Local Wisdom dan Penetapan Hukum Islam di Indonesia

Abstract

Local wisdom or in terms of fiqhi is called al-urf is something that is a customs and traditions of a society in the form of words or deeds or things leave something. Local wisdom or tradition, which does not contradict the basic principles of the teaching of Islam may be regarded as confirmed as the shari'a law. The priests madhahib many legal opinion based on the consideration of local wisdom (al-'urf). In Indonesia there are three theories that are commonly used to keep the customary law and Islamic law, namely: Receptio in complex theory, Receptie theory and Receptio a contrario theory. Local wisdom has played an important role towards the establishment of Islamic law in both the establishment and enforcement of Islamic law. Some scholars determined requirements to make the local wisdom ('urf) as a source of Islamic law (1) local wisdom apply in the majority of cases occuring amongs the people and its implementation embraced by the majority community, (2) 'urf existed before the emergence of cases which would set the law, (3) local wisdom is not contrary to clearly expressed in a contract, (4) local wisdom does not conflict with nash.Local wisdom atau dalam istilah fiqh disebut al-'urf yaitu sesuatu yang menjadi adat dan tradisi untuk masyarakat baik berupa ucapan atau perbuatan atau hal lain meninggalkan sesuatu. Local wisdom yang tidak bertentangan dengan prinsip dasar ajaran Islam dapat dianggap sebagai syariat yang dikukuhkan menjadi hukum. Para imam madhahib banyak mendasarkan pendapat hukumnya atas pertimbangan al-'urf. Di Indonesia ada tiga teori yang lazim digunakan dalam menjembatani hukum adat dan hukum Islam yaitu; teori Receptio in complexu, teori Receptie dan teori Receptio a Contrario. Local wisdom telah memiliki peran penting dalam pembentukan hukum Islam, baik dalam penetapan hukum Islam

The Dialectics of Customary Law and Islamic Law: An Experience from Dou Donggo Customs of Bima, Indonesia

“…It can only be a law when it has been accepted as customary law. Therefore, customary law is the deciding factor whether an Islamic law is applicable (Pettalongi, 2012).…”

“…Second, Receptio in Complexu theory. According to this theory, the law of each religion is applicable to its believers (Pettalongi, 2012). The customary law of a group of society results from the acceptance (complete reception) of religious law adhered by that society.…”

“…Since then, Hazairin's refusal toward receptie theory has gotten more robust, and he considered the receptie theory an "evil theory". According to this theory, customary law can be a living law within the Muslim society if that customary law does not contradict Islamic law (Pettalongi, 2012 (Azizy, 2002) as its foundation.…”

Pamali Culture of Polewali Community in West Sulawesi and Appreciation of Islamic Jurisprudence

“…Studies on local wisdom and its relation to the formation of Islamic law have been widely conducted by Muslim researchers and scholars. Pettalongi (2012) divides the conditions set by scholars to make local wisdom as a source of Islamic law: (1) local wisdom applies in the majority of cases that occur in society, and the majority of them follows their behavior, (2) local wisdom had already existed before the emergence of a case to be determined by law, (3) local wisdom does not contradict with what is clearly stated in a contract, (4) local wisdom does not conflict with texts. The research provides a limitation for local wisdom to be adapted into Islamic law.…”

“…Historically, in Indonesia, there are at least three theories that are commonly used in bridging customary law and Islamic law (Ali 2008;Pettalongi, 2012). First, reception in a complex theory, in which according to this theory every resident applies the law of each religion.…”