Disputes in Shari'a Economy

DISPUTES IN SHARÎ’A ECONOMY:
their leGAL SOLUTION AND CODE UNIFICATION in indonesia

Rusli*

I. Introduction

The growth of economic system, which has been greatly inspired by the western epistemology and framework of thought which are positivistic in nature (e.g. capitalism and socialism), has in fact aroused the deep consciousness of Moslem community (‘ummah). They realised that it is highly necessary to base an economic system on Islamic values. The Islamic values mean those derived from the sacred sources of Islam, the Quran and the prophetic practice which relates to economy. The echo of this movement can be historically traced back to 1970s, particularly after The First International Conference in Islamic Economics in Mecca, Arab Saudi, in 1976. This moment is believed as a new episode for the Islamic economy in future.

In Indonesia, Islamic system of economy or Sharî’a economy’s movement might be traced back to 1990s. Nevertheless, the system of Sharî’a economy is not a new phenomenon, since in the course of history, there are Moslem intellectuals (‘ulamâ’) who expressed great opinions or came up with the ideas on economy. Among those who deserve high recognition on this case are al-Tûsî, al-Fârâbî, Abû Yûsuf, Ibn Taymiyyah, al-Maqridhî, Shâh Waliyullâh al-Dihlawî, Ibn Khaldûn, and others.

Unfortunately, their works and ideas have been not deeply touched in Islamic discourse for a long time. In part, it is because of the strong grip of both capitalist and socialist systems of economy in the world. It is in recent days that their works are intensively studied and analysed to search fresh economic ideas which support the Sharî’a economy. In the following days, spurred by the rising consciousness of Islamic ‘ummah about their religion, a myriad of conferences, seminars, workshops, articles in mass media and books, which deal with Sharî’a economy emerge. As a result, materials on Sharî’a economy are significantly abundant.

The movement of Sharî’a economy grows significantly with the rise of Islamic banks and financial institutions, and their products such as Sharî’a insurance and obligation. This is supported by the legislation of Law No. 7/1992 on Banking, which is strengthened by the establishment of Law No. 10/1998 on Amandements of Law No.7/1992 on Banking. However, the problem emerges when conflicts or disputes occur between customers and Institutions of Sharî’a Economy. Who serve to give a legal solution to the disputes? In previous days, such disputes were solved through Civil Court, or State Institution for Sharî’a Arbritration (Badan Arbritrase Syariah Nasional). After the Law No. 3/2006 was passed, such conflicts can be solved through the Religious Court (Pengadilan Agama). Another problem relates to decisive rules which may be used to solve such disputes. This paper will deal with the authority of Religious Court in solving disputes in Sharî’a economy and its related issues, in particular those associated with its legal rules used. Before discussing this issue, this paper will historically traces the procedures and techniques of conflict and dispute resolution in the tradition of Islamic legal thougt (fiqh).

II. Islamic Law: Procedures and Solutions for Legal Disputes

In Islamic law, there is a rule which is mutable and immutable. The mutable, due to historical demands and evolution, can be categorized into fiqh, while the immutable is grouped into sharî’a. For Muslims, sharî’a is understood as framework of values (in terms of ontology, epistemology and practice) which come directly from the Quran and narrated from the Prophet Muhammad’s sayings and deeds (hadîth). On the other hand, fiqh can be understood as a framework and derivative values in practical manner. Therefore, fiqh is more affected by the human effort and human formulation process through understanding and jurisprudential indication from the holy texts (the Quran and hadîth), which is systematically restructured later on by prominent figures or early islamic law scholars (fuqahâ’) through a series of interpretation, methods, analogy, local traditions and religious practices before Islam, especially from the Jews and Christians that lived in the Arabian region.[1]

Since its nature as human understanding, fiqh is relative in the sense that differences in ideas and opinions are possible. The formulation of fiqh’s procedures in solving legal conflicts is inseparable from this kind of relativity. In various classical books of Islamic jurisprudence, fuqahâ’ (experts of Islamic law) have formulated a variety of ways in solving legal conflicts, which include:

A. Sulh (Peace or Reconciliation)

The word sulh means “peace” (al-silm).[2] From this, emerge the word islâh which also means, among others, “establishing justice” or “reconciliation”.[3] In Islamic law, sulh is discussed in the sections of transaction (‘aqd), marriage, warfare and rebellion. It is also asserted that conflict resolution using the principle of “peace” ia highly recommended by God, as stated in the Quran:

“If a wife fears cruelty or dessertion (nushûz) on her husband’s part. There is no blame on them, if they arrange an ammicable settlement [an yusliha] between themselves; and such settlement is best [wa al-sulh khayr]..” (Q.S. al-Nisâ’ [4]: 128)

The significance of al-sulh is also asserted in the Prophetic sayings such as the hadîth which is narrated by Abû Hurayrah “Reconciliation is allowed for Muslims, except that which leads to permitting what is forbidden and prohibiting what is allowed.” (Ibn Hibbân, Abû Dâwûd, al-Hakîm, dan al-Turmudhî).[4] This hadîth asserts that peace or reconciliation can be carried out in any kind of activities since this hadîth is general in nature. And, as far as it does not traverse the decisive rules of Allah, reconciliation is allowed.

However, in Islamic law, there are preconditions (shurût) and basic principles (arkân) which should be met in the process of reconciliation. In determining these, because of its relativity in nature, there occur differences of opinion. According to Hanafite, the basic principle of al-sulh is only îjâb (expression of offer) and qabûl (expression of reception). In addition to these, they are regarded only as preconditions. According to the majority of fuqahâ’, the basic principles of al-sulh are four: (1) parties who will perform sulh; (2) statement of îjâb-qabûl; (3) disputed cases; (4) reconciliation with which parties come to terms.

B. Tahkîm (Arbitration)

The word “tahkîm” is derived from the verb “hakkama”, which meas “to appoint as a arbiter (hakam).”[5] In a technical term of Islamic law, it is understood as “two disputing parties appoint another person as a arbiter (hakam) in order to solve conflicts and disputes among them based on religious teachings.”[6] Legal-theological basis used by the fuqahâ’ to assert the legality of this procedure is the Quranic verse:

“If ye fear a breach between them twain, appoint (two) arbiters (hakam), one from his family, and other from hers; if they wish for peace, God will cause their reconciliation: for God hath full knowledge, and is acquanted with all things.” (Q.S. al-Nisâ’ [4]: 35).[7]

Other verses which touch the issue of tahkîm are al-Nisâ’ [4]: 114, al-Mâ’idah [5]: 95, and al-Hujurât [49]: 9.

Besides, there is a proof from the hadîth of the Prophet through the chain of Abû Shurayh who says: “O the Messenger of God, if my tribe quarrel about something, they must come to me [looking for solution]. Thus, I give a decision, and both parties are content with the decision.” So, Rasûlllâh—peace be upon him—says to him, “How beautiful this process!”. On the legality of this tahkîm, the Companions of the Prophet (Sahabah) come to terms with, and no one denies it.[8]

Nevertheles, in tahkîm, there are preconditions that should be fulfilled. The first is related to someone who will be appointed as hakam; that is, he or she should have competence (ahliyyah) in witness. This competence must be fulfilled when arbiter gives decision to the disputing parties. The second is associated with objects which have been disputed, where they have to be not under the issues of punishments (hudûd) and retaliation (qisâs), since both are under the competence of ruler. The areas which have been allowed to perform tahkîm are civil matters (al-qadâyâ al-mâliyyah) and family laws (al-ahwâl al-shakhsiyyah) such as marriage and divorce.

The legal decision of hakam or muhakkam, according to Hanafite and Hanbalite, is obligatory or binding for disputing parties. Hanafite argue that each party has rights to expel themselves from the process of tahkîm before the decision is made. On the other hand, Mâlikite do not impose the continuation of their content as a condition until the decision has been made. If both parties expel themselves and do not contend with the process before the decision has been made, they have rights to do that.[9]

C. Wilâyat al-Hisbah

Various definitions have been given to the concept of hisbah. Ibn Khaldûn and al-Maqridhî, for instance, define hisbah as “religious office” (for Ibn Khaldûn, wazîfah dîniyyah; for al-Maqridhî, khidmah dîniyyah).[10] Another definition is from Imâm al-Mâwardî. He defines hisbah as “an authority to command what is right when it is ignored by a lot of people and preventing what is evil when it is done.”[11] Ibn Taymiyyah adds “what is not in the authority of the ruler, judiciary, and wilâyat al-mazâlim.”[12]

Hisbah is one of the judicial powers, but it is wider than judiciary and mazâlim, since its competence is focused on a call for doing what is right and preventing what is evil. This principle has a sound basis in the Quran:

“Let there arise out of you a band of people inviting to all that is good, enjoining what is right, and forbidding what is wrong: they are the ones to attain felicity.” (Q.S. Âli ‘Imrân [3]: 104).[13]

Although this command is obligatory for each Muslim, however, it is the government that is bound to impelement this by delegating this function to either someone or institusion (muhtasib) to perform. This muhtasib has an authority to give legal decision and execute punishment directly in accordance with the sharî’a. Because the muhtasib is appointed by the government, so he or she gets salary from the state.

D. Wilâyat al-Mazâlim

According to al-Zuhaylî, the court of mazâlim to a great extent is similar to the state administration court in current days. In essence, it functions to investigate the practices of a ruler, judges and state employees, in which this task cannot be performed by the usual court of justice. Occasionally, it deals with the disputes which cannot be solved by the usual court of justice, or with legal dicisions which are regarded as unfair by disputing parties. The jurisdiction and authority to give legal dicisions and excute them are included in the task of this court of mazâlim.[14] The competence of wilâyat al-mazâlim includes among others, dealing with injustice of the ruling elites and state employees, controlling the condition of the state employees, returning to the people all stuffs taken away illegally by the tyrant ruling elites, and so on.[15]

E. Wilâyat al-Qadâ’

In Arabic, the word qadâ’ has variety of meanings. One of the most relevant is “cutting off disputes” [qat‘ al-munâza‘ât].[16] In technical terms, Shâfi‘îte and Hanbalîte define it as “solving disputes between two or more parties, based on rules of sharî’a.”[17] In Islam, qadâ’ is a serious issue; therefore, the support and warning to this is too significant. It means, honesty and justice in giving verdict will get a great reward from God. Otherwise, deviation from being just and fair in deciding case will lead to the hell.

Considering the significance of this issue, in the course of history, qadâ’ has been carried out seriously in the period of Rasûlullâh and Sahâbah. In the following periods, the development and extension of the authority and jurisdiction of qadâ’ occur. And this jurisdiction is elaborated in more details in classical books of Islamic jurisprudence.

So, from the above discussion about the procedures to solve disputes in Islamic court, it can be inferred that in the tradition of Islamic law, disputes resolution can be carried out through two processes: non-litigation such as sulh (peace, reconciliation) and tahkîm (arbitration), and litigation such as hisbah, mazâlim and qadâ’. All of these have their own competences and jurisdictions.

III. Religious Court and Sharî’a Economic Disputes

Government’s response to Sharî’a economy and its problems confronted is an indication that government pays attention to the reality and aspiration of some Muslim communities. This is proven by the establisment of Law No. 3/2006 on the amandments of the Law No. 7/1989 on Religious Court. One of the amandments is jurisdiction of disputes in Sharî’a economy which has been paid attention from the Religious Court. And, even it becomes a absolute jurisdiction of the Religious Court.

A sociological reason behind the extension of this jurisdiction can be seen in changes at the level of constitution (the amandments of UUD 1945), which lead to the amandment of the Law of Judicial Power (UU No 4/ 2004). This Law puts Religious Court into one of the judicial power.[18] Such an amandment leads to the amandment of the Law on Religious Court. In this new code of law, it is stated that disputes in Sharî’a economy is one of the Religious Court’s jurisdictions, in addition to other jurisdictions which have been touched so far. In article 49 (point I), it is stated that:

“Religious court has the task and authority to examine, decide and solve cases in the first level between Moslems in the field of Sharî’a economy.”

Another reason is to do with the rapid growth of the Sharî’a economy. It is not only related to such banking institutions as the Institution for Sharî’a Micro-Finance, Insurance, Sharî’a Reassurance, Sharî’a Reksadana, Sharî’a Obligation, Sharî’a Mortgage, etc. In the explanation of this code of law, what it means as Sharî’a economy is:

“Any activity or enterprise which are performed in accordance with the principles of sharî’a, which include sharî’a banks, institution for sharî’a micro-finance, sharî’a insurance, sharî’a reassurance, sharî’a reksadana, sharî’a obligation, sharî’a mortgage, pensions of the institution of sharî’a finance and sharî’a business.”

With the rise of this code of law, any dispute in Sharî’a economy can be taken before the judges of Religious Court, which it is previously summoned into Commerce Court or Court of First Instance. Meanwhile, disputes in sharî’a banking are solved through Basyarnas (Badan Arbitrase Syariah Nasional, Council for National Sharî’a Arbitration) since fatwâs of National Sharî’a Council often state that any dispute resolution, sharî’a banking, sharî’a insurance, etc, are solved in Basyarnas.

Law of procedures that prevails in Religious Court, which is used in solving disputes in Sharî’a economy, is that prevails in General Court. In a meantime, legal rules which have been usually used so far as authoritative sources of reference are as follows:

A. Fatwâs of Sharî’a Council (Fatwa Dewan Syariah), which have been issued by the Council of Indonesian Ulama (Majelis Ulama Indonesia). Since it is established in 1999, this institution has issued 61 fatwâs, which relate to Sharî’a economy. Among the fatwâs are as follows:

1. Fatwa Dewan Syariah Nasional No. 01/DSN-MUI/IV/2006 Tentang Giro.

2. Fatwa Dewan Syariah Nasional No. 02/DSN-MUI/IV/2006 Tentang Tabungan.
3. Fatwa Dewan Syariah Nasional No. 03/DSN-MUI/IV/2006 Tentang Deposito.
4. Fatwa Dewan Syariah Nasional No. 04/DSN-MUI/IV/2006 Tentang Murabahah.
5. Fatwa Dewan Syariah Nasional No. 05/DSN-MUI/IV/2006 Tentang Jual Beli Saham.
6. Fatwa Dewan Syariah Nasional No. 06/DSN-MUI/IV/2006 Tentang Jual Beli Istishna‘.
7. Fatwa Dewan Syariah Nasional No. 07/DSN-MUI/IV/2006 Tentang Pembiayaan Mudharabah (Qiradh).
8. Fatwa Dewan Syariah Nasional No. 08/DSN-MUI/IV/2006 Tentang Pembiayaan Musyarakah.
9. Fatwa Dewan Syariah Nasional No. 09/DSN-MUI/IV/2006 Tentang Pembiayaan Ijarah.
10. Fatwa Dewan Syariah Nasional No. 10/DSN-MUI/IV/2006 Tentang Wakalah.
11. Fatwa Dewan Syari‘ah Nasional No. 11/DSN-MUI/IV/2006 Tentang Kafalah.
12. Fatwa Dewan Syariah Nasional No. 12/DSN-MUI/IV/2006 Tentang Hawalah.
13. Fatwa Dewan Syariah Nasional No. 13/DSN-MUI/IV/2006 Tentang Uang Muka dan Murabahah.
14. Fatwa Dewan Syariah Nasional No. 14/DSN-MUI/IV/2006 Tentang Sistem Distribusi Hasil Usaha dalam Lembaga Keuangan Syariah.
15. Fatwa Dewan Syariah Nasional No. 15/DSN-MUI/IV/2006 Tentang Prinsip Distribusi Hasil Usaha dalam Lembaga Keuangan Syariah.
16. Fatwa Dewan Syariah Nasional No. 16/DSN-MUI/IV/2006 Tentang Diskon dalam Murabahah.
17. Fatwa Dewan Syariah Nasional No. 17/DSN-MUI/IV/2006 Tentang Sanksi atas Nasabah Mampu yang Menunda-nunda Pembayaran.
18. Fatwa Dewan Syariah Nasional No. 18/DSN-MUI/IV/2006 Tentang Pencadangan Penghapusan Aktivita Produktif dalam Lembaga Keuangan Syariah.
19. Fatwa Dewan Syariah Nasional No. 19/DSN-MUI/IV/2006 Tentang al-Qardh.
20. Fatwa Dewan Syariah Nasional No. 20/DSN-MUI/IV/2006 Tentang Pedoman Pelaksanaan Investasi untuk Reksa Dana Syariah.
21. Fatwa Dewan Syariah Nasional No. 21/DSN-MUI/IV/2006 Tentang Pedoman Umum Asuransi Syariah.
22. Fatwa Dewan Syariah Nasional No. 22/DSN-MUI/IV/2006 Tentang Jual Beli Istishna’ Paralel.
23. Fatwa Dewan Syariah Nasional No. 23/DSN-MUI/IV/2006 Tentang Potongan Pelunasan dalam Murabahah.
24. Fatwa Dewan Syariah Nasional No. 24/DSN-MUI/IV/2006 Tentang Safe Deposit Box.
25. Fatwa Dewan Syariah Nasional No. 25/DSN-MUI/IV/2006 Tentang Rahn.
26. Fatwa Dewan Syariah Nasional No. 26/DSN-MUI/IV/2006 Tentang Rahn Emas.
27. Fatwa Dewan Syariah Nasional No. 27/DSN-MUI/IV/2006 Tentang al-Ijarah al-Muntahiyah bi al-Tamlik.
28. Fatwa Dewan Syariah Nasional No. 28/DSN-MUI/IV/2006 Tentang Jual Beli Mata Uangn (al-Sharf).
29. Fatwa Dewan Syariah Nasional No. 29/DSN-MUI/IV/2006 Tentang Pembiayaan Pengurusan Haji Lembaga Keuangan Syariah.
30. Fatwa Dewan Syariah Nasional No. 30/DSN-MUI/IV/2006 Tentang Pembiayaan Rekening Koran Syariah.
31. Fatwa Dewan Syariah Nasional No. 31/DSN-MUI/IV/2006 Tentang Pengalihan Utang.
32. Fatwa Dewan Syariah Nasional No. 32/DSN-MUI/IV/2006 Tentang Obligasi Syariah.
33. Fatwa Dewan Syariah Nasional No. 33/DSN-MUI/IV/2006 Tentang Obligasi Syariah Mudharabah.
34. Fatwa Dewan Syariah Nasional No. 34/DSN-MUI/IV/2006 Tentang Letter of Credit (L/C) Impor Syariah.
35. Fatwa Dewan Syariah Nasional No. 35/DSN-MUI/IV/2006 Tentang Letter of Credit (L/C) Ekspor Syariah.
36. Fatwa Dewan Syariah Nasional No. 36/DSN-MUI/IV/2006 Tentang Sertifikat Wadi‘ah Bank Indonesia (SWBI).
37. Fatwa Dewan Syariah Nasional No. 37/DSN-MUI/IV/2006 Tentang Pasar Uang Antarbank Berdasarkan Prinsip Syariah.
38. Fatwa Dewan Syariah Nasional No. 38/DSN-MUI/IV/2006 Tentang Sertifikat Investasi Mudharabah Antarbank (Sertifikat IMA).
39. Fatwa Dewan Syari‘ah Nasional No. 39/DSN-MUI/IV/2006 Tentang Asuransi Haji.
40. Fatwa Dewan Syariah Nasional No. 40/DSN-MUI/IV/2006 Tentang Pasar Modal dan Pedoman Umum Penerapan Prinsip Syariah di Bidang Pasar Modal.
41. Fatwa Dewan Syariah Nasional No. 41/DSN-MUI/IV/2006 Tentang Obligasi Syariah Ijarah.
42. Fatwa Dewan Syariah Nasional No. 42/DSN-MUI/IV/2006 Tentang Syariah Charge Card.
43. Fatwa Dewan Syariah Nasional No. 43/DSN-MUI/IV/2006 Tentang Ganti Rugi (Ta‘widh).
44. Fatwa Dewan Syariah Nasional No. 44/DSN-MUI/IV/2006 Tentang Pembiayaan Multijasa.
45. Fatwa Dewan Syariah Nasional No. 45/DSN-MUI/IV/2006 Tentang Line Facility (al-Taslihat).
46. Fatwa Dewan Syariah Nasional No. 46/DSN-MUI/IV/2006 Tentang Potongan Tagihan Murabahah (al-Khas fi al-Murabahah).
47. Fatwa Dewan Syariah Nasional No. 47/DSN-MUI/IV/2006 Tentang Penyelesaian Piutang Murabahah Bagi Nasabah Tidak Mampu Membayar.
48. Fatwa Dewan Syariah Nasional No. 48/DSN-MUI/IV/2006 Tentang Penjadwalan Kembali Tagihan Murabahah.
49. Fatwa Dewan Syari‘ah Nasional No. 49/DSN-MUI/IV/2006 Tentang Konversi Akad Murabahah.
50. Fatwa Dewan Syariah Nasional No. 50/DSN-MUI/IV/2006 Tentang Akad Mudharabah Musytarakah.
51. Fatwa Dewan Syariah Nasional No. 51/DSN-MUI/IV/2006 Tentang Akad Mudharabah Musytarakah Pada Asuransi Syariah.
52. Fatwa Dewan Syariah Nasional No. 52/DSN-MUI/IV/2006 Tentang Akad Wakalah Bil Ujrah Pada Asuransi dan Reasuransi Syariah.

53. Fatwa Dewan Syariah Nasional No. 53/DSN-MUI/IV/2006 Tentang Adab Tabarru‘ Pada Asuransi dan Reasuransi Syariah.

Although these fatwâs can help in solving disputes in Sharî’a economy, yet their status are not constitutionally strong in the hierarchy of regulations in Indonesia. Besides, these fatwâs may be said as very brief because they are just main points which need more detailed explanations. In terms of legal status, fatwâ as a legal product is not coercive and obligatory. Its status is a mere legal opinion. This is different from judicial verdicts and codes of law which are coercive in nature.

B. Regulations of Indonesian Banking. Among regulations that must be taken into account by the religious judges are as follows:

1. Undang-Undang Nomor 7 Tahun 1992 Tentang Perbankan.

2. Undang-Undang Nomor 10 Tahun 1998 Tentang Perubahan atas Undang-Undang Nomor 7 Tahun 1992 tentang Perbankan.

3. Surat Keputusan Direksi Bank Indonesia Nomor 32/34/Kep/Dir tentang Bank Umum Berdasarkan Prinsip Syariah.

4. Surat Keputusan Direksi Bank Indonesia Nomor 32/36/Kep/Dir tentang Bank Perkreditan Rakyat Berdasarkan Prinsip Syariah.

5. Surat Keputusan Direksi Bank Indonesia Nomor 21/53/Kep/Dir./1988 tanggal 27 Oktober 1988 tentang Surat Berharga Pasar Uang (SBPU).

6. Surat Keputusan Direksi Bank Indonesia Nomor 21/48/Kep/Dir./1988 dan Surat Edaran Bank Indonesia Nomor 21/27/UPG tanggal 27 Oktober 1988 tentang Sertifkat Deposito.

7. Surat Edaran Bank Indonesia Nomor 28/32/UPG tanggal 4 Juli 1995

8. Jo. S

9. urat Keputusan Direksi Bank Indonesia Nomor 28/32/Kep/Dir. tertanggal 4 Juli 1995 tentang Bilyet Giro.

10. Surat Keputusan Direksi Bank Indonesia Nomor 31/67/Kep/Dir. tertanggal 23 Juli 1998 tentang sertifikat Bank Indonesia.

11. Surat Edaran Bank Indonesia Nomor 28/49/UPG tertanggal 11 Agustus 1995 tentang Persyaratan Penerbitan dan Perdagangan Surat Berharga Komersial (Commercial Paper).

12. Surat Edaran Bank Indonesia Nomor 23/5/UKU tanggal 28 Februari 1991 tentang Pemberian Garansi Bank.

C. Classical books of Islamic jurisprudence. Based on the recommendation from a Minister of Religious Affairs through Religious Court office, based on Letter No. B/1/735 (18 February 1958), classical books which have been authoritative in solving cases in the milieu of Religious Court are 13 books.

D. Jurisprudences. Until these days, there have not been jurisprudences of Religious Court yet, which relate to Sharî’a economy. However, the existing jurisprudences are just legal verdicts of Commerce Court on conventional economy. Nevertheless, this kind of jurisprudences can be used by the religious judges as comparative materials in investigating, examining and solving cases of Sharî’a economy.

It is all these regulations that have been used so far. However, there are still obstacles. First, there is no legal certainty; second, fiqh’s rules on mu’âmalah, which scatter in the classical books of Islamic law, vary to a great deal, and it is open to criticism. From this reason, because of the authority and competence to judge in cases of disputes in Sharî’a economy become a absolute jurisdiction of judges in Religious Court, it is necessary to have a complete codification of rules on Sharî’a economy in oder that those rules have legal certainty, and also the religious judges have a standard authoritative source of reference in solving cases related to Sharî’a business.

From this fact, Mahkamah Agung makes an effrot to present Compilation of Sharî’a Economy Rules. This urgency of regulation is highly felt for the sake of legal certainty. Therefore, with the Letter of Mahkamah Agung No. 097/SK/X/2006, a team that serves to formulate the Compilation of Sharî’a Economic Rules was appointed. However, it is necessary to note that the Compilation must be in the form of authoritative ordinance, not the President’s Instruction.

It is also important to consider that in formulating the Compilation, the opinions of Islamic legal experts, which scatter in the classical books of Islamic jurisprudence, must be taken into account. Besides, Majallat al-Ahkâm al-‘Adliyyah, which is a codification of Islamic civil laws in the period of Ottoman Sultanate in 18^th century, should be considered. And, what is more important is that it is necessary to use the principles of Islamic legal theory in the books of usûl al-fiqh. Among the principles are ‘urf, istihsân, istislâh, and sadd al-dharî‘ah. Al-Qawâ‘id al-fiqhiyyah (legal maxims) and maqâsid al-sharî‘ah should also be emphasized.

Al-Qawâ‘id al-fiqhiyyah may be defined as “statements of principles that are derived from the detailed reading of the rules of fiqh on various themes.”[19] The most comprehensive and broadly based of all maxims are known as “al-qawâ‘id al-fiqhiyyah al-asliyyah”, or the normative legal maxims, and they apply to the entire range of fiqh without any specification. These legal maxims include:

1. Al-Umûr bi maqâsidi-hâ (Acts are judged by the intention behind them)

2. Lâ darara wa lâ dirâr (Harm must be eliminated).

3. Al-Yaqîn lâ yazûl bi al-shakk (Certainty is not overruled by doubt)

4. Al-Mashaqqah tajlib al-taysîr (Hardship begets facility)

5. Al-Âdah muhakkamah (Custom is the basis of judgement)

In addition to legal maxims, maqâsid al-sharî’a is also so significant that it must be taken into account. The purpose of the formation of Islamic sharî’a (maqâsid al-sharî’a) is “to bring welfare and reject any kind of malicious acts.” The principle of maslahah (welfare) is based on the Quranic texts and the hadîth of the Prophet, which is lâ darara wa lâ dirâr (Harm must be eliminated). Even the Prophet himself was sent by God to bring mercy to all mankind and universe.[20]

So, in formulating legal rules including Compilation of Sharî’a Economic Rules, human welfare should be be a basis, for which Islamic sharî’a is revealed.

IV. Concluding Remarks

As a conclusion, it is not arguable that since classical times, Islam has significantly contributed to provide an ethical-conceptual framework on the procedures and techniques of solving disputes, which include either non-litigation process such as sulh (reconciliation) and tahkîm (arbitration), or litigation such as hisbah, mazâlim, and qadâ’. The process of solving Sharî’a economic disputes in the course of history at least covers such prcocedures as sulh (reconciliation) and tahkîm (arbitration), which ends up with Islamic court (qadâ’), especially after Law No. 3/2006 has been passed. Among such modifications, an authority to solve Sharî’a economic disputes has been paid much more attention from the religious court, and even become a part of the absolute authority of religious court.

However, the most obvious obstacles are regulations, which have been used so far, have not reached a strong legal certainty. Therefore, the need for the Compilation of Sharî’a Economic Rules which has a strong legal certainty is unavoidable. Nowadays, it is in process of formulating those rules. Nevertheles, the formulating process should consider such important points as selecting fuqahâ’s opinions of mu’âmalât issues, which are covered in classical books of Islamic law, as well as Majallat al-Ahkâm al-‘Adliyyah. And, it is also important to take the issues of human welfare and local customs which do not contradict sharî’a values, into account.

Rusli, S.Ag., M.Soc.Sc is a lecturer of Social History of Islamic Law in State College for Islamic Studies (STAIN) Datokarama Palu, Central Sulawesi

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[1] Ahmad Hasan, The Early Development of Islamic Jurisprudence, (Islamabad: Islamic Research Institute, 1988), 5; Joseph Schacht, The Origins of Muhammadan Jurisprudence, (Oxford: Clarendon Press, 1953), 5. See also J. M. Muslimin, “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)”, (Ph.D Dissertation, Universität Hamburg, 2005), 3-4.

[2] Al-Tâhir Ahmad al-Zâwî, Tartîb al-Qâmûs al-Muhît, Vol. 2, 4^th Edition, (Riyâd: Dâr ‘Âlam al-Kutub, 1996), 839; Hans Wehr, A Dictionary of Modern Written Arabic, ed. J. Milton Cowan, 3^rd Edition, (Beirut: Libraire du Liban, 1980), 522.

[3] Hans Wehr, Dictionary, 522.

[4] Cited in Abdul Aziz Dahlan (ed), “as-Sulh” in Ensiklopedi Hukum Islam, Vol. 5, 6^th Edition, (Jakarta: Ichtiar Baru van Hoeve, 2003), 1653.

[5] Al-Zâwî, Tartîb, 1: 685; Wher, Dictionary, 195.

[6] Wahbah al-Zuhaylî, al-Fiqh al-Islâmî wa Adillatuhu, Vol. 6, 3^rd Edition, (Damaskus: Dâr al-Fikr, 1989), 756.

[7] Abdallah Yousuf Ali, The Glorious Kur’an: Translation and Commentary, 3^rd Edition (Beirut: Dâr al-Fikr, 1938), 191.

[8] al-Zuhaylî, al-Fiqh, 6: 757.

[9] Ibid.

[10] Quoted in Yassin Essid, A Critique of the Origins of Islamic Economic Thought, (Leiden: Brill, 1995), 115.

[11] Quoted in Dahlan (ed), Ensiklopedi, 6: 1939. See also M. Umer Chapra, The Future of Economics: An Islamic Perspective, (United Kingdom: Islamic Fondation, 2000), 73.

[12] Ahmad b. ‘Abd al-Halîm Ibn Taymiyyah, al-Hisbah fî al-Islâm Aw Wazîfat al-Hukûmah al-Islâmiyyah, (Beirut: Dâr al-Kutub al-‘Ilmiyyah, 1996).

[13] Ali, Glorious, 149-50.

[14] Al-Zuhaylî, al-Fiqh, 6: 757

[15] In more details see Abû al-Hasan ‘Alî al-Mâwardî, al-Ahkâm al-Sultâniyyah, 3^rd Edition, (Kairo: Mustafâ al-Bâb al-Halabî, 1973), 77-95.

[16] Ibid., 1943.

[17] Ibid., 1944.

[18] UU No 4/ 2004 on Judicial Power, Article 2.

[19] See also ‘Alî Ahmad al-Nadwî, al-Qawâ‘id al-Fiqhiyyah, 5^th Edition, (Damaskus: Dâr al-Qalam, 2000), 45; See also Muhammad al-Sidqî b. Ahmad al-Burnû, al-Wajîz fî Îdâh Qawâ‘id al-Fiqh al-Kulliyyah, 1^st Edition, (Beirut: Mu’assasat al-Risâlah, 1983)

[20] See Q.S. al-Anbiyâ’ [21]: 107