IJTIHAD DAN PERANANNYA DALAM PENGHARMONIAN PENGAMALAN UNDANG-UNDANG SYARIAH DI DUNIA ISLAM MASA KINI

Abstract

Since the nineteenth century, most Muslim countries had endeavoured to
reestablish and reorganize the practice of Shari 'ah Law. In order to
reinstitutionalize the practice of this law, they have to reopen the "Gate
ofijtihiid (the use of individual reasoning)" which is believed to be closed
in the Third Century of the Hijrah(or in the Ninth Century of the Christian
Era). In order to revive the practice of ijtihiid, they have adopted various
legal mechanisms to solve numerous problems and adapt the law to the
new and difforent conditions and situations. Those mechanisms are altakhayyur
(the eclectic expedient) and al-talfiq (combining the doctrines
of more than one school) which have become two eclectic devices. In
addition, other mechanisms such as the doctrine ofSiyiisah Shari 'iyyah
(the policy of administrative justice within the limits assigned to it by the
Syariah), ma~lalJah (public interest) and others have been used. One of
new approaches in applying those mechanisms, is the introduction of
various statutory legislations which has been promulgated by the national
legislature, either by parliament or state legilative assembly. The state
purpose of this stalutory legislation is to implement the Law efficiently
and as well as to harmonise administratively between the national legal

system, that was introduced by the former colonial power and the Shari 'ah
Law. For Muslim countries this method of legislation is considered
permissible as long as it does not contradict with the principle of Islamic
jurisprudence even though as ifit has moved towards the introduction of
Islamic statutory law rather than they just adhere to the jurists' law, as it
occurred in the early development of the Shari 'ah Law. However, this
tends to become more nationalistic in nature, which is against the
universality of Shari 'ah Law. Therefore such element of nationalistic
inclination should be removed in order to upgrade it to a global legal
system, apart from safeguarding the national aspects of each locality
that implements the law.