hossein Nasr, the Qur'an is the essence of all books that symbolize knowledge. The Qur'an provides a solid, solid and unchanging basis for the ethical and moral principles necessary for human life. With the direction of ethical and moral principles on human behavior by the Qur'an, it will create a life that develops in this world with the ultimate goal of happiness in the hereafter. To capture the ethical and moral message of the Qur'an requires a complete understanding, because the Qur'an is a whole which is related to one topic of discussion with other discussions. The Qur'an is the first source of Islamic law which contains beliefs, worship, warnings, stories that are used as references and guidelines for life for the people of the Prophet Muhammad.
Al-Qur'an is the totality of shari'ah, the main source of wisdom. It is a source of sharia. The Qur'an was revealed first in Mecca and continued in Medina. Universal principles were revealed in Mecca. These principles include, among other things, belief in God, the Prophet and the Day of Judgment. These principles are followed by general rules such as prayer, zakat and others. Along with the principles, general ethical provisions concerning justice, virtue, patience and so on are also revealed. These provisions usually diagnose the religious and social practices of pre-Islamic times. There are very few additional special provisions that touch on contractual rules, prohibition of drinking alcohol, provisions of criminal law and others (Muhammad Khalid Mas'ud, 1987).
In this regard, the Qur'an explains all the instructions and prohibitions, the boundaries of which are lawful and which are unlawful, good and bad values. Therefore, he provides instructions and guidelines for life in the form of teachings of faith, morals, law, philosophy, politics, worship and others. These instructions broadly teach humans
Abstract
Al-Qur'an is the highest source of law in the rules of Islamic law, while the 1945 Constitution is also the basis as well as norms in positive legal rules. In the legal system in Indonesia, the Qur'an can be used as a source of law in positive law as well as customary law and western law which have contributed to the national legal system, as well as the Qur'an, which is a source of Islamic law, has also contributed to the religious justice system in Indonesia. Thus, there is no longer any view that the application of laws originating from Islamic law is said to be radical and so on. Islamic law as a living law will still exist as a complement to national law. The application and enforcement of Islamic law in Indonesia can be incorporated into national law, either through positive Islamic law or through Islamic legal values that apply to all citizens. Both are influenced by political will which will shape the politics of legislation
Keywords
Judiciary; sources of islamic law; theorems of islamic law;
Al-Quran
Budapest International Research and Critics Institute-Journal (BIRCI-Journal) Volume 5, No 3, August 2022, Page: 24444-24451 e-ISSN: 2615-3076 (Online), p-ISSN: 2615-1715 (Print)
www.bircu-journal.com/index.php/birci email: [email protected]
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about the path that humans must follow to become caliphs in the world. The goal is that all aspects of human life can run without any inequality between humans and humans and humans and the universe.
One of the important topics discussed in the Qur'an is justice. Justice is an important teaching system brought by the Qur'an, namely to create prosperity for mankind. The Qur'an mentions the word there 28 times. Among them is in QS an-Nahl/16 verse 90 which contains the command of Allah to do justice.
َّ ن ِ
َّ لْدَعْلاََّهّٰللاَّ
َُّك لَعَلَّ يْغَبْلاَّ رَكْنُمْلاَّ ءۤاَشْحَفْلاَّىٰب ْرُقْلاَّ ئۤاَتْي اَّ ناَسْح ْلْاَّ
Meaning: Verily Allah commands (you) to do justice and do good, to give help to relatives, and He forbids (to do) vile deeds, munkar, and enmity. He teaches you so that you can take lessons.
But the fact is that to this day, justice is still an ideal that has never been realized in the world community, especially in a country with a Muslim majority population. The way to achieve justice is to enforce the law. Without law enforcement, justice is an impossibility. No matter how good the system in a country, without a good law enforcement process, justice is just a dream. Socialist countries, communist countries, religious countries and democratic countries will never be prosperous and prosperous countries without good law enforcement. Law enforcement is the process of making efforts to enforce or actually function legal norms as guidelines for behavior in traffic or legal relations in social and state life.
Viewed from the point of view of the subject, law enforcement can be carried out by a broad subject and can also be interpreted as law enforcement efforts that involve all legal subjects in every legal relationship. In practice, law enforcement is always colored by malicious attempts to injure justice by the guilty party or even by the law enforcers themselves. In this case, the practice of bribery can make criminals become heroes and innocent people can be blamed. For that, one way to avoid things that are not desirable as above, the law regulates legal assistance which is an obligation for legal subjects who are seeking justice or are being tried.
Currently, in the practice of law, in Indonesia, there are no less than 12 regulations that underlie the existence of legal aid in all judicial institutions. However, of the many regulations, there is not a single regulation and legislation that specifically regulates legal aid except for Law Number 18 of 2003 concerning Advocates.
Law enforcement theory is generally used as a theoretical framework for the formulation of the concept of legal aid which is not widely explained by Islamic legal thinkers. Even the fuqaha in the early days of fiqh science did not explain much about legal aid. However, this does not mean that Allah does not at all discuss the important role of legal aid in the lives of Muslims.
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II. Review of Literature
2.1 History of the Establishment of the 1945 Constitution
At the beginning of the Classical period of Islam, Muslims under the leadership of Muhammad saw. Forming a living unity with other groups based on the Medina Charter.
On the other hand, in modern times, especially Indonesian Muslims, they form a coexistence with followers of other religions based on the 1945 Constitution. On August 17, 1945, the Indonesian people, Soekarno and Hatta, declared Indonesia's independence.
The following day, on August 18, 1945, the Preparatory Committee for Indonesian Independence (PPKI) was formed, consisting of Indonesian national figures, and determined that the 1945 Constitution (UUD) would apply to the territory of the Republic of Indonesia.
The vast Indonesian state is inhabited by a pluralistic people, consisting of various ethnic groups, customs, regional languages, and so on. The religion they follow is also said. Indonesia is truly diverse, but united under the constitution of the 1945 Constitution, which in its preamble contains the very diverse Pancasila of the Indonesian Nation, politically, forming and fostering the unity of living together based on the 1945 Constitution. Indonesian Muslims accept the 1945 Constitution, Pancasila in particular.
Pancasila as stated in its Preamble, as the basis for the unity of the Republic of Indonesia.
According to H. Alamsjah Ratu Perwiranegara, according to his compromising formulation, the recipients of the Muslim community for Pancasila are the "gift" of Indonesian Muslims for the unity of the nation and the independence of Indonesia.
The entire text of the 1945 Constitution consists of the Preamble, the Body, and the Explanation. The Body contains 37 articles, 4 articles of Transitional Rules, and 2 paragraphs of Additional Rules. During the period when Indonesia became the Republic of the United States of Indonesia (27 December 1949 to 17 August 1950), the 1945 Constitution was only valid in parts of Indonesia. With the enactment of the Provisional Basic Law (UUDS) 1950, the 1945 Constitution did not apply to the entire territory of the Republic of Indonesia, and with the Decree of President Soekarno dated July 5 1959, the 1945 Constitution was declared valid again throughout the territory of the Republic of Indonesia. In the preamble to the decree, it is stated “That we believe that the Jakarta Charter dated June 22, 1945 animates the 1945 Constitution and is an integral part of the Constitution. The history and process of the formation of the 1945 Constitution proves that the Indonesian national figures who drafted, drafted and enacted the 1945 Constitution were mostly Muslims. Some are known as ulama, some are known as Muslim nationalists.
Their agreement binds all Muslims and the entire Indonesian nation.
In one perspective, Indonesia is a country that does not have an Islamic ideology, but the frame of reference in developing the rule of law and the economy mostly refers to Islamic values. Pancasila which was originally the result of a change from the Jakarta charter by eliminating the seven words in the first precept, its birth also cannot be separated from the contribution of Muslims. This condition is in line with Dawam Rahardjo's opinion quoting Kuntowijoyo's words, that the Indonesian economy, whose development base is based on Pancasila, is the objectivation of the Islamic economic system.The economic condition of the population is a condition that describes human life that has economic score (Shah et al, 2020). Economic growth is still an important goal in a country's economy, especially for developing countries like Indonesia (Magdalena and Suhatman, 2020).
This basic argument can be identified through the goals and mission of the Indonesian state which is reflected in the preamble to the 1945 Constitution and the five
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precepts of Pancasila. In the third paragraph of the preamble to the 1945 Constitution, four main objectives of the Indonesian nation are formulated. The objectives are first to protect the entire Indonesian nation and the entire homeland of Indonesia, second to promote public welfare, third to educate the nation's life, and fourth to participate in carrying out world order based on freedom, eternal peace and social justice.
III. Result and Discussion
3.1 Al-Qur'an as a Source of Law and Legal Evidence
Al-Quran is the first and main source of Islamic law which contains fundamental principles that need to be studied carefully and developed further. According to the beliefs of Muslims, which is confirmed by the latest scientific research (Maurice Bucaille.
1979:185). The Qur'an is a holy book that was revealed by Allah SWT to the Prophet Muhammad SAW as a mercy and guidance for humans in life and life. Literally, the Qur'an is reading. We can see this meaning in surah al-Qiyamah (75), verses 17 and 18 as follows:
َّ هَنٰاَّْع ب تاَّاَذ اَّ هَنٰاَّاَنْيََّلَّ ن ا Meaning: "Indeed, we will collect it (in your chest) and recite it. When we have finished
reading it, then follow it."
In principle, Islamic law comes from divine revelation, namely the Koran, which was later explained in more detail by the Prophet Muhammad. Through the Sunnah and Hadith.
This revelation determines the norms and basic concepts of Islamic law which at the same time changes the rules or norms that have become a tradition in the midst of human society. However, Islamic law also accommodates various rules and traditions that do not conflict with the rules in the divine revelation.
In addition to containing God's law, the Qur'an also contains teachings about the world and the hereafter, in the expression and formation as it is. There are western scholars who criticize the Qur'an, especially because of its formulation of heaven and hell, as something very sensory. This may be due to overemphasis on the mental aspects of humans, resulting in a neglect of symbolism.
In the Qur'an Surah Al-Hujurat verse 13 is quite popular as the basis of international law.
لاَّ ن اَّْمُكىٰقْتَاَّ هّٰللاَّْمُكَم َرْكَاَّ ن اَّا ْوُف َراَعَت لََّلِٕىۤاَّاَّْمُكٰنْلَّىٰثْنُاَّْمُكٰنْقَلَّا ن اَّ ُسا نلاَّاَهُّيَا
َّ مْي لََّهّٰل
Meaning: O people! Indeed, we created you from a male and a female, then We made you into nations and tribes so that you might know one another. Verily, the most honorable of you in the sight of Allah is the one who is most pious. Indeed, Allah is All-Knowing, All-Aware.
This verse contains several basic principles of international law, such as the principles of equality, brotherhood, friendship, and cooperation in building world peace.
3.2 The function of Islamic law in social life
Islamic law is a set of rules extracted from the Qur'an and al-Hadith as the main sources. Its existence is very important in guarding human life so that it is in harmony with the purpose of human creation which in the Qur'an Surah adz-Dzariyat verse 56 says only to worship and worship Allah SWT alone.
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In the view of the scholars, the meaning of worship in the verse above contains two purposes. This is as Musthofa al-Maraghi in his Tafsir Maraghi states that worship in the Islamic conception refers to the verse above consists of two kinds, namely worship mahdoh and worship ghoiru mahdoh.
3.3 Contribution of Muslims in the Formulation of the National Legal System
The contribution of Muslims in formulating and enforcing laws in Indonesia was evident after Indonesia's independence. However, it does not mean that in the initial phase before the proclamation of independence, Muslims did not have a contribution to the Indonesian state. Many things have been done by Muslims in Indonesia, including one of them is the birth of the proclamation of independence on August 17, 1945 which is also the result of the struggle of Muslims with several other components of the nation.
3.4 The birth of legislation related to Islamic law
The contribution of Muslims in the formulation and enforcement of law today is increasingly evident with the birth of several laws and regulations that are directly related to Islamic law. Some of these laws and regulations can be seen in the following formulation:
Legislation
- UU no. 1 Year 1974is the law that regulates marriage - UU no. 7 Year 1989relating to religious courts - UU no. 38 of 1999about zakat management
- Instruction of the President of the Republic of Indonesia No. 1 Year 1991About the Compilation of Islamic Law
- PP. No. 28 Year 1977about the endowment of land owned
3.5 The Concept of the Qur'an in Establishing the Law
In explaining the law, the Qur'an uses several ways and expressions (phrases), namely in the form of demands, either demands to act which are called orders or orders (amr), or demands to leave what are called prohibitions (nahi). Like the obligation to carry out the prayer command with Allah's command in Surah an-Nisa (4) verse 77, namely:
Meaning: "Have you not noticed those who were told to them "Hold your hands (from fighting), establish prayer and pay zakat!"
While the actions that are prohibited and must be abandoned, as contained in the letter al-Isra '(17) verse 32: Meaning: "And do not approach adultery; Indeed, adultery is a heinous act. and a bad way."
The Qur'an was revealed by Allah to the Prophet Muhammad to be a guide and teaching for all mankind, in making orders and prohibitions, the Qur'an is always guided by two things, namely: (1) Not burdensome, and (2) Gradually gradually. Not burdensome means that Allah will not burden His servant except with his ability.
In terms of its explanation of the law, there are several ways that the Qur'an uses, namely:
1. Juz'i (detailed). This means that the Qur'an explains in detail. Allah in the Qur'an provides a complete explanation, so that it can be carried out according to what is, even though the Prophet did not explain it with his sunnah.
2. Kulli (globally). That is, the explanation of the Qur'an to the law applies in outline, so it still requires an explanation in its implementation. The most authorized to provide an explanation of the meaning of the verse in the form of an outline is the Prophet Muhammad. with the sunnah.
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3. By Isyara. The Qur'an provides an explanation of what is outwardly mentioned in it in the form of a sign explanation. In addition, it also gives a sign meaning to other purposes. Thus, one verse of the Qur'an can serve several purposes.
3.6 Constitution and Basic Law
The constitution is the basic law that is used as a guide in the administration of a country. The constitution can be in the form of a written basic law commonly called the Basic Law, and it can also be unwritten. Not all countries have a written constitution or constitution.60 The first written charter in the history of mankind that can be compared with the modern sense of the constitution is the Medina Charter.
This charter was made by mutual agreement between the Prophet Muhammad. With representatives of the inhabitants of the city of Medina shortly after he migrated from Mecca to Yathrib, the name of the previous city of Medina, in 622 AD. Meanwhile in Indonesia, the 1945 Constitution was first ratified as the Constitution of the State of Indonesia in the session of the Preparatory Committee for Indonesian Independence on August 18, 1945, which is the day after the independence of the Republic of Indonesia was proclaimed by Soekarno and Mohammad Hatta on August 17, 1945. For the Republic of Indonesia, the main sources of constitutional principles and principles are Pancasila and the 1945 Constitution. However, in general, the 1945 Constitution as a written basic law cannot possibly contain all legal requirements, both those that existed at the time of stipulation, especially those that will come later. The principle of law is the main pillar for the formation of legislation. Where the "principle" is something that is considered by the legal community as a basic truth, because through legal principles ethical and social considerations enter into law, and become a source of living the ethical, moral and social values of the community.
As we know, there is not a single country in this world that does not have a constitution or constitution. The constitution or constitution can be grouped into two groups, namely:
1. The constitution which consists of many articles, and;
2. The constitution consists of a few articles.
The former is usually referred to as a long constitution, while the latter is referred to as a short constitution. According to constitutional theory, a short constitution is much better than a long constitution, as long as what is contained in it (which is a rule) can be implemented. Although the 1945 constitution is a short constitution, it fulfills various requirements as a modern constitution. There are two things to be stated in this opportunity. First, the contents of a single constitution cannot be separated from the struggle of the nation itself. Therefore, if we examine the contents contained in the 1945 Constitution, we can find 4 things, including the following:
The 1945 Constitution is the result of the nation's political struggles in the past. The 1945 Constitution contains the views of national figures that are to be realized, both for the present and for the future.
The 1945 Constitution contains (contains) a desire with the development of the nation's constitutional life to be led.
The 1945 Constitution, through its amendments and adjustments, constitutes the highest stages of the development of the nation's state administration.
With regard to Islamic legal culture, we are faced with two possibilities, namely:
1. Regarding positive Islamic law, so that it is limited to question the law that applies to those who are Muslim, or;
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2. Regarding the values of Islamic law, which will apply to all citizens, maybe even the entire population, including non-citizens.
We can see the first alternative in the present as a continuation of legal politics during the colonial period, either through the Transitional Rules of Article II of the 1945 Constitution and which were later incorporated into new regulations. The hallmark of this orientation is the recognition of legal distinctions in Western civil law, Islamic law, and customary law. The field that is mainly covered is civil law. The institution used is the religious court institution. What is meant by "positive Islamic law" is only that which becomes the material law or substantive law of the Religious Courts, which applies in the Islamic Religious Courts. This can be seen from the emergence of Law no. I of 1974 concerning Marriage, Government Regulation No. 9 of 1975 concerning the Implementation of Law no. 1 of 1974, Government Regulation no. 28 of 1985 concerning Waqf, Law no. 7 of 1989 concerning the Religious Courts, Presidential Instruction No. 1 of 1991 concerning the Compilation of Islamic Law, Law no. 32 of 1999 concerning Zakat and Law no. 40 of 1999 concerning Hajj.
The second alternative is positive Islamic law which is sourced from Islamic religious values. We draw the principles of Islamic law, then pour them as much as possible into national law. In this way, civilizing Islamic law does not only occur in the field of civil law, especially family law, but also in other fields, such as criminal law, constitutional law, and state administrative law. With this orientation, Islamic law will truly become a source of national law in addition to Pancasila, without giving rise to the assumption that Islamic law is ancient.
These two alternatives can influence the formation of national law in the future. To translate Islamic law contained in the Qur'an and Hadith into a form of legislation, rechtskunst (the art of making laws) is needed. Making laws is a political act because it cannot be separated from political issues. The question is how politics can convince the public, especially the Legislative Body, that the norms in the Qur'an, if they are set out in the form of laws or other forms of legislation, can fulfill everyone's justice.
IV. Conclusion
The law introduced by the Qur'an is not something that stands alone, but is an integral part of the Aqeedah. Islamic law is the word of Allah SWT. related to the actions of the mukallaf that are commanding the realization of benefit and preventing the occurrence of crime, the word is in the form of amar (command), nahi (prohibition), takhyir (choice) or become a cause, condition or barrier to a law. Islamic law has the character of a religious obligation that must be carried out by believers. God's law is still God's law even though no one wants to do it. Islamic law first considers the rights of the community, while the rights of individuals are only protected as long as these rights do not conflict with the rights and benefits of the ummah. muamalah in the broadest sense.
Al-Qur'an is the highest source of law in the rules of Islamic law, while the 1945 Constitution is also the basis as well as norms in positive legal rules. In the legal system in Indonesia, the Qur'an can be used as a source of law in positive law as well as customary law and western law which have contributed to the national legal system, as well as the Qur'an, which is a source of Islamic law, has also contributed to the religious justice system in Indonesia. Thus, there is no longer any view that the application of laws originating from Islamic law is said to be radical and so on. Islamic law as a living law will still exist as a complement to national law. The application and enforcement of Islamic law in Indonesia can be incorporated into national law either through positive Islamic law or
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through Islamic legal values that apply to all citizens. Both are influenced by political will that will shape the politics of legislation.
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