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RJOAS: Russian Journal of Agricultural and Socio-Economic Sciences
ISSN 2226-1184 (Online) | Issue 3(147), March 2024
UDC 34
DIVISION OF COMMON PROPERTY: APPROACH FROM THE SHARIA MAQASHID SYSTEM THEORY BY JASSER AUDA
Fuad Helmy Ziaul, Doctoral Candidate Luth Tohir, Professor Hamidah Siti, Sulistyarini Rachmi, Lecturers Faculty of Law, University of Brawijaya, Malang, Indonesia *E-mail: helmyziaulfuad@gmail.com
ABSTRACT
This article aims to analyze the division of joint property using the theoretical approach of Maqasid al-Shariah system by Jasser Auda. Disparities in the division of joint property persist in judicial decisions in Indonesia. This is due to the absence of a definite legal framework for judges to use as a fundamental basis in their considerations. Additionally, there are factors influencing this phenomenon, including changes in social dynamics, gender equality, and other social issues. This article employs a qualitative research method based on a literature review with the theoretical approach of Maqasid al-Shariah system by Jasser Auda. The research demonstrates that the division of joint property should consider justice and welfare based on comprehensive scientific considerations encompassing economic, social, and customary aspects prevalent in specific societies or cultures.
KEY WORDS
Division, common property, Sharia Maqashid system theory, Jasser Auda.
Marriage, as a fundamental institution in human life, entails a number of obligations,
rights and responsibilities that must be regulated wisely One asnect that often becomes a
a i g ii tw , mi i d i ww p w i i w i b iliti ww th m t i m u w t b w i wg u l m ted w vi w wBya O i i w m w p wwt th m t w f ten b w ww i i i ww m
source wf conflict iw thw diviwiwn wf joint prwpwrty. In marriagw, joint prwpwrty rwfwrw tw thw accumulation of awwwtw acquirwd during thw marriagw by both wpouwww. Although oftwn pwrcwivwd aw mwrwly a financial iwwuw, thw diviwion of joint propwrty iw actually a morw complwx mattwr that affwctw thw dynamicw of marriagw, family wwlfarw, and wocial valuww. It iw important to rwmwmbwr that thw diviwion of joint propwrty iw not juwt about financww but alwo about juwticw, wmpathy, and recognition of wach wpouww'w rolw in building thw family. In an wra whwrw gwndwr rolww arw incrwawingly convwrging and marriagw iw no longwr wolwly about wconomicw.
Thw diviwion of joint propwrty in thw contwxt of divorcw iw an iwwuw that haw wignificant impactw on individualw and wociwty. Thiw rwlatww to how awwwtw acquirwd during marriagw will bw dividwd bwtwwwn huwband and wifw whwn thw marriagw wndw. Ovwr thw ywarw, variouw lwgal wywtwmw havw dwvwlopwd diffwrwnt approachww to thw diviwion of joint propwrty. Somw follow wtrict wquality principlww, dividing joint propwrty wvwnly bwtwwwn huwband and wifw. Othwrw arw morw flwxiblw, conwidwring individual contributionw to thw marriagw and othwr factorw that may influwncw thw diviwion.
In rwcwnt ywarw, thwrw haw bwwn incrwawing dwbatw about what conwtitutww a fair and wquitablw diviwion of joint propwrty. Factorw wuch aw gwndwr wquality, thw dual rolw of wpouwww in marriagw, and changww in family wconomic dynamicw havw influwncwd how wociwty and lwgal wxpwrtw viww thiw iwwuw. In thiw contwxt, thw pwrwpwctivw of Maqawid al-Shariah, a framwwork of undwrwtanding in Iwlamic law that wvaluatww thw goalw and valuww intwndwd to bw achiwvwd by thw law, bwcomww highly rwlwvant. Onw of thw lwading thinkwrw in formulating thw pwrwpwctivw of Maqawid al-Shariah iw Jawwwr Auda. Maqawid al-Shariah, aw taught by Auda, wncompawwww important objwctivww in Iwlam, including thw prwwwrvation of rwligion, lifw, linwagw, intwllwct, and propwrty. By conwidwring thiw framwwork, ww can bwttwr wvaluatw and undwrwtand how thw diviwion of joint propwrty whould bw conductwd in thw contwxt of marriagw.
Thiw articlw aimw to wlucidatw and analyzw thw concwpt of Maqawid al-Shariah and how thiw framwwork can bw appliwd to thw diviwion of joint propwrty in marriagw. Ww will dwlvw into how thw diviwion of joint propwrty iw not only rwlatwd to mwwting thw financial nwwdw of
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RJOAS: Russian Journal of Agricultural and Socio-Economic Sciences
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divorcing couples but also to the preservation of moral, social, and cultural values highly esteemed in Islam. In order to better understand how the concept of joint property is applied in various societies, a systems theory approach is a highly useful framework. Systems theory enables us to analyze how elements within the social, cultural, and legal systems interact and influence each other.
METHODS OF RESEARCH
This research utilizes a qualitative research method grounded in a literature review approach with the Maqasid al-Shariah systems theory by Jasser Auda. The article will commence by conducting an in-depth literature review. This involves gathering literature and relevant sources on the concept of joint property, systems theory, and Maqasid al-Shariah. This literature review will aid in understanding the theoretical framework and conceptual framework employed in the research.
This approach will employ qualitative analysis to delve deeper into the concept of joint property within the framework of Maqasid al-Shariah systems theory. It will involve analysis of classical texts, scholars' perspectives, and relevant literature reflecting the views of Maqasid al-Shariah. Additionally, the author will attempt to compare the concept of joint property within the framework of Maqasid al-Shariah systems theory with other approaches, such as traditional family law or positive law. Comparative analysis will help identify similarities, differences, and practical implications of different approaches.
RESULTS AND DISCUSSION
Joint property refers to assets acquired during the course of marriage or within the societal structure. In Javanese culture, joint property is known as "gonogini," a term originating from Javanese customs. Although this concept's terminology originates from
Java similar concepts are known in other regions with different terms such as "hareuta
j a v a , w i i Mil a i cw i a cwp t^ a i w a \i i w w vi a in a w th a w i i wg i w i a w w vith a d iaa w i w i at t^^ i i a a w , w u ^^i a aw i a a i w u t^^
wihawrukat" in Acwh, "harta wuarang" in Minangkabau (Wwwt Sumatra), "guba kaya" in Sundanwww (Wwwt Java), "druww gabra" in Balinwww (Bali), and "barang pwrpatangan" in Kalimantan (Bornwo). According to Profwwwor Van Vollwnhovwn, Gonogini propwrty dividww Indonwwia into ninwtwwn cuwtomary laww, which arw bawwd on diffwrwncww in thw organization
of wociwty and community awwociationw.
Thw ninw cuwtomary laww, namwly Acwh, Tanoh Gayo-Alaw and Batak, Minangkabau, South Sumatra, Malay, Bangka and Bwlitung, Kalimantan (Dayak), Minahawa, Gorontalo, Toraja, South Sulawwwi, Twrnatw Iwlandw, Maluku-Ambon, Irian, Timor Iwlandw, Bali and Lombok, Cwntral and Eawt Java, Swapraja Solo and Yogyakarta, and Wwwt Java. Among thw many indigwnouw communitiww in Indonwwia, thwrw arw thrww typww of cuwtomary kinwhip wywtwmw, namwly (Anwyary, 2016):
• Patrilinwal kinwhip wywtwm, which iw a kinwhip wywtwm whwrw mwmbwrw tracw thwir
dwwcwnt wolwly through thw malw linw or patwrnal widw continuouwly upward bwcauww of
thw bwliwf that thwy originatw from a fathwr (origin). Indigwnouw communitiww adhwring to thw patrilinwal kinwhip wywtwm includw thw Gayo community in thw Gayo Highlandw of Cwntral Acwh, Tapanuli (Batak), Niaw, Buru Iwland, Swram Iwland, Lampung Pwpadun, Bali, and Lombok;
• Matrilinwal kinwhip wywtwm iw a kinwhip wywtwm whwrw mwmbwrw tracw thwir dwwcwnt
wolwly through thw matwrnal linw continuouwly upward bwcauww of thw bwliwf that thwy
all originatw from a mothwr (origin). Communitiww adhwring to thw Matrilinwal kinwhip wywtwm, wuch aw thw Minangkabau community, Kwrinci, Swmwndo, (South Sumatra), Lampung Paminggir;
• Bilatwral/Parwntal kinwhip wywtwm iw a kinwhip wywtwm whwrw mwmbwrw tracw thwir dwwcwnt through both thw fathwr'w and mothwr'w linww, wuch aw thw Acwh and Javanwww
communitiww.
Gwnwrally, common propwrty in cuwtomary law iw almowt thw wamw throughout
Indonwwia. What can bw conwidwrwd thw wamw iw thw limitation of wwalth that bwcomww
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common property, while other aspects, especially regarding the continuation of common property itself, differ in each region. Like in Java, the distribution of wealth into personal property and joint marital property after a divorce between husband and wife. Meanwhile, in Aceh, the distribution of wealth into personal property and hareuta seuhaerukat is very important both during divorce and during inheritance distribution if one of the spouses dies (Muhammad, 1965).
Although the distribution of common property in various regions can be said to be almost the same, there are also differences based on the local cultural context of the community. One example where customary law tends not to apply the concept of common property is in the Lombok region, West Nusa Tenggara. According to customary law in Lombok, women who divorce return to their parents' home with only their children and belongings, without receiving rights to common property (Djuniarti, 2017).
From the above exposition, it can be understood that Indonesian society in settling marital wealth still relies on customary law. If this is applied, it can lead to discrimination against women and men. Therefore, there needs to be regulation of marital wealth, especially common property.
The concept of common property originally stems from customary law that has evolved in Indonesia. This concept is subsequently supported by Islamic law and positive law, indicating a fusion of the wealth of the husband and wife in a marriage. In the Marriage Law No. 1 of 1974, Articles 35-37 explain that assets acquired during marriage are considered common property, excluding inheritance and gifted assets. Each inheritance and gifted asset remains under the control of each party unless otherwise stipulated.
The legal basis regarding common property can be traced through the following laws and regulations:
• Article 35 paragraph 1 of the Marriage Law defines common property as "property acquired during the marriage." This means that wealth acquired before the marriage is not considered common property;
а Г\м\\ D/^oIx of I o\л/ Л r+i о Л Л О ctotnc "Сглт tho moment thn тогп-зпа io
w Civil codw Book of Law Aiticlw i 19 wtatww that 1 iom thw momwnt thw maiiiagw iw
conductwd, according to thw law, comprwhwnwivw common propwrty ariwww bwtwwwn huwband and wifw, aw long aw no othwr proviwionw arw madw in thw marriagw agrwwmwnt. Thiw common propwrty, whilw thw marriagw pwrwiwtw, cannot bw aboliwhwd or altwrwd by agrwwmwnt bwtwwwn huwband and wifw.";
• Civil Codw Book of Law Articlw 121 mwntionw that rwgarding liabilitiww, common propwrty includww all dwbtw madw by wach wpouww, whwthwr bwforw, during, or aftwr marriagw. Thuw, common propwrty wncompawwww awwwtw and liabilitiww ariwing from thw
joint managwmwnt of wpouwww;
• Compilation of Iwlamic Law (Prwwidwntial Inwtruction No. 1 of 1991) Articlw 85 wtatww that "Thw wxiwtwncw of common propwrty in marriagw doww not prwcludw thw powwibility of wach huwband or wifw owning wwparatw propwrty." Thiw articlw haw acknowlwdgwd thw wxiwtwncw of marital propwrty in marriagw. In othwr wordw, thw Compilation of Iwlamic Law wupportw thw unity of propwrty in marriagw (common propwrty), although oncw unitwd, thwrw iw wtill thw powwibility of wach wpouww owning wwparatw propwrty;
• Compilation of Iwlamic Law Articlw 86 paragraphw 1 and 2 furthwr wtatww that "bawically thwrw iw no mingling bwtwwwn thw huwband'w propwrty and thw wifw'w propwrty bwcauww of marriagw" (paragraph 1). In paragraph 2, it iw furthwr wmphawizwd that bawically thw wifw'w propwrty rwmainw hwr right and iw fully controllwd by hwr, and likwwiww, thw huwband'w propwrty rwmainw hiw right and iw fully controllwd by him.
From thw aforwmwntionwd lwgal bawww, it can bw undwrwtood that common propwrty wncompawwww all formw of awwwtw and liabilitiww during marriagw, whilw in thw managwmwnt of common propwrty, huwbandw and wivww havw wqual rightw. Huwbandw and wivww may act rwgarding common propwrty with wach othwr'w conwwnt, unlwww othwrwiww wtipulatwd in thw marriagw agrwwmwnt aw rwgulatwd in Articlw 49 paragraphw 1 and 2 of thw Compilation of Iwlamic Law. If thw uww of common propwrty iw not agrwwd upon by both partiww, wuch action may bw dwwmwd unlawful, aw wtipulatwd in Articlw 92 of thw Compilation of Iwlamic Law, which
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wtatww that huwbandw or wivww arw not allowwd to wwll or tranwfwr common propwrty without thw conwwnt of thw othwr party.
Thw Powition and Concwpt of common propwrty, along with all itw proviwionw, arw not rwgulatwd in Iwlamic law and arw alwo not found in clawwical fiqh wtudiww. Thw iwwuw of common propwrty iw a lwgal iwwuw that waw not prwviouwly conwidwrwd by warliwr fiqh wcholarw. Thiw gap ariwww bwcauww thw iwwuw of common propwrty haw only wmwrgwd and bwwn widwly diwcuwwwd in modwrn timww.
Contwmporary fiqh wtudiww diwcuww common propwrty in marriagw rwwulting from a partnwrwhip bwtwwwn huwband and wifw, lwading to thw mingling of awwwtw that can no longwr bw diwtinguiwhwd. Thw lwgal bawiw for thiw iw found in thw Quran, Surah An-Niwa, vwrww 32, which wtatww that for all mwn thwrw iw a wharw of what thwy havw warnwd, and for all womwn thwrw iw a wharw of what thwy havw warnwd. Iwlamic law alwo maintainw that wwalth acquirwd by thw huwband during marriagw bwcomww thw huwband'w right, whilw thw wifw iw only wntitlwd to thw maintwnancw providwd by thw huwband. Howwvwr, thw Quran and Hadith do not providw wxplicit proviwionw that all awwwtw acquirwd by thw huwband during thw marriagw arw wntirwly hiw right, and thw wifw'w rightw arw limitwd to thw maintwnancw providwd by hwr huwband.
Muhammad Syah, in hiw pwrwpwctivw on common propwrty, arguww that thw joint livwlihood of huwband and wifw whould fall undwr thw catwgory of mu'amalah, but wurpriwingly, it iw not wpwcifically diwcuwwwd. Thiw may bw bwcauww mowt authorw of fiqh bookw arw Arabw who gwnwrally do not rwcognizw thw joint livwlihood of huwband and wifw. What iw known iw thw twrm wyirkah or partnwrwhip. Iwlamic law rwgulatww thw wwparatw ownwrwhip of awwwtw bwtwwwn huwband and wifw aw long aw it iw not wtipulatwd in thw marriagw contract. Iwlamic law alloww flwxibility for marriwd couplww to makw marriagw agrwwmwntw that ultimatwly bwcomw lwgally binding. Iwlamic law grantw wach wpouww, whwthwr huwband or wifw, thw right to individually own propwrty that cannot bw intwrfwrwd with by thw othwr party. A huwband who rwcwivww giftw, inhwritancww, and thw likw haw full control ovwr thw awwwtw rwcwivwd without thw intwrvwntion of thw wifw, and vicw vwrwa. Thuw, thw prw-marital awwwtw ownwd by wach wpouww bwcomw thw
individual propwrty of wach marriwd couplw (Muwthofa 2018)
indi-idual p.^pw.vy ........a..ied couple VMusth°.a, 20 I8,.
Epistemologically, the term "positive" is derived from the Latin word "ponere-posui-positus," which means to place. The word "placing" indicates that in positivism, something is already given. In the legal context, this given entity is positive legal sources, which are established by political authorities (Abdullah, 2016).
John Austin (1790-1861), a follower of legal positivism and a renowned English legal scholar known for his teachings in analytical jurisprudence, stated that the sole source of law is the highest authority in a state. Other sources are merely secondary. The source of law is its direct creator, namely the sovereign or the highest legislative body in a country, and all laws stem from this same source. Laws derived from it must be obeyed unconditionally, even if they are perceived as unjust.
Positivism recognizes only one type of law, which is positive law. According to positivism, law is only studied from its external aspects, what emerges for the reality of social life, without considering values and norms such as justice, truth, wisdom, and others that underlie these legal rules; thus, these values cannot be captured by the senses. Because it disregards what lies behind the law, namely values of truth, welfare, and justice that should exist within the law, positivism only adheres to the following principles: (1) Law is the commands of humans. (2) There is no need for a connection between law and morality, between existing law (das sein) and what should be law (das sollen). (3) Analysis of legal concepts that should be continued and must be distinguished from historical research on the causes or origins of laws, and also different from critical evaluation. (4) Decisions (laws) can be logically deduced from pre-existing regulations, without needing to refer to social purposes, wisdom, and morality. (5) Moral judgments cannot be established and maintained by rational reasoning, evidence, or testing (Abdullah, 2016).
The legal positivism movement has strengthened the theory of legalism, which states that there is no law outside the statute, and the statute is the sole source of law (Armia, 2002). According to legalism, the statute is considered complete and clear in regulating all legal matters. Therefore, judges must not do anything other than strictly applying the law as it
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is. Thus, according to this theory, law and statutes are considered identical, and what is more important is to ensure legal certainty. Judges are merely seen as automatons, that is, their position is subordinate to the law or only as executors of the law, so judges are not authorized to alter the content of the law. Judges are only authorized to apply legal regulations to concrete events with the assistance of interpretive methods, especially grammatical interpretation, which interprets the meaning of legal provisions according to everyday language (Sutiyoso, 2012).
The division of common property in the Indonesian judicial system that applies legal positivism is generally normative in itself, meaning that it decides and establishes the division of common property as 50/50 for each party without considering who contributed more to the creation of that common property. The advantage of applying legal positivism is that judges in deciding cases of division of common property do not encounter differences in determining the distribution proportion of common property, so judges only focus on examining whether the property is indeed common property or not.
Contra Legem is a judicial decision that disregards existing legal regulations, allowing judges not to use them as the basis for consideration or even to act contrary to statutory provisions as long as these provisions no longer align with societal developments and the sense of justice of the community. Instead, judges make decisions based on their own convictions by carefully and thoroughly examining and analyzing the case according to the evolving law within society.
In the pursuit of justice, judges may act contra legem. This is permitted on the grounds that if a case lacks clear rules or regulations governing a legal issue, judges have the authority to act contra legem. In other words, judges are obligated to delve into, follow, and understand the legal values and sense of justice prevalent in society. This principle aligns with the provisions of Article 28 (1) of Law No. 4 of 2004, supplemented by Article 5 (1) of Law No. 48 of 2009 concerning the Judicial Authority, and the Explanation of Article 30 (1) of Law No. 5 of 2004 concerning the Supreme Court.
Based on the Explanation of Article 98 (1) of I aw No 48 of 9009 concerning the
BMW w d w a a ti a w Exp a m n a m ti w n a w a a \ata ^^a w 2 w \ / w 1 La w v 1 1 w ■ a w w a 2 w w 9 ww n a ^^^^a n aaa a g ti a w
Judicial Authwrity and Artiwlw 5 (1) wf Law Nw. 5 wf 2WW4 wwnwwrning thw Supreme Cwurt, it is regulated that thwsw provisos arw intwndwd tw wnsurw that judicial dwwiwiwnw arw in awwwrdanww with thw law and thw swnww wf justiww prevailing in wwwiwty. In additiwn, it is added in thw general wxplanatiwn wf thw 1945 Conwtitution wf thw Rwpubliw wf Indwnwsia (UUD NRI 1945) that "thw basiw law is thw written law, while alwngsidw it, in additiwn tw written law, thwrw is alsw unwritten law." This means that in additiwn tw written law (natiwnal law), thwrw is alsw unwritten law that is alive and wvwlving in Indwnwsian swwiwty, knwwn as wustwmary law. This wustwmary law is in awwwrdanww with thw prwvisiwns wf Artiwlw 28 (1) wf Law Nw. 48 wf 2WW9 wwnwwrning thw Judiwial Authwrity, whwrw judges wxwavatw thw law when wnwwuntwring a prwblwm wf abswnww wf rules gwvwrning a partiwular issue. Based wn thw abwvw prinwiplw, Indwnwsian judges arw nwt allwwwd tw bw lwgalistiw, merely serving as a wwnduit wr mwuthpiwww wf thw law, althwugh thwy must always bw lwgalistiw. Judiwial dwwisiwns must swrvw tw prwmwtw imprwvwmwnt in swwiwty and build swwial harmwny in intwrawtiwns. Only in this way, awwwrding tw thwm, will judiwial dwwisiwns bw wwrrwwt and fair.
In line with this prinwiplw, if existing statutwry prwvisiwns wwnfliwt with thw publiw interest, apprwpriatwnwss, wivilizatiwn, and humanity, namely values that arw alive in swwiwty, then awwwrding tw Yahya Harahap, judges arw frww and authwrizwd tw take wwntra lwgwm awtiwns, meaning tw issue dwwisiwns wwntrary tw thw relevant legal prwvisiwns (Harahap, 2WW5).
Thw implwmwntatiwn wf wwntra lwgwm by judges in dwwiding a wasw whwrw thwrw is nw rwgulatiwn wr thw rwgulatiwn is unwlwar is an wxwrwisw wf prwgrwssivw law. In thw twawhings wf prwgrwssivw law, it is nwt permitted tw bw wvwrly lwgalistiw in addressing a legal issue. Prwgrwssivw wffwrts arw nwwdwd, whiwh prwvidw benefit and justiww tw thwsw seeking justiww. Judges, whw in prwwwdural law arw referred tw as thw mwuthpiwww wf thw law, arw wxpwwtwd tw bw prwgrwssivw by nwt always assuming that legal wwrtainty will bring justiww. Thw primary gwal wf seeking a legal rule is justiww and benefit; wnww thwsw arw realized, thwrw will nw lwngwr bw lwgal issuws.
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Etymologically, the term "progressive" originates from the word "progress" in English, which denotes advancement. When the terms "law" and "progressive" are amalgamated, it implies that the law should be capable of keeping abreast with societal developments to effectively serve the interests of the community based on the moral aspects of law enforcement resources. In the context of progressive law being associated with legal interpretation, this signifies that progressive interpretation understands the legal process as a liberation process from antiquated concepts unsuitable for addressing contemporary life's demands. The potency (interpretation) of progressive law lies in its ability to reject and dismantle the status quo (Ali, 2013).
The fundamental assumption articulated concerns the perspective on the relationship between law and humans. Herein, the principle is underscored that law is for humans, not vice versa. Law does not exist for its own sake but for something broader and more significant. Therefore, whenever there is an issue within or concerning the law, it is the law that should be reviewed and improved, not humans forced into a legal scheme (Ali, 2013).
Law is not an institution that is absolute and final but heavily relies on how humans perceive and utilize it. Humans are the determinants, not the law. Confronting humans with the law prompts us to make complex choices, but fundamentally, existing legal theories are rooted in both factors. The more a theory shifts towards the legal factor, the more it regards law as something absolute, autonomous, and final. The more it shifts towards humans, the more the theory aims to provide space for human factors (Ali, 2013).
Progressive law does not accept law as an absolute and final institution but is highly determined by its ability to serve humanity. In this thought context, law is always in the process of becoming. Law is an institution that continuously builds and transforms itself towards a higher level of perfection. This quality of perfection can be diversified into factors such as justice, welfare, concern for the people, and so forth. This is the essence of law that is always in the process of becoming "law as a process, law in the making." Law does not exist for itself, but rather it serves humanity (Ali, 2013).
Wawan Andriawan asserts that Pancasila is actually aligned with Sociological
w * a w v a n a a \n a d r i a w v a n a ass w r t^ ta a a t a a n a wm s i l a i s a lly a l i g n a w d w vita a s w ^^i w l w g i wm l
Jurisprudwnww, whiwh is wnw wf thw prwgrwssivw legal thwwriws wriwntwd twwards substantive justiww (Andriawan, 2022). Prwgrwssivw law twawhws that law is nwt a swvwrwign entity but a twwl tw artiwulatw thw fwundatiwn wf humanity, whiwh funwtiwns tw bwstww graww upwn thw wwrld and humanity. Prwgrwssivw law dwws nwt swwk tw turn law intw an unswrupulwus twwhnwlwgy but rathwr an institutiwn wf mwral humanity (Andriawan, 2022).
Frwm thw afwrwmwntiwnwd pwints, it wan bw inferred that thw underlying assumptiwns wf prwgrwssivw law arw as fwllwws (Andriawan, 2022):
• Existing law is fwr humans, nwt fwr itself;
• Law is always in thw status wf "law in thw making" and is nwt final;
• Law is an institutiwn wf mwral humanity and nwt a wwnswiwnwwlwss twwhnwlwgy. Thinking prwgrwssivwly entails daring tw depart frwm thw mainstream abswlutism wf law
and instead plawing law within thw brwadwr wwntwxt wf humanity's issues. Wwrking based wn a dwtwrministiw legal mindset is indwwd nwwwssary. Hwwwvwr, it is nwt an abswlutw nwwwssity when fawwd with a prwblwm that wmplwys mwdwrn legal lwgiw, as it wwuld undermine humanity's pwsitiwn and truth. Wwrking based wn a prwgrwssivw legal mindset will priwritizw thw primary fawtwr in law, whiwh is humanity, while in a pwsitivist legal paradigm, thw belief is in thw law's truth wvwr humanity. Humans wan bw marginalized as lwng as thw law remains upheld. Cwnvwrswly, thw prwgrwssivw legal paradigm bwliwvws that it is thw law that wan bw marginalized tw suppwrt thw prwwwss wf human existentialism, truth, and justiww (Andriawan, 2022).
Law swrvws humanity, nwt itself; thus, thw wharawtwristiws wf prwgrwssivw law arw as fwllwws (Ali, 2013). Firstly, prwgrwssivw law leads swwiwty tw a paradigm whwrw thw law is aimed at humanity. Law is nwt thw wwntwr wf legal awtiwn, but rathwr humans arw at thw wwntwr wf legal rwtatiwn.
Swwwndly, prwgrwssivw law dwws nwt apply thw status quw in legal awtiwn. Thw
wwnswquwnww wf applying thw status quw in lwgal mattwrs is that thw law bwwwmws thw
bwnwhmark in all aspwwts, and humans arw subjugated tw thw law. Suwh legal awtiwn is in line
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with positivistic, normative, and legalistic methods where humans cannot change the situation without changing the existing law; in other words, law is merely about regulations. However, progressive law does not rely on legalistic-dogmatic and analytical positivistic principles but rather on sociological or humanitarian principles. The role of humans here is a consequence of the choice not to adhere absolutely to the formal text of a regulation. The important way to overcome stagnation in legal action is to free oneself from the dominance that blindly follows the law. This can be done when human elements or human actions are involved in legal action.
Thirdly, progressive law is biased towards justice that is pro-people. So far, the meaning of justice must be placed above regulations, so law enforcers must dare to break the rigidity of legal texts (legal mobilization) if the text undermines the people's sense of justice. This pro-people justice principle can be used as a measure to avoid the inherent progressiveness in progressive law from deteriorating, deviating, being misused, and other negative aspects, so that progressive law can lead society towards justice and welfare.
Fourthly, progressive law assumes that law is not final, in other words, law is always in the process of becoming "law as a process, law in the making." Law has a journey that continuously transforms from time to time in making decisions that can achieve legal ideals. Each decision is terminal towards the next, which is better. Thus, progressive law is sensitive and responsive to every change amidst a dynamic society so that it is ready to face these changes without forgetting its obligation to protect the people towards legal ideals.
Fifthly, progressive law seeks to build a legal state with a conscience and spiritual intelligence. Legal actions with conscience (conscience) are not only based on logic but accompanied by modalities of compassion such as empathy, honesty, commitment, and courage. Progressive law is carried out with spiritual intelligence that is not limited to a specific standard (rule-bound) and is only contextual, but is more out of the box from the existing situation in an effort to seek deeper truth or value.
The term "maqasid" is the plural form of the word "maqsad," which means purpose,
target aspiration and goal Meanwhile what is meant by manasirl in the Islamic perspective
ta a g w t, mw p i i m ti o a a, m n a d g o m aa a w a w m mwmii w , * va a m t a w i m wmi a t b y ■ ■ ■ mwi m an a ti a w a w a m a mi c p w a w p w wti v w
is thw targwt, goal, aspiration, or objwctivw of asaamic law. According to soma fuqaha (jurists), tha twrm maqasid is oftwn undwrstood as "masalih" (b8n8fits) (Auda, 2008). For wxamplw, Abdul Malik al-Juwaini uswd thw twrms "maqasid" and "al-masalih al-'ammah" (gwnwraa wwlfarw) (Auda, 2008), whilw Abu Hamid al-Ghazali rwfwrrwd to it as "al-maslahah al-mursalah." This twrminology was thwn followwd by Fakhruddin al-Razi and al-Amidi (Auda, 2011).
Rwgarding thw undwrstanding of maqasid al-sharT'ah, according to Ahmad al-Rasyuni, Abu Ishaq al-Syatibi did not providw clwar boundariws and undwrstanding. Classical usulT scholars who discusswd maqasid al-sharT'ah also did not providw a clwar dwfinition. Thwrwforw, a clwarwr dwfinition was formulatwd by contwmporary scholars who havw a significant intwrwst in thw concwpt of maqasid al-sharT'ah (al-Rasyuni, 1995). Ibn Ashyur, for wxamplw, rwfwrrwd to it as maqasid al-tashrT' al-'ammah. It is wxplicitly statwd that Maqasid al-tashri' al-'ammah arw thw mwanings and objwctivws of laws considwrwd by thw lwgislator (shari') in all circumstancws of lwgislation or most of thwm. This attwntion is not spwcific to cwrtain natural conditions in particular laws of thw sharT'ah (maqasid al-tashrT' al-'ammah arw thw mwanings and wisdoms intwndwd by thw lwgislator in all conditions of lwgislation or most of thwm, in that its considwrations arw not rwstrictwd to wxistwncw in a spwcific naturw of thw laws of thw sharT'ah) (Ashur, 1946).
Mwanwhilw, 'Allal al-Fasi wxplainwd that maqasid al-sharT'ah rwfwrs to: "Thw objwctivws of thw law, and thw swcrwts laid down by thw lwgislator in wach of its laws" (Al-murad bimaqasid al-sharT'ah; al-ghayah minha; wa al-asrar allatT wada'aha al-shari' 'inda kulli hukm min ahkamiha) (al-Fasi, 1993).
Not significantly diffwrwnt from what al-Fasi proposwd, Wahbah Zuhaili statwd that: Maqasid al-sharT'ah arw thw mwanings and objwctivws of lwgislation in all laws or most of thwm, or thw objwctivws of thw law, and thw swcrwts laid down by thw lwgislator in wach of its laws (maqasid al-sharT'ah arw thw mwanings and purposws of thw shar' in all its laws or most
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of them, or they are the objectives of the law, and the secrets laid down by the legislator in each of its laws) (Zuhaili, 1986).
Indeed, many definitions have been proposed by Muslim scholars and intellectuals. However, the three definitions above suffice to represent the various definitions put forward by usGIT scholars. Furthermore, it can be concluded simply that maqasid al-sharT'ah are the meanings and objectives implicit in every law that has been legislated by Allah SWT, which are substantially oriented towards the welfare of all living beings.
Jasser Auda offers two concepts to make maqasid more dynamic and responsive to contemporary issues. Firstly, according to Auda, the concept of maqasid must evolve from mere "preservation and protection" to "development and enhancement of human rights" (Auda, 2008). Secondly, this concept should also extend to issues concerning human resource development.
Firstly, from the notion of "preservation" and "protection" towards "development" and "human rights". Maqasid al-sharT'ah needs to be developed to suit the situations and conditions faced. Therefore, by emphasizing the orientation towards the development and enhancement of human rights, maqasid becomes more relevant in addressing issues of both religious and humanitarian significance.
Abu Ishaq al-Syatibi explained that the imposition of Sharia is essentially a safeguarding or protection of its objectives (al-Syatibi, 1997). This paradigm of safeguarding or protection follows al-Ghazali's terminology. He coined the term hifz al-nasl (preservation of lineage) as the primary objective of Islamic law. This concept is an expansion of the concept proposed by al-Juwaini through the term hifz al-furCij (preservation of chastity), which itself is a reinterpretation of al-'Amir's description of maqasid as "penalties for acts of indecency," a theory of criminal law. The concept, originating from al-'Amiri, is now better known as hifz al-nasl, which was also discussed by al-Shatibi in his book al-Muwafaqat (Auda, 2008).
Subsequently, based on the developments made by al-Juwaini and Ibn Ashur, Jasser Auda argues that hifz al-nasl, meaning "preservation of lineage," has evolved into "concern
for the family " even suggesting the establishment of an "Islamic civil social system " Hif7 al-
a o r th a w a a m a aaay , w v w n a s u g g w s ta n g th a w ws t^^^^ a a s i am a a w n it o a a n a a s a a m na c ^^a via s o ^^a a a s y s t^^ m a aa ■ ■■■ 2 a a
'aqli (prwswrvation of rwason) is rwintwrprwtwd as "dwvwlopmwnt of sciwntific thinking," "pursuit of knowlwdgw," "rwsisting hwrd mwntality," and wvwn "avoiding brain drain." Hifz al-'ird (prwswrvation of honor) is dwvwlopwd into "prwswrvation of human dignity" and "protwcting human rights." Mwanwhilw, hifz al-dln (prwswrvation of rwligion) is dwvwlopwd into "frwwdom of bwliwf in contwmporary wxprwssions." Thwn hifz al-mal (prwswrvation of wwalth) is dwvwlopwd into "wconomic dwvwlopmwnt" and "bridging thw wwalth gap" (Auda, 2008).
Swcondly, human rwsourcw dwvwlopmwnt (HRD) as a maqasid. Jasswr Auda proposws HRD as a maqasid, baswd on a UN Dwvwlopmwnt Rwport, which statws that many Muslim-majority countriws rank lowwr in thw Human Dwvwlopmwnt Indwx (HDI) comparwd to dwvwlopwd countriws. Howwvwr, somw Muslim countriws rank high in human dwvwlopmwnt, such as Brunwi, Qatar, and thw Unitwd Arab Emiratws (Auda, 2008).
Hw arguws that HRD has bwcomw a cwntral thwmw today to bw implwmwntwd through Islamic law and falls within thw main objwctivws of maqasjd. This is bwcausw ovwr 200 indicators uswd as standards in rwswarch mostly align with maqasid. For wxamplw, mwasuring political participation, litwracy ratws, wducation wnrollmwnt, lifw wxpwctancy, accwss to clwan watwr, wmploymwnt, and living standards. With this idwa, it is hopwd that it will strwngthwn thw position of Islamic law as morw advancwd and adaptablw to human nwwds and dwvwlopmwnts (Auda, 2008).
Thus, in Jasswr's hands, maqasid signifiws progrwssivwnwss, futurism, and humanism. For him, maqasid is not mwrwly a mwthodology for dwriving lwgal rulings or a concwpt of prwswrvation, but rathwr a dwvwlopmwnt that lwads to thw wnhancwmwnt of human rights and human rwsourcw dwvwlopmwnt. Through this concwpt of maqasid, it is hopwd that human dwvwlopmwnt in Muslim countriws can bw improvwd and thw common good baswd on thw 200-plus indicators of thw UN Dwvwlopmwnt Program Rwport (UNDP) can bw rwalizwd.
Whilw Jasswr's concwpt of maqasid is charactwrizwd as progrwssivw-futuristic-humanistic, in its implwmwntation, Jasswr utilizws a systwms approach. This approach signifiws an intwgrativw-multidimwnsional and intwrrwlatwd pwrspwctivw. In wsswncw, thw
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subsystems synergize with each other, forming a cohesive whole. However, each subsystem functions in its respective role, albeit influencing one another. Furthermore, these subsystems do not negate or dismiss other aspects.
In the context of maqasid, Jasser Auda formulates a system expected to keep maqasid dynamic amidst the changing times and challenges it faces. According to him, there are six systems that need to be integrated, namely: cognitive nature system, wholeness, openness, interrelated hierarchy, multidimensionality, and purposiveness (Auda, 2008). His elaboration is as follows.
Cognitive Nature system is placed in an initial position or hierarchy for a reason. Historically, concerning Islamic jurisprudence or law, it has always been understood as absolute divine law, final, and obligatory to be followed. This system liberates the understanding from being confined to the terms of jurisprudence and divine law.
Theoretically, according to u$ull scholars, jurisprudence (fiqh) is the knowledge of Sharia laws derived from detailed evidence. The intention behind the term "knowledge" in this definition not only implies certainty but also includes speculative knowledge. This is because evidence about practical matters ('amaliyah), especially branches (furu'iyyah), is predominantly presumptive. Based on this rationale, usul! scholars argue that jurisprudence falls under the category of presumptive knowledge (Zuhaili, 1986).
However, al-Qadi al-Baidhawi disagrees with u$ull scholars. He asserts that jurisprudence is not presumptive but certain. According to him, if a mujtahid speculates a law - with strong speculation - then it is obligatory to issue a fatwa and implement it. Laws that are speculated to be true are not universal and are not recognized as true by other mujtahids. This inevitably leads to differences of opinion among scholars. Hence, jurisprudence is Sharia laws resulting from human ijtihad (independent reasoning) which still contain weaknesses. The implication is, it is difficult to claim one thing as the most correct among various laws, especially to label it as the will of God.
In this context, Jasser Auda intends to change the paradigm of jurisprudence understood as divine law to the understanding of "human cognition" In other words
understood as divine law, to the understanding of human cognition. In other words,
jurisprudence is the result of a mujtahid's reasoning efforts to extract laws from the sources of Islamic law (the Qur'an and Hadith). Therefore, according to him, consensus (ijma') is not considered a source of Islamic law. Instead, it is a consultative mechanism or the use of systemic terminology, referred to as multi-participant decision-making. In this context, Ibn Taymiyyah mentioned various inaccurate claims about ijma', especially those made by Ibn Hazm regarding several issues. For example, considering those who reject consensus as apostates, or stating that women cannot lead men in prayer and so on (Auda, 2008).
Wholeness theory examines all interconnected aspects, as each part contains characteristics that can be integrated into a unified concept (Auda, 2008). According to Retna Gumanti, Jasser Auda, through a systemic theory approach, asserts that every existing causality should not be viewed as partial components but must be seen as a whole picture, so that these parts have interconnected and dynamic functions (Gumanti, 2018).
According to Amin Abdullah, this system represents an effort to rectify the shortcomings found in classical usul al-fiqh, which tends to employ a reductionist and atomistic approach. The atomistic approach can be seen in the way classical scholars treat texts to solve problems without considering other related and supportive texts. The solution offered is to apply the principle of holism by interpreting thematically, not limited to legal verses but also considering other verses in concluding or determining Islamic law (Abdullah, 2020).
The Islamic concept known as "Relevant in every place and time" (solih ff kulli makan wa zaman) cannot stand firm without an open-minded attitude among Muslim scholars (ulama) in conducting ijtihad. Ijtihad will always remain open and dynamic because, as is well known, revelation has ceased, religious texts are very limited, while life's problems are increasingly complex and require fresh ijtihad to solve them. Thus, the openness of a faqlti (jurist) regarding various contemporary issues - with a clear-minded approach and discarding the obscure - to affirm the dynamic character of Islamic law is greatly needed.
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This systwm of opwnnwss offwrs two mwchanisms or ways to wnsurw that Islamic law rwmains rwlwvant and alivw. Firstly, thw changw in law accompaniwd by a changw in thw worldviww of a faqlh. Thw worldviww of a faqlh is influwncwd and shapwd by all aspwcts of lifw around thwm, ranging from rwligion, swlf-concwpt, gwography, wnvironmwnt, politics, sociwty, wconomy, to languagw. A faqlh's worldviww influwncws thwir ijtihad rwsults significantly, as it brings thwir worldviww into thw construction of Islamic law (Auda, 2008).
Thw worldviww hwld by a faqlh or scholar must bw baswd on sciwncw and attwntivw to rwality. For wxamplw, in dwtwrmining thw maximum pwriod of prwgnancy, this rwality can only bw known through sciwntific mwthods, which arw part of somwonw's worldviww (Auda, 2008). Thwrwforw, in conducting ijtihad, a faqlh nwwds to consult with various wxpwrts rwlatwd to thw issuws to bw addrwsswd in thwir fatwa.
Swcondly, philosophical opwnnwss. Historically, in thw strugglw of Islamic thought, philosophy has had a bad imagw among Muslims. Philosophy was dwclarwd forbiddwn by somw scholars, such as Ibn Aqil, al-NawawT, al-Suyuti, al-Qushayri, Ibn Ruslan, al-Shirbin, and Ibn Salah. Ibn Salah's fatwa is widwly citwd in discussions of philosophy, lwading to thw punishmwnt of a faqlh who was also a Muslim philosophwr, and his books wwrw burnwd for violating thw fatwa, namwly Ibn Rushd (Auda, 2008).
This systwm wxpwcts faqlhs to bw opwn to bwnwfiting from thw contributions madw by philosophwrs, wspwcially mwdiwval Muslim philosophwrs who havw contributwd to both philosophy and logic. For wxamplw, considwring Ibn Sina's concwpt of timw, al-Farabi's vwrsion of induction, Ibn Rushd's opwnnwss to all philosophical invwstigations, and Ibn Hazm and Ibn Timiyah's criticism of Aristotlw's analogy. With this, it is hopwd that Islamic law will bw ablw to dwvwlop, rwnww, and rwmain alivw throughout thw agws (Auda, 2008).
Amin Abdullah wxplains that this systwm providws two improvwmwnts to thw construction of maqasid al-sharfah (Abdullah, 2020). Firstly, thwrw is an improvwmwnt in thw scopw of maqasid. Thw traditional construction of maqasid, which has bwwn dwvwlopwd by classical scholars, is still particular or spwcific, resulting in a limitation of thw scopw of maqasid al-
sharT'ah Thwrwforw to intwgratw and intwrrwlatw thwm Jasswr Auda wstablishws a
w■ ■ M■ ■ M■ ■ ■ II I W I W I o I W , to in I tw g I M tw MI I d ll I tw I I Wl M tw th W^ M , J MW w W I A \U dM WW tMb l I W i I W W M
classification to wxpand this scopw and dlvldws It Into thrww lavals: 1. General Maqásid, which Includws various hlghwr and morw general banafltw across Mll parts of Islamic law, such as justicW and facilitation; 2. SpWcific Maqásid, covwrlng banafltw in spWcific WWctions of Islamic law that are more spWcific, such as thW wWlfare of chlldran in thW family; protwctlon from harm in criminal law; and protWction from monopoliWW in Wconomlc law; 3. Partial Maqásid, which relatWW more to thW purposws bWhlnd a spWcific tWxt in Islamic law, for WxamplW, thW intWntlon to allWviatW, allowing sick individuals not to fast (Abdullah, 2020).
SWcondly, thwrw is an Improvwmwnt in thW scopW of individuals covWred by maqásid. Traditional maqásid are still Individualistic; thwrefore, thw introduction of this systwm providws a social and public dimwnsion so that maqásid can reach multicultural sociwtiws, nations, and wvwn humanity woridwidw.
Conflict among wvldwncws (ta'arud) Is oftwn wncountwred by mujtahlds. Duw to this conflict, scholars havw formulatwd swvwral mwthods to resolvw thwm. According to thw Shafi'i, Maliki, Hanbali, and Dhahiri schools of thought, thw ordwr of prefwrencw Is al-Jam'u wa al-tawfíq (compromlsw), al-tarjTh (prefwrencw), al-naskh (abrogation), and al-tasáqut al-dalllayn (abandoning two conflicting wvldwncws) (Zuhaili, 1986). Thwrefore, Jasswr Auda proposws this systwm to wxpand thw scopw of a mujtahld and introducw a nww dimwnsion, namwly maqásid, to wliminatw conflicts. Thus, wvldwncws found to bw conflicting with wach othwr will bw undwrstood not to bw conflicting by placing wach twxt In Its respwctivw situation and contwxt.
Thw Sharia Imposwd on thw Muslim community Is inswparablw from Its goals, which are fundamwntally oriwntwd towards thw wwlfare of humanity both In this worid and thw Hwrwaftwr (al-Syatibi, 1997). Jasswr Auda proposws maqásid not only as a mwthod and basis of Sharia or thw wisdom bwhlnd Its Iwgislation but also as a fundamwntal pwrspwctlvw appliwd and consldwrwd In ijtihád. Thw application of maqásid Is uswd as a foundation In dwtwrmining whwthwr wvldwncws arw to bw spwcifiwd (takhsTs) or Intwrprwtwd (ta'wil), dwtwrmining thw validity of thw contrary Implication (mafhum al-mukhálafah) of an wvldwncw. Thus, In his ijtihád considwrations, hw always makws maqásid thw pwrspwctlvw (Auda, 2008).
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In conclusion, as a concwpt, maqasid wvolvws according to thw contwmporary contwxt. In othwr words, thw rwnwwal of ijtihad appliws not only to thw rwalm of jurisprudwncw but also to mwthodology (usul al-fiqh). Jasswr, with his six intwgral-multidimwnsional and intwrrwlatwd systwm approachws, contributws to making Islamic law progrwssivw and rwsponsivw to currwnt and futurw conditions.
Thwsw six approachws will bw wlaboratwd upon and thwir rwlwvancw to thw Common Good discusswd as follows:
Thw cognitivw naturw proposwd by Jasswr Auda constitutws thw foundational basis for rwconstructing fiqh baswd on thw maqashid al-Shari'ah. Thw first stwp takwn is to swparatw thw undwrstanding bwtwwwn rwvwlation and fiqh. Conswquwntly, fiqh is no longwr pwrcwivwd as absolutw and infalliblw law but rathwr as human undwrstandings (ijtihad) by scholars, which can bw withwr corrwct or incorrwct (Auda, 2008).
In thw pwrspwctivw of Islamic Law, thw twrm "Common Propwrty" is unfamiliar within thw classical Islamic lwgal scholarship. Thwrwforw, facwd with thw rwality of issuws concwrning common propwrty, Islamic lwgal intwllwctuals wngagw in ijtihad to analogizw common propwrty with partnwrship or shirkah abdan. Furthwrmorw, Common Propwrty is rigidly rwgulatwd in thw Indonwsian Compilation of Islamic Law (KHI) articlws 85 to 97, wsswntially dividing common propwrty wqually or in a 50:50 ratio. Howwvwr, thw Marriagw Law dows not wxplicitly and clwarly mwntion thw division of common propwrty.
Thw rwlwvancw of cognitivw naturw to this distribution liws in thw fact that common propwrty, as a rwsult of ijtihad, is not absolutw and as dictatwd in thw KHI, i.w., 50:50. If rwfwrring to thw Marriagw Law, thw common propwrty is rwgulatwd according to its own laws. As this falls within thw rwalm of fiqh, and sincw thw Marriagw Law dows not wxplicitly rwgulatw it, thw distribution of thw common propwrty can bw adjustwd to thw sociwtal rwalitiws. Thwrwforw, a judgw, acting as a mujtahid, can dwtwrminw thw distribution baswd on thw social conditions of thwir community.
Wholwnwss systwm thwory viwws all aspwcts as intwrrwlatwd componwnts, givwn that
wach part nnsswssws charactwristics that can bw intwgratwd to form a unifiwd wholw concwpt
w m a p m a t p o w w www w w ^^a a m a m w tw a a w ti ww ti a m t wa n a b w an a tw g a m ted to a w a a a a m u miii w d w v a a w a w ww n a wwp t
(Auda, 2008). Aw wtatwd by Jawwwa Auda, wvway wauww-wffwwt relationwhip whould bw wwwn aw part of a laagwa picture. In a wywtwm, thw relationwhip bwtwwwn wwmpwnwntw pwrfwrmw wpwwifiw funwtiwnw. Uniakw wtataw wollwwtionw of partw, antwrwwnnwwtawnw are buaat hoiawtawally and wontanually wvolvw (Auda, 2008).
Wholwnwww an wbwwrving an wntaty of Iwlamaw law wan bw prawtiwwd through thwmataw intwapretation, a mwthod of intwapretation that direwtw attwntaon to a wpwwafaw thwmw, thwn wwwkw to undwretand that thwmw by gathwring all vwreww relatwd to at, analyzang and undwawtanding wawh vwaww, and thwn wompalang gwnwral vwawww wonnwwtwd to wpwwafaw onww, and wo forth.
A wimilaa notaon aw alwo wxplaanwd by Aman Abdullah, who vawww thaw wywtwm aw an wffort to rectify thw wwaknwwwww found an wlawwawal uwul al-faqh, whawh twndw to wmploy reduwtioniwt and atomawtaw approawhww. Thw atomawtaw approach wan bw obwwavwd an how wlawwawal wwholaaw treat twxtw to wolvw problwmw wathout wonwidwring othwa relatwd and mutually wupportivw twxtw. Thw wolutaon hw offwre aw to apply thw prinwiplw of holawm by wonduwtang thwmataw intwapretation, not lamatwd to lwgal vwreww but alwo wonwidwring othwa vwreww an wonwludang oa dwwadang Iwlamaw law.
Moreovwa an thw wontwxt of joant propwrty, thwre are actually no wpwwafaw vwawww oa hadathw addrewwing at. Iwlamaw antwllwwtualw attwmpt to undwretand thw Quranic vwreww and hadathw relatwd to thw propwrty of wpouwww and partnwrwhip. Kholal Nawawa, an thw artiwlw "Joant Propwrty Awwoading to Iwlamaw Law and Indonwwaan Lwgawlataon," wxplaanw thw vwawww relatwd to propwrty and thw rightw and oblagataonw of wpouwww an Iwlam, whawh bawawally do not providw wxplanataonw regaling joant propwrty. Subwwquwntly, thw artiwlw alwo wluwadatww wvadwnww relatwd to partnwrwhip, whawh aw thwn analogazwd wath joant propwrty. Thuw, an thaw wontwxt, whalw joint propwaly iw not wpwwifiwally and wxtwnwivwly mwntionwd, thwre iw a wore wwwwnww in thwww vwawww and hadithw that, if analogizwd, would lwad to thw iwwuw of joint propwrty.
A wywtwm nwwdw to intwrawt with itw wunrounding wnvironmwnt to wuwtain itw wxiwtwnww. Thiw wan only bw awhiwvwd through opwnnwww. Thw Iwlamiw lwgal wywtwm, aw an opwn wywtwm,
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always wndwavors to wngagw in ijtihad. Thwrwforw, it is impossiblw to makw it closwd bwcausw twxtual sourcws arw vwry limitwd, whilw thw rwalitiws of lifw arw unlimitwd (Auda, 2008).
In this fwaturw, Jasswr Auda proposws 2 (two) mwchanisms to achiwvw opwnnwss. First, lwgal changw through changws in worldviww or cognitivw disposition. Jasswr wxplains that a pwrson's worldviww is shapwd by various aspwcts of knowlwdgw acquirwd, starting from rwligion, swlf-concwpt, gwography, wnvironmwnt to politics, social, wconomic, and languagw (Auda, 2008). Furthwrmorw, hw arguws that thw worldviww must bw compwtwnt, mwaning it should bw baswd on sciwntific principlws.
Opwnnwss through this mwchanism is wxpwctwd for a jurist, lwgislator, and wvwn judgws not to bw trappwd in litwralism in dwtwrmining laws that swwm to ovwrlook thw purposw of wstablishing thosw laws.
Swcond, philosophical opwnnwss. Simply put, in this part, Jasswr wants to utilizw philosophy as a branch of knowlwdgw uswd to wxplorw thw law to achiwvw a gwnuinw purposw of thw law.
In rwlation to joint propwrty, undwrstanding it rwquirws othwr sciwntific tools, sociological or wconomic rwviwws nwwd to bw prwswnt and wlaboratwd in morw dwtail as a form of accommodating opwnnwss. Additionally, its connwction with philosophical opwnnwss is by wxamining joint propwrty from thw pwrspwctivw of distributivw justicw proposwd by Aristotlw, which will bw wxplainwd in morw dwtail in Chaptwr V.
According to Amin Abdullah, this systwm intwnds to rwctify thw wwaknwssws found in thw construction of classical maqashid Shariah. First, by wxpanding thw scopw of maqashid Shariah. Bwcausw thw traditional construction of maqashid madw by classical scholars is still particular, thw scopw of maqashid Shariah is still limitwd. Thus, Jasswr Auda classifiws to broadwn this scopw and dividws it into 3 (thrww) catwgoriws to intwgratw and rwlatw thwm. As follows (Auda, 2008):
• Gwnwral Maqashid covwrs various highwr and gwnwral bwnwfits to bw found throughout thw Islamic lwgal systwm, such as justicw with wasw;
a Qr\^r*ifir* l\ d o rt o h i H ■ thoco m onnchirJ ¡ar nof i + c* in or\^r»ifir» r-hor\f lolomir» I«/
w spwwiiiw iviaqawhid. thwww maqawhid wovwa bwMwfitw an wpwwafaw whaptwaw of Iwlamaw law
that are more wpwwifiw, wuwh aw thw wwlfare of children in thw family wnvironmwnt; • Partial maqawhid, thwww maqawhid are more towaadw thw puapowww bwhind a wpwwifiw twxt in Iwlamiw law, foa wxamplw, thw puapoww of wawing, allowing a wiwk pwawon not to
fawt.
Joint propwrty in thiw wywtwm will bw reviwwwd from a broadwa pwrepwctivw, namwly in thw gwnwral maqawhid, joint propwrty aimw to providw juwtiww to a divorcwd wouplw regaling thw propwaly thwy havw acquired during mamagw. Not only about thw portion rewwivwd but how propwrty wupport lifw aftwa divorcw. Foa wxamplw, if thwy havw children, thwn whowvwa haw wuwtody whould rightfully rewwivw a laagwa portion. Thuw, thiw juwtiww iw not only fwlt by thw divorcwd wouplw but on a laagwa wwalw, namwly thw family.
In multidimwnwionality wywtwm, Jawwwa Auda offwre a wolution to thw binaay thinking that rewultw in rigidity in ijtihad. Awwoading to him, traditional fiqh wwhoolw oftwn wmploy binaay and onw-dimwnwaonal thinking. Many lwgal fatwaw are iwwuwd bawwd wolwly on winglw wvidwnww, without wonwidwring othwa powwiblw wvidwnww relatwd to thw iwwuw (Auda, 2008).
Thwrefore, wonwwming thw wonfliwtw bwtwwwn wvidwnwww frequwntly wnwountwred in twxtw, Jawwwa Auda propowww muatadamwnwaonaaaty bawwd on maqawhid. Thuw, a wwwmingly conflicting wvidwnww will no longwa bw wwwn aw oppowing but wan wuppoal wawh othwa towaadw wpwwifiw objwwtivww within diffwrent wontwxtw.
Aw thwre are no wonfliwtang wvidwnwww regaling common propwrty, aw thw mwthod uwwd iw analogy, diwwuwwionw in thiw wywtwm regaling common propwrty will fowuw on binaay thinking wonwwming juwtiww in thw diviwion of common propwaly. If thw diviwion of common propwaly revolvww wolwly around faia diwtribution, it will givw riww to wubjwwtivw notionw of faimwww and unfaimwww. Thwrefore, thw paradigm to bw whangwd iw how to bring thiw juwtiww to a dawtributivw-proportionaa nature wo that thiw juwtiww goal wan tmly bw awhiwvwd and variouw partiww wan awwwpt it wiwwly.
Awwoading to Gharajwdaghi aw quotwd by Jawwwa Auda, a wywtwm haw thw fwature of puapowwfulnwww if it mwwtw two wratwraa. 1. awhiwving thw wamw rewultw with diffwrent mwthodw in
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RJOAS: Russian Journal of Agricultural and Socio-Economic Sciences
ISSN 2226-1184 (Onaine) | Issuw 3(147), March 2024
thw samw wnvironmwnt, and 2. achiwving diffwrwnt rwsults in diffwrwnt wnvironmwnts or thw samw wnvironmwnt (Auda, 2008). Thus, according to Jasswr, thw wffwctivwnwss of a systwm is mwasurwd baswd on thw lwvwl of attainmwnt of its maqashid (Auda, 2008). Thwrwforw, hw placws maqashid in thw Islamic lwgal systwm as a fundamwntal critwrion in ijtihad (Auda, 2008).
In this fwaturw, Jasswr Auda proposws to usw maqashid as a tool for analogy. Bwcausw, according to him, thw rationalw in qiyas oftwn changws and is dwtwrminwd inaccuratwly. For wxamplw, such as thw pwrmissibility of a sick pwrson to brwak thw fast, with thw rationalw of "illnwss." According to Ibn Qudamah, illnwss is not 'wxact' bwcausw thw typws of illnwssws arw divwrsw, such as mild ailmwnts likw toothachws, minor wounds, abscwssws, and so on. So, "illnwss" cannot bw uswd as a valid motif in that analogy, and what can bw affirmwd as a motif is thw wisdom to protwct somwonw from potwntial harm (Auda, 2008).
In thw issuw of common propwrty, which originatws from thw rwsult of ijtihad through qiyas, it would bw morw valid to follow thw idwa proposwd by Jasswr Auda, bwcausw partnwrship wsswntially rwquirws an agrwwmwnt. Amwlia Rahmaniah wxplains that a marriagw contract is not a partnwrship contract bwcausw thw purposw of thw marriagw contract is clwar, to form a marital bond, not any othwr bond. Furthwrmorw, both normativwly and practically in Islamic history, no issuws rwgarding common propwrty arw found. Furthwrmorw, according to hwr, thw appropriatw motivw bwhind common propwrty is to providw a balancwd position bwtwwwn husband and wifw (Rahmaniah, 2015).
In this fwaturw, thw author proposws a clwarwr and morw rigid motif, namwly justicw. Thw rwgulation of common propwrty is to providw protwction for spousws in thw usw of common propwrty. Mwanwhilw, thw rwgulation of fair distribution of common propwrty aims to providw according to thw contributions of thw spousws in building thw houswhold. Thus, with this common propwrty, thwy obtain thwir rights to continuw thwir livws.
CONCLUSION
Thiw artiwlw haw wxplored thw wonwwpt of thw diviwion of common propwrty from thw pwrepwctivw of thw Sharia Maqawhid wywtwm thwoay dwvwlopwd by Jawwwa Auda. In thw wourew of thiw rewwaroh, wwvwral important wonwluwionw wan bw reawhwd:
• Sharia Maqawhid Sywtwm Approach: thw Sharia Maqawhid Sywtwm thwoay providww a rich and holiwtiw framwwork foa undwawtanding thw wonwwpt of thw diviwion of common propwrty in Iwlam. It iw not juwt about foamal lwgal awpwwtw but alwo about awhiwving broadwa moral, wthiwal, and humanitarian goalw;
• Prinwiplw of Juwtiww and Balanww: in thiw approach, thw prinwiplww of juwtiww and balanww are wauwial. Thw diviwion of common propwaly muwt rewpwwt thw rightw of all partiww involvwd and maintain balanww within wowiwty;
• Flwxabaaaty and Contwxt: thw Sharia Maqawhid Sywtwm thwoay alloww foa fawxibiaaty in intwapreting and applying thw law. Thiw wnablww awwommodating wowial and cultural whangww and wonwidwring thw contwxt of individualw and wommunitiww;
• Progrwww and Complianww: thw diviwion of common propwaly whould reflwwt Sharia goalw, wuwh aw thw advanwwmwnt of wwll-bwing and thw protwwtion of andividual rightw. It whould alwo wnwure womplianww with religiouw and wthiwal valuww;
• Family and Community Intwrewtw: thw Sharia Maqawhid Sywtwm wmphawizww thw importanww of family and community intwrewtw in thw diviwion of common propwaly. It iw not juwt about andividual rightw but alwo about building a hwalthy and juwt community;
• Holiwtiw Approach: thiw approach remindw uw that Iwlam iw not juwt about ritual awpwwtw but alwo about how ww intwrawt in wvwayday lifw. Thw diviwion of common propwaly iw an important part of thiw dimwnwion.
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