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Islam in IndonesiaThe Contest for Society, Ideas and Values$
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Carool Kersten

Print publication date: 2016

Print ISBN-13: 9780190247775

Published to Oxford Scholarship Online: October 2016

DOI: 10.1093/acprof:oso/9780190247775.001.0001

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PRINTED FROM OXFORD SCHOLARSHIP ONLINE (oxford.universitypressscholarship.com). (c) Copyright Oxford University Press, 2021. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use. date: 19 September 2021

The Letter or the Spirit of Islamic Law?

The Letter or the Spirit of Islamic Law?

Legal Formalists Versus Substantivists

Chapter:
(p.179) 5 The Letter or the Spirit of Islamic Law?
Source:
Islam in Indonesia
Author(s):

Carool Kersten

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780190247775.003.0006

Identifying the introduction of Islamic law as one of the key battlegrounds between progressive and reactionary Muslims, this chapter situates the debate in the context of earlier attempts by legal scholars to develop an Indonesian variant of Islamic law as ‘Indonesian fiqh’ or ‘national madhhab’. After a failed attempt to revive the ‘Jakarta Charter’ and enter a reference to Islamic law in the constitution, legal formalists switched to “shari’atization” on a local and regional level using bylaws called perda shariat. Critics and opponents of this trend advocating a substantivist reading of Islamic law promote a return to usul al-fiqh (foundations of jurisprudence) and maqasid al-shari’a (objectives of shari’a) as hermeneutics or philosophy of law and ethics, while other intellectuals developed an counter draft family law as a compromise between formalism and substantivism.

Keywords:   Fiqh, Legal formalism, Hermeneutics, Islamic law, Maqasid al-shari’a, Perda shariat, Sharia, Substantivism, Usul al fiqh

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