SyamsulAnwar ISLAMIC JI]RISPRI.
'DENCE
OF CHRISTIAN.
MUSLIM RELATIONS:
TOWARD A REINTERPRETATION
Syamsul Anwar Abstrak Tulisan in mengkaji fiqih hubungan Islam-Kristendenganfokus pada masalah penelusuran kemungkinan reinterpretasi ketentuan-ketentuan hukum Islam mengenaimasalahini.
Kajian ini bertitik tolak pada suatu tesis bahwa fiqih Islam mengenaihubunganIslam Kristen yang ada terbentuk dalam kondisi-kondisihistoris tertentu dan berdasarkan beberapa teori hukum Islam yang diterima luas sepertiteori nasakhdan teori asbabun-nuzul.
Menurut teori nasakh,hukum (Isla.
didasarkanpada teks .
terakhir, sedangkanhukum yang didasarkankepda nas terdahulu yang bertentangandengannasterakhirdinyatakandibatalkan.
Ini Dalam berarti bahwanasterakhir menggambarkan tulisan ini penulis berargumentasi,denganmerujuk kepda teori-teori asySyatibi .
, 790/1.
,bahwa hukumharusdisimpulkansecarainduktiftematis dari keseluruhanteks .
yang relevandan tidak hanyadari nas terakhir, bahkan seperti dinyatakan oleh asy-Syatibi,nas-nasMakkiah merupakan fundamental hukum.
menyangkut teori asbabun-nuzul,kita dan konteks kasus-kasus hinggatidak terbatas-pada perlu memperluasnya individual melainkan mencakupkondisi sosial historis terbentuknya teks secaraumum.
Kesimpulannyaantaralain adalahbahwa teks-teks al-Qur'an dan hadis mengenai hubungan Islam-Kristen lebih menggambarkan sikap sezamandalam menanggapiresponyang diberikan oleh Ahlul-Kitab terhadapIslam.
Oleh karenaitu masihterbukaruanguntuk reinterpretasi hukum Islam mengenaihubunganIslam-Kristen se-suai dengantuntutan perkembangan Al-Jam.
No.
60/1997
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Al-lami'ah.
No, 60/1997 SyamsulAnwar Introduction What is meantby Islamicjurisprudenceof Christian-Muslimrelations is a study of thoseparts of Islamic law pertainingto how Muslims see Christian "others" anddeveloprelationsto them basedon the Shari'ah This term doesnot referto a singleand independentbranchoflslamic legal studies like the study of personalstatus law .
iqh al-ahwal alshakhpiyy.
, criminal law .
l-fiqh al-jina'.
, constitutional law .
l-fiqh al' dustw.
and so forth.
Rather it comprisesnonns and legal rules from various branches of Islamie law which are most closely connectedto the relations between Muslims and Christians.
It is morelike the notion of business law that doesnot meana specialbranchof law, but it describesthose parts ofthe law affectingtypical businessactivities.
This aspectof Islamicjurisprudencehasbeenattractingthe attention of the fuqaha' (Muslim jurist.
sincethe classicaltimes.
One can find the discussionson this topic overwhelmingamongthe-iuristsand much more than what the Mutakallimin (Muslim theologian.
do in theological l In the presentday the debateaboutthis topic is carriedout undera variety of rubrics and has gainedits new impetusdue to severalfactors.
For example,the rise of political Islam in many partsof the Muslim world and the plea for the applicationof Islamic law accompanyingit has raised the fear among the Christian minority in some predominantlyMuslim countries of being relegatedto a status as the secondclasscitizensas given to them in the classicalfiqh rules.
In many cases the Muslim jurists in the past did not treat various aspectsof this topic by concentratingthem in a singlechapter,ratherdispersed them throughoutlegal work.
At times they discussedsomeaspects in the chapter on marriagelaw while discussinginterreligiousunion, and while dealingwith inherisometimes in the chapteron law of succession tance betweenpersonsof different religions.
They alsodiscussedthis matter in a book on governmental,or more appropriatelyconstitutional,law where they talked aboutconstitutionalrights of the protectedpeople.
hl aldhimm.
But the most commonplacefor this topic is the chapteror book called Siyar.
he relationsto non-Muslim.
Many works in this field were produced in the past and the well-known and most ancientone which is extent to the presentday is Kitab al-Siyar al-Kabirby Muhammad Ibn alHasan al-Shayban-i10.
of the Hanafi schoolof law.
3 Threecenturies later another Hanafi jurist, al-sarakhsi .
, produceda Al-lami'ah.
No.
I slamic luisprudence of Chistian-Muslim Relahans great commentary on this book underthe title of SharhKitah al-Siyar alKabir.
a Another importantwork which can be mentionedin this regardis a work by the Hanbali Ibn Qayyim al-Jawziyya.
entitled Ahkem Ahl al-Dhimma(Laws on the protectedpeople.
The main attitudeof the classicalMuslimjuriststo the Christians as can be discernedfrom the jurisprudenceof Muslim-Christianrelations they formulatedwas basedon the supersessionist notion of the relationsto the others.
Even though these jurists were ableto acknowledgethe very existenceof the otherscoexistingwith them andto rccognizetheir rights to a great extent,but in generalthey lookedat thoseothersas inferior and the relationsto them were put in the frameworkof .
iihad excepthosewho accepted to enter under the protection .
l-dhimm.
Therefore the starting point of their legalreasoningwas suchan exclusiveQur'anic verse and hadith without paying much attention to the moreinclusive In this connectionseveralquestionsmight cometo the fore: Why did the classical fuqaha hold tenaciously,and give muchemphasison, those texts of opprobrium?From a moderninterestandperspective,how can we contextualize and understandsuch texts for reinterpretingIslamicjurisprudenceof Muslim-Christianrelations? This paper will try to deal with thesequestionsby stressingon general principles, not on the details of the substantivelegalrules.
But to give a glanceat the imbefore commencingwith them,it is necessary portance of the Shari'a for a Muslim andto clariff its very conceptand The Importance of the Sharl'a (Islamic La.
Shari'a is one of the most importantaspectsof Islam for a Muslim.
It is this aspecthat most Muslims considerasthe main spacefor the expression of their religious experience.
This importanceof the Shari'a in the Muslims' mind can be discernedfrom the fact that fatwfu issuedby individual scholars and social organizationsconcentrate muchmore on This fact Iegal than any other aspects of Islamicreligiousexpressions.
has also been much appreciatedand shown by Western and Eastern (Musli.
Accordingto FrederickM.
Dennywho observedNorth American Muslims' theological activities, the Shari'a,if comparedwith (Islami.
theology, seemsto be the primary focus of attentionand the main areaof systematicreflectionon the Qur'an and Sunna.
Thereis little Al-l ami'ah.
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SyamsulAnwar in their activities that would look like theologyin the propersenseof the word'and even in the classicalmeaningof kalam.
Islamic theology, if by it kalam is meant,has neverbeenableto gain as a high position in the Muslims' eyesas the Shari'a does.
It is not surprising that one finds someMuslim jurists are strongly opposedto the Islamic speculativetheology .
Shef i .
,the the founder of a schoolof law ascribedto him, is relatedas saying about the Mu'tazifi Hafs al-Fard,"It is better for him to die and meet God with all sins except associationism .
than to meet Him with kalem.
Ibn Qudama .
62O11.
,anotherMuslimjurist ofthe Hanbali school of Islamic law, wrote a special treatiseto refute the theology of kalam and to warn the sincerefaithful of the dangerof being involved in such doctrines of kalam as were shown by his fellow memberof the same school.
Ibn 'Aqil .
I I 19 A.
In this treatiseIbn Qudamaalsoquoted a number of jurists who were opposed to kalam, such as Abu Yusuf .
, the Hanafi jurist, who has said,"He who seeksreligious knowledge through kalam becomes a heretic," and lbn 'Abd al-Ban .
of Spainwho has said,"Jurisprudents.
hl al-fiqh'1andtraditionists .
hl al-athafl of all the big cities are agreedthat the adherentsofkalam are adherentsof hereticalinnovationsand of error.
Quoting Anderson.
Herbert J.
Liebesny describesthe Shafi'a as having held a paramount place in the civilization and structureof the Muslim world .
and having enjoyedthe prestigewhich can be regardedas without parallel in history.
loTh" reasonof this is simple.
God, as believed by the Muslims, has not revealedHimself and His nature,ratherhis words which contain His commandsto be observedby humanbeingsas His servants.
rl Thus JosephSchachtdoesnot exaggeratewhen he statesthat the Shari'a is "the epitomeof Islamic thought, the most typical manifestation of the Islamic way of life, the core and the carnalof Islam itself.
"r2 It is becauseof this reason, as a Muslim writer from Morocco says,that the Islamic jurisprudence .
l-fiq.
becomes "the evenestshares"distributed among the Muslims, and one almostcan find a book on Islamic law at the house of every committed Muslim from the Atlantic to the Philippines.
At the present time, the applicationof the Shari'a value and principle in Muslim societies, their public life and the development of their socioeconomic and political systemforms one of the commonobjectivesof the Islamic revival movement notwithstanding of its heterogeneityin reality.
Al-lami'ah.
No.
Islamiclurisprudenceof Chi stian-Muslim Relations Therefore, every effort on the part of Muslim leadersto bring the Muslims involved in dialogueswith the adherentsof other religions,such an effbrt made in last coupleof decadesto promoteChristian-Muslimrelations, should take the Shaii'a into consideration.
For the Muslims, the Shafr'a is a religiousvalue systemwhich forms a frarneworkof reference into which they confinetheir acts and conducts,includingthe relationsto Christians.
In modern times with the closercontactbetweenChristians and Muslims, the question as to thelslamic jurisprudenceofChristianMuslim relationshas assumeimportanceonceagain.
Although it is believedby Muslims that the sourcesandprinciples of the Shari'a are divinely ordainedand revealedby God, but many points of detail in its legal ruleswere formulatedanddevelopedalongthe history of Islam in compliance with social demandsof various Muslim generations.
Even the legal rulesof the Qur'an itself, not to mentionthoseof the Sunna, are not meta-historical in nature.
Every legal verse.
yah alhuk.
has its particular background ofrevelation .
ababal-nuzill.
The legal versesin the Qur'an did not comedown or were not revealedto Muhammad at once and in a vacuum,but graduallyand verseby versein accordancewith the casefacing the Muslim nascentcommunity at that time.
It is, therefore, very important for the Muslims to appreciatethe historical dimension in the Shari'q including in this casethe aspectof Christian-Muslim relations jurisprudence.
Many rulings in this aspect were the product of generationsof the Muslim jurists, conditionedby certain socio-economiccircumstances,and tinged by more or lesspoliticallymotivated interpretations.
When time passesand many changeshappenas we are undergoing in the late twentieth centurynow, the applicationof those rulings raises serious questionsin term oftheir relevanceand adequacy in responding to modernneeds.
Thereforethe needof reinterpretation of the Shari'a,especiallyregardingMuslim-Christianrelationsjurisprudencein moderncontext, is unavoidable.
Concept.
Sources,and Objectives of the Shari'a The Arabic term "Shati'a" is usually translated into English as Islamic law.
Even though this translationis true, but it doesnot comprise the whole concept contained in the term.
Howeverit shouldbe acknowledged that, due to the natureof humanlanguageitself, it is alwaysdiflicult to find a parallelword in a languageto conveya certainconceptfrom other language as the case with the word "shati'a.
" This is on the one Al-lami'ah.
No, 60/1997 SyamsulAnwar On the other hand many Arab writers, especially those who are trained in western legal tradition, usethe word "sharl'a" in the senseof However, the conceptof Shari'a in lslamic traclitionis much wider than merely law.
The religiousscholarsof Islam usethe word "shar{'a" in two meanings: wide meaning and narrow meaning.
In the wide meaning by the Shari'a is meant,as in the word of al-Tahanawi,"norms laid down by God and revealedfor humankind through a prophet of Him whether the nonns are concernedwith governing human conducts and named the branches of religion for which the scienceofjurisprudencewas created,or concerned with the doctrinesof belief and calledthe fundamentalsof religion for which the scienceof theologywas constructed.
"rsAccordingto this definition, law is only one dimensionof the Shafi'a, for the Sharl'a includes theology as well.
In other word, as put by someMuslim scholars.
the Shari'ais the totality of religionrevealedin the Qur'an andthe Sunna of the prophetMuhammadno matter it is concernedwith the doctrinesor the practicer.
tu Al-shatibi .
790/1.
saysthat the Shaii'a containsthe totality of the divine commandmentsregardinghumanconductsand belief.
lT Thus in this wide meaning,the Shari'a is identicalwith the religion of Islam itself.
Beside this broader meaning, the term "shari'a" is alsousedin a narrow and more specificsensein which it is definedas a body of norms governinghumanconductsin relationto one's self, to other humanbeings, to nature and to God.
This nanow meaningof the Shari'a refersto the practical aspect of Islam.
If the reader takes anotherlook at the above mentioned definition of al-Tahanaw'ionce again he will find that the Shari'a, accordingto him, consistsof two aspects:doctrinesandpractices.
ln its narrow sensethe Sharl'a refersto the secondaspect,and it is in this meaning that the word "shari'a" is usuallyreferredto as Islamic law.
But, in fact, even here the Shari'a is not necessarilyidenticalwith law in its strict meaning,becausethe Sharl'a comprisesstill more elementsthan law For example the Shari'a contains rulings relatedto ethics and ritual practices.
The primary sourcesof the Sharl'a arethe Qur'an and the Sunna of Prophet Muhammad .
eace be upon hi.
Thesetwo sourcesare regarded by the Muslims as divine revelation.
The Qur'an is the verbatim word of God revealedto Muhammadthroughthe Angle Gabriel and therefore there is no interventionof Muhammadin wording and composingthe Al-l ami'ah.
N o.
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IslamicJuisprudenceof Ari stian-Muslim Relations Qur'an.
In the caseof the sunna,God revealedthe meaningto Muhammad and then the latter expressed that meaningthroughhis utterances,deedsor As sourcesof the shari'a, the Qur'an andthe Sunnacontainonry the basic values and principles.
Thereis no greatdetail of rulesin them, exceptin few casesregardingrituals andpersonalstatuslaw.
Although the sunna carries moredetailedrulingsthan the Qur'an does,for it functions as an explanation of the latter, but it is subjectto historicalcriticism for the sake of its authentication.
As far as legalrulesaffectingchristianMuslim relations as concerned,thereis a coupleof eur'anic verseswhich can be mentioned in this case.
But the Muslim jurists in the past usually started their legal analyses from verse29 of chapter9 of the eur'an.
course there aremuch moretraditionsrelatedto this case,but they should be acceptedcarefullyin term of their authenticity Anyhow, the Qur'an andthe Sunnado not carry all detailsof legal Therefore Muslim jurists sincean earlyperiodof Islam developeda set of methodologicalprinciplesfor interpretingthesetwo primary sources and extracting legal rules therefrom.
Thesemethodologicalprinciplesof extracting law which were muchmore known in the past asthe subsidiary sourcesof Islamic law includeconsensus .
mi\, analogy.
,preference .
, continuing effectivity of law .
, good interest .
, customs ('ada.
Companions' legal decisions.
atawa alsahab.
,and laws of the previouspeoples.
har' manqablana.
the raws brought by the previousprophetsfortheir respectivepeopl.
It shouldbe noted that the last mentionedsourcehasnothingto do with the jurisprudence of Muslim-Christian relations.
what the classicalMuslim jurists talked aboutregardingthis sourceis whetherthe ProphetMuhammad,before he was appointedas a messenger of God, worshipedby usingthe liturgy of the previousreligion or not.
This questionwas not valid any more after Muhammad acceptedrevelation from God as startingpoint of his However,their debateson this problemwere very theoreticaland did not touch a concreteor practicalquestion.
Consensus,customs, preferenceandgood interestcan be dynamic principles of Islamic law, for everynew problemwhich is not coveredby the explicit texts in the Qur'an andSunnacanbejudgedon thebasisof these principles.
Modern Muslim jurists, however,give much emphasison the importanceof the latter principle,i.
good interest.
Actually, the first Muslim jurist to expoundthe theory of good interest .
l-maslah.
as a ba- AI-Jami'ah,No, 60/1997 SyamsulAnwar sis of extracting law thoroughly and in a comprehensive .
of law.
al-shatibi 790/1.
,of Maliki Spanish Muslim The theological basisfor the legitimacyof this principle.
as al-ShatiUiargued, is the Qur'anic verses,of which is, for example,a versesaying,"We sent thee not save as a mercyfor the peoples".
[Q.
Reflectingon this verse and other similar verses,al-Shatibicameto a conclusionthat the aim of law making must be a mercyfor humankind,that is good interest for the community.
Thereforeall legal rulesformulatedhave to be in accordancewith this principleof the Shari'a,otherwisethey will be invalid.
23 In the presenttime this principlecanbe developedfor the purposeof reinterpretingIslamicjurisprudenceof Muslim-Christianrelations.
Historical Islamic Jurisprudenceof Christian-Muslim Relations Before dealingwith reinterpretationof the Sharl'a (Islamic la.
in connection with Christian-Muslim relations,we haveto investigatefirst how the historical Islamic law was describedby the Muslim jurists in the The generalprinciple of the Islamic teachingsregardingthe religious "others" as far as thosewho live in Muslim communityis concernedis the acknowledgementof the essentialhumannessof them and the recognition of their de jurelegitimacy as an integralpart of a singlecommunity.
Their laws, social norms and religiouspracticesarerespected.
The relationsbetween them to the Muslims areviewed in terms of communalityas members who have respective responsibilitieson the integrity of the community.
2a The indicationsof this generalprinciplecan be shown as follows:
the so calledCharterof Medina comprisesnot only variousArab Muslim tribes but also non-Muslims as well.
A versein the Holy Qur'an clearly recognizesthe opportunity to salvation for the religiousothers, such as a verse which reads, "Surely thosewho have faith and who are whoeverhas faith in Allah and Jews and the Christian and the Sabaeans, the Last Day and doesgood,they havetheir rewardwith their Lord.
is no fear for them, nor shall they grieve.
" [Q.
The aforementionedprincipleof Islam has enabledMuslim jurists evenin the most hostile in the past to maintained an aeknowledgement, environment and antagonist situation,of the presenceof religiousothers coexisting with the Muslims.
But, anyhow, the concretesocio-political circumstancesencompassingthem has conditioned and determinedhow they interpretedthis principle and formulatedlegal rulestherefrom.
Before considering how the interpretationof the Shari'aprinciplewas tinged by AI-lami'ah,N o.
IslamicJuispruilenceof Christian-Muslim Relations the actual concrete relation between the Muslim and Christiansin the past, we need to make a brief glance at those rules and norrns.
For this purpose, let the writer summary the Islamicjurisprudenceof ChristianMuslim relations as set forth in classicallegal works.
The relation between Muslims and non-Muslims in a predominantly Muslim community, as can be understoodfrom Islamic legal literature in the past, was based on a contract,that is the contractof protection.
25 From this basic ide4 the Muslimjuristscoined theterm ahl aldhimma literally meaning "the protected peoples.
" In this contract, the protected peopleshave to pay the tribute .
l'jizya\ as the consideration,of the protection given to them.
Although the classicalMuslim jurists were disagreed on the exact meaningof the term "al-dhimma", there were basic features characterizingthis contract.
In the first place, this contract is pennanent in nature in the sensethat it is not limited by time, so that it differs from peace agreement which is concludedfor a certain period of In the secondplace,this contractis not predicatedon the assessment of Muslim state head aboutthe Muslims' interests,in the sensethat once it is concludedby the protectedpeoples the Muslim stateheadhas to accept it and he cannot alter the terms of the dhimma.
He is obliged to accord the protected peoples the rights which they are entitled by the Shari'a.
Finally, this contractcannotbe revokedon the groundof fear of treason,evenif there strong evidenceto this effect.
ln the contract of protection, as mentionedby the Hanbalijurist Abu Ya'la Ibn al-Farra' .
458/1.
,the protectedpeopleswere required by the law of Islam not to do the following things concerningMuslims and Islam:
conspiringto wage wars againstthe Muslims, .
committing adulterywith a Muslim woman, .
making sexual intercoursewith her on the nameof marriage, .
luring a Muslim away from his religion, .
robbing a Muslim, .
sheltering a spy of the associators.
l-mushrilnin'1, .
giving information aboutthe Muslims to the associators, .
killing a Muslim man or woman, .
speaking of Allah.
His book.
His religion, and His Apostle in a derogatory statement.
If they do these prohibitions they break the contract ofprotection.
2? In anotherplaceof his booK Ab[ Ya'la mentioneda view of vari- AI-l ami'ah.
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SyamsulAnwar ous Hanbali jurists to the effect that if the protectedpeoplesbreakthe contiact their blood, property and progenywill be proscribed.
o legal protectio.
n As far as their rights areconcerned,Abu Ya'la mentionedthe right of religious freedomin the sensethat the Muslims arenot allowedto meddle in their religious affairs.
But as a public policy in a Muslim land, they are not permitted to build any new church.
It is only the one that is already in existence prior to the time of contract,but now brokendown, that they can rebuild.
" The Hanafi jurist, al-shaybiini,mentionedmore detailed rulings concerningthe last point.
Referringto a tradition in which the Prophet Muhammad was related as saying, "No church in Islam", alShaybani contendedthat the prohibition of building new churchesapplies only in the case of a city or a land wherethe Muslims constitutea predominant population.
If the Muslims were not predominant,the protected peopleswould be not prohibited from building church.
Al-Shaybdniwrote, lf they want to build a new churchin that city .
herethe Muslims arepredominan.
they will not be allowedto do that, becausethe city has becomeone of the Muslim citieswherethe Friday and 'ld Holiday prayersaredoneandthe Islamic law of lludid is enforced.
allow them to build any churchin sucha placemeanslo causeweakness ql^nongthe Muslims and lel them opposethe Muslims formally.
"" As to the city wherethe protectedpeoplesarepredominant, such as Hira and the like wherethereareno Friday pl3yersandno law of hudid enforced,they arenot forbiddento do thal.
Al-Shaybani's commentator, al-Sarakhsl,addedthat the jurists of their land were of the opinion that the peoplesof the protection arenot prohibited at all from building new churchesin villages.
prohibition is basedon the considerationthat the city is a placefor raising the symbols of Islam such as Friday and Holiday prayersand enforcement of the law of hudid.
t2 Summarizinghis discussions,al-Shaybanisaid,"ln sum, they are forbidden to do that in the city and its suburb,but are allowed in villages ofpredominantprotectedpeoples.
But as to the village amongthe jurists.
"33
inhabitedby Muslims there aredisagreements The other matter related to the ahl al-dhimntais the right to have their own courts to settle their disputesboth in civil and criminal matters.
Here we are faced with a questionof multiplejurisdiction of law court.
The classical Muslim jurists gave a positive answerto this question.
Ab[ Ya'la said, "If they disputeabout a right andgo to their own court of law they are allowedto do that.
"'o But in the casethey optedto go to Muslim court they would be treatedaccordingto Islamic law.
Al-l ami'ah.
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IslamicJuisprudenceof Christian-MuslimRelations What is discussedabove regards the relationsof Muslims to the Protected People who live in, and thereforebecomea part of, the Muslim As to non-Muslims other than these ahl al-dhimm4 even though the classical jurists did not mentionedfrankly, it seemsthat the underpinning basis for the relations to them, as can be perceivedfrom reading through lslamic legal works especiallythoseof the later period, was what is statedin the first partsof chapter9 .
l-Tawb.
in the eur'an, especially what is mentionedin verse29.
This versereads,"Fight against such of those who have beengiven the scripture as believenot in Allalr nor in the Last Day, and forbid not that which Allah has forbiddenby His messenger,and follow not the religion of truth, until they pay the tribute readily, being brought low.
" Extracting a maxim from this verse,those jurists, although there was a degreeof variety in their opinionsin this re, gard,36contended that jihad againstunbelieversis a permanentlegal rule governing the relations to non-Muslimsand is therefbreobligatoryupon the Muslims collectively "until persecutionis no more,and religion is all for Allah.
" [Q.
But as to the Peopleof the Book, an alternativewas determined in which they could pay the tribute throughthe contractof protection rather than enteringinto the war relations.
Parallelwith this theory they summed up the main tasksof the Muslim statehead.
mam\, as the representativeof the urnma,in few points one of which is "to wage holy war Qihad\againstthosewho stubbornlyrefuseto acceptIslam after being offered to embraceit until they surrenderand becomeMuslims or enter to a dhimmaagreement.
"3t Neverthelesstherewerejurists who contended that jihild is only incumbentuponthe faithfuls when resistingan aggressive enemy either invading or preparing to annex the Muslim Toward Reinterpretation So far we have seen severalaspectsof Islamic law pertainingto Christian-Muslim relations as depicted in classicalegalworks.
It is not my intention to discussherethe argumentsset forth by the Muslim jurists regardingthe aforementionedrulings.
What might be interestingto note is that, from a modernperspective,the languageof Islamicjurisprudenceof Muslim-Christian relations as reflectedin thoseclassicalegaldoctrines, even though we have to recognizeits ability to acknowledgethe others, tends to put them in an inferior position and in war relationsexceptthe protectedpeopleswho could pay the tribute as a substitutionof war.
Al-lami'ah.
No.
SyamsulAnwar Several explanationscan be adducedin this connection.
/trs4historically the cumulative effect of centuriesof tensionbetweenMuslims and Christians combined with the ideaof Islam being the universalreligion for all humankind contributedto the creationof the supersessionist attitude toward the others-- the attitude in which the later religion supersededthe previousone.
Second,the atomistic modeof thinking, which dominatedIslamic culture in the past,ooimpededthe.
iuristsfrom contextualizingand paying attention, while understandingthe Shari'a sources,to the overall context and historical development of the attitudesof the Qur'an and the Sunna.
They, rather, held the partial context of individual texts.
This, in turn, theology,led the jurists to choosethe last coupled with the supersessionist Qur'anic texts revealed to Muhammad.
the Chapterof Repentance (Sira al-Tawb.
which are clearly exclusivistones,over the other texts, which may be more inclusivist.
This is clear from a very brief summary made by Ibn al-Qayyim about the developmentphasesof Muhammad's relations to non-Muslimsof his time.
Accordingto him.
Muhammadwas appointed a prophetwith the revelationof the first five versesof the ,Sura al-'Alaq and then as a messengerwith the revelation of the Sura alMuddaththir through which he was orderedto call .
o his new religio.
his close relatives, then his people,then the Arab tribes aroundhim, then all the Arabs, and then the whole world.
He stayed.
t Mecc.
for someten years doing da'wa without war and tribute .
and being orderedto refrain from, be patient with and forgive the other.
Then God allowedhim to emigrate .
o Medin.
and to fight thosewho fought him and refrain from those who desisted from, and did not fight, him.
Then God ordered him to fight the Associators.
l-Mushriffi.
until the religion is all for Allah.
ar Ibn al-Qayyim continues, "After the comingdown of the Bara'a [Chapter IX of the Qur'a.
the unbelieversin relationto Muhammadbecame two groups: thosewho were fighting him and the peopleof protection.
"a2 Thus the last state of developmentwas consideredas a permanent rule of the relationsto non-Muslimsand this kind of view is bolsteredby the theory of naskh that a later text abrogatesthe rule of the samecase containedin a prior text.
Third, in general,any normativevalue system.
suchas a religion or an ideology, is undeniably a source, to some extent,of an exclusivity.
Each normative system requiresthe commitment on thepartofitsfollowers and gives the sanctionfor compliancewith its precepts.
The basis Al-lami'ah,N o.
60/1997
Islamiclurispruilenceol Christian Muslim Relatiotts for this commitment and compliance is the conviction that conformity with the system will bring about somespecific moral or material benefits which will not be achieved,at leastnot to the sameextent,throughcomplying with other normative systems.
The efTort made to demonstrate these benefits,which is in fact protractedand difficult.
leads to exaggerating them and, in turn, generatesa view to the otherswho do not comply with the system as inferior.
Anyhow, the Shari'a is very much presentin the heart and minds of the Muslims all over the world.
Evenwhereit is not the formal legal systenr"the Shar'i'a has a powerful influenceon Muslims' attitudesand However, in the context of Muslim-Christianrelationsin the world of today, the historical Islamic law as inherited from the far past will raise a question as to its adequacyto responseto modernneed.
Here a reinterpretation is unavoidable.
In order for a reinterpretation to be possiblewe haveto take the following ideas to consideration.
Firstly, a shift is neededfrom an atomistic approach which characterizesthe classicalIslamic .
reasoningto a holistic methodthroughwhich the whole revelatorycontextualityof the Shari'a texts is brought into focusof study.
ln fact this holistic approach to legal reasoningis not new.
it was proposedfor the first time by a wellknown Maliki jurist, al-Shatibl.
790/1.
Accordingro him, if a jurist wants to extract a rule for a certaincasehe hasto look for and collect all relevant pieces of the Shari'a evidenceanddraw a conclusionfrom them collectively if a certainty of that rule is to be achieved.
The certitudesurrounding the Sharl'a rulescan neveror, at least,hardly be found in reasoning basedon merely an individual text or evidence.
It is the cor-roboration and the aggregationof piecesof Sharl'a evidencethat bring a certainty in Al-Shatibi argued that the conclusive certaintywe have about the Five Pillars of Islam and many other Sharl'aprinciplesis establishedin this methodof legal reasoning.
As far as Islamic jurisprudence of Christian-Muslimrelationsis concerned,the implication of al-Shatibl's holistic approach is that the (Musli.
jurists cannot extract a legal principle concerningtheserelations just from certain texts of the Shar{'a,i.
the texts of the last Medinanperiod.
They might also haveto considerthe whole relevanttexts including the Meccan texts, which, onceagainin al-Shatibl'stheory,represeDtthe very basicprinciplesof Islam.
Al-lami'ah.
No.
SyamsulAnwar Secondly, a shift is neededfrom a nanower concept of the theory of asbabal-nuzul and asbab wurid al-hadithto a wider notion of historical background of the texts.
Even though the classicalMuslim jurists were aware to someextent of the historical dimensionof Islamic law, their approach in this regard, however,is still limited in nature.
While they paid much attention to the context of individual texts, as reflectedin the theory of asbab al-nuzul .
he occasionsofthe revelation,i.
the coming down of a Qur'anic vers.
and the theory of asbabwurud alladith .
he occasions of the emergenceof a prophetictraditio.
, they did not show any serious attention to the overall socio-historicalcontext of the texts.
They were seeminglyreluctantto copewith the questionof contextualization of the texts beyondthe searchfor individual occasion.
general, as a modern writer argues,the classical,and still many modern.
Muslim scholarsview the sacredtexts as if they are a meta-historicalconstruction exempt from any human touch in the social process.
otThe Muslims' reluctance to pursue the historical dimensionof the Shari'a texts, especially the Qur'an, is due to the strong willingness and the passionate commitment to preservethe otherworldly attributesof the sacredtexts.
is also becauseof fear of destroyinga universalvalue of them.
However, the socio-historical and linguistic background of the texts is reflected in the contents,styles and languageofthe texts.
Therefore, there is a progressivedevelopmentof thesecontents,styles and language which can be discernedin all phasesof Meccan and Medinan periods of the Qur'anic revelation.
otAlso the emergenceof the theory of abrogation .
reflectsthe awarenesson the part of the Muslim jurists of the progressivedevelopmentof Qur'anic revelation.
In this theory, the rule contained in a later verseabrogatesand invalidatesthe rule ofan earlier Thus abrogation theory confines the law to the texts of the latest Some classical scholars, such as Abu Muslim al-Asfahani .
, and some many modern scholars, such as Ahmad Khan, alFaruciiandthe Indonesian 'alim Hasby ash-Shiddieqy,reject the naskh As it is believed by all Muslims, the revelation.
ecitedor unrecite.
Muhammad received is divine communication to human being.
What is to be aware about is that this communicationtook place in history and in socio-culturalsettingssurroundingthe recipients.
Thus translating and formulating of this divine communicationinto concretemoral guidelines and legal rulings needfull understandingof the contextsof this Al-Jami'ah.
No.
IslamicJuisprudenceof Chi stian-MuslimRelations revelation and its progressivenature.
As for relationslo the other, one can see a gradual unfoldmentof the Qur'anic and Sunnaticattitudesin terms of this other's varied responseto Muhammadin his time.
Any failure to appreciatethis gradual developmentin interpretinglaw pertainingto the other will lead to the conclusionthat the Shari'asourcespresenta confused and contradictory rulings regarding The implementation of a historical approach and contextual analysis in understandingthe Sharl'a texts regarding the question of Christian-Muslim relations and extractinglegal rulestherefromdoesnot mean that we are far removedfrom the methodologicalprinciplesset forth by our jurists in the classicalegal theory.
It is a recognizedmaxim that laws can be changed when the subjects of the laws in question face changing times, places or customs.
Law is alwaysin the making.
Anicle 39 of Majalla al-Ahkam al-'Adliyya declares that "The modification of Iaws due to the changeof times and placesare not detested.
"Long before the Ma.
Ibn al-Qayyim had declared that the fatwa .
egal decisio.
could be changedon the groundof the changeof place,times and customs of people.
On the other side,the principleof ratiocinationhasbeenwell established and acceptedby nearly all Sunni legal schoolsof law.
In rhis regard one finds a maxim stating that "a law becomesoperativein conjunction with the presenceof its causalegis .
l-'illa\.
"so What is meantby the ratio legis is the causebehind a rule affectingwhy that rule is enforced.
some circles of the Islamic legal schoolsthe conceptof the ratio legisis widened to include not only the causeof a rule but alsothe valueand objective of it, which are called hikma.
st An exampleof the causalegis ('ill.
can be seen in the case of pre-emption.
accordingto the rules of which the joint, or the neighboring,owner of a real property has priority to buy the propertywheneverhis partner.
hat is the other-ioint or neighboring owne.
wishes to sell it.
The causalegis ('ill.
why the joint owner is given this priority is the fact of existenceof the joint ownership Thus the rule of priority in this caseis in effect wheneverthere is joint ownership, and vice versa.
The objectiveor hikma of the rule is to protect the partner against a possibleharm that may arisefrom saleto a third person.
Yet, in connectionto Christian-Muslimrelations.
we have to widen the conceptof the causalegisitself from a static, textual notion to include also a dynamic one which is more historical in nature.
Such a legal Al-Jami'ah,Na 60fl997 SyamsulAnwar reasoning is not too new and,therefore,shouldnot be deemedstrange.
Indonesian context, especiallyamongthe Muhammadiyahs3 circle, fatwa and legal decisionsare issuedon the groundof this methodological For example a couple of yearsago, a hospitalof Muhammadiyah was to appoint a new director andthe only candidatewho met all the criteria set forth by the TrusteeBoardwas a woman,who happenedto be a very committed Muslima.
when offeredthe position, sherejectedarguing that the Prophet Muhammad prohibits a woman fiom being in chargeof Muslims' affairs, in a well-known tradition saying,"such peopleas appointing a woman to be in chargeof their affairswill neverprosper"(.
/az yutliha qawmtn wallaw amrahumimra'.
[Iladith relatedby Bukhari and 54The Board of rrustee of the hospitalwrote a letter to the Local Muhammadiyah Council of Weighing (Ma.
ielis Tarjih Muhammadiyah wilaya.
asking a fatwa regarding the issuein question.
But the Local council did not give the answerand insteadsentthe questionto the central council of weighing (Majelis Tarjih Pusa.
Herethe council implemented the historical approachto investigatethe conditionsof women at the Prophet's time that led him .
nd, at the sametime, fitnctionedas a causa legis/'ill.
to disallow them to be in chargeof Muslims' affairs.
The result is, in sum, that women's conditionsand social experienceat that time still did not enablethem to rule or to be responsibleon public affairs.
ln modern times the situationshaveso much changedso that the women no longer live underthe shadowof men.
In many casesin terms of education and involvement in socio-politicallife they havegainedmuch progress and have beenequalwith men.
Thus the causalegisof the Prophet's prohibition mentioned in the above-quotedtradition doesnot exist any more and whenever the causa legis of a prohibition is absentthen the prohibition itself is no longerin effect in accordance with the maxim "A law is operative or not accordingto the presenceortheabsenceofits 'illa" Part of the argument is a view that to rule or to be in chargeof society's affairs is, in Islamic teachings,considereda kind of al-a'mal alsaliha .
ood deed.
which is declaredin the Qur'an as one of the criteria of a good person, and sharing the reward of which every one, male or female, is entitled to.
In an impressiveverse of the Qur'an God says, "Whosoever doesgood deeds,whetherof male or female,and is a believer, him or her verily We shall quickenwith good life, and We shall pay them a recompensein proportion to the best of what they usedto do.
" [Q.
l6:97.
Al-Jami'ah.
No.
Islamicluispruilence of Chi stian-Muslim Relations 4:124 and 40:401.
Thus men andwomenhavethe sameright in this regard as far as they meet the requiredcriteria'ss Another case in which Muhammadiyahimplements a sociohistorical consideration in understandingthe Shari'atexts is the question regarding the arts of sculptureandpainting.
Accordingto the classicalIslamic jurisprudenceas held by the greatmajority of the Muslim jurists .
/fiqah.
, the Qur'anic commentators.
l-mufassirun\and the traditionists .
t-muhaddithu.
,making statues,relieves and pictures of human and animal beings is forbidden .
Some modernMuslims evenwiden this ban to includephotography.
The textual basesftrr this ban aretraditions of the ProphetMuhammadwhich, accordingto the Muslim criticism of hadith, nearlyreachthe mutawatir.
status,i.
very authentic.
In one of these traditions, the Prophetis relatedas saying,"The people who will receive the severestpunishmentfrom God in the Day of Resurrection will be the picture-makers.
"s6 Students and teachers at Muhammadiyahschoolsand collegesof art raisequestionsas to this ban of picture-making,becausethey do make it in their art classes.
On the other sidg painting,relief and statueare very useful, for example, for perpetuatinghistoricalevents.
Do not ask the urgent need, in modern times, of photographs.
Questionsthen arise:Is not there still more room for anew iitihadot anew interpretationregarding this issue? Doesnot God desireeaseand detesthardshipfor us, as He declaresin the Qur'in? [Q.
/:.
In its Twenty Third National Meeting in BandaAceh .
orth part of Sumater.
in 1995, the CentralMuhammadiyah.
ouncil of Weighing [Majelis Tarjih Muhammadiyah Pimpinan Pusa.
took a decisionto the effect that as far as the causa legis why the Proplret bannedpictures .
hich include relief and statue-makin.
is not present,then there is no objection to do that.
The causalegis of the ban,the Council argues,is the fact that the Prophet,at that time, was strugglingto bring his community to a true monotheist understandingof God andto rid them of a belief of God's embodiment in physical objects such as statueor picture.
Thus, provided one doesnot havesuchan animistic and polytheisticbelief while making pictures,he or sheis allowedto haveor makepictures.
According to the presentwriter's opinion,thereis no objectionin implementinga socio-historicalapproachto reinterprelingsomeaspectsof Islamic law as far a-sthreeconditionsare fulfilled: .
socialcondition creates an urgentneedof reconsideringthe existing rules.
rule in question Al-lami'ah,N o.
60/1997
SyamsulAnwar is not pertaining to ritual aspectsof Islam the rationalebehindwhich is considered as unintelligible,and .
a new alternativeto which the text is taken to mean is supported by, or at leastcompatiblewith, the general spirit of the Shari'a.
To implement a socio-historical approach to understandthe shari'a texts regarding christian-Muslimrelations--bearingin mind the idea that Muhammad's attitudes toward the christians of his time unfolded gradually and contextually-- means that one cannot cling tenaciously to texts of the latest period without considering their sociohistorical context and their relation to other texts.
Thus one cannot speak of final, immutable rules in the sourcesof the sharl'a regardingthe christians and the adherentsof other religions.
Furthermoreit cannotbe accepted to apply texts of opprobriumin a universalmannerto them as permanentrelations.
Concluding Remarks From what has beendiscussedabovewe can draw someconcruding remarksregardingthe issuein questionas follow:
Firsr, although they lived in such an antagonistsituation and a cumulative effect of centuries of tense relations betweenMuslims and christians, the Muslim jurists in thepast could acknowledgethede.
legitimacy of legal position of Christianswho choseto coexistwith the Muslims as an integral part of the Muslim community.
second,the responses that the Christians showed toward the Muslims on the one hand and the failure or evenunwillingnesson the part of the Muslim classical jurists to perceivethe gradualand historicaldevelopmentof the eur'anic and Sunnaticattitudestoward the othersgave a great influencein shaping the legal languagewhich seesthe christian othersin an exclusivistview.
Third, the contextualizationof the variedpositionsthe Qur'an and the sunna demonstrateis an inevitabletask in orderto get more appropriate understandingof these texts as two sourcesof the Shafi'a.
This will have implications .
that one will not be ableto speakof a final position of the main sourcesof the Shari'a toward the Other, and .
it is inappropriate to take texts of opprobriumas a generalprinciple in dealingwith the other.
Therefore new approachesareneededin Islamicjurisprudence in order to be ableto copewith the new demandsin building relationsto the religious others.
Al-Jami'ah.
N o.
Islamiclurisprudcnceof Cldshan-Musliar Relcticms End Notes tAhmad Dallil, "Yemeui Debateson the Status of Non-Muslim in lslamic Law", /slan aad Chnstiaz-Mas'lin Relatioas.
VoI.
No.
, p.
2See \{ adi Z.
Hadilrd, " AhI el-D}rnnre in au lslanlc State: tbe T enching of Abu alHasan al-Mawardi's Al-Alkan al-Sullaaisyi'.
Islam audCluistian-MuslimRelation.
Vol.
No.
,p.
'This book was translatedinto English by Majid Khaddury and appearedin 1966.
See Majid Khadduri .
The Islafic Lav of Nalions: Shaybad's Siyar (Baltimore: The JohnsHopkins Press,1.
aSee al-sarakhsi.
Sharh KitCb al-Siyar at-Kabir Ii MuLanad lbn al-Hasan aIShaybani, ed.
Salah al-D-iu al-Muuailad and'Abd al-'Aziz Ah,rnad(Cairo: Matba'a Syirka-al-I'lanat al-Sharqiyya.
I 997I ).
'Ibn Qayyim af-Jarvziyya,Ah*fua Ahl al-Dhinun, ed.
Sublii al-Salih (Beirut: Dar al'Ihn li al-Malayin, n.
oSee, for example.
Himpuoan Putusaa Tarjih Muhurunadiyah.
he Collection of the Decisions of Weighing Council of Muhammadiyahl iu which only oue decision out of the whole collection is about tbeological issues,while the rest decisionsare coucemedwith legal issues.
This shows that the expressionof religious experience,iu Muhammadiyah, takes place much more in the legal thauiuotberspheresoflslanr.
HinpunanPutusan Tarjih (Yogyakarta: Central Board of Muhanrmadiyah,n.
/ Asjmuni A.
Rahman et.
, "Majlis Tarjih Muhammadiyah: Studi teutaug Sisleur dau Metode PenentuanHukum," I research rapport for kmbaga Research dau Survey IAIN Suuau Kalijaga Yogyakarta .
, pp.
Another example is/?lnzsof theCouncilofludonesian '[/ana'wbich in ruost parts addresslegal issues.
SeeMuhanunadAtho Mudzhar.
Fatvas of The Council of Indoaesiaa Ulana: A Study of Islanic Legal Thoughl in ladonesia 1975-1988, bilingual edition (Jakarta: Indonesian-Netherlalds Cooperatiou in Islamic Studies[INIS], 1.
,pp.
7l-3 (Englishversio.
'See Frederick M.
Denny, "Islamic Theologyin the Neu'World.
SomeIssuesaud Prospects".
Joumal of the Anterican Acadeny ofReligion.
LXII:4 (Winter 1.
,p.
*Cited by al-Ghazafi in hrs lhye' 'Illua al-Din (Cairo: Mu'assasa al-Halab-i wa Shurakahli al-Nashrwa al-Tawzi', 1.
,I:130,"Kitab Qarva'idal-'Aqa'id.
elbn qud.
"Tahrim al-Nazar fi Kutub Ahl al-Kalam", in Makdisi.
Ibn Qudana's Ceasue of Spculalive Theology.
,ondon: Luzac and CornpauyLtd.
, 1.
,Arabic text 17,pr.
i"b"soy.
The Law of the Near & Middte East.
Reailng.
Cases,andMaterials (Albany: State University ofNew York Press,1.
,p.
' 'Th" f"t" of sufism is just a fittle better than that of kalan, but it has never managed to challengethe pre-eminenceof the Shar-i'ain the Muslims'urind.
r2Joseph Schacht,An Introduction to Islanic Larr,(Oxford:Oxford University Press, 1 9 6 4 )p, .
t'Al-J"biri.
Takv,in al-'Aql al-'Arabi (Beinrt: al-Markaz al-Thaqafi al-'ArabllialTiba'a wa al-Nashrwa al-Tawzi', l99l ), p.
Al-l ami'nh.
No.
60/1997
SyamsulAnwar raWalid Saif, "Hrman Rights audIslanicRevivalism'i IslunaadClristian-Muslint Relations,Vol.
No.
| .
,p.
I'f"h"nawi.
Kashshaf Istilalat at-Fuaua(Beinrt: Shirka K.
hayyit li al-Kutub wa auNashr, 1.
,i:759.
hanrmad Yilsuf Musa.
Ahkan al-A.
al al-Shafu.
iSya li al'Fiqh alJslarni (Egypt: Dar al-Kitab al-'Arabi, 1.
, p.
Muhammad Sallam Madkiir.
AI-Fiqh aI' Islani(Cabo: Maktaba Wahba, 1.
,pp.
l l-2.
ttAl-Shatibi.
Al-Muwafaqat li llsul al-Alkam (Beirut?: Daral-Fikr.
AH l34.
I:53, "al-M uqaddima al-'lshira.
f tTahanawi.
Ioc.
tnTh" pr"o""upatiou to use the tenn "shari'a" in its narrow meaning as mentioned above is already old enough.
At least one c&n trace it back to the time of al-Ash'aii .
330/), the founder of the Ash'arite theology ofknlim in the fourth/tenth century.
In his Nsila fr Istilsaa al-Khaud Ii'IIm al-Kalau [A Vindication of the Scienceof Kalaml, alAsh'ari distinguishesbetween theology and law audsaidthatjudgmentonlegalquestions belongs to the category of the traditional ard is to be basedort refereuceto legal principles which likewise belong to the category of the traditional.
See al-Ash'ari, "Risala 'Ikn al-Kalam" iu Richard J.
McCarthy.
,The Theology of aIfi Istihsau al-Khaud fi Ash'ari.
The Anbic text of al-Ash'ari's Kita al-Luma' aadRisala Istihsan al-Khaud fi 'IIrn al-Kalim with fuielly annolated translalions, aad Appeadices containing nalerial prtiaent to the study of al-Asl'ari(Beirut: hnprimerie Catholique, 1.
,p.
89 of Arabic H"zm .
distinguishesthe Islarnic divine revelation into two categories.
^frsl, what he calls the recited revelation, that is the Qur'iin, and, second,what he calls the unrecited revelation, that is the Sunna.
See Ibn Haz.
m,Al-fikarn Ii Usil aI'IIn aIAikan (Cairo: Matba'a al-''isima, n.
I:87.
cf' al-Ghazafi,Al-Mustas6 nin (B ulaq.
C airo: al-Aniriyya Press, | 3 22 A.
), l: | 29' {/e-u7 2tFor a classical account of this source see al-Ghazali, op.
I:.
for rnoderu critical study see Bemard Weiss.
The Seatth for God's Lav.
Islanic turisprudence in the wdtings of sayf at-Din f.
-Anidi (Salt Lake city: university of Utah Press, 1.
, p.
6@-8.
coutr" there were somejurists who studied tbe concept of good interest before him" but they never developedit in such I way al-Shatilii did.
For exaruple al-Ghazafi 'IIn aI-UpuI, but he put it urder the investigated this priuciple in his al-MustaplV nin heading of the false principles.
See al-Ghazili, op.
,l:283.
23nLShatitri srudied this principle primarily inhrs at-Muwihqat Ii Usil al-Alkant 'Abd al-Hamid (Cairo: Mallaba wa Matba'a M.
'Ali Sabih, n.
Muhy al-Din lI:3 etc.
2aSee Farid Esack.
Qur'aa.
Libenlioa & Plunlism.
An Islanic Penpective of lateneIigious solidarity against oppession .
xford: oneworld, 1.
,p.
AMulaziz 'Supersession'as Reflected iu Sachedina, "Political hnplications of the Islamic Notion of Islamic Jurisprudence" .
Islant and Chtistian-Muslim Relations.
Vol.
No' 2 ( 1.
' p.
'aqd al-dhimma.
This ter was used for example by the Ha2t lt i.
called in Arabic See nafi jurist al-sarakhsi in hiscommentaryonal-Shaybini'sKitibal'Siyaral'Kabin Al-lami'ah,N o.
60/1997
Islamicluisprudence of Chi stian-Muslim Relations al-Sarakhs-i,op.
IV:l529.
see also its use in Ibu al-Qayyim.
Zed al-Ma'ad Ii Hady Khair al-'Ibad, ed.
Hasan Muhamrnadal-Mas'udi (Egypt: al-Matba'a al-Misriyya, 1.
, \:79.
2uAf-Mutt"da.
AI-Bab at-Falrtkhar al-Jani' Ii Mazaffib 'iaua'al-Annar, 'Abdallah Muhammad Siddiq and 'Abd al-Hafiz Sa'd 'Atiyya .
airo: Maktaba al-Khalji, 1.
,V:456-7 and 450, cired by AhnradDallal, op.
,p.
2tAbu Y"'ta al-Farra'.
AI-AIkarn at-Sultuisya (Egypt: Mustal-aal-Bab-ial-Halab'i, 1.
,pp.
'"Ibid.
,p.
'nlbid.
See also al-Qurtubi,At-Jnn'il Ahkunal-eur,an{C.
airo: DaralKetib f,l-'Arabi li al-Tiba'a wa al-Nashr, 1.
,Vi: I | 3.
3oAl-Sarakhsi , op.
,IV:l 53l, pr.
" ' I b i d .
,p .
1 5 3 3 p , r.
t'Ibid.
,p.
,pr.
3oAb[ Ya'la al-Farri', op.
, p.
al-Qurtubi, loc.
Portraying this matter from a Christiau perspective.
Bert Breiner, a priest of tbe EpiscopalChurch, wriles, "Iu nrost classical forms of Islamic goverunreut,Christiau aud Jews are allowed -in fact eucouraged- to settle their disputes,both civil and crinrinal, within their own communities.
Church courts iu Muslim lauds becamepowerful instntmelts of govemment and church law became highly developed.
There are vestigesofthis system throughout areasthat were once a part of the Muslim world.
" SeeBert Brciner, "The Shari'ahand Istamic Law:
A Christian'sReflection".
Chuth & Society{Ian and Febr.
,p.
"Ab.
Y"'le al-Farra'.
Ioc.
But accordiugto al-Qurtubi, iu this regard a Muslim judge are given the choice to try them in accordance with Islamic law or lo reject their case,Al-Qurtub-i.
Ioc.
some argued that jihad is obligatory ouly for the defeusiveaims, tlre others were conteut that it could be wagedfor the offensiveobjectivesto launchthe religion of Islam.
See Ahmad Dallal, op.
,p.
"Th"oty of paying tribute as an alteruative to war rvascoufimred by al-Qurtub-i.
See his al-Jinri' li Ahkanr al-Qur'an, op.
, ll0.
38Abu Ya'le al-Farra',op.
, p.
3nAI-H"""n Ibn Ahmad al-Jalal.
Dav' al-Nahar al-Musbiq 'ata satahat ar-Azhar (SanlaMaktaba Ghamdanli lhya' al-Turathal-Yaman-i, ),IV:2501.
recent critical study on the deepinflueuceaud vast dominationof atomismin Islamic thought as a whole see al-Jabifr.
Bunya at-'Aql at-'Arabj: Dirasa Tahlililya ti Nnzum al-Ma'rifa Ii al-Thaqafa al-'Arabilya(Beirut-casablanca: al-Markazal-Thaqa.
al-'Arabi, 1.
lbn al-Qayyin\ op.
II:81.
, g2.
o3Abdu.
hi Ahmed an-Na'fun,"Toward an Islanric Hemreneuticsfor Human Rights", itt Abdullahi A.
an-Na'im et.
/,Hunn Ngfrts and Religious values.
An [.
Ineasy Relationship?(Michigan: Willianr B.
EerdmanPublishing Company, 1.
,p.
"Al-Shatib-i, op.
I:13-16.
Hallaq, "On lnductive Corroboration,probability and certainty in Sunni I-egal Thought," in Heer .
Islanic Law and Jwisprudence.
Al- | ami' ah.
N o.
60/1 997
Srlamsul Anwar in Honor of Farhat J.
Ziadeh (Seattle and [,oudon: Uuivenity of Washington Prees, a5Accordiltg to al-shatibi it is uot valid to understandMedinan texts ou its own right without relating thenr to, aud basiugour understaui.
ng of them on, the Meccantexls of tbe Shari'a.
Seeibid.
,i:274, caseI l.
aSarid Isack, op.
, p.
oTN"bil AMul Fattah, "Teks dan Peluru: Hukum lslarn dan HukurnPositif dalam Sistem Politik Mesir Tahun Tujuh Puluhandan .
elapanPuluhan",in Johaunesden Hei jer and Syamsul Anwar .
), .
lslanr,Negara dan Ilukwn, tr.
iuto lndouesianby Syarnsul Anwar (Jakarta:Indonesian-Netherlauds Cooperatiouin IslarnicStudies,1.
, p.
otF"rid lsack.
Ioc.
,p.
Mohrmmad Hashim Kamali.
Priaciples of Islutic Jurisprudence(Cambridge:
Islamic Text Society, l99l ), p.
t'Ibid.
, p.
35 and 207.
t'Ibid.
, p.
one ofthe oldest and the largestsocio-religiousassociatiousin Indouesiaat the present, and was founded in l9l2 in Yogyakarta,CentralJava.
Its rnaingoal is to promote Islamic da'wa .
through carrying out activitiesin the field of educatiou, social services and health nurses.
The Translatioa of tIrc Meanings of Saliih al-Bukhar-i Arabic English, tr.
by Dr.
MuharnmadMuhsiu Khan (Chicago:Kazi?ublicatious, 1.
,V:.
508, no.
s'tSee the letter of MuharnmadiyahCouucil of Weighingfor lhe Regionof Surakarta.
March 5 1993.
and a draft forissuing fatwaby theMuhammadiyahCentralCouncilof Weighing regarding this question was preparedby the writer of the presentpaper.
56The Translation of the Meanings oltsaliih al-Bukhaii: Arabic-English, op.
VII:540, no.
Chapter 88 on pictures.
The original Arabic word al-sura,renderedherc picture, actually means painting, relief and statue.
ttM"l"lir Tarjih PP Muammadiyah,"Flukum lslam tentangSeui," paperpresentedat The 23'd National Clonferenceof Majelis Tarjih PP Muharmuadiyah,Balda Aceh (July 4, 1 9 9 7 )p, p .
9 - l l .
BIBLIOGRAPHY