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Published online by Cambridge University Press: 21 October 2015
The ‘philosophy of syariah’ is an enigmatic phrase. It has been used to construct philosophies of law from very different premises: first, where the major premise is the Qur’ān and Sunnah; second, where it is historical fiqh; and third, where it is the actual facts of political, social and legal life in a particular time and place. I am not suggesting that these are the only possible premises, but they are necessary if not wholly sufficient for the present. If we choose to emphasize one premise over the others, then we introduce a weight that shifts the balance (of what is ‘true’, ‘good’, ‘workable’) in favour of that one. Thus, if we choose the first, we can come up with a system that justifies a caliphate, or can be made to seem to do so. The second gives us a philosophy rooted in scholasticism and the third may lead to the unrestrained use of independent judgment (ijtihad)—even, eventually, to Western social science and positive law.
These are the issues I explore in this chapter. For the sake of initial clarity,it is as well to emphasize again that Islam/syariah has a presence in public life—that is, in politics—as well as in public documents such as the Constitution (Pancasila) and laws. The time with which I am primarily concerned is the 1940s to the present. My purpose is to explore a variety of syariah philosophies that I believe define the syariah possibilities for a distinctly Indonesian school of legal thought (mazhab). I purposely use the plural, because Indonesia has not decided on ‘a’ syariah philosophy. The five philosophies I discuss in this chapter are acknowledged alternatives; although I deal with them separately, they are often conflated. Just as frequently the balance between and within them oscillates. Their respective boundaries can be indicated but have to be considered porous.
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