AByu ISHyCQ IBRyCHyaM IBN MyuSyC AL-SYyCTHIBya
AND HIS OPINION ON THE DICHOTOMY OF
AoIByCDyCT AND AoyCDyCT IN ISLAMIC LAW Jamal Abdul Aziz (Faculty of Islamic Business and Economy IAIN Purwokerto.
Jl.
Jend.
Yani No.
40 A Purwokerto.
Email: abdulaziz_jamal314@yahoo.
Abstrak:
Aby Ishyq Ibryhym ibn Mysy al-Syythiby .
790/1.
atau yang biasa dikenal dengan nama al-Syythiby, adalah salah seorang fuqahyAo aliran Maliky yang paling masyhur.
Pada saat hidup di Granada pada abad ke-13, ia menghadapi perubahan sosial, ekonomi, dan budaya yang luas.
Pada saat yang sama, pengajaran dan praktik tasawwuf memberikan pengaruh terhadap kecenderungan pemikiran hukum Islam.
Perubahan besar yang terjadi mendorongnya untuk membuat kerangka filsafat hukum Islam.
Mashlahah .
, sebagai tujuan utama maqyshid al-syaryAoah merupakan konsep utama pemikiran hukum Islam yang dirancangnya.
Pemisahan antara ibadah dan adat mengandung gambaran aspek baku yang di satu sisi merupakan ajaran ritual dan di sisi yang lain merupakan bagian dinamis dari hukum Islam.
Ibadah menuntur ketaatan sejati dari hamba melalui jalan yang telah ditentukan Tuhan.
Sedangkan adat dapat menerima berbagai kemungkinan perubahan.
Abstract:
Aby Ishyq Ibryhym ibn Mysy al-Syythiby .
790/1.
, or who is known as al-Syythiby, is one of the most famous fuqahyAo in Maliki sect.
When he was living in Granada in the thirteenth century, he faced a wide scale of social, economic, and cultural changes.
At the same time, the teaching and practice of tasawwuf influenced the tendency of thinking of Islamic law.
The big change supported him to formulate his philosophy of Islamic law.
Mashlahah .
, as the main purpose of maqyshid al-syaryAoah, is the main concept of philosophy thinking in Islamic law that he built.
The dichotomy of Aoibydyt and Aoydyt contains the representation of fixed aspects which in one side is the teaching of worships .
, and on the other side is the dynamic aspect from the Islamic law.
AoIbydyt asked for a pure obedience from a al-Ihky V o l .
1 0 N o .
2 D e s e m b e r 2 0 1 5 DOI: http://dx.
org/10.
19105/ihkam.
Jamal Abdul Aziz human with the way has been specified by the God, while Aoydyt can receive any possible changes.
Key Words:
Social Changes.
Philosophy Of Islamic Law.
Mashlahah (Mashyli.
AIbydyt.
AyCdyt Introduction Generally Islamic law is religious, sacred, and therefore it is Whereas the empirical facts show that the social changes always ask for suitable power of a law provision.
Therefore claim at the absolute and immortal Islamic law always experience changes and modernization which always happen in the society.
Many experts and law experts have different opinions dealing with the problem.
The first opinion said that in his concept, which is suitable with its development and methodology.
Islamic law is immortal and therefore cannot be adapted to social change.
1 Whereas the second opinion said that the existence of law principles such as affairs considerations, the flexibility of practices in Islamic law, and suggestion try to show clearly that Islamic law can be adapted to social chance.
1 Bergtrasser.
Hurgronje, dan Schacht who stated that Islamic law immunity comes from three things.
First, the absolute and transcendence .
rom the Go.
characteristic have closed the possibility of changes to the concept and its institution.
The second, from its history, the eshtablishment of the Islamic law is separated from social institution and the existing law .
ountry and court.
The third, it is caused by the failure of syary`ah to create an adequate methodology to the law changes, so the law immunity which finally comes.
2 The supporters of this opinion is Subhy Mahmashyny.
AAbd al-Razzyq al-Sanhyry.
Linant de Bellefond.
Van den Berg, dan Morand.
According to them, at least three fifth of syaryAoah content is based on the reasoning, so it has to be recognized that syaryAoah can be the means of development in humanAs life.
Whereas QurAan and Sunnah is absolute .
, the interpretation to both sources can change based on the knowledge and experience level.
Further explanation about both opposition groups dealing with the absolution and relational Islamic law can be seen in Muhammad Khalid Masud.
Filsafat Hukum Islam: Studi tentang Hidup dan Pemikiran Abu Ishaq Al-Syatibi, trans.
Ahsin Muhammad.
Fisrt edition (Bandung: Pustaka, 1.
, 1-2.
Rayner.
The Theory of Contracts in Islamic Laws: A Comparative Analysis with Particular Reference to the Modern Legislation in Kuwait.
Bahrain, and the United Arab Emirates, first edition, (London/Dordrecht/Boston: Graham and Trotman, 1.
, 43-44.
al-Ihky V o l .
1 0 N o .
2 D e s e m b e r 2 0 1 5 Aby Ishyq Ibryhym Ibn Mysy al-Syythiby When we analyze, the different point of view actually based on their religiousA understanding of Islamic law which actually has two characteristics that seem contradictory.
In one side they see the existence of some certain laws with sacred, absolute, and taken for granted characteristics.
while in another side, they also get many laws with profane, relational and situational characteristics.
Therefore it is true if we said that Islamic law has an absolute characteristic to some certain aspects and also relational characteristic in another side at It has an absolute characteristics in some certain aspects and also relational in another aspect at the same time.
The problem is how we can differentiate absolute law materials to situational law In the way of Islamic thinking there some theories emerged to differentiate law subjects with absolute and immortal law subjects in one hand and relative and situational law subjects in another hand, such as Aoibydyt and muAoymalyt dichotomy, qathAoy and zhanny dichotomy, syariAah and fiqh dichotomy, and taAoabbudy and taAoaqquly dichotomy.
Here, bipolar concept of Aoibydyt and muAoymalyt refers to a wide category of bipolar-concept known in Islamic law.
AoIbydyt refers to law subjects contained religious with unintelligible characteristics, so that to Indonesian Moslems, this kind of subject should be received .
aken for grante.
and it should be maintained as the way it is in a life time.
Subjects about pray, fasting and hajj, for instance, are the law belong to Aoibydyt category so it is believed to be stiff and should be done forever as the way it is without any changes.
While muAoymalyt is the law teaching related to the human being in general so it has intelligible characteristic and possible to change which is suitable with the year and place.
Trading, renting, criminal and court are some examples of law subjects of this category.
Temporary analysis of the writer shows that Aby Ishyq Ibryhym ibn Mysy al-Syythiby .
1388 M) is the first person who conceptually and critically stated the difference of Aoibydyt and muAoymalyt, in his book entitled al-Muwyfaqyt fy Ushyl al-Ahkym3 and also al-IAotishym.
4 But the 3 In some edition of books al-Muwyfaqyt is different one another.
This is caused by the existence of muhaqqiq .
who are also different.
The above title, for example, the muhaqqiq is Muhammad Muhy al-Dyn AAbd al-Hamyd.
Another edition mentioned a different title, such as al-Muwyfaqyt fy Ushyl al-SyaryAoah whose muhaqqiq is AAbd Allyh Darryz and friends.
al-Ihky V o l .
1 0 N o .
2 D e s e m b e r 2 0 1 5 Jamal Abdul Aziz term he used in those two books is Aoydyt (Aoydiyy.
,5 not muAoymalyt.
from al-SyythibyAs perspective of bipolar concept is Aoibydyt-Aoydyt, not Aoibydyt-muAoymalyt, although the meaning is actually the same.
AlSyythibyAs great thinking which tries to differentiate the fields of Islamic law into two fields is said by Muhammad Khalid Masud as the step forwarding to the positivism law, where he tries to differentiate law .
from theology and sufiAs morality.
This writing will focus on the analysis about bipolar concept or the difference of Aoibydyt and Aoydyt in SyythibyAs way of thinking, especially dealing with the boundaries of two concepts above and also the functionalism in legal law.
The Figure of al-Syythiby There is a few data that can be found dealing with al-SyythibyAs biography although he is a famous figure of Maliky sect.
Among writers in his era.
Lisyn al-Dyn al-Khathyb and Ibn Khaldyn, no one mentioned al-Syythiby, although we believed that they knew him.
Ibn al- Khathyb has the same teachers and also friends as al-Syythiby, even one source described Ibn al-Khathyb as a student of al-Syythiby, while Ibn Khaldyn has written paper as a response to al-SyythibyAs question to bachelors in west.
Among the Maliky sectAs writers of thabaqyt7.
Ibn 4 Al-Ghazyly .
505/1.
, an expert of Islamic law before al-Syythiby, has also had an idea which tends to differentiate Aoibydyt and muAoymalyt in his IhyyAo, although it is not as sensitive as al-Syythiby.
According to al-Ghazyly the laws of Aoibydyt be based on the GodAs rights, such as thahyrah, shalat/ pray, zakat, and others.
whereas Aoydyt laws are based by the creatures rights which is divided into two, they are changing transaction .
uAoymaly.
, such as trading, renting, hibah, and others.
and contract .
uAoyqada.
, such as marriage, divorce, bondage, and others.
See M.
Bernand.
AuMuAymalytAy in The Encyclopaedia of Islam, eds.
Bosworth, et.
(Leiden: E.
Brill, 1.
VII: 256.
5 Aby Ishyq Ibryhym ibn Mysy al-Syythiby, al-Muwyfaqyt fy Ushyl al-Ahkym, (Kairo:
Muhammad AAly Shabyh wa Awlyduh, t.
II: 166.
These both terms often used in turn and generally have the same meaning.
AoyCdyt is a plural form of ydah, whereas Aoydiyt is a plural form of Aoydiyyah.
6 Masud.
Filsafat Hukum Islam, 27 and 356.
Law positivism is a modern west law knowledge which excluded morality and justice consideration of law from the concept and the definition of law obligation.
Although they admit that law rules may be founded in the morality and justice values, but this does not block the obligation of law to separate him from morality in the application of actual law.
7 Just like an encyclopedia containing a short biography of experts in certain field which is chronologically arranged .
ased on the arrangement of their life tim.
Maliki schoolAs al-Ihky V o l .
1 0 N o .
2 D e s e m b e r 2 0 1 5 Aby Ishyq Ibryhym Ibn Mysy al-Syythiby Farhyn .
799/1.
8 is a figure who lived in the same era as alSyythiby, but he did not mention him.
Likewise Badr al-dyn al-Qaryfy .
1008/1.
,9 the writer of thabaqyt after Ibn Farhyn, also did not mention him.
Maybe the book written by Ahmad Baba .
1036/1.
Nayl al-Ibtihyj, is the first book which quoted biographical notes of alSyythiby.
Almost all bachelors after him, including todayAs bachelor dependent on Ahmad BabaAs note.
Al-SyythibyAs full name is Aby Ishyq Ibryhym ibn Mysy ibn Muhammad al-Lakhmy al-Syythiby al-Gharnythy.
No one knows his family background and his first life.
He grew and took all knowledge in Granada, which is the capital city of Nashr kingdom, until he was dead on 790/1388.
His youngster happened coincidently in the Sultan Muhammad V al-Ghyny bi Allyh governmental period, a bright period to Granada.
This town has a very big attraction to be visited by bachelors from North Africa, including Ibn al-Khathyb dan Ibn Khaldyn.
Although he was famous as ushul fiqhAs expert,12 but he was also good at other knowledges, such as language, translation, fiqh and He studied language from Aby AAbd Allyh ibn AAly alFakhkhyr al-Albyry .
754/1.
and Aby al-Qysim al-Sabty .
/1.
, studied tafsir/ translation to Aby AAbd Allyh al-Balansy and al-Khathyb Aby JaAfar al-Shaqwary, studied fiqh to Aby SaAyd ibn Lubb .
amous fiqhAs expert from Andalusi.
, and also studied ushul fiqh to Aby AAly Manshyr ibn Muhammad al-Zawywy and Aby AAbd Allyh al-Maqqyry al-Jadd .
/1.
13 The last two names are people who increase al- SyythibyAs interest to ushul fiqh and kalym.
Meanwhile, the last name, al-Maqqyry, has already introduced thabaqyt means a kind of ensiclopedia containing a short biography of Maliki schoolAs experts since the one who created the school to the thabaqyt present time.
8 Book writer of al-Dybyj al-Muhadzdzab.
9 His book entitled Tawshyh al-Dybyj .
he complement of al-Dyby.
10 Muhammad Khalid Masud.
Filsafat Hukum Islam: Studi tentang Hidup dan Pemikiran Abu Ishaq al-Syatibi, trans.
Ahsin Muhammad.
Fisrt edition (Bandung: Pustaka, 1.
, 11 Ibid.
, 108.
12 C.
Bosworth, et.
The Encyclopaedia of Islam (Leiden: E.
Brill, 1.
IX: 364, under the entry of Aual-ShythibyAy.
13 Both are people who quoted Mukhtashar al-Muntahy book by Ibn Hyjib.
The content of the book is based on al-Mahshyl book by Fakhr al- Dyn al-Ryzy, see ibid.
al-Ihky V o l .
1 0 N o .
2 D e s e m b e r 2 0 1 5 Jamal Abdul Aziz Tasawwuf to al- Syythiby through special way.
Aby AAbd Allyh alTilimsyny14 .
771/1.
, an expert of Aoulym Aoaqliyyah15 is also his Al-Maqqyry known as someone who has reached muhaqqiq17 level in Maliki sect.
He is the one who has introduced Raziism to alSyythiby in ushul fiqh.
He made a summary of book by Fakhr al-Dyn al-Ryzy18 entitled al-Muhashshal, and also made a conclusion of tafsir book by Ibn Hyjib which introduces Raziism19 to ushul fiqh in Maliki According to al-Zawawi, al-Ryzy in his tafsir QurAan he dependent himself on four books written by people from MuAtazilah, which is two books by Aby al-Husayn al-Bashry entitled Kityb alDalyAoil .
n ushyl al-dyn fiel.
, and al-MuAotamad .
n ushul fiqh fiel.
Kityb al-Tafsyr by al-Qydly AAbd al-Jabbyr .
n tafsir fiel.
, and alKasysyyf by al-Zamakhsyary .
n philosophy and letters fiel.
AlZawawi thought that Raziisme as a continuation of kalym MuAtazilah.
While studying to some famous experts, al-Syythiby also develops his knowledge autodidact.
As famous expert and ulama who always have students who will continue their point of view, alSyythiby has also had some famous students, such as Aby Bakr ibn AyCshim, the writer of law compilation book Tuhfah al-Hukkym which becomes reference of judges in Granada.
He also writes a summary of al-Muwyfaqyt book.
Meanwhile another student is Aby Yahyy ibn 14 The writer of Miftyh al-Ushyl Aoaly BinyAo al-FuryAo Aoaly al-Ushyl book.
15 AoUlym Aoaqliyyah means pure knowledge is based on rationality, such as philosophy etc, in contrary Aoulym naqliyyah which means knowledge with religious aspects (QurAan.
Hadits, fiq.
as the main object.
Bosworth.
The Encyclopaedia.
IX: 364.
16 Aby Ishyq Ibryhym ibn Mysy al-Syythiby, al-IAotishym (Riyydl: Maktabah al-Riyydl alHadytsah, t.
I: 10-11.
Asafi Jaya Bakri.
Konsep Maqashid SyariAoah Menurut al-Syatibi, cet.
1 (Bandung: Raja Grafindo Persada, 1.
, 22-23.
Bosworth.
The Encyclopaedia.
IX: 364.
17 Means people who are experts in applying general principles of Mazhab in specific So al-Maqqyry here is an expert in applying law principles in Mazhab Maliki to specific cases.
18 Al-Ryzy book here entitled al-Mahshyl contained usul fiqh.
This book basically combined two quite popular books from the earlier generation, which is al-MuAotamad .
y Aby al-Husayn al-Bashry, a MuAtazilah figur.
and al-Mustashfy .
y al-Ghazyly, the follower of AsyAariyya.
But the effect of al-MuAotamad is more dominant than alMustashfy.
See Masud.
Falsafah Hukum Islam, 168-169.
19 Nisbah to Fakhr al-Dyn al-Ryzy .
606/1.
, the writer of the famous tafsir book Mafytih al-Ghayb and al-Tafsyr al-Kabyr.
The tafsir is in rational style.
20 Ibid.
, 109-111.
al-Ihky V o l .
1 0 N o .
2 D e s e m b e r 2 0 1 5 Aby Ishyq Ibryhym Ibn Mysy al-Syythiby AyCshim .
brother of Aby Bakr ibn AyCshi.
and Aby AAbd Allyh alBayyny.
In Andalusia, fiqh is a popular and beneficial subject, but the interest to it is very rare.
Al-Syythiby himself was interested to ushul fiqh because of his understanding of this urgent knowledge.
Based on his opinion, the weakness of fiqh in facing the challenge of social change is because of the insufficiency of methodology and philosophy which is the base of it.
This weakness is already known since his early Besides the use of muryAoyt al-khilyf22 principle in Mazhab Maliky makes the problem more complicated.
He thinks that the life has no soul anymore and its formalism will still be taken aside in reality as long as the law is not been analyzed yet.
His monumental writing, al-Muwyfaqyt, is dedicated for this purpose.
While being known as the initiator of al-mashylih al-mursalah in the theory of decision in Islamic law .
shul fiq.
24 he is also famous with his effort to clean the Islamic practices from some strayed elements .
idAa.
One of his writings, al-IAotishym, is dedicated for this His critics to some strayed religious aspects, but has been grown fast in the society tradition, even he is accused for the initiator of bidAah.
One of the religious aspects which is called bidAah is saying the name of AusultanAy in khutbah JumAat and pray for him in the end of the shalat.
His attitude is said to be harmful to political forces of religious figures .
He was objected by qadi in Spain and North Africa and also by some governmental officials.
Beside that, al-Syythiby has also worried about the influence of tasawuf to fiqh and ushul fiqh.
He did not oppose some sufi practice some cases if they do it individually or as a tasawuf learning.
But something that he opposed is the attitude of the sufi or fukaha who are under the tasawwuf influence to oblige certain practices in fiqh, such as the obligation of make our soul free from others except Allah 21 Ibid.
, 113.
Bakri.
Konsep Maqashid, 24-25.
al-Syythiby, al-IAotishym.
I: 12.
22 Means that the various opinion is usual in the world of thinkers, moreover in the Fiqh field (Islamic La.
, being much appreciated and all of his opinion is said to be true.
Based on this principle the various opinion is preserved proudly.
23 Masud.
Filsafat hukum Islam, page.
24 Bosworth.
The Encyclopaedia.
IX: 364.
25 Masud.
Filsafat hukum Islam, 114-115.
al-Ihky V o l .
1 0 N o .
2 D e s e m b e r 2 0 1 5 Jamal Abdul Aziz in the pray and totally resigned to syaikh.
26 The bravery to state different opinion with the present general opinion is based on his stiff attitude to defend the truth which is believed and supported by his broad and deep knowledge.
The broad knowledge of al-Syythiby can be seen in the variety of his writings which is seen in some knowledge.
Unfortunately there are only some of his writings which are published in the form of book, the rest are only known through notes from other writers or still in the form of manuscript.
Generally, al-SyythibyAs writings divided into two main fields, which are language-Arabic grammar, and fiqh-ushul fiqh.
His writings that have been published are al-Muwyfaqyt fi Ushyl alSyaryAoah27, al-IAotishym, and al-Ifydyt wa al-Insyydyt, those three books are about the analysis of fiqh and ushul fiqh (Islamic law thinkin.
While other writings which are not published generally about the analysis of language, such as Syarh Alfiyyah Ibn Mylik.
AoUnwyn al-Ittifyq fy AoIlm alIsytiqyq, and Kityb Ushyl al-Nahw.
28 As known that the first two writings, al-Muwyfaqyt and al-IAotishym, are the most famous in Islamic By his writings, especially al-Muwyfaqyt, al-Syythiby got his fame until now, although his background is not clearly known.
Moslems scholars in the XX century gave a high appreciation to al-SyythibyAs way of thinking, such as Muhammad AAbduh.
Muhammad Rashid Rida.
Muhammad Iqbal.
Abu al-AAla alMawdudi.
Fazlur Rahman, and Ziauddin Sardar.
According to Rahman, for instance, al-Syythiby is a bright law expert who tries to 26 Ibid.
, 117.
So al-Syythiby cursed the certain ritual practices which is based on two things, first those practices are bidAah, and second they made it as religious obligation, which actually the God the one who should give an obligation.
And the practices that he cursed are, except things mentioned above, is reciting Yasin together when people are cleansing the corpse, praying together after shalat .
he obliged shala.
, trying hard to finish QurAan in the fasting/Ramadhan month, saying takbir loudly in the night of Ied, shaking hand and giving hug each other after the Ied shalat, and adding some words/ sentences in the Adzan.
See ibid.
, 132-133.
27 There are some book editions which say that al-Muwyfaqyt is different from the other.
This is so because there are different muhaqqiq .
which are also different.
The above title, for instance, the muhaqqiq is AAbd Allyh Darryz and friends.
(Beiryt: Dyr alKutub al-AIlmiyyah, t.
Another edition said the title differently, for instance alMuwyfaqyt fy Ushyl al-Ahkym whose muhaqqiq is Muhammad Muhy al-Dyn AAbd alHamyd.
28 Ibid.
, 119-122.
Bosworth.
The Encyclopaedia.
IX: 364.
Bakri.
Konsep Maqashid, 25.
al-Ihky V o l .
1 0 N o .
2 D e s e m b e r 2 0 1 5 Aby Ishyq Ibryhym Ibn Mysy al-Syythiby create rational, moral and spiritual foundation in the Islamic law While Sardar, the moslems futurology, said al-Syythiby as a law expert who focused his attention on the Islamic sustainability and change, where for him social changes and law changes are related each other.
29 Many Ulama and Islamic law experts in Indonesia has based their thoughts to al-SyythibyAs opinion, such as Ahmad Hassan .
and T.
Hasbi Ash Shiddieqy .
The opinion on differentiating Islamic law to AoIbydyt and Aoydyt .
uAoymaly.
varies the way of thinking in Islamic law from those two figures.
Historical Context Understanding on the historical context of al-SyythibyAs life made us review the moslems history in Spain.
As we know that the moslems power in Spain had happened for about more than eight centuries .
-1492 M) which started in the al-Walyd ibn AAbd alMylik governmental period .
-715 M).
Spain has become Islamic area legally after the successful futyhyt .
and when Roderik king had been defeated by moslems.
One by one the important cities were defeated by moslems, including Cordova which finally became the capital city if Islamic Spain.
Eight centuries were not a short time for moslems in Spain.
Moslems got many achievements and they also seldom had declining achievement.
In the al-NyshirAs governmental period .
-929 M) for instance.
Spain got its highest point of achievement and Cordova became one of the central knowledge in Islam besides Baghdad dan Kairo.
29 Bakri.
Konsep Maqasid, 30-31.
30 See the example.
Ahmad Hassan.
AuWiping forehead after the last greeting .
in shalatAy in Soal Jawab Masalah Agama (Bangil: Percetakan Persatuan, 1.
I: 167.
AuLaw in catching and selling the snakeAs skinAy in Soal Jawab.
I: 343-344.
AuLanguage in KhutbahAy in Soal Jawab.
II: 522-523.
AuBidAah .
ivide BidAah into five part.
Ay in Soal Jawab.
II: 833-844.
AuTalqinAs problemAy, in Soal Jawab.
IV: 1439-1440.
Auselling and promising to buy it backAy in Soal Jawab.
IV: 1522.
Aual-Fatihah and wal AshriAy in Soal Jawab.
IV: 1695.
AuHukum AsalAy in al-Furqan (Tafsir Qur`a.
, cet.
(Bangil: Percetakan persatuan, t.
XXV.
and idem.
Riba, cet.
1 (Bangil: Percetakan Persatuan, 1.
, 60.
Hasbi Ash Shiddieqy.
Pengantar Ilmu Fiqih.
Cet.
8 (Jakarta:
Bulan Bintang, 1.
, 22.
Idem.
Pengantar Hukum Islam, cet.
6 (Jakarta: Bulan Bintang, 1.
II: 91.
31 Bakri.
Konsep Maqashid, 13-14.
al-Ihky V o l .
1 0 N o .
2 D e s e m b e r 2 0 1 5 Jamal Abdul Aziz But of course the triumph of people may have their own turning As the time changes, the power of moslems became weaker and It can be because the internal conflict or the external one, even in the last years of moslemsA existence in Spain.
In this last period there is Granada kingdom32 which became the last moslemsA power in Spain.
This kingdom could defend his authority for about two and a half centuries .
2-1492 M).
Its area starched out from the south of Andalusia to the middle sea and Gibraltar strait.
The kingdomAs region consisted of green hills and mountainous area which was rich of valuable mine materials.
This geographical condition became a high economical support to the kingdom so that it could survive for a long time and could reach a marvelous development.
Generally the fortieth century was a silent period to Islamic world after the turmoil happened in the earlier centuries.
This political stability gave the peace that was hoped by intellectual To experts group, changes that happened either in the individual or collective scale will give a deep impression to their Therefore we can understand why some big works emerged at that time which was dedicated to the purpose of reanalyzing, systemizing, and adjusting the tradition again.
In the North Africa came Ibn Khaldyn .
/1.
who famous with its historical philosophy, in Syria Ibn Taymiyyah .
/1.
came with all his critics to the political tradition and law theory, in Persi al-Ayajy .
/1.
re-systemized to Sunni theology, and in Spain al-Syythiby emerged with his law philosophy.
Granada experienced important changes in that time.
According to the history writers al-Syythiby lived in the era of Ismyyl ibn Farryj .
/1.
Muhammad ibn IsmyAyl .
/1.
, and Muhammad V alGhyny bi Allyh .
/1.
35 Political power consolidation by Sultan Muhammad V influenced the growth and development of almost all social institutions in Granada.
FuqahyAs role is also influenced and therefore affected the syariAahAs status and role.
The new educational 32 Is established by Muhammad ibn Yysuf ibn Ahmad al-Khazrajy al-Ansyry.
This name is given to a friend of the prophet.
SaAd ibn AUbydah, who also the leader of Khazryj tribe in Madinah.
He also called as Ibn al-Ahmar.
33 Ibid.
, 15-16.
34 Ibid.
, 38-39.
35 Ibid.
, 17.
al-Ihky V o l .
1 0 N o .
2 D e s e m b e r 2 0 1 5 Aby Ishyq Ibryhym Ibn Mysy al-Syythiby system, the courtsA structure, sufi penetration, and also the spread of liberal thinking, are factors that affect intellectual activities of the people in Granada.
Economical construction at that time was very important so that it could determine the history of the region.
The rising of middle sea trading, the shifting from village economy to the urban economy, the introduction of yellow Dinar money, and other factors with the similar characteristics which highly affects the lifestyle in Granada.
Some forms of trade union, contract, and new transaction which ask for the changes in methodology of law analysis which becomes the basic of law philosophy.
Granada political structure at that time consisted of three main officials who were responsible to the sultan, they are shaykh alghuzzyt37, wazyr38, and qydly al-jamyAoah.
39 The last official mentioned above gives fuqahyA .
aw expert.
political power, because they are seen to judge and decide some cases authoritatively.
Beside that they also had power to control educational institution, free thinking movement, and tasawwuf .
which could threaten political and economic system.
At that time fuqahyA cursed philosophy and people who study it as the bidAah maker as the case happened to wazyr Ibn alKhathyb.
At that case tasawwuf which was rejected by Maliki sect in the twelfth century, it can be more received in the next century.
At the thirtieth century, together with the existence of Maliky sect, tasawwuf had a strong influence.
Realizing this situation many fuqahyA then accommodate their wish to stay on their syariahAs provisions.
Accommodative attitude to tasawwuf then emerge some fiqh experts who were also the followers of tasawwuf such as Aby AAbd Allyh alMaqqyry .
758 H).
With the compromise the fuqahyA release its opposition side to tasawwuf.
36 Ibid.
, 37-38.
37 Such as warlord 38 Such as Prime Minister 39 Such as Chief Justice.
See ibid.
, 47-50.
40Sultan Mu.
ammad V and Qydly al-Nubyhy and Ibn ZumrykAs conspiracy is successful to give allegations to him as the bidAah initiator in Banu Myrin palace.
Then he was killed in the prison and burned.
See ibid.
, 60.
41 Ibid.
, 63-70.
al-Ihky V o l .
1 0 N o .
2 D e s e m b e r 2 0 1 5 Jamal Abdul Aziz Finally it can be summarized that in al-SyythibyAs era.
Maliky fiqh must face a basic change, either in social, economic, political and cultural field.
Those changes are not only analyzed by accommodating them in a law prediction but ask for a reanalysis of the methodology and its general principles.
Here al-Syythiby played a vital role.
His law philosophy was a total effort to face the changes in the society of Granada.
The Main Thoughts of al-Syythiby Al-Syythiby is always identical with his thought of maqyshid alsyaryAoah .
yaraA law purpose.
His attention is so big to maqyshid alsyaryAoah seen in his master piece, al-Muwyfaqyt, where there is a big portion to the analysis on that theme.
According to him, laws are made for the goodness of people.
This means the content of maqyshid al-syaryAoah or its purpose is the human goodness.
Nased on his analysis on some ayat43 inductively he concluded that maqyshid alsyaryAoah, in the meaning of goodness, existed in some law provisions in a whole.
When there is an unclear law for goodness, it can be analyzed through maqyshid al-syaryAoah by seeing the soul of syariat and general purpose of hanyf Islam.
Whereas the meaning of goodness by al-Syythiby45 is everything related to the human life condition, the effort to fulfill their needs, and the fulfillment needs to what the emotional and intellectual quality demands for in the absolute understanding.
46 He saw goodness from two different sides, there are maqyshid al-Syyri` (GodAs purpos.
and maqyshid al-mukallaf .
awAs purpose to mukallaf or law subjec.
According to him, there are four reasons of GodAs purpose in deciding law, they are for the goodness of human in the world and in the life 42 Ibid.
, 89-90.
43 Some of the are Q.
al-NisaA 4: 165.
Hud 11: 7.
al-AnbiyaA 21: 107.
Dhariyat 51: 56.
S al-Mulk 67: 2.
Whereas the one who directly related to the law are al-MaAidah 5:5.
al-Baqarah 2: 179.
al-Hajj 22: 39, dan Q.
al-AAnkabut 27:
In Q.
al-Hajj 22: 39.
For instance.
It is stated Auit is allowed to go to a war to whom they are attacked because they have been persecuted.
In the context of maqyshid alsyaryAoah, is said the law to go to war when they want to defend themselves or to stop the unfair things and this kind of purposes is of course intended to human goodness.
44 al-Syythiby, al-Muwyfaqyt.
II: 3-4.
Bakri.
Konsep Maqashid, 64-68.
45 The real term is actually mashlahah and its plural firm is mashylih.
46 Ibid.
, 16-17.
Masud.
Filsafat Hukum Islam, 244.
al-Ihky V o l .
1 0 N o .
2 D e s e m b e r 2 0 1 5 Aby Ishyq Ibryhym Ibn Mysy al-Syythiby after the death, to understand, to be done, and to place human under the law protection.
47 The last three aspects basically are supporting aspect of the first as its purpose.
The three aspects have a strong relationship and cannot be separated each other in order to gain the first purpose, the goodness in the world and the life after the death.
According to al-Syythiby the goodness then can be embodied in five main elements which can be guaranteed its existence, they are religion, soul, brain, descendants and treasure.
49 There are three levels in maqyshid al-syaryAoah in order to manifest and keep these five main elements, they are dlaryry, hyjy, dan tahsyny.
50 Maqyshid dlaryriyyah are intended to keep the five main elementsAs existence which must be there in the human soul.
When the purpose is not reached it can damage or threaten the human life in the world and the world after the death.
Maqyshid hyjiyyah has a purpose to keep five main elements Ignoring it can result on the difficulties in someoneAs life .
although it does not mean damaging all of his life.
While maqyshid tahsyniyyah is intended to complete human basic needs to the five main elements to gain a perfect and happy life.
Underestimating it cannot make a fatal effect or make his life difficult.
In short, hajy level is the complement of dlaryry level, and tahsyny level becomes a complement to hajy level.
In its relation to the understanding and Islamic law dynamic, the above stratification of maqyshid al-syaryAoah is then differentiated into two big groups, they are fieldrelated to the life on earth .
lmashylih al-dunyawiyya.
and the life after the death .
l-mashylih alukhrawiyya.
52 But this differentiation is not intended to make a line to make boundaries sharply between these two Islamic law fields, because actually both fields cannot be separated.
Stratification and also sorting of maqyshid al-syaryAoah can give direction to the content and priority scale in developing the law.
Besides, it can also help to 47 Al-Syythiby, al-Muwyfaqyt.
II: 3.
48 Bakri.
Konsep Maqashid, 70.
49 Those five elements then known as al-mashylih al-khamsah .
ive goodnes.
50 These three levels maybe can be aligned with three level of priority in completing needs which are primer, secondary, and tertiary.
51 Further explanation can be seen in al-Syythiby, al-Muwyfaqyt.
II: 4-7.
differentiate with , 71-72.
52 See ibid.
II: 16, 23, and 26.
al-Ihky V o l .
1 0 N o .
2 D e s e m b e r 2 0 1 5 Jamal Abdul Aziz draw a clear line between the law field which can develop itself through ijtihyd or the one which cannot.
The Dichotomy of AoIbydyt and AoyCdyt in Islamic Law The division of maqyshid al-syaryAoah into two groups, the world and the life after death, lead us to al-SyythibyAs thinking and effort to divide islamic law into two things, they are Aoibydyt and Aoydyt.
According to him, syaraAs law is divided into two kinds, they are laws which belong to Aoibydyt54 category and laws which belong to Aoydyt (Aoydiyy.
Basically.
Aoibydyt has taAoabbudy characteristic which application is based only on the people .
obedience to his God without analyzing the reasons or mashlahah commanded .
hayr maAoqyliyyah al-maAon.
, such as wudu, tayammum, salat, fasting, and While Aoydyt, its laws are based on the reason and the goodness which can be known rationally .
aAoqyliyyah al-maAon.
For instance it can be seen in the law provisions related to trading, renting, marriage and many kinds of criminal law forms.
In some reasons that were proposed by al-Syythiby dealing with the sorting of Aoibydyt and Aoydyt is the first, from the analysis on SyaraA law inductively can be concluded that provisions such as thahyrah and tayammum, which belong to Aoibydyt category, itAs hard to explain its meaning unless in taAoabbud terms.
Second, we cannot broaden the scope of Aoibydyt in taAoabbud.
Therefore the obligation is only limited on specific commands on it.
This is the reason why there is no explicit reason that can be given in such commands.
In contrary, in Aoydyt field, the broaden of the rules is the purpose.
So SyyriAo explains the reasons (Aoila.
or the advantages of the law rules that are commanded.
There are two criterion developed by al-Syythiby to differentiate Aoibydyt from Aoydyt.
First, mashylih Aoibydyt is only known by God and second.
Aoibydyt belongs to taAoabbud area .
he meaning of the rules are not yet known rationall.
But both criterion are easy to become In reality, there are many obligations which generally known 53 Bakri.
Konsep Maqashid, 73-74.
54 AoIbydyt is a plural form of Aoibydah.
This term tends to point at a categorizing law which generally related to religious rites in Islam.
In Islamic lesson structure Aoibydah belongs to fiqh field (Islamic la.
55 Al-Syythiby, al-Muwyfaqyt.
II: 222 and 225.
Masud.
Filsafat Hukum Islam, 333.
56 Al-Syythiby.
II: 222-223.
bandingkan Masud.
Filsafat Hukum Islam, 297.
al-Ihky V o l .
1 0 N o .
2 D e s e m b e r 2 0 1 5 Aby Ishyq Ibryhym Ibn Mysy al-Syythiby as Aoibydyt.
Qur`an explicitly mentioned their mashylih and Aoillah.
As an example a devotion is mashlahah of fasting.
57 In contrary, there are many law provisions which actually do not belong to Aoibydyt category thus it is also not known its mashlahah, such as zakat measurement.
Those things show the weaknesses or the lacks of his opinion about the sorting of AoibydytAeAoydyt which actually has unclear boundaries which divide them and also on the role and its significances in the body of Islamic law theory.
As a result of thinking, the sorting of AoibydytAeAoydyt in the context is of course imperfect yet.
But it must be recognized that basically the idea of sorting out is very important in understanding and developing Islamic law subjects which are so broad either the one which is related to God or the relationship between humans.
Some reviewers even state that the sorting of Aoibydyt -Aoydyt is a beginning step to positivism law in Islamic law, where law .
is separated from theology and sufiAs morality.
Closing The thought of al-Syythiby as has been described above seems to be influenced very much by the social condition of GranadaAs society in his lifetime.
In another side he saw Islamic law facing basic change in life, either economy, social and politic so it also demands for law paradigm changes from its formal and rigid characteristics to philosophic and dynamic paradigm.
In this context, he offered his opinion about maqyshid al-syaryAoah with its concept about mashlahah.
another side, he also see the influence of tasawwuf or tarekat to Islamic law .
which is so strong in the society that makes the religious rites contaminated by bidAah that is there in the lessons.
57 Masud.
Filsafat Hukum Islam, 356.
58 al-Syythiby, al-Muwyfaqyt.
II: 223.
Another laws such as, zhihyr, liAoyn, and qasymah, by some experts is also said irrational .
hayr maAoqyliyyah al-maAon.
Whereas those laws do not belong to Aoibydyt category.
See Joseph Schacht.
An Introduction to Islamic Law, (Oxford: Oxford University Press, 1.
, 202-203.
59 Masud.
Filsafat Hukum Islam, 27 and 356.
Law Positivism is one side in modern west law knowledge which excluding morality and justice considerations from concept and definition of law obligations.
Although they recognize that Law rules might be founded in the morality and justice values, but this will not block the law obligations to separate itself from morality in applying actual law.
al-Ihky V o l .
1 0 N o .
2 D e s e m b e r 2 0 1 5 Jamal Abdul Aziz Therefore he stressed on the importance to do worship as the way syaraA said.
Because he saw some aspects of Islamic law having a dynamic characteristics in the goodness boundaries which becomes its purpose, and some others have a stiff characteristics, because the characteristic of ghayr maAoqyliyyah al-maAony, so he needs to make separation in these two groups.
Here then he came with an opinion of separation Islamic Law to Aoibydyt field with stiff characteritics .
aken for grante.
and Aoydyt .
uAoymaly.
field which is dynamic and open to any References