In lieu of an abstract, here is a brief excerpt of the content:

The Political Backdrop of the Enactment of The Compilation of Islamic Laws in Indonesia 125© 2003 Institute of Southeast Asian Studies, Singapore 7 THE POLITICAL BACKDROP OF THE ENACTMENT OF THE COMPILATION OF ISLAMIC LAWS IN INDONESIA Ahmad Imam Mawardi INTRODUCTION Kompilasi Hukum Islam di Indonesia (KHI), literally translated as the Compilation of Islamic Laws in Indonesia, is one of many vehicles used by the Indonesian Government to unify and codify Islamic law. This codification, utilized by judges in the religious courts, was meant to serve as a reference guide in deciding cases. Before the enactment of the KHI, other efforts to unify and codify Islamic law had been tried out. A government regulation suggesting the use of only thirteen fiqh books1 as judicial references and the enactment of Marriage Law No. 1/1974 and Religious Judicature Act No. 7/1989 are among those efforts. With respect to the historical perspective, efforts to unify and codify Islamic law in Indonesia may be regarded as an extension and perpetuation of Islamic legal thought expressed throughout the development of Islamic law. Notions of unification, compilation, and codification have occupied jurists from the early days of Islamic history. Ibn al-Muqaffa’ (d. 139/756), for example, suggested to al-Mansur (754–775), an Abbasid Caliph, that “the caliph should review the different doctrines, codify and enact his own decisions in the interest of uniformity, and make this code binding on the kadis”.2 For this reason, Ibn al-Muqaffa’ proposed to al-Mansur 125 This chapter is derived from the author’s Master thesis, “The Socio-Political Backdrop of the Enactment of the Compilation of Islamic Laws in Indonesia” (McGill University, 1998). Reproduced from Shari’a and Politics in Modern Indonesia, edited by Arskal Salim and Azyumardi Azra (Singapore: Institute of Southeast Asian Studies, 2003). This version was obtained electronically direct from the publisher on condition that copyright is not infringed. No part of this publication may be reproduced without the prior permission of the Institute of Southeast Asian Studies. Individual articles are available at 126 Ahmad Imam Mawardi© 2003 Institute of Southeast Asian Studies, Singapore to make the al-Muwatta’ of Imam Malik ibn Anas, the Medinan jurist, the standard juridical work to be used throughout the empire. During his first pilgrimage, al-Mansur met with Imam Malik and repeated al-Muqaffa’s proposal to make the al-Muwatta’ the standardized reference for all juristic questions, and that it be given a prominent place in the Ka‘bah, with copies circulating in all parts of the empire.3 However, Imam Malik declined the suggestion,4 insisting that people should not be forced to adhere to the opinions of a single jurist — opinions, which might possibly be wrong and imperfect.5 From the medieval era on, efforts to codify Islamic law, or in the words of Muhammad Hashim Kamali “the introduction of statutory legislation”, have been made in most Muslim countries.6 In the Ottoman Empire, particularly during the Tanzimat period (1839–1879), the government was successful in codifying the provisions of Islamic law and compiling them in the so-called Majallah al-Ahkam al- ‘Adliyah.7 The Mughal emperor Awrangzib Alamgir (d.1707) ordered the compilation of fatwas known as Fatawa al-Alamgiriya or Al-Fatawa al-Hindiyah8 in an attempt to unify legal rulings of his realm. The Code Morand or Avant-Projet de Code du Droit Musulman Algerien, published in 1916 in Algeria, had a similar purpose.9 In Indonesia, attempts at the unification, compilation, and codification of Islamic laws have been numerous. The KHI, which was officially issued in 1991 through a Presidential Instruction (Instruksi Presiden or Inpres), is only the latest so far. It should be remembered that behind the enactment of any law, the political goal of a government often encounter the demands of society. This frequently happens as Lev notes: What law is . . . depends upon what it is allowed to be by conditions of political power and authority, and these conditions in turn are determined by a wide variety of social, cultural and economic forces. When the conditions change, the law must also change, sometimes explicitly but at the very least implicitly.10 Or in Joseph Schacht’s words: Modernist legislation is imposed by a government whenever the modernists have succeeded in gaining its sympathy and the government feels strong enough to overcome the resistance of the traditionalist.11 The enactment of Majallat al-Ahkam al-‘Adliyah and the development of legal codification in Malaysia,12...

Share