UNDERSTANDING THE ROLE OF CLAIMS OF THE SITUATION IN ISLAMIC LAW - Aneka Ragam Makalah
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UNDERSTANDING THE ROLE OF CLAIMS OF THE SITUATION IN ISLAMIC LAW

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Scholars who were experiencing was indeed kemusykilan. Deposits and interest are not known at the time of the Prophet. They found no texts - texts of the Qur'an or Hadith - which explains the legal provisions for the deposit. There are provisions on usury, but usury is the same as the deposit rates? THE SITUATION such scholars have faced throughout history. Which we call the Shari'ah in the beginning only in regards to the family, a simple trade and criminal law. When Islam met with other civilizations, what is covered under the Shari'ah becomes more widespread. Formulate the Shari'ah scholars in fiqh that governs the areas of life that is more complex. According to al-Mawardi in al-Ahkam al-Sulthaniyah, when the Umayyad dynasty met with Persian culture, they found a body that resolves the affairs of people who have been wronged. The institute is not contained in the Qur'an and Sunnah, but they consider this a very good institution. Then the agency confirmed the Umayyad ruler, and called the Board Mazhalim. They not only assume the board is not against the syar'i, but even maintaining syar'i purposes.

Gradually, the scholars developed a method istinbath (legal conclusion), both based on the principles or general instructions in the texts as well as from the use of reason. Among these methods is qiyas, istihsan and istishlah. All of these methods is simply an attempt to solve the problem. Critical Studies will soon prove to them that the use of these methods also pose problems. There is no consensus of the scholars regarding the permissibility of using each of the three. Partly accepted, partly menolakaya. Not infrequently the differences arise because of differences in interpretation of these terms. Shafi, for example, attacking istihsan and regard it as an attempt to make the Shari'a (man fa qad istahsana syara'a). Maliki and Hanafi view istihsan even take precedence of qiyas. Malik said istihsan as nine-tenths of science (Al-istihsan tis'at a'syar al-'ilm). But when Shafi istihsan as dimaknakan attack him, he used the method of qiyas is silent, which is none other than istihsan according Hanafi sect.

This paper will begin by trying to resolve the crisis of meaning and istishlah istihsan and ends with instructions to answer the demands of practical use in the present situation. But before that, as an introduction, I quote Sayyid Musa Tuwanat explanation:

 If the mujtahid not find the law in the Qur'an, Sunnah, ijma 'and the opinions of friends, or nothing that can be used as proof of their opinions, he leaned to qiyas. This is set by Imam Shafi'i and al-Shirazi asserted and al-Maqdisi. Similarly, the followers of the Hanafi after al-qiyas discuss the Book, the Sunnah and ijma. Imam Malik also took qiyas, but after taking mashalih mursalah and istihsan. Imam Ahmad also lean towards qiyas on the condition that after reviewing the law in the Qur'an and the Hadith in a broader meaning, although it differs from other mujtahidin in the manner and scope of the use of qiyas.

There are no schools that refused to use except istihsan Dzahiriyah and Shiite schools of Islam. As for how to use qiyas as follows:

A. A mujtahidin conducted research that shows if there are arguments about illat arguments to determine the law far '. When it is known illat using methods known in the book of usul and there is a relationship between illat this case will be determined by law, and have confirmed the origin of law disamakanlah conjunction with far 'by similarity illat as he speaks.
Mujtahid sometimes leave an argument to a more powerful argument, or to the beneficiaries, or leave to atsar qiyas, or to ijma 'or to dharurat. Qiyas sometimes abandoned because there are strong arguments atsarnya. In all circumstances, he did not attempt to run out of texts, or qiyas, or mashlahat. That is called istihsan.

UNDERSTANDING istihsan
In denotative, istihsan means looking good for something. Establishment of the Board Madzalim considered good, that is, must be based on istihsan. Interestingly, the scholars who maintain istihsan take arguments from the Qur'an and Sunnah which mention the word istihsan the denotative meaning of this (ie, people who listen
words and indulge the most good, Surat al-Zumar: 18: "And turutlah (leaders) are the best that has been revealed unto thee from thy Lord", al-Zumar: 55: "What is considered good Muslims, according to God's good too , "- Hadith by Abdullah bin Mas'ud history.

When we refer to the literature, we will find a lot of definitions istihsan - which does not always show the same reference. There is a definition that is made by taking into account the political aspects rather than its scientific aspects.

 To show how these definitions more complicate rather than help, we look at the example below: 
  • Istihsan qiyas is leaving to take a more in line with the crowd.
  • Istihsan are looking for ease of laws that people face a lot or a particular person.
  • Istihsan is taking breadth and seek relief.
  • Istihsan is taking a permissive and choose in which there is tranquility (everything from al-Sarkhashi).
  • Istihsan means to leave the certainty of qiyas to qiyas stronger or mentakhshiskan qiyas with a stronger proposition (al-Bazdawi of Hanafi).
  • Istihsan a stronger meaning in practice between the two propositions (al-Maliki Syathibi of schools).
  • Istihsan means to leave the legal issues such as the arguments of the Personality 'a certain (al-Hanbali Thufi of schools).
  • Istihsan is what is considered good by the mujtahid with his wits.
 Because we have difficulty understanding istihsan of various definitions, let us take the example of the case is referred to as istihsan mujtahid. See the nakedness of women who are not mahram haram, because it can lead to "slander" (bringing people to disobedience). Are in parentheses is called the 'illat very clear (we are now doing jaliy qiyas). How does the law of a doctor should examine female patients? If he does not see her nakedness, she could not help the patient well. He must help the patient to restore his health, for the benefit of patients. But the reason ('illat) only in case of any patient and are considered firm (we're khafiy do qiyas). If we leave and take qiyas jaliy khafiy qiyas, we do istihsan. Sometimes a mujtahid leave qiyas because finding a stronger hadith, or as concerned about welfare, or due to 'urf (customs that are prevalent). When we look at the practices called istihsan, we find istihsan in three senses: 

First, istihsan means selecting the stronger of the two arguments to the contrary or different (berikhtilaf). Perhaps the deviation between the two propositions lafzhi - the argument is taken from the Qur'an and Sunnah. Or deviation between the two propositions ghair lafzhi; for example, between the qiyas khafiy jaliy qiyas. Or deviation between the proposition and ghair lafzhi lafzhi.

Let's start with the deviation between the two propositions lafzhi. In this case, the deviation can be tazakam and ta'arudh. What is meant by Tazabum are two legal justification comes from the Personality ', which may not be combined. Ta'arudh mean differences due to differences in case law (al-shawar deviation problem).
We do when we mentarjih istihsan (considered better), one of them. While giving examples, I will show you handy hints on using istihsan tazahum and ta'arudh.

 Urgent legal Dulukan (mudhiq) above the law that provides respite (musi '). For example, between removing unclean by doing prayers in the mosque at the beginning of time, or between helping people hurt by performing the Friday prayers. Choose the unclean and help people eliminate the harm. Dulukan that there is no successor to that successor. For example, use water to quench thirst or to do wudoo '. Wudu 'is no substitute, namely Tayammum. But to satisfy thirst can not be replaced with stone. 

Dulukan already given (mu'ayyan) on matters that provide an alternative (mukhayyar). For example, to meet or pay kifarat nadzar. You bernadzar to provide food for the poor, but you also have to pay kifarat fasting.
Dulukan more important than critical. You must perform hajj and at the same time you have to pay the debt. Pay off your debt first.

Ta'arudh happens if there are two arguments Personality 'to the contrary. The scholars of usul propose some ways, we can not elaborate one by one: the absolute mendulukan above the muqayyad, takhshish above 'am, mansukh nasikh above, the judge in the mahkum, al-Qur'an in the Sunnah, which agreed on the diikhtilafi.

Second, istihsan means taking something that has pleased the 'urf or common. For example, marriage records in the office of the department of religion. Istihsan in the sense that this should be done with extreme caution. Because what is considered to be good 'urf or common it may be very subjective, so most likely follow the biases of the socio-psychological. We are also not enough time to talk about this.

Third, istihsan means leaving certain arguments to bring serious benefits or enforce the law on the consideration of the five beneficiaries are: to maintain religion, soul, mind, offspring and property. Istihsan last type is also called al-mashalih istishan or al-mursalah.


CLOSING


This last exercise. Is this way of thinking that follows includes istihsan or not. Deposit rate can be justified by several considerations. First, the money saved has decreased value due to inflation. The inflation rate could be higher than deposit rates. Second, by storing, depositors have to pay the opportunity cost may be more costly than deposit rates. Third, depositing money too ready to assume the risk, the value can be calculated (and probably greater than the deposit rate). As a result, if you do not take your deposit, you will be the ones to terzalimi or abused. In fact, the state religion "should not be oppressive and should not be oppressed"?
Ibrahim Lubis

Penulis:

Judul Makalah: UNDERSTANDING THE ROLE OF CLAIMS OF THE SITUATION IN ISLAMIC LAW
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