The Discourse and Practice of Islamic Family Law in Indonesia

Family law is the most powerful law practiced in Islamic history, but this does not mean that it avoids the demands of changing times. Today, there are no less than thirteen problems related to family law that have arisen in the Muslim world. This problem arises not only because of demands for changing times, but also because of efforts to unify, codify and legislate Islamic law in a number of Muslim countries. This problem requires not only solutions but also reforms. This study aims to examine the model of understanding, practicing, reforming and transforming Islamic law in Indonesia and its impact on the position of standard classical fiqh books and the independence of judges in the Religious Courts. This research is a non-doctrinal normative qualitative research type. This study found a variety of models in the exploration, practice and reform of family law in Indonesia. The impact of the reform and transformation of family law in Indonesia is that classical fiqh books are no longer used as the main reference and the Religious Court System is closer to the civil law system. However, the reform and transformation of family law in Indonesia did not reduce the independence of religious judges in exploring and discovering more contextual Islamic law.


Introduction
Change is a natural law so that in this world basically nothing is permanent and eternal, everything changes. Likewise, Islamic law, although this law contains a sacred content because it is believed to come from God, the way Muslims understand and the methods used to explore it are constantly evolving in line with the changing times. The Prophet Muhammad SAW realized these developments and changes from the beginning. He not only encourages the judges to perform ijtihad (individual reasoning) but also predicts that in every century there will always be reformers of their religion (Abu Daud, juz II, tt: 240). Therefore, it is understood if in Islamic law there are rules for changing laws to occur due to changes in time and space (taghayyurul ahkam bi al-taghayyuril azminah wa al-amkinah). However, in order for this change not to run wild and remain under control, the scholars have formulated a number of principles, rules and objectives of Islamic law itself, so that the change does not deviate from the goals to be achieved by Islamic law.
There are at least six principles that can be used to develop Islamic law, namely: (1)  In line with the principles of fostering Islamic law, in fiqh there are also five basic principles or legal maxims, namely: (1) All problems depend on their objectives. (al-umur bimaqashidiha) (2). This harm must be eliminated (al-dlarar yuzalu) (3) The custom can be made into law. (al-adat muhakkamat) (4) That conviction cannot be dispelled with doubt. (al-yaqin la yuzalu bi alsyak) (5) The difficulty can attract convenience (al-masyaqqh tajlibu al-taisir). This basic principle by Imam Muhammad Izzudin bin Abdis Salam is summarized into the rule of "Rejecting damage and attracting benefit" (Ash Shiddieqy, 1975: 73-92) Apart from having a number of principles, Islamic law also has a purpose (Auda, 2007). Family law in Islam exists with the aim of protecting three basic human rights, namely: property, life and to obtain offspring / self-respect (Hosseini et al, 2013: 143) In Islamic history, although family law is the most strongly practiced law (Schacht, 1983: 83), but this does not mean that it able to avoid the PSYCHOLOGY AND EDUCATION (2021) 58 (1): 5201-5212 ISSN:00333077 5202 www.psychologyandeducation.net demands of change in dealing with problems that arise from the times. Today, there are no less than thirteen problems related to family law that have arisen in the Muslim world. (Mahmood, 1987: 11,12). Problems arise not only because of demands for changing times, but also because of efforts to unify, codify and legislate Islamic law in a number of Muslim countries as a result of the influence of the civil law system.
In its long history, Islamic law is actually not the same as the legal system that has existed in other countries , namely; civil or common law system. Islamic law is the third system known as juristic law (legal expert law). Because it is compiled and developed by private specialists, not by the state. Law science and scholarly handbooks play a legislative role and also have the power of law. (Black, Ismaeili and Hosen, 2013: xi). In other words, Islamic law with its various variations develops outside state institutions (Alam, 2007). Therefore, the idea of unification, codification and legislation as proposed by Ibn Muqaffa (d. 139/756) was not popular in classical times (Schacht, 1983: 49).
This study aims to examine; (1) models of understanding, practice, reform and transformation practiced in Indonesia; (2) the impact of reform and transformation on standard classical fiqh books which are used as references in the Religious Courts in Indonesia and (3) the impact of reform and transformation on the independence of judges in exploring Islamic law.
This issue is important to raise because with the assumption that the model of reform and transformation of Islamic law is not singular, Indonesia deserves to have its own model in developing Islamic law with reference to its own culture and the objectives of Islamic law and the constitution. The view that it is impossible for Muslims in Indonesia to fully implement Islamic law because Indonesia is not an Islamic state cannot be accepted. This is because a study proves that Indonesia is no less Islamic than other Muslim countries which formally declare themselves an Islamic state. (Rehman and Askari, 2010: 1-37). The contribution of the formal constitutional declaration in realizing the formation of an Islamic state is only five percent. Because the Islamic weight of a country is more measured by the qualifications and legitimacy of its leaders and the governance of its government as a whole (Abdul Rauf, 2015: 58).
So, this article is actually an effort to support the views of a number of experts, such as Farid F Mas'udi (Mas'udi, 2011) and Hasbullah Bakri (Bakri, 1984: 32) who state that Indonesia is, substantively, an Islamic country even though it does not make Islam the basis of the state. This article also strengthens Hazairin's view on the need for Indonesian-style law or Hasbi Ashidieqy's view on Indonesian Fiqh. (Lubis, 1997: 33 -92). This article also strengthens the theory linking Islamic law with faith or what is known as the credo theory. (Praja, 2009). This article rejects the views of Islamism groups that tend to be theocratic, exclusive and authoritarian in interpreting Islam so that it is not suitable to be developed in a democratic era. (Tibi, 2012: 1). So, the originality or novelty of this article does not lie in the substance being studied but in the way the existing data or facts are reviewed and linked to developments in Indonesia. This research is a continuation of previous research which is also related to the theme of transformation and integration of Islamic law into national law.

Methodology
This research is a library research related to legal aspects, so it can be called normative research (Soekanto and Mamudji, 2001: 13-14). But it can also be called non-doctrinal qualitative legal research because it includes problem analysis, policy and reform. (Dobinson and Johns, 2007: 20). This article is based on the assumption that Islamic law actually has an unchanging essence, namely realizing justice, benefit, bringing mercy and containing wisdom. (Ibn Qayyim, tt: 37). This is what is called the ideal concept of the perfect, flawless sharia, because it is divine. (Abou El-Fadl, 2004: 34). However, as sharia developed, in history there are classical sharia, historical sharia and contemporary sharia. (Otto, 2010: 25-26). Classical sharia is a set of rules, principles and cases collected by the jurists during the two centuries after the death of the Prophet Muhammad, in order to find out what is actually www.psychologyandeducation.net God's will. Sharia in this case can be found in the works of classical scholars in the dominant schools of thought, therefore it is more concrete. Historical sharia includes the principles, rules, cases and interpretations developed by the jurists and transmitted from time to time throughout the Islamic world over a period of more than a thousand years. Contemporary sharia is the sharia understood by Muslims today all over the world. In this context, the sharia is incarnate in its plural form.
Even though there are dynamics and plurality in the development of sharia, it has a purpose. The essence of sharia and its purpose is relatively unchanged. According to classical and contemporary scholars, sharia or Islamic law aims to protect five or six things, namely, religion, life, property, reason, descent / family and honor (Auda, 2007).
The study of reform and transformation of family law is divided into several stages. The first discusses the model of excavating, practicing and reforming family law in the Muslim world in general; the second discusses the model of excavation, practice, reform and transformation of family law in Indonesia; third, discussing the impact of reform and transformation on classical fiqh books which are used as references for religious courts in Indonesia; fourth, the impact of reform and transformation on the independence of Religious Court judges in deciding cases. Lastly are the conclusions and recommendations.

Model of Understanding, Practicing, Reforming and Transforming Islamic Law
The model of transformation and integration of Islamic law into national law in a number of countries cannot be separated from the way in which Islamic law is explored, formulated and practiced. Different ways of exploring, practicing and formulating have resulted in differences in Muslims in transforming Islamic law into national law.
Therefore, the discussion about the transformation model needs to be preceded by a discussion about the model of extracting and practicing Islamic law. Seen in its history, in general, the model of extracting Islamic law can be carried out through the model of bayani, irfani and burhani. In the bayani excavation model, sharia or Islamic law is extracted from religious text sources using the istinbath or istidlal method through linguistic approach. Truth is measured by the principle of correspondence. The source of irfani excavation model is intuition, the method is kasyf or illumination, the approach is psycho-gnostic. The truth is measured through inter-subjective. The source of the burhani excavation model is ratio, the method used is analytical discourse, the approach is logic and the truth is measured by the principle of coherence or consistency. : 347-359)     So, in each model there are three variants, as illustrated in the following table.

Model of Family Law Reform and Transformation in Indonesia
The model of reform and transformation of family law in Indonesia has historically been influenced by the theory and politics of law adopted by the  If seen from the form of family law reform carried out by Indonesia, the reforms carried out by Indonesia tend to be intra-doctrinal reform by taking a view that is outside the schools commonly used in one region of Indonesia, namely the Syafii school of thought but still within the principles of the Islamic schools of thought. The methods used are talfiq (amalgamation), tahyir (choosing from various schools of thought) and siyasah syariyyah (political law) for the benefit of the citizens. Prior to the existence of the Compilation of Islamic Law (KHI), the reference source for judges at the Religious Courts in Indonesia was only 13 books which generally had the Syafii school of thought. But after the existence of KHI, the book references used were 38 books with a more diverse variety of schools.
At least five reforms were found in family law contained in the KHI. Among these are: (1) a person can marry at least 16  This provision is different from the provisions contained in the classical fiqh book, which means that in the KHI there are reforms that are adjusted to the sense of justice and benefit for the Muslims in Indonesia. Apart from this renewal, there are also opinions that do not follow the provisions of the jumhur ulama (majority of scholars) such as marrying a pregnant woman as contained in Article 53 paragraph (1) of the KHI. Article 183 KHI reads: In the case of inheritance, the heirs can agree to make peace in the distribution of the inheritance, after each realizes their share.

5
In the KHI, there is the term wills compulsory for adoptive children or adoptive parents.

Article 209 KHI
for adoptive parents who do not receive a will is given a mandatory will of up to 1/3 of the wills of their adopted children.
(paragraph 1) Adopted children who do not receive a will, be given a mandatory will of up to 1/3 of the inheritance of their adoptive parents.

The Impact of Reformation and transformation on the Position of Classical Fiqh Books
Through the Circular of the Bureau of Religious Courts Number B / 1/735 dated February 18, 1958, judges were advised to examine and decide cases based on the 13 books of fiqh. Then, through a presidential instruction in 1991, judges were recommended to make KHI which refers to 38 books of fiqh as a reference in examining and deciding cases submitted to the Religious Court. When compared between the transformation of Islamic law into national law, between 1958 and 1991, two things can be found. First, there is an expansion of the Islamic law schools as a reference, second, there is a renewal in a number of aspects. If in 1958 the madzhab used was dominated by the Syafi'i school, then in 1991 the madzhab used was expanded to include five schools, namely, Hanafi, Maliki, Syafi`i, Hanbali, and Zhahiri. This means that through reform and transformation, the schools of fiqh are positioned in the same position (musawat al-madzahib). Each of them may be taken as long as it can manifest the purpose of Sharia in family law. This also ISSN:00333077 5209 www.psychologyandeducation.net means that the classical sharia is no longer considered sacred, which cannot change. Likewise, the Syafii school of thought is no longer seen as the dominant school of thought. As long as it can realize the goals of sharia, schools outside the mainstream can be used as a reference. This is what Mahfud MD, former chairman of the Constitutional Court meant that the adoption of Islamic law into Indonesian national law takes place through an eclectic process. (Mahfud MD, 2018). The impact of reform and transformation is that the provisions of the fiqh law used by religious judges must also be synergized with the provisions of material laws in force in Indonesia, such as the law on child protection and the law on the elimination of domestic violence.

The Impact of Reform and Transformation on the Independence of Judges
Does the reform and transformation of family law in Indonesia have an impact on the lack of independence of judges in exploring and finding Islamic laws that are more contextual to Indonesian conditions? In other words, will reform and transformation make religious judges at the Religious Courts no longer carry out legal reform? The results of this study indicate that the judges at the Religious Courts are still making reforms through the jurispudence they issue. At least, there have been recorded family law reforms in Indonesia that have been issued through cassation at the Supreme Court. The four reforms are about: 1) inheritance of different religions 2) adopted children of different religions 3) iddah and mut'ah livelihoods 4) the share of shared assets. (Suadi, 2018). At least, there are two family law reforms in Indonesia that were born from the decisions of the constitutional court, namely; the civil rights of a child born out of wedlock to the biological father and the age limit of marriage for men and women. This research found that independence of judges here means independence in exploring and finding Islamic law that is in line with Indonesian culture and constitution.

Conclusion
This study found a variety of models in the exploration, practice and reform of family law in the Islamic world. Variations can also be found when the Muslim world carries out the process of transforming family law into national law. The impact of the reform and transformation of family law in Indonesia is that the classical fiqh books that were originally used as the main reference and are considered sacred, have lost their sanctity. This study concludes that the reform and transformation of family law in Indonesia does not reduce the independence of religious judges in exploring and finding more contextual Islamic law as evidenced by the emergence of a number of reforms that have emerged from a number of jurisprudences.
In order for reform and transformation to support the formation of Indonesian fiqh, the rulings of religious judges must reflect the spirit of the Indonesian national legal system. This means that the rulings of religious courts as a product of Indonesian fiqh must be synergized with the principles and objectives of national law. In other words, the decision of the religious court must not contradict the basic principles that have been stated in the Indonesian constitution. Because, substantively, Islamic law has been transformed into the constitution. Therefore, for Indonesian Muslims, demands for faith and demands for the constitution must be synergized.
In the Indonesian context, religious law and state law can be distinguished but cannot be separated. Therefore, the choice is not to take one of the various religious laws but to choose which of the religious laws (fiqh) is the most appropriate to Indonesian conditions. To protect the objectives of Islamic law in family law which includes protection of property (al-mal), soul (al-nafs) and descendants / family (al-nasl), the normative formulations contained in classical fiqh can change or be changed with new formulations. Because the normative formulation in the maqashid sharia hierarchy falls into the category of hajiyat, while the protection of these three things is dlaruriyat .
Given that Islamic law has historically developed outside state institutions, codification and legislation for family law is not something urgent. Family law in Indonesia can develop through jurisprudence, along with the development of law in Indonesia as a whole. In order for family life problems to be resolved through one institution, the idea of the need for an integrated family justice system that can examine and resolve various problems related to family matters, such as domestic violence or under age marriage needs to be supported and continued.