CHAPTER I

INTRODUCTION

A. Background of Research

Discussion about conflict is discussion about global problem faced by most

people in the world. Since the last decade of 21st century, conflict occurred in parts of

the world. Kosovo, Czech, Israel, Kashmir, Sri Lanka, and Indonesia are the real

examples.1 Conflict occurs because of various motivations and causes. Politics,

economy, even religion can trigger a conflict. Religion can be a potential conflict

source because it has ilâhiyyah justification (transcendental) that can be politicized

and become violence inspiration. Some case like January tragedy in Lombok that

took many lives was also started from Islam people's return from religious event. On

January 13, 2000 morning, people started to gather to held action for Muslim

solidarity in Maluku. Without any clear reason, some people from the group of

congregation and action attacked and destroyed the buildings of Christian

institutions.2 This case was similar to the tragedy occurred in Situbondo on October

10, 1996 known as 10-10 tragedy. The burning of tens churches and Christian schools

started from Saleh’s case. Saleh was a Muslim administrator of mosque’s takmir. He

was accused of conducting harassment toward KH. Asad Syamsul Arifin and Islam.

The people who unsatisfied with punishment given to Saleh became brutal and 1 Zakiyuddin Baidhawy, Ambivalensi Agama, Konflik & Kekerasan, (Yogyakarta: Lesfi,

2002), p. 53.2 Hamdan dan Bayu, Meretas Jalan Perdamaian Membangun Kemanusiaan: Konflik Sosial

di Mataram NTB, Konflik Akar Rumput di Pati dan Revitalisasi Budaya Adat Alor Timur, (Yogyakarta: Pustaka Pelajar, 2002), p. 13.

destroyed the court building. This action continued to the destruction of churches and

some institutions of Christian foundations.3 Responding this problem, some Muslim

intellectuals, considered religion was the dominant factor of conflict. Mas’udi

considered religion as the primary or secondary factor of a conflict.4 Zakiyuddin

Baidhawy had similar argument to the Mas’udi but he realized in big theories about

conflict, religion had the most crucial position.5

Unlike Mas’udi and Baidhawy’s opinion, Sirri optimistic that religion was

the dominant factor of a conflict. He stated conflict based on religion had occurred in

Indonesia before the independence proclamation. In the era of Dutch colonization,

conflict based on religion between Muslim and Christian occurred because of the

relation between missionaries and Dutch Colonial government.6 The Dutch colonial

government was considered giving special treatment to Christian missionary.

Knowing this special relation, Muslim community seemed to find resistance

inspiration toward colonizer. Jihad/self-exertion theme then was chosen by Islam

leaders to raise the spirit of war against the colonizers. Jihad was chosen because it

was part of worship that became the obligation of all Islam people which had obvious

law in al-Qur’an. Jihad was believed as the union language that would unite and raise

the resistance spirit. With Jihad word, Indonesian Muslim built their struggle spirit to

3 Hariyanto. (ed), Melangkah dari Reruntuhan Tragedi Situbondo (Jakarta: PT Grasindo, 1998), p. 13.

4 Masdar Farid Mas’udi, Agama dan Konflik Sosial in Islam Pribumi in M. Imdadun Rahmad (et al), Islam Pribumi, (Jakarta: Erlangga, 2003), p. 136.

5 Zakiyuddin Baidhawy, Op Cit, p. 53-59.6 Mun’im A. Sirry, Fiqh Lintas Agama, (Jakarta: Paramadina and The Asia Foundation,

2004), p. 203.

attack Dutch colonial that considered as kafir who had to be embattled. Al-Qur’an

stated that killing kafir people was an obligation for a Muslim everywhere; the

obligation of war toward kafir people would become Islamic law until there was only

fidelity to Allah and no defamation. In other words, there was no other religion but

Islam on the earth.7 Conflict between two religions also occurred because of Islam

suspicion toward the Christianization done by Christian missionaries. The suspicion

strengthened when Christian representatives disagreed with the government’s idea of

spreading the religion to the people who had already held a religion on November 30,

1967. Until a certain level, conflict did not only occur in the idea and argumentation

but it was more than that; conflict headed to the physical action.8

The problem of conflict based on religion in Islam occurs because the

formalization of Islamic law or the standardized understanding of conflict basis in

Islamic law codification is anti dialog.9 The understanding toward anti dialog texts

will keep inspiring Islam people to do violence toward a group which has different

7 Al-Qur’an Al-Baqarah epistle, 193. The above text is the continuation of the previous verse, al-Baqarah:190, which states Muslim is commanded to war against people who embattle Islam; people should not pass over the limit because Allah does not like it. If it is read thoroughly with deep understanding, actually the war command does not have attacking characteristic but defending and resisting. The similar verse can also be found in other epistle such as At-Taubah: 5. The interpretation toward this verse is very diversed. Some consider the command is valid for all Islam people in any condition because the command in Al-Qur’an is fi’il amr (firm command) and is followed by ghayah (limitation) until there is not any slander and Islam is the only religion on the earth. This verse is strong but other opinion gives interpretation about war command that does not have to use weapon and violence; attacking other side has to be defensive motivation. Refer to al-Jihad fi al- Islâm, p. 94. Al-Manawiy, Fath al-Qodir, (Beirut: Dar al-Fikr, tt.), Juz 5, p. 202. Muhammad Syaţa al-Dimyaţiy, I’ânah al-Ţalibţn, (Beirut: Dar al-Fikr, tt.) Juz. 4 , p. 206. However, some Islam groups use the above verse to justify violence.

8 Mun’im A. Sirry, op. cit, p. 202.9 Indeed, there are some opinions considering religion not as conflict source but it is

politicized as the conflict trigger. If it is true that religion becomes a medium in conflict, at least religion becomes the most effective media of triggering conflict.

religion understanding and tradition. The strong encouragement of anti dialog text’s

interpretation to do violence toward “the different” will make it difficult to be

disentangled and overcome.

With the above reason, the reformulation toward the understanding of text

and new ijtihâd/independent reasoning to create the product of dialogical fiqh is

absolutely needed to overcome a conflict. The understanding process toward text has

been experienced deadlock. Since the writing of Arabic holy books in the mid

century, the ijtihâd to interpret text has experienced stagnancy and even prohibition.

The development toward Islamic law is the repetition of old works which is not

appropriate to the context when the text is applied. The interpretation problem

toward this text has great influence toward the attitude of Muslim people in facing

other groups. A law product which is the interpretation of the text becomes a sacred

thing. Even, in a certain level, it seems to be parallel or more than Al-Qur’an because

of less socialization toward the content of Al-Qur’an compared to the socialization of

tafsir product. In the case of Bahstul masail Nahdlatul Ulama’, the participants did

not have kitab kuning reference which were the old works and it was difficult to be

accepted by other participants. The participants who had brilliant and original

interpretation in which they can account for it methodologically will be rejected by

other participants if it is not completed by kitab kuning. People who rely on the

personal’s ability and methodology power will be considered as arrogant or not

tawaddu’ and not admitting the clergy of traditional thinker. This condition

influenced by the relation pattern between ulama/Muslim teacher and society in

Indonesia. Ulama’ has strong domination not only in the tradition of Islam society in

Indonesia, but also in other religions.

The process of understanding holy text until the formulation of attitude and

life’s perspective is the area of fiqh. Thus, fiqh becomes important in Indonesian

society and sometimes it seems to be more important than Islamic Law/Syari’ah.10

The tendency of fiqh orientation strengthening actually does not emerge from the first

arrival of Islam but from the long process. Besides the paderi war that brought the

wahabi concept developed in the Middle East,11 the tendency is also caused by

reformation movement of organizations such as Muhammadiyah or al-Irsyad that

developed purification mission. This fiqh orientation is also built by traditional group

as seen in the movement of naqsabandiyah tariqa that combines tarekat/path for

mystics and Islamic law/syariat, which is fiqh.12

The movement of Islam reformation on fiqh basis is still young compared to

the movement on theology basis. This fact can be seen from the works of Indonesian

Islam reformers published in 1980s until 1990s. At that time, most Indonesian Islam

reformers had their own trademarks and no one had fiqh trademark.13 One of the

10 The clear difference between fiqh and Syariah is in the producers. Syari’ah is the life guidance created by Allah. Fiqh is the formulation and Syariah. Although fiqh legitimized by holy texts, it is the result of law exploration conducted by humans. For further explanation, refer to Ahmad Rofiq, Fiqh kontekstual dari Naratif ke Pemaknaan Sosial, (Yogyakarta: Pustaka Pelajar, 2004), p. 3 and A Qodri Azizi, Eklektisme Hukum Nasional kompetisi Antara Hukum Islam dan Hukum Umum, (Yogyakarta: Gama Media, 2002), p. 92-93.

11 Paderi war occurred in 1821-1837. The war initially was the war of religious reformation, then it was changed into the war of Minang people against Dutch colonial. Ensiklopedi Islam. (Jakarta: PT. Ichtiyar Baru Van Hoeve, 1999), vol. 4, p. 66.

12 Martin Van Bruinessen, Kitab Kuning, Pesantren, dan Tarekat: Tradisi-Tradisi Islam di Indonesia, (Bandung: Mizan, 1999), p. 112.

13 Marzuki Wahid, Post-Tradisionalisme Islma: Gairah Baru Pemikiran Islam di Indonesia, Tashwirul Afkar, Edition No. 10 (Jakarta: LAKPESDAM NU dan TAF, 2001), p. 10

examples was Nurholish Madjid with Islam secularization.14 The domination of anti-

dialog fiqh in Indonesia probably made many religious dialog activators moved with

non-fiqh perspective. Before 1990s, Indonesia had been colored by non-fiqih

movement, including religious dialog movement. Inter-religious dialogue initiated by

Islam people set out the understanding toward religious essence, which in religious

dialogue called spiritual dialogue, meaning a dialogue that set out the religious

esoterical value,15 not religious practice. Proposed by Nurcholis Madjid, kalîmah

sawâ’ is the language to bridge religions by seeking the same perspective on certain

things in certain religions.16 Fiqh is considered stiff and boomerang for inter-religious

dialogue. In viewing fiqh, Ma'had Aly Salafiyah Syafi’iyah Sukorejo has different

point of view. According to them, fiqh is the breath of Islam in Indonesia that has

great potential toward the development of inter-religious dialogue. Besides become

the mainstream of Indonesian Islam, fiqh with its uşûl and qawâ’idnya also provides a

set of formulation method which can be accounted in the public of Islam. It is very

different from other Islamic studies such as kalam (theology) or tasawuf (mysticism)

in which the methodology formulation is not as complete and systematical as fiqh.

The optimism of Ma'had Aly toward fiqh has been proven by some

publications and statements, which considered interesting by the writer to be studied

further. The writer considers what Ma'had Aly has done with dialogical fiqh is a new

14 Read Nurholish Madjid, Islam, Kemoderenan, dan KeIndonesiaan, (Bandung: Mizan, 1993).

15 Paul F. Knitter, Introducing Theologies of Religion, (Maryknoll, New York: Orbis Book, 2002), p. 19.

16 Nurcholish Madjid, Islam,Doktrin dan Peradaban, (Jakarta: Paramadina, 1995), p. 7-8.

thing in Islamic studies or inter-religious studies. Another interesting thing is that

Ma'had Aly is an Islamic boarding school/pesantren that has rare concentration in

Indonesia because from 8000 pesantrens joined in Rabiţah Ma'âhid al-Islâm, it is

only Ma'had Aly Sukorejo Situbondo in which the activities are admitted. Pesantren

that can hold education is very rare and Ma’had Aly can survive with properness

standard based on Rabiţah Ma'âhid al-Islâm standard. Rabiţah Ma'âhid al-Islâm has

decided a heavy standard which needs patience and tenacity of its administrators.

Many pesantrens have enough sources to manage Ma’had Aly. Nevertheless, Ma’had

Aly is closed or its standard is decreased due to lack of infrastructure.

B. Research Question

Fiqh as the new study in the discourse of religious dialogue becomes

phenomenal because its existence is really close to Indonesian Islam society. From

that assumption, the new idea of making fiqh as a new method in developing the

inter-religious dialogue in Indonesia is emerged. The basic question which will be

explored from this writing is whether fiqh can be the alternative of inter-religious

dialogue development method and how fiqh supports the movement of inter-religious

dialogue. Other question which will be answered in this writing is the dynamic of

Ma’had Aly and its movement strategy as the institution of fiqh expert cadre that

concerns on the development of inter-religious dialogue. To ease the explanation, the

writer will divide those questions into several research questions as follow:

1. How is the existence of Ma'had Aly in the development of

fiqh discourse in Indonesia?

2. How does Ma'had Aly create and socialize dialogical fiqh?

3. How is the response of society toward dialogical fiqh formulated by

Ma’had Aly?

4. Why does Ma'had Aly use fiqh approach as the attempt of inter-

religious dialogue?

C. The Aim of Research

Explanation of several problem formulations in the above is expected to be

able to give benefits for academic or practice interest. In academic, this research will

be beneficial for data basis of next research or other academic interest, and practically

this research will be beneficial for the reference of inter-religious dialogue’s

implementation. The detailed purposes of this research are explained as follow:

1. In the discourse of inter-religious dialogue, this research will contribute a

new model in which fiqh will become the mainstream.

2. In Islamic studies, this research will present a new method in Islamic law

determination, which is the progressive istimbâť al-ahkâm that will make

the dialogue element as the main consideration.

3. This research will also be very useful as the consideration in policy

making related to inter-religious dialogue.

D. Literature Review

As an alternative education institution, Ma'had Aly Sukorejo has been

reviewed several times by researchers. One of them is Abdurrahman (2004). This

research focuses on the development model of Ma'had Aly Sukorejo compared to

other Ma’had Aly in Indonesia. In his research, Abdurrahman created categories of

Ma’had Aly in Indonesia based on their development model. Ma’had Aly was

categorized into three models; traditional, modern-plus, and life-skill. Ma'had Aly

Salafiyah Syafi’iyah Sukorejo in this research was put into the second model, the

modern-plus. This type was chosen because Ma'had Aly Salafiyah Syafi’iyah

Sukorejo combined modern and traditional implementation. According to

Abdurrahman, the traditional element appeared in the pattern of pesantren's scholarly

tradition characterized by the study of kitab kuning, particularly texts of Syafi’i

maźhab. On the other hand, the modernity was seen from the tiered formal

education.17

According to the writer, categorizing Ma'had Aly Salafiyah Syafi’iyah

Sukorejo into modern-plus was irrelevant because of pesantren's claim, which

considered Ma'had Aly as salaf pesantren salaf. In addition, the salaf nuance in this

pesantren emerged as the spirit and modernity as the complementary. As

Abdurrahman wrote, the characteristic of salaf was on its materials, while modern

characteristic reflected by its education system. From this illustration, it was obvious

that traditional characteristic was primary and modernity was more on teaching

system strategy.

17 Dudung Abdurrahman, M.Hum, Laporan Penelitian Kompetetif PTAI Tahun Anggaran 2003. Model Pengembangan Ma'had Aly: Studi Kasus Beberapa Pesantren di Jawa, (Yogyakarta IAIN Sunan Kalijaga, 2004), p. 138-139.

Other research conducted by Ismail (2003). In his research, Muqit explored

the role of Ma'had Aly in the improvement of santri's intellectuality.18 Although

Ma’had Aly was well known for its fiqh development, but the research conducted by

Ismail did not discuss the fiqh development strategy or character developed by

Ma’had Aly. Besides Abdurrahman and Ismail’s research, there were also other

several research about Ma’had Aly Situbondo but unfortunately the writer did not

obtain the data because they were not available in library and were difficult to get.

Although the writer did not get the complete data about the result of these researches,

the writer got explanation from the librarian and staff of Ma’had Aly Situbondo that

there had not been any research focused on the fiqh development in this pesantren.

Topic of inter-religious fiqh had been written by Paramadina team edited by

Sirri (2004). The book written with the title and introduction that had perspective on

fiqh but the content did not explore fiqh which directed on the Islamic law. If the

book considered as a fiqh book in a broad meaning, which was Islamic knowledge, it

was very different with the object of this writing. Beside its unclear definition, inter-

religious Fiqh did not also give specific criteria for the development of fiqh that

regulated the inter-religious dialogue. From the result of reading, the writer was

certain there was no similar research as conducted by the writer.

E. Frame of Thinking

In the thesis accomplishment, the writer assumes fiqh is potential for conflict

on religion basis. In addition, fiqh is also potential to be an alternative method in

18 Abd. Muqit Ismail, Peran Ma’had Aly Li Qism Al-Fiqh Pondok Pesantren Salafiyah Syafi’iyah dalam Peningkatan Intelektual Santri, (Thesis for Islamic Studies, Graduate Program State Islamic University Malang, 2003), p. 4.

solving religion conflict. This assumption is built because fiqh has strong difference

to other Islamic discipline and law product. Fiqh has doubled social legitimation.

Besides the dominancy of fiqh in Indonesian people's religious orientation which

becomes part of its study object, fiqh has legitimation of divine revelation as the

descendant of Al-Qur'an and Sunnah19. Besides its double powers, fiqh also contains

ambiguity which potential in endangering its followers without being realized by

them. Fiqh is created to materialize God's idea, syar’iat, which is great and almost

untouchable by ordinary humans. As an attempt to enclose syari’at in daily life, God

gives freedom to His servant to interpret His ideas with set of knowledge and rules

He created.

Afterwards, fiqh experts tried to formulate materials from Al-Qur’an and

sunnah in practical language or easier rules to be understood and applied.

Ijtihâd/independent reasoning of these fiqh experts is believed as syariat formulation

which was standard, applicative, and sacral because of its divinity. The faith toward

this ijtihâd became the guide of Islam people until there were maźhabs in fiqh. Fiqh

was built by experts based on context and importance which covered the personality

and community of ulama’. This afterwards, resulted in the difference of Maźhab.20

Before the formation of maźhabs which referred to the fiqh ulama', maźhab referred

to certain areas such as Iraq Maźhab, Egypt Maźhab, and Hijaz Maźhab or other

19 Wahbah al-Zuhaili, op. cit. p. 29.20 The clearest example is qaul qodim (old opinion of Imam Syafi’i when he was in

Baghdad) and qaul jadîd (new opinion of Imam Syafi’i when he was in Mesir). In this case, Imam Syafi’i changed his law products because he moved. This meant that social setting faced by Imam syafi’i when he interacted with Egypt culture demanded him to have more careful observation. No wonder he revised the law.

cities resided by fiqh experts. The belief toward this fiqh seemed to firm the

importance and personal problem of ulama’ which melted into fiqh works. It was

very possible in a sacred Islamic law product there is strong relation between syariat

intention (maqâşid al-Syar’i) and importance of ulama', the producer. Here, lied the

sensitiveness of fiqh as the source of violence.

The potential of fiqh that can trigger conflict and become the alternative

media for conflict resolution has been explained above. One alternative of conflict

resolutions that may be done by fiqh inspiration is inter-religious dialogue. However,

along with the writer's searching, there has not been any complete theory which can

frame a dialogue and fiqh research becomes one which considered as dialogical fiqh.

Thus, in writing this thesis, the writer uses two theories, dialogue and fiqh, which

afterwards combined into one framework.

First, the writer uses theoretical framework of new fiqh by Sahal Mahfudz.

This theory is used because Mahfudz obviously gives formulation and form of new

fiqh product which is very applicative to be assessed. The second theory applied in

this writing is dialogue theory by Leonard Swidler (1990). This theory is applied

because some technical reasons; Swidler theory is dialogue theory which is

understandable. Another reason is the details criteria of the theory that similar to fiqh

discourse; thus, it is considered more applicative. For those reasons, the writer

considers this theory can be applied in fiqh research.

1. Fiqh and New Fiqh

There are many fiqh definitions stated by ulama’. The simple definition according to

Imam Abu Hanifah, the eldest mu’tabarah21 mazhab figure, is ma’rifah al-nafs mâ

lahu wa mâ ‘alaihi (knowledge of someone about his rights and obligation).22 The

other popular definition among Indonesian scholars is ‘ilm al-halâl wa al-harâm wa

‘ilm al-syarâi’ wa al-ahkâm (knowledge about allowed and prohibited or knowledge

about syari’at and law).23 According to Ibnu Subki: al-’ilmu bi al-ahkâm al-syarâi’

al-‘amaliyyah al-muktasab min adillatiha al-tafşiliyyah (knowledge about practical

syari’at law explored from its detailed argumentations).24

From the various definitions of fiqh, most people agree element of revelation

and human’s role cannot be separated from human’s mind intervention. Human’s role

is enormous but fiqh cannot be taken away from revelation because it is the

formulation of syariat which is the point of revelation. In this context, humans are the

interpreters of God's idea for more applicative law formulation. Fiqh is often

misunderstood and identified as Syariah. This misunderstanding can be seen from

number of groups that claim themselves as the upholders of Islam syari'at. Those

groups usually relate the syariat concepts with fiqh approach, the syariat formulation.

The fiqh problems emerge along with the era development. The new

problems are surely not all repetition of the old problems. Most problems that emerge

with new kinds cannot be found in old fiqh books. This results in the anxiety of

21 Mu’tabarah is a term used by traditional Islam people toward Maźhab or ideology they acknowledge due to its methodology validity and argumentation. The opposite of Mu’tabarah is ghairu mu’tabarah.

22 Wahbah al-Zuhaili, Uşûl al-Fiqh al-Islami, (Beirut: Dar al-Fikr, 1986), I. p. 19.23 Ibid24 Ibnu Subkiy, Jam’u al-Jawâmi’, (Beirut: Dar al-Fikr, tt.), p, 42-43.

people's unsolved question. The anxiety then becomes one cause of idea about new

fiqh proposed by Sahal Mahfudz. According to Mahfudz, an Islamic law product

considered as new fiqh if it fulfils five criteria. First, there is text reinterpretation as

an attempt of fiqh contextualization; second, following certain Maźhab not on its

product but the developed method; third, creating basic verification toward religion

which is principle and only the branch (Uşûl dan Furu’); fourth, code not as positive

law; Fifth, introducing philosophical paradigm, especially in social and cultural

problems.25 The new fiqh is actually has been proposed by some people besides

Mahfudz such as Masudi (1998) with woman fiqh, and Toyibah (1998) with uruh

fiqh. However, those new fiqh works written to respond contemporary problem

without any law exploration guidance as written by Mahfudz.

2.Dialogue and ”Dialogical Fiqh”

Dialogue is a familiar word for many people. Many sentences related to two-

ways conversation are called and discussed with ‘dialogue’ word. In daily life, the

dialogue word is understood as the opposite of monologue done by one side. Thus, it

is obvious that dialogue is two ways conversation which occurred between one side

and another. Leonard Swidler (1990) defines dialogue as follows. Dialogue is

conversation between two people or more who have different perspectives with the

main purpose to learn from each other, to change, and to develop. All participants in

dialogue intend to share their understandings. The most important from Swilder’s

note is dialogue not for debating. To attain a healthy dialogue and result, which

25 Salim and Amin in Mahfudh, Nuansa Fiqh Sosial, (Yogyakarta: LkiS, 1994), p.viii.

appropriate to the initial purpose, Swilder proposes unconditional requirements. The

Swilder’s requirement is the willingness and readiness to listen other people as the

others. The prerequisite proposed by Swilder is logical because conversation between

two sides often result in argue between each other to defend their want or ensure the

others to be part of their group. Many people want to listen to other people not as the

others but to ensure them to belong their group. Conversation process that is not

accompanied by the willingness to listen other people as the others will only grow

hatred.26 To attain a dialogue, the basic rules are needed. Swidler writes ten basic

rules and one essential precondition which has to be fulfilled. The precondition is the

willingness to listen other people as ‘the others’ who have different religion and

faith.27

Swidler states there are ten basic rules that have to be fulfilled in the

dialogue:

1. The main purpose of dialogue is to learn, in which people can change and

develop in the perception and understanding of the reality, and later

behave based on their understanding.

26 Swidler, Leonard, After the Absolute. The dialogical future of religious reflection, (Augsbrg: Fortress, 1990), p. 3.

27 Ibid, p 42.

2. Inter-religious or inter-ideology dialogue has to be collaborative project in

each ideology or religious community or inter-religious or inter-ideology

community.

3. All dialogue participants have to come with honesty and sincerity. They

also have to be certain that other participants are also honest and sincere.

4. In inter-religious or inter-ideology dialogue, we cannot compare what is

idealized by our religion with religious practice of other religion.

5. All participants have to self-define themselves which can only be done by

them.

6. Each dialogue’s participant has to come without any strong belief toward

the problem which can become misunderstanding.

7. Dialogue can only be held with two equal sides.

8. Dialogue can only be held with the basis of belief or trusting each other.

9. At least, we must learn to be critical toward our religion or ideology

tradition.

10. In the end of the dialogue, all participants have to try to experience their

partners’ ideology or religion from the inside.

From the description about fiqh, new fiqh, and the dialogue, it can be

understood that dialogical fiqh is a fiqh product that has characteristics as new fiqh

and contains basic principles of dialogue. With the above theory frame, the writer will

analyze the development of fiqh in Ma’had Aly. The writer will analyze the elements

that can be considered as the form of new fiqh and elements which appropriate to the

basic concept of dialogue elaborated by Swidler. The analysis then will test whether

the activity of fiqh development in Ma’had Aly can be considered as ” dialogical

fiqh” in order to get answer for the basic questions of this research; fiqh can be an

alternative method of inter-religious dialogue development and how fiqh supports the

movement of inter-religious dialogue.

F. Method of Research

1.Determination of Research Location

The research conducted in Sukorejo Village, Banyuputih Subdistrict,

Situbondo Regency. This research focused on Ma'had Aly Salafiyah Syafi’iyah

Sukorejo pesantren in Situbondo Regency and some areas that had direct or indirect

relation with Ma'had Aly pesantren. Thus, this research was also conducted in out of

Situbondo to obtain data about people’s response toward the dialogical fiqh formation

initiated by Ma'had Aly Salafiyah Syafi’iyah Sukorejo.

Ma'had Aly Salafiyah Syafi’iyah Sukorejo was chosen as the research

location because of some important reasons. First, this pesantren held fiqh experts

cadre education which not all pesantrens have institutions focus in this area. Second,

this pesantren included in the first Ma'had Aly in Indonesia supported by some

kyais/Islam leaders from some pesantrens. Third, Ma'had Aly had published Islamic

law products and it considered as a productive institution. In March 2003, it had

published 200 exemplars of law bulletins and answered hundred religion problems in

hundreds bahstul masai’l with dialogical law paradigm held by Nahdlatul Ulama’ or

pesantren union. Fourth, Ma'had Aly had strong pesantren lingake and socialization.

Ma'had Aly was one of Rabîťah Ma’âhid al-Islâm project, pesantren organization

under Nahdlatul Ulama’. In the last class, this education obligated its santris to do

assistance to other smaller pesantrens.. The other technical consideration was because

researcher had an easy access to obtain the expected data which would ease the

accomplishment of this thesis.

2. Technique for Collecting Data

In data collecting, the writer applied participatory observation techniques,

deep interview, and documentation. In this research, the writer was involved in daily

activities of Ma'had Aly and held the observation directly. This kind of research

enabled the writer to know how the process of dialogical fiqh formulation, including

the differences opinion of the santris before the dialogical fiqh formulation had been

published and later became the general discourse.

Besides formal interview, the writer also held informal interview in form of

involvement in daily conversation. This intended to get the data which possibly could

not be obtained from formal interview. The writer was certain this informal interview

would give meaningful data because in formal interview the respondents were usually

not comfortable in answering the writer’s questions. Besides formal and informal

interview, other data were also collected from documentation and library research to

get secondary data about dialogical fiqh discourse and its development in Ma'had

Aly. These data then combined with the result of fieldwork. Focus group discussion

was also conducted to get various data from santris and administrators in Ma'had Aly.

The collected data then classified based on the needs and arranged into initial report

discussed by santris or administrators of Ma'had Aly. To know the respond of people

about dialogical fiqh formation in Ma'had Aly, the writer also held observation to

some pesantrens, ulama’, and people who knew well direcly or indirectly about the

dialogical fiqh formulation in Ma'had Aly.

3. Data Analysis Technique

This research applied qualitative method in form of deep description toward

the activities of Ma’had Aly, particularly the activities of dialogical fiqh formulation.

The data analysis process was continued whether in the field or not. The analysis

done through data filtering, classification, conclusion, and retest. The collected data

were filtered and arranged into the categories, and later were connected each other.

The conclusion was made through this process.

G. Writing Systematic

Based on the above explanation and to give easiness to the readers, the

systematic of this thesis research report arranged into five chapters; first chapter is the

introduction which provides several explanations about background and research

space, including research questions, framework of thinking, research method, and

bibliography.

Chapter second is about Situbondo, Ma'had Aly, and their roles in the Fiqh

development in Indonesia. This chapter explains about the geographical and social

condition as well as the relation between pesantren society and pesantren. This

chapter also explains the santris' activities and the history of Ma'had Aly

establishment as the center of fiqh studies. The third chapter is about Ma'had Aly and

map of fiqh studies. This chapter includes the development steps of fiqh in Indonesia,

dynamic around the development of fiqh discourse in Indonesia, development of

dialogical fiqh in Ma'had Aly Sukorejo, and respond of society toward the idea of

dialogical fiqh development.

Chapter fourth discusses about Ma'had Aly Sukorejo and the development of

dialogical fiqh. This chapter is about the analysis of dialogical fiqh development,

which is the perspective of Ma'had Aly toward other group and development of

dialogical fiqh method. The fifth chapter is about conclusion of the writings and some

recommendations based on the research result.

CHAPTER II

SITUBONDO, MA'HAD ALY, AND TEHIR ROLES IN FIQH

DEVELOPMENT IN INDONESIA

A. Situbondo, “The Santri City”

1. General Description and Economy

Hot weather directly stinging when the writer arrived in the research

location. Situbondo, known as santri city, lies on area 1.638,5 square kilometers

with position stretches along 11 square kilometers from east to west for its width; in

normal condition, it has temperature 24˚C - 30˚C. The area has Maduranese ethnic as

its majority inhabitants and geographically lies on 7˚35'-7˚44' south latitude and

113˚30'-114˚42' east longitude. Topography area of Situbondo consists of mountains,

hills, lowland, and beach. The highest area is Sumbermalang sub district (100-1.233

m) and the lowest is Mangaran sub district (0-50 m).28 As a small city, Situbondo is a

plural city in culture and language. Although the majority inhabitants are

Maduranese, they have various cultural backgrounds.

Situbondo is a harbor city which had been prosperous before the

independence era. Panarukan harbour in west Situbondo was a big harbor which

connected Situbondo and other areas in its prosperous time. Besides Panarukan, there

are two other harbors which are actively used in this city, Jangkar and Kalbut. As a

harbor city, Situbondo becomes transit area of archipelago inhabitants from Sapudi

Island, Raas, Kangean until Sapeken and Sepanjang which close to Sulawesi. Most

people in the archipelago migrate to coastal area in Situbondo and become permanent

residents. Although it does not appear clearly, actually there are other ethnics besides

Maduranese in Situbondo. Those are Mandar, Bugis, Javanese, and other sub ethnics

from other archipelagoes around Situbondo; they lived in sub coastal area of

28 Kabupaten Situbondo dalam Angka, (Situbondo: BAPEKAB, Badan Pusat Statistik Kabupaten Situbondo. 2003) p. Xivii.

Situbondo. This city which located in Surabaya-Banyuwangi traffic, administratively

borders on Madura Strait in the north, Banyuwangi Regency in the east, Probolinggo

Regency in the west, and Bondowoso Regency in the south.29

Meanwhile, Sukorejo hamlet, in which Salafiyah Syafi’iyah pesantren

located, is in Sumberejo village, Banyuputih sub district, Situbondo Regency.

Although administratively Sukorejo is in Banyuputih Sub district, people still know

Sukorejo as Sukorejo Asembagus Situbondo because it belongs to former area of

Asembagus district. Like other areas in Situbondo, this village is a dry land with

1.820.071 ha width and 500 ha forest. Most people earn their living with farming,

fishing, breeding, and selling food or other needs for santris. The name of Sukorejo

purportedly given by the late KH. Samsul Arifin after he had established Salafiyah

Syafi’iyah pesantren. The name taken from Maduranese, the daily language in

Sukorejo; the combination of soko (feet) and rajeh (big), meaning big feet.

According to the story, the late KH. Samsul Arifin found a rock with big footstep on

it during the establishment of Salafiyah Syafi’iyah pesantren. The stone then was

buried under pesantren's mushalla which voices adzan twice every prayer time.30

2. Inhabitants Structure

Situbondo the "santri" city is the slogan propagandized by Situbondo people

and government of Situbondo Regency. This slogan, which also stands for

Sehat/Healthy, Aman/Peace, Tertib/In Order, Rapi/Neat, and Indah/beautiful, is

29 Ibid30 Drs. KHM. Hasan Basri, Lc, KHR. As’ad Syamsul Arifin: Riwayat Hidup dan

Perjuangannya, (P2S2 Situbondo, tt.), p. 21.

expected to reflect the life of Situbondo who devoted to Islam. Religious nuance in

Situbondo is seen from the Muslim people and pesantrens as well as government's

programs which dominated by Islamic nuance. Some pengajians in Situbondo are

proposed by the government officials. Since 2000, the nuance of town square which

had been dim was changed into bright lamps in order to reduce immoral acts. Even,

since Diaaman had been elected as the regent of Situbondo, regular pengajian was

held every Saturday night in regency hall to reduce immoral behavior. The

government also proclaimed the program Situbondo free of drugs, gambling, and

prostitution.

Based on statistics data of Situbondo inhabitants in 2003, the total

inhabitants were 60,3396 people. Observed from the religions, Islam people were the

majority, and then followed by Christian, Catholic, Hindu, Buddha, and other

religions. Below was the total inhabitants based on the table.31

NO RELIGIONTOTAL PEOPLE REMARK

1 Islam 594229

1. 598 Mosques2. 3184

Langgars/prayer houses

3. 1057 mushollas4. 103 pesantrens5. 449958 santris

2 Protestant 5668 17 Christian churches3 Catholic 2819 5 Catholic churches

31 Ibid, 164-166.

4 Hindu 202 1 Shrine5 Buddha 284 1 Nunnery6 Other Belief 194 1 Chinese Temple

B. Muslim Community in Situbondo

1. Kyai (Islamic Leader) as the Central Figure

One day the writer and some friends that consisted of lawyers, members of

Assembly at the Regency, and Islamic movement activists were involved in a serious

conversation with Kyai Muzaki Ridlwan. He was the boarding functionary of al-

Quran Madrasah at Salafiyah Syafi’iyah Pesantren, Sukorejo, Situbondo. The time

was at 11 PM; suddenly, a sixty-year-old man came to Kyai Muzaki who was

conversing with us in the veranda of his house. Polite but in a hurry, the man told

about his family who had a sudden disease and needed immediate help. Then he

uttered his intention to ask for something or suggestion from Kyai for the goodness of

his family. Right after that, Kyai entered his house and came out with a bottle of

water to be given to the sick person. After the man got the water, he went home with

hope his family would recover.

After we ended our conversation for a while because Kyai met his guest, our

discussion was started again. Our topic was cooperation of the lawyers and assembly

members to open restaurant which would be managed by one of friends to improve

his living. Right after we started the second discussion, we were surprised by a panic

person. It was a man, probably sixty years old; he revealed his intention coming to

kyai, even before we asked him to sit. With standing up, the man said tens men

including him besieged the house of a person in pesantren surrounding. The man

reported to kyai those people involved in multi level marketing transaction with the

owner of besieged house. People were unsatisfied because the developed system

seemed to inflict a loss upon them. The intention of the man was to ask for suggestion

from kyai how they acted. The man had lost his two cows for multi level marketing

business; he was disappointed and did not know what to do.

The solutions given by kyai for the both problems above probably were not

important to be written here; yet from the illustration, it was obvious how the position

of kyai in Situbondo. Kyai was very important for society; people came to kyai to

report although in the midnight, the unusual time to visit unless for special people.

However, time did not become consideration for Situbondo people. The main

consideration was how they really needed kyai at that time. This fact indicated how

Situbondo people could not be separated from kyai who not only considered close to

people but also knew all problems.

The writer and friends came to kyai to have discussion together because we

considered kyai as a charismatic figure who could solve our problems. However, both

men came to ask for solutions which were not about kyai's world. Kyai Muzaki was

the functionary of al-Qur’an pesantren with tafsîr, târikh, faşahah discipline or other

lessons related to Al-Qur’an; yet the two guests asked about disease and multi level

marketing transaction problem which supposed to be asked to other experts. This was

the indication kyai was everything for Situbondo people. Even, kyai sometimes had to

position as "police" or "judge" for the society.

2. Interdependency Pesantren and Society

In its history, traditional pesantren went along with people's participation.

Pesantren also existed because of society. In Sukorejo, pesantren was very dependent

to the society and vice versa. Due to the facilities and infrastructure limitation,

pesantren would not be able to run its system without any support from the society.

Likewise the society, they trusted the education of their children on pesantren, even

some people earn livelihood from pesantren system.

Salafiyah Syafi’iyah pesantren had more or less 7000 men and woman

santris who lived in pesantren complex. Unlike other pesantrens, Salafiyah

Syafi’iyah did not coordinate money for santris food . It also did not obligate them to

buy goods in pesantren. Santris were free to spend their money in stores around the

pesantren. This policy was made to give income to Sukorejo people that sometimes

might be inflicted a loss by the behavior of santris with different cultural

backgrounds and their waste. On the other side, food stalls around pesantren sold

affordable food for santris. In April 2005, when the research was conducted, one

pack of rice with relatively complete vegetables and half of fried or boiled egg or one

piece fish with two-finger-size was sold IDR 1.200.

This cooperation run well and problem rarely emerged.32 However,

pesantren's domination was really strong. Pesantren had rules that santris were

prohibited to eat in stalls (every food or whatever thing santris bought had to be

wrapped or eaten in boarding house). Santris were also prohibited to watch television

in people's houses. The impact of this rule was directly felt by people around

pesantren because of sanction given by pesantren. Santris who broke the rules would

be given sanction and the stalls owners who invited santris to eat or watch television

in their stalls would be given warning letters. In addition, pesantren would make

prohibition to eat in those stalls for all santris. The stalls would not be long lasting

and be closed soon because generally santris did not dare to buy, whereas the

dominant consumers were santris. The prohibition would be revoked by pesantren if

stalls owners clarified to pesantren and would not repeat their mistakes. The

clarification would be unacceptable if the stalls broke the rules more than three times.

a. Barokah and sam’an wa ţa’atan 33

In Yogyakarta or other palace, people could see abdi dalem who sincerely

did their jobs and only expected blessing from palace, then in Salafiyah Syafi’iyah

pesantren it was similar. In the pesantren, many people voluntarily subjugated 32 There had been tension between people and pesantren because of declaration that

prohibited pesantren institutions to buy daily needs not in pesantren’s enterprises. According to Munif, youth figure of Sukorejo, this matter would create discrepancy and break the relationship between pesantren and society. Munif was certain this policy made by pesantren management not administrators. This matter could also occur because pesantren’s administrators rarely went to the society.

33 Barokah in language meant the addition of goodness. Situbondo people believed they would get goodness or sufficiency if they followed the Kyai’s order. Barokah was often understood mystically by people. Although they had little income, their needs would be fulfilled if they got barokah. Meanwhile, sam’an wa thoatan came from sam’an meant listening and Tha’at meant following. Sam’an wa thoatan to kyai was believed became one prescription to get barokah.

themselves for pesantren (kyai). There were two models of subservience in this

pesantren, structural and non-structural. For the structural, people usually proposed

themselves or were asked by pesantren to involve in the daily operation and got into

the structure system of pesantren. These kinds of people were usually positioned in

kitchen, autonomy section staff or enterprise, and security.34

Non-structural subservience usually could be seen from Islamic feast days or

pesantren’s special days. People came from many areas around Situbondo, even from

other regencies such as Banyuwangi, Bondowoso and Jember. They came to help

organizing committee for technical things like traffic, parking or security. In addition,

some people also subjugated for pesantren's physical development like searching for

stones or firewoods.

One interesting experience occurred to one of the respondents in this

research, Syahlan. He was a santri from Bawean Island, Gresik Regency, East Java.

Once, Syahlan wanted to go home. Since he was in a rush, Syahlan did not bring

legal permission letter from pesantren. He only brought out of date permission letter.

When Syahlan got off from the pedicab and wanted to stop bus, pesantren's security

came to him and asked for his permission letter. Knowing there was a security came,

Syahlan directly prepared and showed his old permission letter. After the security

turned the letter over and gave some investigating questions to Syahlan, the security

then allowed him to go.34 There were two kinds of security in this pesantren. Inner security that consisted of santris

and outer security which consisted of people around pesantren. The policy of outer security emerged in mid 1990s. It was created for observation mechanism and giving space to people who interested in pesantren development.

The security allowed Syahlan not because of his acceptable argumentation

but security rarely wanted to have dialogue. He allowed Syahlan because he did not

realize the letter was out of date. In fact, the security could not read. This kind of

security would always turn over the permission letter to see santri’s reaction. The

inexperienced santris usually were nervous if the invalid letter was tuned over. The

nervous santris would be taken to security office and processed by security in

pesantren.

The most important from the special note above was the qualification to

become security was not based on someone’s intellectual ability, but on sincerity to

subjugate. A villager who intended to subjugate would be very disappointed if his

good intention was not accepted. They would always say that kyai sepuh (the founder

of pesantren) never rejected people’s participation. How much money they received

was not a usual question to be asked. The payment they received every month

approximately only IDR. 30.000 until IDR. 150.000, even lower. The pesantren’s

shopkeeper or general section officials who repaired all pesantren’s building,

electricity man, and watering men who worked every time accepted not more than

IDR. 300.000. The payment they received was not comparable with social sanctions

or dismissal they received when they neglected their jobs. People would judge

negatively. The familiar language the author listened from them was sam’an wa

ţa’atan (listening the order then obeying). For those who broke the kyai’s orders were

believed to get calamity and people who gave their loyalty were believed to get

blessing and peace.35

b. Grave and Good or Bad Trademark

Monday and Thursday nights were the most crowded days because people

came to Sukorejo pesantren. Hundreds of visitors came to visit the grave of kyais

behind Jami’ Ibrahimy mosque, the village mosque located in pesantren. Cemetery in

Sukorejo was not only for grave but the place for searching blessing because of its

good stereotype.

There were two cemeteries in Sukorejo, for the pesantren’s family, abdi, and

people considered proper to be buried behind the mosque. Another cemetery was

common cemetery located more or less one kilometer from pesantren. Cemetery was

very meaningful for Sukorejo’s people in which they would be buried and be

influential in society for the left family. Although the first cemetery for pesantren’s

family, people were allowed to be buried in there with some conditions from the late

Kyai As’ad Syamsul Arifin.36 Due to those conditions and with no clear explanation

about the beginning, there was stereotype in Sukorejo’s people that those who buried

behind the mosque were good people and people buried in common cemetery were

the opposite (immoral people).

35 According to Munif, the perspective of barokah and calamity had been vanished for some people.

36 Some requirements which had to be fulfilled were: not leaving prayer, not gambling and committing immoral behaviors, interview with Fauzi, the former secretary of Salafiyah Syafi’iyah pesantren administrator.

“Good people” and “immoral people”, this image was really hard for dead

people. With this theme, sometimes people were forced to be two, “good” and “bad”.

There was no one who brave in saying whether the neighbor was good or bad;

nevertheless the place where he buried seemed would be the end court for people.

Until this research ended in May 2005, the writer did not get clear explanation

whether the cemetery was made to classify people into two groups, “good” and

“bad”. However, the writer saw people who loyal to pesantren buried behind the

mosque. On the contrary, when there were people died and buried in common

cemetery, the village became frightening and many people secretly talked about the

funeral. The final decision of this funeral was kyai of Arifins’ heir.

Kyai did not say this man good or bad, but people made their own

conclusion on kyai’s decision of allowing the man to be buried in behind the mosque

or not.37 That was the position of kiai in Sukorejo. If there was pucung song in

Javanese which meant statement about someone died in husnul khâtimah (good) or

su’ul khâtimah (bad), then in Sukorejo this song meant buried in behind the mosque

or common cemetery. In this matter, kyai had full authority, even to give judgment

whether people good or bad. Kyai’s domination could be seen in almost

circumstances, from giving names to children around pesantren, finishing law case,

37 According to Fauzi, the Arifins family actually had initiated to eliminate the perspective. Even one of the heirs was ready to be buried in common cemetery. However, the perspective was still in society. For Fauzi, the funeral problem gave bad impact and unfairness because the decision maker, the kyai, sometimes asked for suggestion from cemetery official who sometimes was unfair in judging people.

curing sick people, until indicating the goodness of someone. From several cases

above, it was clear that kyai was a reference figure in society.

3. Islam Breath in Daily Life

If someone visited to one of people in Sukorejo, then he considered as

respected man and people would not meet the guest without wearing songkok or

rimless cap. It was almost became convention that men in Sukorejo had to meet their

special guests wearing rimless cap. When they met their guests in front of their

houses without wearing rimless cap, then they immediately covered their heads with

hands. Songkok was the symbol of dignity and piousness.

People’s religiosity was not only seen in religion symbol, but also their daily

activities. There were tens of recitacion congregation in this village, from children,

teenagers, adults, and family. The time of pengajian was also varied. Almost every

day, the writer could see people went to recitation and other religious activity.

Besides the pengajian held by people, there were some recitacion events that

involved people and pesantren. Every Friday sweet/manis, people gathered in Jami’

Ibrahimy Mosque, the village mosque in pesantren. They gathered to read istighośah,

listened to religious advice or other information given by Salafiyah Syafi’iyah

pesantren administrator, KHR. Ahmad Fawaid Asad.

With his trusted people who had different skills, Kyai Fawaid delivered his

preach and dialogued with people. They would ask anything that became problems in

their mind. To respond the questions, sometimes Kyai Fawaid answered by himself

but sometimes asked his assistants to answer based on their expertise. This meeting

had been held not too long. When the research was conducted, the meeting was held

once. However, similar meeting was often held in this pesantren. Big momentum like

Islamic feast days or death commemoration of founders and pesantren’s family was

used to hold similar event. Usually this event used by people and administrators to

respond their urgent local problems.

B. Ma'had Dynamics

1. The History of Pesantren Establishment (Vision-Mission)

a. Tradisi hijrah (kilas balik Salafiyah Syafi’iyah )

The establishment of Ma'had Aly could not be separated from the history of

Salafiyah Syafi’iyah peesantren as the institution that sheltered it. The year 1908 was

the milestone for the people of Sukorejo village, Banyuputih District, Situbundo

Regency. It was the time when kafilah moved from Madura to Sukorejo and became

strong Muslim community that had high spirit education. Due to the spirit of

muhajirin community, the quiet wood became city of santri with seven thousands

sarungan people. 38

A dense forest in the coastal area of Jawa Sea was changed into settlement

which consisted of several houses for families that migrated from Madura Island and

a simple mushala which later became big pesantren. Before the small group decided

to build the settlement, their leader, Syamsul Arifin or Raden Ibrahim39 and his son, 38 According to KH. Afifuddin, the head of education and teaching section Salafiyah

Syafi’iyah Sukorejo pesantren, the amount of santris decreased compared to the amount before monetary crisis which could reach tens thousand. It was assumed the decrease was the impact of prolonged crisis. .

39 Ibrahim name became the name of school under Salafiyah Syafi’iyah foundation and changed into Ibrahimi

As’ad, had accepted mandate from some spiritual figures they met. Accompanied by

two great senior ulama’ Habib Hasan Musawa’ and Kyai Asadullah, Arifin, his son,

and the small group opened the forest and established pesantren in 1908. The virgin

forest was the compensation land from Dutch government of Pamekasan Resident

after As’ad family land in Madura was taken for salt factory.40 Like other kyais in

Maduranese tradition, Syamsul Arifin became the pillar in society, notonly in

religious knowledge but also alternative medicine as well as giving solution for

people’s problems. Due to Arifin's involvement toward society, the former forest

area started to be known by people and santris from areas in Besuki district and

Madura Island came. This pesantren was not only a place for ţalab al-‘ilm, but also

the command center and base camp of strugglers.41

In its development, the musholla established by Syamsul Arifin and As’ad

became big pesantren with the name Salafiyah Syafi’iyah Sukorejo, known as

Sukorejo pesantren or Asembagus pesantren because its area was in former

Asembagus district. The name showed this pesantren was Indonesian characteristic

because of its salaf nature or tradition and it followed Syafi’i Maźhab. There was no

clear definition about salaf pesantren.42 One thing that could explain salaf pesantren

was its characteristic. Pesantrens which called themselves as salaf pesantrens usually

40 Drs. KHM. Hasan Basri, Lc, op. cit., p. 18.41 Pondok Pesantren Salafiyah Syafi’iyah Sukorejo Situbondo, Profil pondok pesantren

Salafiyah Syafi’iyah SukorejoSitubondo ( Situbondo: Pondok Pesantren Salafiyah Syafi’iyah Sukorejo Situbondo, tt) p. 1.

42 Salaf here did not mean slafi, but it meant pesantren which built by santri community in Indonesia that close to Indonesian culture and not salaf which mixed with the Islamic education of Middle East or other Islamic countries.

had specific characteristic; first, using reference texts written in 4 th or 5th H. They

classified texts into two kinds, mu’tabar (allowed to be reference) and ghairu

mu’tabar (prohibited to be reference). Second, admitting the authority of four

Maźhabs, Syafi’i, Maliki, Hanbali and Hanafi. Salaf pesantren called them as

Mujtahid Muţlaq or something which had Ijtihâd authority. The second characteristic

was curriculum. Although definitively salaf pesantren did not dichotomize general

lesson (secular) and religion, in its practice it was dichotomy. Lessons used to be

taught in non-pesantren schools would not be thought in pesantren or at least their

hours were differentiated; there was no integrated curriculum between religion and

general lesson.43

In a focus group discussion we held, a senior santri, Imamuddin, explained

the name of Salafiyah Syafi’iyah. According to him, Salafiyah obviously showed this

pesantren was a traditional pesantren which appreciated local tradition with slogan

‘maintaining applicable old tradition and taking better tradition’, al-muhâfadah ‘alâ

al-qadîm al-şâlih wa al-akhż bi al-jadid al-aşlah. This pesantren developed its

progressive ideas and supported them with classic literatures written in 4 H called

ţurâtś.

43 Formulated from the interview with Daerobi Najih, editor of sidigiri.com and Masykuri Abdullah the general secretary of Sidogiri pesantren. An example of pesantren that did not have general schools was Sidogiri in Pasuruan and al-Falah Ploso in Kediri, Although both were developed pesantren and they had great buildings and enterprises with modern management, they did not have general schools. The example of dichotomy pesantren was Salafiyah Syafi’iyah Sukorejo in Situbondo and Darussalam pesantren in Banyuwangi or Nurul Jadid in Probolinggo that held religious school in the morning and general school in the afternoon or the opposite.

Syafi’iyah was a name given to Imam Syafi’I, a critical great Imam titled

Mujtahid muţlaq who died in 204 H/809M. In scholar hierarchy, Syafi’i was the

student of Imam Malik who died in 179 H-795 M. Although his status was a student,

Syafi’i had different ijtihâd from his teacher and established his own Maźhab,

Syafi’iyah. It was hoped that critical behavior of Syafi’i could be inherited by the

santris of Salafiyah Syafi’iyah pesantren. That was the name for, santris were hoped

to be able to maintain tradition and become critical.

b. Between Two Muktamar/Conferences (The Short History of Ma'had

Aly)

Salafiyah Syafi’iyah Sukorejo changed drastically since 27th Nahdlatul

Ulama’ Muktamar in 1984. In the event, thousands of Nahdliyin people from all NU

branches in Indonesia came to Sukorejo. It was monumental Muktamar because it

created agreement of NU dismissal from political party or known as back to khithah

which made Sukorejo widely known. Before the Muktamar, santris might come from

Situbondo area, but after the Muktamar santris came from all over areas in Indonesia,

even from countries like Malaysia, Singapore, and Saudi Arabia. Another change was

the language; the dominancy of Maduranese started to decreased and balanced with

Indonesian since that year. The addition of santris and education institution built by

Salafiyah Syafi’iyah Pesantren increased the people's trust. Some traditional Islamic

figures also believed Salafiyah Syafi’iyah could develop this group mission to

produce Islamic expert which had salaf tradition (f â qih). The desire of some ulama’

to create fiqh expert cadre inspired the establishment of Ma'had Aly. Statistics data of

santris showed that before Muktamar in 1983-1984 the total of santris were 3.037

and 8.780l in 1994-1995.44

Kyai Aziz Masyhuri, the head of RMI (Rabîťah Ma’âhid al-Islâm) stated

Ma'had Aly Sukorejo Situbondo was the most reliable Ma'had Alyin Indonesiay

toward kitab kuning.45 The mastery of kitab kuning still became the basic

characteristic of salaf pesantren. A pesantren that admitted as salaf Maźhab follower

would not be taken into consideration without outstanding kitab kuning mastery. In

the interview, Masyhuri also explained in the end of 1980a Ministry of

Religion/Depertemen Agama (DEPAG) had project of Ma'had Aly development in

Indonesia. This project was inspired by Munawir Sadzali’s intention to foster text

study for young people. Then it was offered to all pesantrens in Indonesia. DEPAG

would give facilities to pesantrens which could hold Ma'had Aly with tight criteria,

especially for curriculum related to kitab kuning mastery. There were 10 pesantrens

from all over Indonesia that tried to accept the offer from DEPAG; Ma'had Aly

Sukorejo was one of them. Ma'had Aly Sukorejo had been proposed by KH. As’ad

Syamsul Arifin before the project was offered. Most pesantrens that accepted the

offer failed to hold Ma'had Aly education because they lacked of human resources

which could enroll and finish education with Ma'had Aly curriculum.46 Another

reason of the failure was the interest of many santris from pesantrens to colleges in

44 Statistics data center of Salafiyah Syafi’iyah Sukorejo Pesantren in 200345 Interview with KH. Aziz Masyhuri on April 27, 2005.46Similar argument stated by KH. Mujib Wahab, the administrator of Mamba’ul Ma'had

Aly’arif denanyar pesantren, Jombang which also held Ma'had Aly and failed before it graduated its first batch. Interview with KH. Mujib Wahab, April 27 , 2005.

big cities or student city. From the mastery aspect, this Ma'had Aly was suitable to be

classified as salaf pesantren.

Ma'had Aly was established on February 21, 1990 initiated by KH. As’ad

Syamsul Arifin, the founder of Salafiyah Syafi’iyah pesantren, with support from

outstanding kyais in Indonesia. Ma'had Aly was established because of the concern

toward salaf ulama’ and fiqh expert who died. In the other side, the santris’ quality

decrease was felt in some pesantrens. Many pesantrens intended to adapt to era and

changed their system; yet it only decreased the quality of religious education in those

pesantrens. Besides, the fiqhiyah problems were more complex and almost

unsolvable by the remained ulama’ (mauquf), so the needs to make an institution

which concentrated on fiqh was unconditional. Thus, this pesantren was established

with approval from outstanding ulama’ in haramain, Syaih Alwi Almaliki; its first

mudir was the late KH. Wahid Zaini, the head of Rabîťah Ma’âhid al-Islâm.

The idea of establishing pesantren that could produce fiqh expert cadre who

could answer this era actually had been exist before its establishment. Because of the

business of masyayih, the old kyais, this idea was stopped. The 1998 year was the

precious momentum of Ma'had Aly establishment. In a haul akbar celebration of

Salafiyah Syafi’iyah pesantren founder, ustadz Hasan Basri Lc, the mudir of Ma'had

Aly who was a senior santri, read the last will of KH. Hasyim Asy’ari stating: “You,

As’ad, produce Fuqahâ’ cadres in the end of era”. 47 After the haul celebration was

47 Wasiat inilah yang kemudian menjadi azimat kuat pendirian Ma'had Aly.

done, some ulama’ gathered and formed technical team led by KH. Hasan Bashri Lc,

(Situbondo, Mudir) and consisted of the late KH. Abd. Wahid Zaini, SH

(Probolinggo), the late KH. Yusuf Muhammad, LLM (Jember), KH. Nadhir

Muhammad (Jember), KH. Khatib Habibullah (Banyuwangi), and KH. Afifuddin

Muhajir (Situbondo). After this small team was formed, it created curriculum,

syllabus, and teaching staff.

After seven months maturation, the result was discussed in a seminar

attended by some ulama’ such as KH. Moh. Tholchah Hasan, KH. Ali Yafi’i, KH.

Sahal Mahfudz, Prof. KH. Ali Hasan Ad-Dariy An-Nahdi and KH. Masdar F.

Mas’udi. Although the Ma’had Aly establishment concept was mature, it was not

enough if there was no approval from Indonesian masayikh like KH. Ali Ma’sum, and

Makkatul Mukarramah like Syekh Yasin Al-Fandany, Dr. bin Sayyid Muhammad bin

Alawiy al-Malikiy, and Syekh Isma’il bin Utsman al-Yamaniy. After those ulama’

gave their approval, an institution of post pesantren was established on February 21,

1990, known as Al-Ma’had Al-Aly Li al-Ulum al-Islamiyyah

Qism al-Fiqh was an Islamic education system which emphasized on

Syariah (fiqh). After 15 years, Ma'had Aly developed its independent education

system that considered by Ministry of Religion as an alternative of higher education.

This admission was realized in letter of decree about permission of Master Program

in Islamic Law at Ma’had Aly.48

48 profil Ma'had Aly, 2005 dan brosur penerimaan santri baru angkatan VI dan mahasiswa baru Magister Hukum Islam Angkatan II Ma'had Aly (2005-2008).

Ma'had Aly’s hard work had graduated four batches and it satisfied the

masyayih. The applicants of Ma'had Aly came from other pesantrens. Ma'had Aly

was not only known by old kyai but the progressive youth started considering its

position in the development of Indonesian Islam discourse. The 2003 year was

momentum in which Ma'had Aly firmed its position in the development of critical

and progressive Indonesian Islam. In that year, Kyai Fawaid Asad accepted the offer

of youth from NU to held Muktamar Pemikiran Islam/Islamic Thinking Conference.

However, the event which should have been for “ishlah” and perspectives between

youth and old groups, was not attended by the old groups. Finally, the event became

exploration media of Islamic understanding for young people. The event was ended

with the publication of three recommendations which considered liberal by old

groups and it raised Imam Nakho’i (Ma'had Aly alumni) as the star.

Behind the astonishment of young people toward Ma'had Aly, there was

liberal accusation (in negative connotation which came out from pakem of salaf

pesantern) from NU kyais, even some accused as Muhammadiyah. Ma'had Aly

people felt every statement was observed and it became note of old group which

ended on their position and stability in pesantren. Heavy threat for the progressive

people who considered violating the pesantren’s rule; people could be dispel from

pesantren or taken their involvement in pesantren. Kyai Afifuddin Muhajir, the elder

of Ma'had Aly, deplored the liberal accusation to Ma'had Aly. According to Muhajir,

the accusation was caused by old group’s unfair attitude who did not attend Islamic

thinking conference.

C. Ma'had Aly Created Faqihuzzamani

1. Vision and Mission

The vision of Ma’had Aly was to be the center of Islamic study with fiqh

(Indonesian Fuqaha’ Cadre Education) specialization. From that philosophy, Ma'had

Aly had three missions: recovery, purification, and development of salaf pesantren in

scientific dimension, amaliyyah and khulǔqiyyah. The mission became as the media

to grow and develop ulama cadres (fuqaha’) that can be guide in society for present

and future.

2. Sources

a. Santris

When this research was conducted, Ma'had Aly boarding house was

occupied by 115 santris that consisted of 65 male santris and 10 female santris for

preparation school (madrâsah i'dâdiyyah), and 34 male santris, 10 female santris for

Ma'had Aly program. This total was close to final amount with little decrease

possibility because academic calendar was almost ended. The total Ma'had Aly’s

santris in the end of academic calendar usually reduced. According to Ma'had Aly

santris, this decrease was caused by nature process. For them, enrolling Ma'had Aly

had to follow two selections. First, material selection which had to be passed before

they enrolled. Second, nature selection which had to be experienced when they had

their education.

In general, Ma'had Aly santris were the best cadres in their areas that had to

replace the position of religious leaders in their community. This also gave impact

because sometimes Ma'had Aly santris who were in their studies had to be back home

because they had to fill the vacancy of position as the head of Madrasah in their

areas. Some of them had to end their education because of family demand to socialize

or have family. The other cause was santri’s critical behavior which sometimes

considered violate rules of salaf pesantren, impolite, and violated the rule; thus, they

had to get out of pesantren or expel. Some of them ended from education process

because of materials difficulties so they chose to expel.

The causes above called by them as nature selection. It was very rare santris

who expelled from Ma'had Aly due to financial matter because the education in this

pesantren was very cheap. Observing from the persons’ quality, santris of Ma'had

Aly had very high ability compared to traditional pesantren standard. Santris who

applied to be Ma'had Aly santris had to master Arabic grammatical and basic fiqh or

qâ’idah fiqh. The mastery was for some texts below: Fath al- Mu’in (Fiqh), Alfiyyah

Ibn al- Malik (Qawâ'id al- Lughah), Ghâyah al-Wuşûl (Uşûl Fiqh), and memorized

all al-Qur’an verses related to Islamic law (ayat Ahkam).

Economically, santris in Ma'had Aly belonged to middle to lower class. This

could be seen from the money sent by their parents. For one month education time in

Ma'had Aly, approximately santris accepted IDR. 100.000 - Rp.150.000 from their

parents. Santris who accepted money up to IDR. 200.000 were very rare. The money

they received was used for daily life with two times eat per day and other expenses

including texts and other needs. The other indicator was the cheap fees that had to be

paid by santris of Ma'had Aly. For one year study time, santris in Ma'had Aly only

paid IDR. 400.000. This amount of money included education fee and facilities they

obtained like room, water, electricity, language laboratory, and computer.

The application of Ma’had Aly santris opened every three year based on

education time. Ma'had Aly management would open a batch when the previous one

had finished. The acceptance of Ma’had Aly’s new santris through two steps,

application and selection. In accepting new santris, the latest education certificate had

to be attached tough it did not become consideration. The consideration for accepting

applicants was written test and interview.

b. Teaching Staff

Ma'had Aly divided the teaching staff into three groups:

1.1. Al-Muhâdhirûn, some teachers who temporally gave general course

with central themes including Masâil Fiqhiyyah, Uşûl Fiqh, Social

Politics, Tasawwuf and Filsafat.

2. Al-Mudarrisûn, some teachers who regularly gave scheduled lectures.

3.3. Al-musyrifûn, some teachers who become daily associate of santris;

watching and guiding santris intensively.

In recruiting teachers, Ma'had Aly tested the candidates indirectly through

seminar/discussion. In addition, Ma'had Aly also considered people

recommended by masyaih council ( elder ulama’). This recommendation

consideration was really important to guarantee the scholar and loyalty of

teachers. Loyalty to pesantren (read: kyai) was also an important element

in holding the success of Ma'had Aly. According to KH. Hasan Basri

(mudir of Ma'had Aly), those who taught in Ma'had Aly were loyal and

sincere people who considered money unimportant. For them, maintaining

the last will and wealth of pesantren in form of Ma'had Aly was

everything. Basri told there were some teachers who saw the founders of

Ma’had Aly in their sleep when they did not teach.

3. Infrastructure

a. Pesantren System

Structurally, Ma'had Aly was an autonomic institution under the

foundation of Salafiyah Syafi’iyah pesantren, Sukorejo. As an autonomic

institution, Ma'had Aly controlled by and responsible to the foundation.

Everything committed by Ma'had Aly had to be controlled by the foundation.

Although structurally Ma'had Aly under the foundation, it administrated its

curriculum as an autonomic institution. Salafiyah Syafi’iyah foundation had

diniyyah educational institution from ibtida’iyyah (elementary), śanawiyyah

(middle) dan ‘Aliyyah (secondary). Students that could graduate from ‘Aliyyah

did not mean they could enroll Ma’had Aly directly. However, it seemed there

was no connection between education level under Ma'had Aly with Ma'had Aly.

Students who graduated from ‘Aliyyah could not automatically enroll Ma'had Aly;

they had to take test like other santris from other pesantrens. This irrelevancy

gave impression about the weakness of education quality under Ma'had Aly

although it was administrated by the same institution.

Due to this irrelevancy, Madrasah Diniah in Salafiyah Syafi’iyah pesantren

could not be strong support for the establishment of Ma'had Aly. Thus, Ma'had Aly

held madrasah i’dâdiyyah as the support institution of Ma'had Aly. When the writer

asked KH. Afifuddin Muhajir about the autonomy of Ma'had Aly, he answered it was

lafzan autonomy, not maknan (autonomy in de jure but not de facto). Until present,

Ma'had Aly had not been autonomy because of financial problem. The fund was still

subsidized by the foundation because the fees of students were not comparable to the

operational needs. At this time, there was a discourse that the autonomy of Ma'had

Aly would be taken because indeed there had been any autonomy.

b. Curriculum

In holding its education, Ma'had Aly was really different to other higher

education. Ma'had Aly had strong character on texts study. Almost all lecture had

texts which had to be the main reference and studied until khatam. Other texts not for

the main material were only complementary or comparison. This study system

enabled santris to learn the texts in more details and understand the author’s way of

thinking. The deep knowledge toward one text enabled santris to master other

readings. Curriculum coordinator of Ma'had Aly, ustadz Abu Yazid, explained that

Ma'had Aly focused on texts study since the beginning. Little by little, Ma'had Aly

balanced with other method developed in college. Until present, study text was

balance with other method. However, the study text would be maintained and become

characteristic of education method in Ma'had Aly. Yazid explained text study method

that read one text until khatam really helped santris attain perfect understanding

because there was unread space. So far the curriculum of Ma'had Aly dominated by

Arabic material and old texts. Indonesian or other languages books were very rare in

this pesantren.

In an outline, Ma'had Aly divided its curriculum structure into four parts,

first, basic courses included foreign language, fiqh science philosophy, al-Quran

studies (verses related to Islamic law), hadiś study (hadits related to Islamic law).

Sirah (journey) study of Nabi. Second, concentration courses included Turath text

study, Istimbath methodology, Contemporary Fiqh Tematic Study (Fiqh al-

Mu’asharah), al-’Alaqot al-Dauliyah, al-Fiqh al-Dusturi. Third, supporting courses

included research methodology, Contemporary Islamic Study (elective), Thesis

Proposal Seminar. The last part was skill courses which were: Social Analysis,

Advocacy Techniques, Scientific Work Technique, and Fieldwork. Below was the

complete description created by Ma’had Aly.49

Description of Ma’had Aly Curriculum

49 All the content explanation was written completely from its original sources, curriculum draft of Ma’had Aly Pesantren Salafiyah Syafi’iyah Sukorejo Situbondo 2003

I. Basic Courses :a) Fiqh Science Philosophy

This course is given to provide the students with philosophy in appreciating fiqh which developed from era to era. By mastering this course, students are expected to develop philosophical and critical discourse toward methodology which done by every generation of fiqh expert. Thus, the students could understand completely the position of fiqh studies among other studies.

b) Qawa’id al-FiqhThis course is given to make the students able to formulate the

systematical thinking pattern toward fiqh structure as the product of ijtihâd. Fiqhiyyah is built to frame fragmentation of fiqh dictums to be easily classified. The fiqh studies which rich of Fuqaha’ opinions needed to be formulated into big meanings so that it is easy to be accessed and observed its history and formation mechanism.

c) Al-Qur’an Study (Ahkam Verses)This course is given to make the students understand the fiqh

formation mechanism through its primary sources, the ahkam verses in al-Qur’an. Students are expected to have academic-methodological knowledge in viewing verses interpretation process which its law dimension became operational law postulates as the daily mukallaf guide.

d) Hadith Study (Ahkam Hadith)This course is intended to make the students understand the law

istinbath mechanism through second primary source, the Prophet Hadith which contained law. The students are also expected to be able to portray the mechanism of law content observation for every hadith done by Mujtahid. As an the explanatory of al-Qur’an, ahkam hadith had very important role in the process of operational law formation.

e) Prophet's Sirah (Journey) StudyThis course is emphasized on historical analysis study about

fiqh dimension emerged by behavior of the Prophet. The emphasis is not only on historical reading but also how the students traced the history of prophet’s journey in the perspective of operational law postulate formation because Prophet's attitude is the reflection of ijtihâd; whether Prophet is allowed or not to do ijtihâd is still being argued considering his divine revelation.

II. Concentration Coursea) Classical Text Study (Tahlil al-Turath)

This course is given to provide students with classical knowledge whether fiqh, uşûl fiqh or tasawwuf. By mastering this knowledge, students is expected to be able to interact with old knowledge which is the heritance of salafuna al-shalih before interact with present social phenomena. It cannot be denied that new scientific literature arranged contemporary writers is actually the chain-link from classic science. Therefore, it is inappropriate if we leave old heritance

without reserving. On the other hand, we had to unite the old and the new one without neglecting the criticism toward both sciences. Therefore, we can synergize chain-link continuation proportionally based on the needs.

b) Tematic Study on Istinbath Methodology (Thuruq al-Istinbath) This course consists of uşûl fiqh science which is ‘aqliyyah-

naqliyyah standard method in the process of law istinbath based on its postulates. With this course, the students are expected to be able to develop mechanism of law istinbath, mainly in the attempt of responding society dynamic along with the development of knowledge and technology. Considering that the material for this course is very wide, it is divided into three steps: 1) Uşûl Fiqh 1 (Text Interpretation Rules)

This course presents uşûl fiqh basic science such as syar’I postulate, syar’i law and rules on syar’I interpretation text (nash) to be operational law potulates.

2) Uşûl Fiqh 2 (Maqashid al-Syari’ah)This course tends to tasyri’iyyah rules in law formation. If

the focus of Uşûl Fiqh is text interpretation then Uşûl Fiqh 2 is emphasized on finding God’s intention in giving syari’at (maqashid al-syari’ah) on earth.

3) Uşûl Fiqh 3 (Critical Study of Uşûl Fiqh Thinking)This course is intended to reconstruct contemporary uşûl

fiqh thinking more applicative. This means how the uşûliyyah is elaborate more closely to reality in society. Thus, its discussion topic will be analytical and critical rather than exploring the exist rules.ada.

c) Tematic Study of Contemporary Fiqh (Fiqh al-Mu’asharah)1) Fiqh al-Iqtishad al-Islamy al-Hadith

This course is given to respond the economy science phenomena which keeps developing based on society development and IPEK that underlies transaction and social interaction in society. this course presents complicated issues related to economy practice such as free trading phenomenon, credit card transaction, foreign exchange, stock exchange, cloning issue and its implication, and other modern transactions which need therapy and alternative solution from Islam fiqh.

2) Al-‘Alaqat al-DawliyyahThis course is given to respond world globalization which

its excess found in almost every corner of life. In this matter, fiqh is considered necessarily to talk about international relationship regarding the bargaining value of Islam in facing the international issues like terrorism and so on. With this course, students are expected to be able to appreciate fiqh content in international political structure, especially related to nation state. Not only about it, in this complicated political setting, we should be able to format

elaborately the Muslim-non Muslim relationship according to fiqh perspective.

3) Al-Fiqh al-DusturyThis course has more formal fiqh (taqnin) legislation,

meaning how fiqh dictums can be legalized in form of law. This duty actually becomes legislator’s authority in DPR and DPRD. This course provides the students legislation theories so they can make discourse of this problem more systematically and methodologically, even if they can be more active in playing role as legislator someday.

III. Supporting Coursea) Research Method

This course is given to provide students with skills in collecting, cultivating, and analyzing data based on research criteria which needed in academic world. This course is divided into two segments: 1) Qualitative Research Method

Research mechanism based on bibliographical data which measured qualitatively without projecting numbers in the field as the result..

2) Quantitative Research MethodResearch mechanism which accentuated on numbers in the

field as the data which must be studied and observed quantitatively. .

b) Contemporary Islamic Study (elective)This course is given to respond new law events related toe

contemporary transaction development like insurance, modern banking, etc. The distribution of this course is in the form of three course’s components as follows: 1) Fiqh al-Ta’min (insurance)2) Al-Fiqh al-Mashrafy (banking)3) Al-Iflas wa al-Azmah al-Iqtishadiyyah (economy crisis)

c) Thesis Proposal Seminar Proposal Seminar is done by thesis writer candidate by

inviting experts of the topic in the proposal. Thesis seminar also involves all students and other related institutions to stimulate and get critic, suggestion, and feedback so there is accumulation of the needed data.

IV. Skills Courses :This course is given to provide students with certain skills to apply

the knowledge obtained in the lecturing. This course is not in form of regular class like other courses. On the other hand, this course is presented in form of training like workshop, panel discussion, community service, etc. The materials offered including :a) Social Analysisb) Advocacy Technique c) Technique of Scientific Work Writing d) Fieldwork

V. Thesis Writing Thesis writing is done as complementary and final

requirement for students' graduation. This program is aimed at framing the students' way of thinking systematically and methodologically based on academic demand. Thesis' title and proposal can be proposed since semester IV; In semester V, it is then presented in a seminar before the research; the writing then is completed until the last semester (VI). The minimum pages for thesis are 100 pages and maximum 450 pages, doubled space with A4 paper size.

4. Santris Activities

1) Science

Activities of Ma'had Aly to crochet intellectuality could be considered tight.

Almost all the time used for these activities and they become the breath of scholar in

Ma'had Aly. There are many variances of activities done by santris of Ma'had Aly,

from pengajian of classic texts which was balahan weton,50 until the trial of deeper

understanding which then wrapped in the form of class or group discussion.

Balahan recitation was conducted as an attempt to explore the text's content

faster. Orientation of this recitation was not for understanding but only for

introduction. On the other hand, discussion group and class were done to understand

the text's content as well as give critical note. Class discussion had an important role

in Ma'had Aly's santris thinking development because in the forum, santris started to

get into area which previously considered taboo. Giving severe critics and sometimes

questioning the capacity of texts' writers was the thing that could be listened by the

50 Balahan weton was the oldest pesantren teaching system which had been used before classical system. This pengajian held in monologue method, teacher read and defined, while santris listened and wrote the meaning they did not understand; this recitation was usually held in traditional pesantrens after prayers.

writer in this discussion. From this discussion, santris also knew some typologies of

progressive thinking. The knowledge about methodology of Islamic law

determination in the classes enabled them to criticize the texts' content radically.

Even in certain problems, they left the texts' content which previously had been

followed because it was considered irrelevant or flawed methodologically.

There were visiting lecturers invited to give additional lectures that

considered necessary to be mastered by santris of Ma'had Aly. It was aimed to give

other perspective which unusual in pesantren. Thus, Ma'had Aly santris would be

east to have dialogue and understand the other groups’ thinking. Those visiting

lecturers usually gave material related to contemporary Islamic studies, sociology,

Western Philosophy or other humanities studies.

Observing from the duration, santris of Ma'had Aly lack of break time. The

classes begun at 7 -11 AM, sometimes until 1 PM. This schedule was conducted

everyday except for Friday. Besides the above schedule, santris had to attend the

classes at 3.30-5 PM twice a week .

2) ‘Ubudiyyah (service)

Besides science activities, Ma'had Aly santris also performed ritual service.

Prayer together/berjamaah five times, reading şalawat, barzanji, and other readings

were also obliged to be read every Tuesday and Friday. Some Ma'had Aly's santris

did not only perform obligatory service, but also meritorious fast/puasa sunat. For

them, ratio could go anywhere but heart could not be dry from ritual pouring.

CHAPTER III

MA'HAD ALY AND FIQH STUDY MAP

A. Phase of Fiqh Development in Indonesia

1. Indonesian Islam from Sufi Orientation until Fiqh Orientation

In 2000, population census in Indonesia showed that Muslim placed on the

top. At that time, Muslim population was 1777,53 people or 88,22 percent from

Indonesian population.51 It was an enormous amount and Indonesia became the

country with the greatest Muslim population in the world. The great numbers of

Muslim in Indonesian did not mean Islam internal problem had been overcome.

Polemic of Indonesian Islam was really complicated, starting from the arrival of

Islam in Indonesia; who took Islam to Indonesia; and what was the orientation of

religious life in Indonesia. All the problems mentioned were not finish. Some Islamic

experts argued Islam came to Indonesia in seventh or eighth century directly from the

Arabic, while other experts considered Islam came in twelfth or thirteenth century

from India. Most supporters of the first opinion were Indonesian and Malaysian

scholars, while for the second opinion were western Islamic scholars.52 Both groups

had their own argumentations. George F. Hourani, C. G. F. Sinkim, Joseph De

Somogyi (1993) in Madzhar (1993), argued the first opinion arranged by the

argumentation that the sea trading connected Siraf Persian Gulf, India, and China had

been built since fourth century, developed in seventh century, and became a bigger

transportation system. Thus, it was reasonable if Islam had come to Indonesia in

eighth century. The annual history note of Kwangtung explained that in the beginning 51 Leo Suryadinata, Evi Nurvidya Arifin, Aris Ananta, Penduduk Indonesia: Etnis dan

Agama Dalam Era Perubahan Politik (Jakarta: LP3ES, 2003), p. 1001-1003.52 Mohammad Atho Mudzhar, fatwas of the Council of Indonesia Ulama: A Study of Islamic

Legel Thought in Indonesia 1975-1988 bilingual edition (Jakarta: INIS, 1993), p. 10.

of Tang dynasty in 618-907 AD, Moslem had come to China. At that time, Tang

dynasty accepted messengers of Arabic Muslim called Ta-sih (the pronunciation of

Chinese toward Persian: Ta-Zi). The second arrival of Islam to China was in 655,

while the third was in 681. During Bani Umaiyyah dynasty in 661-751, seventeen

messengers had been sent to China. The impact of that diplomatic relationship was

many Islam people lived in China. The journey from Siraf to China was a long

journey that needed several transits because it was impossible without stopping by in

certain cities. Malabar in India, Perlak in South Sumatera (Indonesia) and Kalah or

Kedah in west coast Malaysian peninsula were the transit places. 53 From the above

explanation, it could be concluded that the good relationship among Malaysia,

Indonesia, China, and Muslim wanderers had been built since seventh or eighth

century and it was the time of Islam’s arrival to Indonesia. .

Although in seventh century there was strong assumption and several

evidences of Muslim in Indonesia, Islam was not well-developed. The development

of Islam was later considered as the arrival of Islam in Indonesia by western

scientists. The second theory that stated Islam arrived in Indonesia in thirteenth

century known as tombstone theory. The theory created due to the discovery of

tombstone written in Arabic letters, such as the tombstones of Sultan Malik Salih and

Malik Zahir in Indonesia. The writings of Arabic language and letters showed that

Malik Salih died in 1326 while Malik Zahir in 1326. Some tombstones with Arabic

letter were also found in other places such as Gresik, East Java, the grave of Malik

53 Ibid, p. 12-13.

Ibrahim who died in 1429 H. Those tombstones strongly indicated there was Islam

community and probably Islam kingdom in thirteen century because the tombstone

written Sulatan, the title for King in Islam kingdom.54 The theory of tombstone

emerged without any polemic. The polemic occurred because the theory did not only

support the Islam’s arrival but also the origin. Moquette, a Dutch scientist concluded

a theory that Islam was from Gujarat. According to the model of the tombstone found

in Indonesia, it had similar model and form to tombstone produced in Gujarat. He

firmed those tombstones were not only sold in local market but also in international

market, including Indonesia. Moquette said that along with the marketing of those

tombstones, Islam was spread to Indonesia; thus, it was concluded that Indonesian

Islam was from Gujarat.

Meanwhile, another expert named Fatimi, opposed Moquette’s opinion.

According to Fatimi, the tombstones found in Indonesia absolutely were not similar

to tombstones in Gujarat but they were more similar to tombstones in Banggal; thus,

Fatimi considered Indonesian Islam came from Banggal. However, Fatimi’s theory

could not break Maquitte’s. Fatimi seemed to forget the influential data of Indonesian

Islam Maźhab which different from Benggal. Indonesian followed Syafi’i Maźhab

while Benggal people followed Hanafi Maźhab.55 Due to this mazdhab difference,

Fatimi’s statement was easily broken.

54 Ibid, p. 12-17.55 Azyumardi Azra, Jaringan Ulama Timur Tengah dan Kepulauan Nusantara Abad XVII

dan XVIII melacak akar-akar pembaruan pemikiran Islam di Indonesia, (Bandung: Mizan, 1994), p. 24-25.

The argument of Moquette which stated Indonesian Islam was from Gujarat,

built by tombstone theory, and spread by Arabic people, was strengthened by other

experts. Theory of Islam arrival from India was also strengthened by Snouck

Hurgronje. Unfortunately, Hurgronje did not state clearly from which part of India it

came. According to Hurgronje, Arabic people who mostly Muhammad’s descent

because entitled syarif, came later after the Indian traders spread Islam in Malay.

However, Hurgronje admitted it was Arabic people who accomplished the process of

Islam spread in Indonesia. Regarding the time of Islam arrival, Hurgronje argued the

twelfth century was the most possible.56 Azyumardi Azra stated there were several

big topics about the debate of Indonesian Islam. First, where did Indonesian Islam

come from? Who brought it? And the last, when did Islam arrive in Indonesia?

According to Azra, those arguments became difficult to be solved because of data

lack and the nature of one sided about the theories. Many theories concentrated on

certain themes and did not pay attention on other topics. 57

Systematically, Azra explained there were three theories of Islam arrival in

Indonesia. First, Islam came to Indonesian in I H or 7th century directly from Arab

(Hadramaut) to Aceh. The theory then was strengthened in the seminar of Indonesian

Islam arrival held in Medan in 1962. Second, Indonesian Islam was from Indian

subcontinent in twelfth century, not Persian or Arabic. According to this theory, this

century was the most reasonable time of Islam arrival. Third theory developed by

56 Ibid, p. 23.57 Azyumardi Azra, op. cit, p. 24

Fatimi. It stated Indonesian Islam was from Banggali (Bangladesh). The theory was

weak because it had many critics. Fatimi’s argumentation stating Islam doctrine in

peninsula similar to Islam in Phanrang and other inscriptions found in Trengganu,

was considered very weak. Besides, as it was written above, Mazdhab of Islam

people in Indonesia was different to Mazdhab in Banggali.58

Although there was opinion stating Islam arrival in Indonesia had been

oriented on Fiqh since the beginning, many data stated Islam initially brought by sufi

who had strong mysticism nuance. Other opinion stated Islam had been oriented on

Fiqh since the beginning but it was not long lasting. Fiqh in this period was

considered not strategic as the entrance of Islam. It was considered difficult to be

accepted by Indonesians who still followed their religions with strong mysticism

nuance. Due to the strategy problem, the Islam preacher changed their orientation

from Fiqh to mystic. This opinion obtained by the writer from discussion forums and

there had not been clear data about it.

Observing the data, the writer tended to the opinion stating that Indonesian

Islam oriented on mysticism since its early development. Speculatively, it could be

said that Islam with Fiqh had been in Indonesian along with Islam mysticism, but due

to the ”market” mechanism, fiqh did not develop. The Islam flourishing was

understandable because religion and faith of Indonesian people already had strong

mysticism nuance before it came. As stated by Azyumardi Azra, the other acceptable

58 Marzuki Wahid & Rumadi, Fiqh Madzhab Negara, Kritik atas politik hukum Islam di Indonesia (Yogyakarta: LkiS, 2001), p. 107-109.

thing was Islam mysticism considered attractive in its presentation. Sufi wide-spread

Islam in thirteenth century, Azra wrote. The acceptance of Indonesian people toward

Islam was also because sufi completed the Islamic teaching with mysticism traditions

which were kind to local culture. Thus, Islam rarely accepted wrong judgment as

sincritical Islam because of its accommodative attitude toward local culture.59 When it

was the first spreading of Islam, there was not forces and controversy. The arrival of

Islam mysticism in Indonesia was also along with the international Islam

phenomenon in which Islamic Sufi became phenomena of Islam society in the world,

exactly after the fall of Baghdad in 1258.60

Reviewed from the book reference used by traditional pesantrens in

Indonesia, Islam in Indonesia theologically followed Asyariyah Maźhab and

Maturidiyah Maźhab with their figures, Abu Hasan Al-Asy’ari61 and Abu Mansur Al-

Maturidi62 who lived in 10 Hijriah in Samarkan. For Fiqh, the majority of Indonesians

followed Syafi’i Maźhab. The wave of Islamic Sufi since the arrival of Islam in

Indonesia was really strong. This could be seen from the perspective of local people

toward themselves and Islam. One example was Minangnese society in Minagkabau.

They considered Minang land created by Allah from Nur (light) of Muhammad.

Minang created along with other parts of the world; ”Ruhum continent” or Rome, 59 Azyumardi Azra, op. cit., p. 32-35.

60 Marzuki Wahid & Rumadi, op. cit., 113.61 The full name of Imam Asy’ari is Abu Hasan Ali bin Isma’il al-Asy’ari. He was born in

Bashrah in 260 H/ 874 AD, and died in 324 H/ 936 AD. He was one of the descents of prophet’s best friend named Abu Musa al-Asy’ari. See Muhyiddin Abdusshomad, Fiqh Tradisionalis, Jawaban Pelbagai Persoalan Keagamaan Sehari-hari, Malang: Pustaka Bayan, 2005, p. 15

62 Imam who was born in Maturid had full name Abu Manshur Muhammad bin Muhammad bin Mahmud al-Maturidi. There was no valid data about his birth. The thing agreed by historians was he died in 333 H/ 944 AD. Ibid, p. 20

Turkey Utsmani that held authority hegemony of western area, and ”China continent”

for the authority hegemony of eastern area ; both were also created by Nur of

Muhammad. The perspective of Minangnese toward this cosmology was influenced

by Islam philosophy and tasawuf. Another evidence was the titles of Minangnese

leaders. They entitled Aour Allum Maharaja Diraja, that was believed as the younger

brother of Sultan Ruhum called Maha Raja Alif. Thus, Minangnese believed their

leaders were the brother of Kholifah Rum (the ruler of Turkey Ustmani).63

Fiqh orientation tendency of Indonesian society started to emerge in 18th or

17th century when the scriptualist movement raised. This movement marked by the

usage of Arabic or Malay scriptures written in Arabic. The scriptures which mostly

written in Arabic came to Indonesian and were read by Islam people after there was

strong relationship between Indonesia and Arab country. Rumadi stated Indonesian

fiqh movement in 17th or 18th century was the continuation of tasawuf orientation

which had been well-established. 64 So far, there had been no comprehensive Islamic

study that discussed the Islam development in 17th century as admitted by Martin. 65

Discussing fiqh orientation of Islam Indonesia, then Aceh was an important city for

this. Islam Ulama’/preachers in Aceh were often called as the balancer of fiqh and

mystic orientation in Indonesia. Let’s say Ar-raniri, ulama/preacher from India whose

complete name was Nur ad-Din Ar-Raniri (died 1068 H/1658 AD). He had brought

63 Azyumardi Azra, op. cit., p. 45.64 Rumadi, Pembentukan Tradisi Hukum Islam di Indonesia- Survei singkat pada abad XVII-

XVII, Jurnal Tashwirul Afkar .Vol. No. 4 1999, (Jakarta: LAKPESDAM NU and LTN-NU), p. 72.65 Marti Van Bruinessen, Kitab Kuning, Pesantren dan Tarekat, ( Bandung: Mizan, 1994),

p. 23.

new nuance in Indonesian Islam. Ar-Raniri was more well-known as tasawuf figure

rather than fiqh. This was understandable because his works were mostly about

tasawuf. Ar-Raniri was also the follower of one tariqa. However, Aar-Raniri also had

writings about fiqh. His thinking style was modification of fiqh with tasawuf nuance.

His perspective about Islamic law was strict and firm which could be seen in

scriptualist as illustrated by Marzuki Wahid and Rumadi66. They gave an example of

Shirath al- Mustaqim, a fiqh book written by ar-Raniri which was about the simple

procedure of worshipping like purification, shalat/prayer, zakat/palms giving, and

haji/pilgrimage. This first fiqh book in Indonesia was also written in cynical language

toward other religions such as Christian, Hindu as well as other Islam groups which

considered syncretic, like wujudiyah initiated by the poets, Hamzah Fansuri and

Syams al-Din as-Sumatrani. When explaining istinja’, Ar-Raniri said istinja’ could

not use something forbidden by syara’ (Islamic law), like leather or bones of

uncooked animal carcasses.67 If we could find istinja’ equipment, then it could be

changed by papers of Bible and Taurat which had different form from the original or

other book which forbidden by Syara’ and no Allah name such as book of Sri Rama

or Inderapura. The other provocation toward other Islamic groups could be seen from

his writing about the conditions of halal/allowed food and haram/forbidden food for

the animals of hunting result. In his book, ar-Raniri explained Majusi, Pagan, and

wujudiyah followers were not valid for the animals of hunting result and their

66 Marzuki Wahid & Rumadi, op. cit., 116.67 The term samak in fiqh meant purifiying carcasse leather with certain methods, not only

with water but also other astrungent things such as guava leaves or the others.

slaughter. It was obvious that ar-Raniri considered wujudiyah group was similar to

Majusi and Pagan people.68

The harmony of local culture with Islam mysticism developed by sufi since

Islam arrival in Indonesia started to tear in 19th century when Padri textualist

movement in Minangkabau marked the raise of fiqh orientation in Indonesia. This

fiqh wave strengthened along with the arrival of haji/pilgrim that had been influenced

by Wahabi ideology in Arabic. The war between fiqh society with custom occurred in

1821-1837, was not the first fiqh movement but a well-planned and systemic

continuation from the previous movement. Despite its bitterness, the tragedy became

the milestone of Indonesian Islam new movement, fiqh movement.

2. Fiqh as the Belle of Pesantren Education

Most pesantrens in Indonesia decided fiqh as the primary lesson for their

santris. Some pesantrens in Indonesia that did not decide fiqh as the primary lesson

concentrated on Arabic gramatical or ilmu alat69 and tariqa study. This kind of

pesantren was usually dominated by old people or santris of post fiqh or alat. The

decision of not making fiqh as the primary lesson did not mean fiqh was not the

favorite lesson for santris. On the contrary, it was santri’s great aim to learn fiqh. The

term ilmu alat for Arabic grammar indicated that learning Arabic was media to access

Islamic literatures in which fiqh was dominant. It was understandable why fiqh

became favorite in salaf pesantren. It was because fiqh considered as something 68 Ibid, p. 117.69The term alat study was used in most salaf pesantren to call Arabic grammatical language

which included nahwu and Shorrof. Examples of pesantrens belong in this category was Lerap pesantren in Kebumen, Central Java; Batokan and Gedang Sewu pesantrens in Kediri, East Java.

which directly connected to daily life, such as purification, choosing and managing

allowed/halal food and arranging the worship and social interaction, haliyyah. The

study related to daily life became obligatory study in the tradition of traditional

pesantren.70

The favorite of many santri toward fiqh and mainstream fiqh in Indonesian

Moslem was two elements which could not be separated. Both were spun each other.

Santri’s favorite toward fiqh supported by fiqh mainstream orientation in society. On

the contrary, the tendency of society that oriented on fiqh was also influenced by

pesantren alumni who kept giving knowledge transformation with fiqh mainstream.

This was proven by the connection between recitation in prayer house in village with

the one in pesantren. Teachers in village prayer house who were also pesantren

alumni always taught fiqh almost in all levels. The love of santri in surau toward fiqh

study was continued in pesantren which was usually recommended by reciting

teacher in village. Even some pesantren alumni have taught several materials which

designed to continue to certain pesantren. The other supporting fact that made fiqh

became the belle was the people’s questions to pesantren alumni which were mostly

about fiqh. Thus, there was some kind of general convention that people were

considered ‘alim if they were expert in fiqh.

3. From Literal until Contextual (Flashback of Fiqh Journey in Indonesia)

70 Dalam kitab munomental yang hampir dibaca seluruh santri di Indonesia, Ta’lim al-muta’allim, Syaih al-Zarnuzi, a monumental text read by most santris in Indonesia, emphasized on the study of al-hal, a specifiic text about procedure of student in studying knowledge.

The history of fiqh study was quite long; started from its wide understanding

which meant knowledge and included the Islamic teaching, until the constriction of

the meaning that identical to Syariah. From its long journey, not all included in fiqh

study in Indonesia. Fiqh came in Indonesia in the position of Islamic law. The

evidence for this matter could be seen from the fiqh learnt in Indonesia, whether

from Middle East ulama’ or Indonesian ulama’ who lived in harmain (Arabic land).

Some popular fiqh books in Indonesia were mabadi’ al-fiqh, fath al-Qorib (abu

suja’), fath al-Mu’in (Zainuddin al-Malibari), and fath al-Wahab (Zakariya al-

Anshori). All books discussed the procedure of Moslem life with the Islamic law

approach. Due to the influence of those books, fiqh in Indonesia tended to mean

Islamic law. The identification of fiqh with Islamic law was continuing, even for

certain people. The demands toward the maintenance of Islamic syari’at was also

followed by law based on Islamic syari’at, which was fiqh.

In the beginning of fiqh arrival in Indonesia, its scriptualist character was

seen because of claim toward Islam orthodox. All good groups claimed themselves as

orthodoxies or modernists had same character, owning strong fanatic toward texts.

The one which differentiated them was modernist tended to leave text of Maźhab

Imam and tried to put back as well as looked for all answers of all problems through

Al-Qur’an or Hadiś. This kind of group usually tended to be textual and did not really

put color on text comparison. The impact of this understanding was the stiff and anti-

dialog mindset, the style of Islam which developed in Middle East. Islam reformation

developed in this group had similar character to Islam reformation which occurred in

Islamic countries. In the development, these groups became neo-modernist that

interpreted Al-Qur’an as hermeneutics tool to have dialogue with the era.

The second group (pro-Orthodox) also believed Al-Qur’an and Sunnah were

the source in Islamic law; nevertheless they considered the content of law in Al-

Qur’an had conditions which considered impossible to be fulfilled. This group

admitted that to have ijtihâd, someone needed great personal ability as written on

classic texts.71 The impact of this faith was they had too much faith toward texts

written by ulama’ in several centuries ago. For them, following the ijtihâd of ulama’

was safer than exploring the law from its original sources, Al-Qur’an or Sunnah. The

faith toward this ijtihâd made this group too textual and anti new ijtihâd. When this

group found complicated problem not in book of Maźhab Imam, they used qiyas

(analogy) method; all problems were analogized with problem discussed in classic

texts. This group admited another law source besides Al-Qur’an, the ijma’ (collective

decision of ulama) and qiyas.72 This could be proven by the answers formulated in

bahstul masail NU which based on classic texts.

The tendency of these two groups was continued until the raise of young

intellectuals that identified themselves as post traditionalists. This young group broke 71According to Al-Syathibi, there were two conditions of mujtahid which had to be fulfilled.

First, a mujtahid had to understand maqashid al-syari’ah ( basic purpose of syari’at/Islamic law) perfectly. Second, a mujtahid had to posses potential to explore (istimbath) the law based on his/her understanding toward maqashid al-syari’ah. Al-Syathibi, Al-Muwafaqat Fi Uşûl al-Ahkam, (Bairut: dar al-Fikr, tt.), Juz IV, p. 105-106. Compare it with conditions proposed by Al-Ghazali. Al-Ghazali, Al-Mustashfa, (Bairut: Dar al-Fikr, tt.), Juz II, p. 102.

72 In Islamic world, the law sources that became reference in every law decision was divided into two parts. First, the law sources agreed by majority ulama’ such as al-Qur’an, al-Hadiś, Ijma’ and Qiyas. Second, law sources which were still argued by ulama’ such as maslahah mursalah, istihsan, urf, syar’u man qablana ( the umat’s old syari’at), ishtishhab, madzhab al-shahabiy. Dr. Abd Wahab Khalaf, Ilmu Uşûl al-Fiqh, (Bairut: Dar al-Fikr, 1978), p. 21-22.

down the old tradition with istimbat al-ahkam methodology (law exploring).

According to them, ijtihâd conducted by Imam Maźhab several centuries ago was not

appropriate to recent context, whether in aspect of time and place. Starting from this

group, contextual fiqh was born.

The reformation (1998) that had given great changes in Indonesian society

also influenced the treatment of Indonesian people toward fiqh. The momentum of

reformation which opened the democracy faucer in Indonesia opened many

opportunities for democracy strugglers and change demanders to move with many

ways and strategies. This struggle spirit then met with the santri spirit that also

contributed for the improvement of Indonesia. Tit for tat, fiqh that supported the pro

change movement was started. Observing that the domination of Indonesian Islam

understanding was fiqh, then progressive movements used media of fiqh. Study on

fiqh and contemporary problems had been initiated through seminars and workshops

since 1980s. At that time, the writing of woman fiqh for the importance of anti

discrimination and gender bias as written by Masudi (1998) was started; labour fiqh

written by Toyibah (1998) was to give justification on labor movement and proper

wage demand; land fiqh written for ecology interest, and other thematic fiqh.

The new problems continued to emerge. The unpredicted cases start to be

questioned by many people. Meanwhile, the works of classic ulama’ considered

irrelevant to be the answer for those new questions. This fact demanded the Islamic

law experts to make new formulation which gave clear guide to answer the questions

that could not be solved by classic texts. This underlied the contemporary fiqh

initiated by Sahal Mahfudz.

B. Basic Idea of Dialogical Fiqh Development

Why Fiqh? It was the common question of Islamic discourse researcher.

When this question was asked to the administrator of Ma'had Aly, they agreed that

fiqh was the Islam power in Indonesian and in the world. Fiqh had dynamic long

history and authority study which overstepped other Islamic studies.

Fiqh as the study object never died its authority; even when fiqh experienced

obstinacy period and ijtihâd door considered closed, fiqh occupied central position in

Muslim society. In Hanafi period, fiqh did not only mean Islamic law or thing related

to Islam syari’at but fiqh connoted Islamic knowledge. During the history, there had

not been any Islamic study which became the central study besides fiqh. Fiqh which

meant Islamic study symbolized by monumental text entitled al-Fiqh al-Akbar (the

great fiqh). The text written was by Imam Abu Hanifah and included all Islamic

studies. In this phase, fiqh meant religious knowledge (ulum ad-din) which included

the study of saying, mysticism, Islamic law, and others.73

Another reason why fiqh was chosen that fiqh had methodological tools

which enabled to reproduce based on Muslim people needs. Fiqh had qowaid al-fiqh

which contained general meanings related to the society and Islamic law. Fiqh also

had uşûl al-fiqh that gave methodological guidance for the formulation of Islamic

73 Qodri A. Azizi, op. cit. p. 3-4.

law.74 Beside the above reasons, the choosing of fiqh as concentration in Ma’had Aly

was also because of KH. Hasyim Asy’ari’s testament. He felt the indication of

rareness for ulama’ that mastered fiqh; thus, he gave last will to As’wad to educate

cadre of fiqh experts that could solve contemporary problem comprehensively with

responsible. Dialogical Fiqh was the great work of Ma'had Aly which expected could

touch all objects of fiqh studies that included Ibadah and Mu’malat. 75 To be more

details, the writer presented all the study objects.

1. Law of ibadah. Law regulated relationship between humans and their

God. The law included in this category was law for purification,

prayer, charity, pilgrimage, and other worship which connected

directly to God.

2. Mu’amalat Law. Because the scope of this study was really wide and

connected to human livings in Islamic law tradition, mu’amalat had

greater portion. In its explanation, mu’amalat divided into 8 kinds;

first, family law which includes divorce, sharing of inheritance,

maintenance, nasab, and other things related to familial; second, law

related to personal mu’amalat, al-ahkam al-madaniya, such as sale,

renting, and pawning; third, law related to crime, jina’yah, such as

murder, theft, robbery, etc.; fourth, law related to impeachment, such

74 Study object of Uşûl al-fiqh was sama’i (hearing) argumentation/dalil. From the dalil aspect, it gave knowledge with various conditions to be able to determine law toward (af’al) mukallaf action. From the real aspect, object of uşûl fiqh in law exploring was the various dalil adn their purposes.Dr. M. Khudlari Bik, Uşûl Fiqh, (Bairut: Dar al-Fikr, 1988), p. 13.

75 The division of fiqh’s object study was based on the problem division in classic texts. For all things related to Islamic law division and scope, see Dr. Wahbah al-Zuhaili, al-Fiqh al-Islam wa adillatuhu, (Bairut: Dar-al-Fikr 1989), Juz 1, ed. III, p. 19-21.

as determination method of witness and swear, al-Ahkam al-

Murofa’ah; fifth, al-Ahkam ad-Dusturiyyah, law related to legislation;

sixth, al-Ahhkam ad-Dauliyah, law related to foreign relationship;

seventh, al-ahkam al-iktishadiyah, law related to personal rights,

which was material; eight, al-Ahkam al-Mahasiniyah, law related to

someone’s rights toward the others.

All objects of fiqh study in the above were global problems in dialogical

fiqh. However, not all those objects were discussed in the same portion; even, some

parts were not discussed at all in Ma'had Aly. The most consideration in choosing

topic was the needs of society toward fiqh. Although the comparison number

qualitatively did not get clear data due to the documentation weakness, santri

admitted that mu’amalat positioned on the top of discussion priority because

mu’amalat inluded fiqh problems that involved other group of religions.

C. Networking and Publication

1. Talk Show on Radio

Talk show sigma, which stands for konsultasi agama/religion consultation,

was a radio program on BHASA FM Situbondo. This program gave opportunity to

the listeners to consult religion problems which usually dominated by fiqh problems.

Since its establishment, BHASA involved Ma'had Aly to be the source in the show.

Santri or alumni that became the sources had freedom in answering the religious

problems with their own perspectives. The sources could not give controversial

answer because listeners could not have accepted different answer from other ulama.

This radio was effective for the transformation of fiqh understanding which could be

the alternative for the listeners. Radio could be listened by anyone without any certain

limitation.

2. Weekly Buletin Tanwirul Afkar

This bulletin was born in the end of July 1997 when Ma'had Aly was in its

third batch. The birth of the bulletin was due to the anxiety of Ma'had Aly

intellectual santri toward the law decisions held by NU in the event bahtsul masail.

This event was considered by santri of Ma'had Aly as the community of classic texts

reading. Similar to a competition, people chose which texts that more orientated; they

did not observe the social phenomena which became the problem. Sometimes,

portrait of a figure was more dominant in. The long and tiring debate sometimes

ended in the fatwa of that figure even though he did not have reference. This

phenomenon then inspired Ma'had Aly santris to create community of creativity

thought about Islamic law that could understand society needs. A law which could

touch the problem occurred and be familiar with societal reality. Then Tanwirul Afkar

became the last choice of Ma'had Aly santris to greet and introduce progressive fiqh

that could have dialogue with all elements in society.

Besides triggered by the anxiety, Tanwirul Afkar was the academic idealism

of Ma'had Aly santris to prove that the relevancy in society of classic texts could be

found in the middle of society. There was judgment that classic texts were too old for

dialogue with reality in the present era. This matter forced Ma'had Aly santri not to

justify the perception of anti classic texts people with their jargon, back to al-Qur’an

and Sunnah. Santris of Ma'had Aly wanted to prove that fiqh as the inheritance of

great ulama’s knowledge had space to be reflection and reference of all society

activities, certainly after it experienced critic and selection which could be accounted

methodologically and socially. Then Tanwirul Afkar became the last choice as

intellectual creativity that built the idealism of santri successor and old tradition

defense. After that, Tanwirul Afkar presented with vision answering in syammil

(comprehensively) and responsibly.

Tanwirul Afkar was Ma'had Aly weekly bulletin which published every

Friday morning. All Ma'had Aly santris were active on the primary data colleting of

this bulletin. The collecting begun on Monday at 7 PM or after the Isya’ prayer. The

initial step of data collecting begun from problem discussion which would become

the big theme of Tanwirul Afkar. In the theme determination, the dynamic got

exciting. The theme of Tanwirul Afkar in every edition had to be contemporary

problem and actual to be discussed. In this step, Ma'had Aly santris were tested their

carefulness to record all realities occurred in society; arguing was necessity.

Sometimes, theme discussion spent a lot of time and finished at 9 PM. It meant that

two hours was spent to decide the theme, not including the discussion.

The next step was determining the angel of theme which was not an easy

task. Tanwirul Afkar was a bulletin which focused on fiqh study (except for the

special or interlude edition that discussed sufism); thus it was obvious that angel was

guided to enter the area which could be approached by fiqh study. This process did

not spend time because experience also helped finding the expected angel. The angel

was intended to portray problems in all aspects, not only for the entrance of problem

discussion. For the last angel, Tanwirul Afkar tried to introduce its thinking identity

with uşûli reason typology, meaning a way of thinking which forwarded text and

context dialogue with methodology approach, not textual. It was a thinking based on

methodology which not only referred to text authority, but also moved in level

context. Here, was the characteristic of Ma'had Aly santris that did not want to be

trapped in formal letters circle; yet, they tried to get into unlimited area which colored

the society.

When the step of fiqh approach in angel was considered systematical and

could portray all aspects, santris of Ma'had Aly tracked the classic texts to get

accurate and valid data. In this phase, the business of Tanwirul Afkar could be seen.

Led by two chief editors, the activity went tidy and maximum. All santris involved

because they had their own parts. This needed approximately two hours. There was

division of tracking task and santris of Ma'had Aly divided into seven groups. First

group tracking the text of Hanafiyah sect. Second group flipping through Malikiyah

texts. Third group looking for data from Syafi’iyah text. Fourth group opening

Hanabilah text. Fifth group was neutral (besides fourth Maźhab) and tried to look for

data in general contemporary texts, including in the texts out of Sunni, such as

Mu’tazilah, Syi’I, etc. Sixth group concentrated on tafsir/interpretation texts. The last

group looked for hadiś data.

The next level was texts reading that successfully found. This level did not

really give nuance of discussion passionate because it only read comments of the

writers about the problems. In the analysis step, discussion about law determination

started alive. In this step, sometimes Ma'had Aly santris revitalized uşûl fiqh which

rarely used in bahtsul masail. The meaning of uşûl fiqh revitalization was re-

functioning uşûl fiqh as the methodology of Islamic law exploration. This

revitalization was needed because there was assumption that traditional pesantren and

ulama’ treated uşûl fiqh as material knowledge, not for application in law exploration.

Besides uşûl fiqh revitalization, the expanded ta’wil method was also used; another

thing was presenting equal texts which often used by anti dialogue group. Expanding

ta’wil area meant giving ta’wil space in texts related to fiqh which previously had not

been allowed in law exploring theory. On the other hand, presenting equal text meant

using unusual texts in law exploring. One example was the usage of hadiś based on

maşlah a h, not on the status. If the status was considered maşlahah, then it could be

considered law source and had power to tahşiş and nasakh as well as the power to

conduct tahşiş or nasakh on them. These methods were used to have dialogue

between text and context which surrounded the emerged texts and certain things

faced in the law formulation. Here, the urgency of uşûl fiqh had to be positioned.

There was only one target, a law that could have dialogue with new cultural

background; to find the fiqh progressiveness and not to make it as people’s burdens.

After all the data became the decision of Ma'had Aly santri, two chief editors

worked on them. The chiefs had rights to add things which had not been discussed in

the assembly. The addition could be done as long as it was not out of the Tanwirul

Afkar characteristics. The data analysis had to be finish on Thursday night. Next

morning, it was printed in pesantren’s publishing and distributed through agencies

formed by the consumers. The weakness of Tanwirul Afkar was the readers who lived

in far place would get Tanwirul Afkar longer compared to the ones who lived nearer.

However, this did not reduce the transformation meaning of dialogical fiqh idea

because things published in Tanwirul Afkar were not news which featured actuality

but data completeness and law sources accurateness.

3. Islam Spiritual Service

Layanan rohani Islam/Islam spiritual service which abbreviated as LARIS

was form of Ma'had Aly santri service of law to people. This service was open 24

hours. Many problems of people were questioned in this service. As written above

that ulama’ in the tradition of Situbondo people was everything; thus, even tough the

concentration of Ma'had Aly was fiqh, the question related to theology was

unavoidable and it needed to be answered. This also demanded santri of Ma'had Aly

to learn other studies. Every question was usually answered directly unless there was

certain question that contained polemic or the questioner asked text reference which

more detailed and complete. That kind of question was usually kept one night. The

time was enough to find reference and formulate the answer desired by the

questioner.

In the beginning, LARIS was not well-organized. Answering was the

responsible of all santris. However, when the research was conducted, LARIS had

started to be organized by certain administrators who identified problems and

arranged duty schedule. Unfortunately, due to the technical problem, the organizing

was not optimal and there were not clear data for total questions which accepted and

answered. Another thing that made the organizing not optimal was because when the

research was conducted, Ma'had Aly was in the end of semester and santri’s time was

spent to prepare final exam. This preparation had to be done seriously because if they

did not graduate from Ma'had Aly, it would not only inhibit their study but also be

disappointment that became moral and social burden.

D. Respond toward Ma'had Aly

In writing the responds, the writer divided into three parts. First, respond from

ulama’ of Nahdlatul Ulama; second, respond from pesantren that became the location

for assistance (service) of Ma'had Aly santri; third, the readers of Tanwirul Afkar

bulletin. The choice determination of three communities was because the communities

considered knowing at least one aspect; history, struggle, and thinking product of

Ma'had Aly.

1. Support of Ulama’ for Ma'had Aly

There were various reactions when the writer gave questions about Ma'had

Aly. Some considered good and others thought Ma'had Aly was a creativity of

progressive youth which should be appreciated. Other people said Ma'had Aly kids

were liberal kids that flirty on liberalism and less tawaddu’ or humble. Although the

comment were various, all agreed what Ma'had Aly kid done wass liberal; even,

Ma'had Aly was considered as part of Liberal Islam Network. This kind of perspective

was unavoidable because Ma'had Aly’s perspective tended to be different from the

mainstream of other traditional pesantren. Ustadz Daerobi Najih, an ustadz from

Sidogiri Keraton pesantren, Pasuruan who was the administrator of sidogiri dot com,

considered Ma'had Aly had been out of salafuna şalih (the elders of salaf Maźhab).

Najih’s consideration built upon the argument that in istimbat, the law exploration of

Ma'had Aly had started to apply or minimally been inspired by non Sunni texts such as

Syiah texts and western sciences like hermeneutics and semiotics. Firmly, Najih did not

state Sidogiri prepared something special to inhibit Ma'had Aly. Nevertheless, sidogiri

dot com had prepared one rubric named kontra liberal which meant for inhibiting the

movement of Liberal Islam from anywhere, including Ma'had Aly.76

Another comment given by Mujib Wahab, educator in Mamba’ul Maarif

pesantren, Denanyar Jombang. Initialising his opinion, Mujib quoted Kyai Subadar’s

comment, a charismatic figure from Pasuruan who stated Ma'had Aly was less

tawadu’. Wahab admitted the success of Ma'had Aly in holding its education and

maintaining the quality. Even, he said there was a Denayar santri who wanted to

apply in Ma'had Aly, but he failed because of the tight selection.77 The chairman of

Rabîťah Ma’âhid al-Islâm Indonesia, KH. Aziz Masyhuri, stated Ma'had Aly was

76 Interview with Daerobi Najih 28, April 2005.77 Interview with KH. Mujib Wahab 27, April 2005.

pesantren education system which had to be supported by everyone because there

was rare pesantren which could held education system like Ma'had Aly. In addition,

Masyhuri also stated the impression he obtained from several kyais in East Java.

Many kyais in East Java identified Ma'had Aly with Jaringan Islam liberal/Liberal

Islam Network. Negative judgment about Ma'had Aly seemed to get its momentum

when Salafiyah Syafi’iyah pesantren institutionally accepted the organizing of Islam

Muktamar/convention thinking initiated by young NU which placed in Situbondo (in

Salafiyah Syafi’iyah pesantren). According to Masyhuri, when the Muktamar held in

2003, there was banner in the NU building, East Java forbade the Muktamar.

2. Support of Tanwirul Afkar Readers for Ma’had Aly

Tanwirul Afkar was one of Ma'had Aly law product which could be seen and

felt. Thus, the writer thought the readers of Tanwirul Afkar were the most obvious

consumers of Ma'had Aly. One way to find the respond of people toward Ma'had Aly

was observing how people’s respond toward Tanwirul Afkar. Since its establishment

in 1997, Tanwirul Afkar could survive with support from people. As a law bulletin,

Tanwirul Afkar was not socialized freely; to get this bulletin, readers had to pay the

publishing fee.

Until now, Tanwirul Afkar has been spread to many areas outside Situbondo,

even in Bali and Madura. There are several types of Tanwirul Afkar readers. Due to

its practical and instant for, some readers collect Tanwirul Afkar as reference to

answer people they face in their society. This group is usually community leaders

who interact directly with Moslem community in their area. Some readers

intentionally buy Tanwirul Afkar to know what Tanwirul Afkar’s comment on

contemporary fiqh. For instance, when there is controversial national case, the

subscribers of Tanwirul Afkar are certain that on Friday, a fiqhi event occurs;

Tanwirul Afkar will give respond and at that time, the subscribers go for Tanwirul

Afkar. This kind of subscribers are the observers of social phenomena which related

to fiqh or people who personally have their own law perspective but they want to

know the respond as comparison. The last subscribers are the alumni who want to

monitor the thinking development of Salafiyah Syafi’iyah Islamic boarding

school/pesantren.

Some readers read Tanwirul Afkar because they want to understand how

Tanwirul Afkar builds its idea and responds a problem; this kind of reader is usually

the administrators of Islam media or observers of Islamic law. Besides the above

type, some people read Tanwirul Afkar for a reference to be practiced. For this type of

readers, Tanwirul Afkar is the decision of ulama’ that can be used as reference in life.

Most of the readers in this type are common people who need immediate answer

toward Islamic law phenomena which occur in society. Majority readers consider law

products of Tanwirul Afkar are the representation of Salafiyah Syafi’iyah pesantren

perspective. Until present, Tanwirul Afkar publishes 700 exemplars every week.

3. Ma’had Aly As A Place to Question

Besides respond from ulama’ and readers of the bulletin, other responds were

also obtained from people who used consultation service via telephone. Questions

from people came everyday.78 There were not many responds of dialogical fiqh from

people because most questions about something related to daily activities; the

question of inter-faith dialogue was very rare. In addition, the answer of of Ma’had

Aly santri was not quite different from the mainstream. This fact made the society

responds toward dialogical fiqh not representative.

CHAPTER IV

MA'HAD ALY AND THE DEVELOPMENT OF DIALOGICAL

FIQH

78 Unfortunately, Ma’had Aly did not have clear data about total callers in each day.

In the previous chapter, it had been described the activities of fiqh

development in Ma’had Ali Sukorejo. Next, the writer would analyze the data with

theory which had been explained, the combination between new fiqh theory of Sahal

Mahfudz and dialogue concept offered by Leonard Swedler. This analysis would test

whether fiqh development in Ma’had Aly was a new fiqh form which had dialogical

aspect and answered all research questions, mainly on the question whether fiqh could

become an alternative of development method for inter-religious dialogue and how

fiqh supported the inter-religious dialogue movement.

A. New Fiqh for New Life

To analyze the fiqh development in Ma’had Aly, the writer referred to the

previous chapter about new fiqh proposed by Sahal Mahfud. The writer would start

the analysis with one case about law product of Ma’had Aly Sukorejo published in

1999 on Tanwirul Afkar weekly bulletin. This law product then was strengthened by

statement of Imam Nakhoi in religion consultation program on Bhasa radio 93,1 FM.

The example gave illustration about correlation between Shal Mahfudz theory with

fiqh product in Ma’had Aly.

Imam Nakho’i, an ustadz/preacher who was active administrator in Ma'had

Aly, in a religion consultation show (Sigma), gave controversy legal decision when a

caller asked via telephone about sacrifice/qurban79ritual. In fiqh tradition, which was

79 Qurban ritual topic was not related to inter-religious dialogue or pluralism, but the bravery of Nakho’i dialogued with context was the main thing in this writing. It will make Ma'had Aly fiqh potential to be dialogical fiqh.

usually studied in pesantren, animals for qurban were goat or cow. Contrast to that,

Na’khoi gave an answer as written by Ma’had Aly official bulletin; chicken could be

animal for qurban. For Nakho’i, context of Indonesian Muslim people that

experienced poverty had to be appreciated and given leeway to perform the service. If

qurban had to be goat or cow, then only rich people who could perform qur’ban

while poor people did not have space to do qur’ban. If this country had no longer

given space to poor people, then religion should give space for poor people’s lives.

Allowing qurban with chicken meant understanding context in which Islam people

were trying to understand what was needed by Indonesian Muslim.

The decision making to allow qurban with other animals besides what had

been determined by old fiqh was based on the purport of hadiś text about qurban. The

hadiś stated the point of qurban was irâqatu al-dam, meaning to siphon blood..

Concept of siphoning in the Rasul era was addressed to the pet at that time. Context

in which the text emerged was context that did not consider chicken as pets;

nevertheless context of chicken in present was pet, so chicken was legitimate to be

qur’ban animal. The above example clearly provided illustration that Ma’had Aly

conducted text contextualization for the benefit of ummat, the first element of

requirement for new fiqh.

Another requirement proposed by Mahfudz to make fiqh product was

following certain Maźhab in law exploring method, not the law product. This

requirement reflected by Ma’had Aly in law exploring system for publishing

Tanwirul Afkar bulletin. To get an answer and write one page pf bulletin, bulletin

editor had to work through a long process. One process was searching of answer in

classic texts which followed certain Maźhab. Through process of uşûli, the texts

would become reference to answer the questions.

The attempt of fiqh contextualization as the example above was the first

requirement of fiqh product to be a new fiqh done by Ma’had Aly. Another

requirement could be seen from law exploring system, istimbath. As it had been

explained in chapter III about Tanwirul Afkar, this weekly bulletin always introduced

thinking tradition with uşûl fiqh in which law philosophy (maqâşid al-syari’ah)

always became the basis of law determination. In applying the law products in daily

life, Ma’had aly never bound santri or its constituent to follow Ma’had Aly ijtihâd.

All explanation above was the evidence of fiqh product in Ma’had Aly called new

fiqh.

B. Dialogue: Giving Dialogue Space “For the Different”

After giving analysis of fiqh product built by Ma’had Aly with new fiqh from Sahal

Mahfudz, the writer would analyze the fiqh product of Ma’had Aly with requirement

proposed by Swidler. This analysis would give illustration about the dialogue nuance

in fiqh development process. The analysis would be started from the explanation of

Ma’had Aly publication about the allowing of Valentine’s Day celebration which was

the Christian tradition.

For young people, February 14 is ’historical day’ especially for those who are in love, the Valentine Day’s. Some claim it is Christian tradition; how Islam responds it? 80

80 Tanwirul Afkar Edition 125/2nd Friday/February 9, 2001.

The above reading was the prologue in one edition of weekly bulletin

published by Ma'had Aly when responded the celebration of Valentine Day’s. This

edition was another contextual example of Ma'had Aly fiqh related to inter-religious

dialogue. Tanwirul Afkar bulletin had given halal/allowed “label” for Valentine

Day’s celebration. In the middle of Islam resistance toward western tradition, Ma'had

Aly gave new air for tradition built from Christian romantics. Editor of Tanwirul

Afkar really understood the tradition was from Christian and even the edition featured

slight history of Valentine Day which celebrated to memorize a pastor who willing to

die due to his defense toward love. There were two reasons why Tanwirul Afkar was

dare to oppose the majority of Muslim in responding the Valentine’s Day. First,

several reasons stated clearly in bulletin; second, other reason which became the

special agenda of the bulletin. The clear reasons written in the bulletin were: first,

appreciation toward love symbolized by Valentine’s Day celebration. For Tanwirul

Afkar, loosing love is the beginning of catastrophic. Someone who lost love would

easily conduct violence everywhere. Thus, rendering Valentine’s Day as a

momentum to maintain love was very important.

Second, Valentine’s Day was not a church ritual. Rasulullah forbid his

ummat to imitate other tradition and this haditś was often used by many people to

forbid Valentine’s Day. Tanwirul Afkar had different interpretation toward this

haditś. Tradition prohibited by Rasul was tradition related to ritual of other religions;

nevertheless, Islam people had to be selective for other traditions and not all of them

rejected. If the tradition was good and could be followed, it was suggested to follow

it. In context of Valentine’s Day, this celebration was not a church ritual; thus when

this celebration defined as momentum to maintain love, then it was appropriate to

Islam teaching. Like other editions, Tanwirul Afkar always supported its idea by

quoting scriptural argument from holy text, haditś or other texts from ulama’ that

used to be the reference of traditional pesantren. In this matter, Tanwirul Afkar

quoted the words of Rasulullah narrated by al-Turmudzi, stating Allah loved people

who loved others, and any one who loved creatures on earth, all creatures in the

heaven would love them.81 Another Hadiś quoted was about the prohibition of

imitating other group’s tradition. This hadiś narrated by Abi Daud through zahir,

meaning any one who imitated certain group, then he belonged to the group.82 If this

hadiś was understood through zahir, then Islam people who celebrated Valentine’s

Day would be classified as kafir.

In responding the hadiś about prohibition of following other group tradition,

Tanwirul Afkar compromised it with another. Abi Daud noted Rasulullah said

“anyone who wore syuhrah (clothes of arrogance for pride), then Allah would give

the same clothes and be burnt by fire of hell. Tanwirul Afkar quoted this hadist as the

balancer and explanatory of the previous hadiśt about prohibition of following other

group’s tradition. Syuhrah clothes used to be worn by kafir people; thus, prohibition

of imitating did not mean to imitate but the material being imitated.83

81 Sunan Al-Turmudzi, Juz II, p. 284-28582 Sunan Abi Daud, Juz III, p.. 47.83 Al-Manawiy, Op. cit. Juz VI, p. 140.

The above reasons stated to the readers so that a law product has “syara”

power. Another important reason in the case of allowing Valentine’s Day was the

process of dialoging text and culture of Christian and Islam built by Ma'had Aly. In

addition, it was also an attempt to minimize the culture resistance between Moslem

and Christian. Ma’had Aly respond toward the celebration of Valentine Day’s was an

attempt to understand Christian tradition from the perspective of Christian. The

willingness and readiness to listen the other as others was the main prerequisites

which could not be bargained in order to create inter-religious dialogue.

Another very important example written here was the cooperation of Ma’had

Aly with other groups. Besides cooperated with pesantren and other Islam

community, Ma’had Aly also cooperated with non-Moslem groups. The unusual view

which could not be seen in traditional pesantren but could be seen in Ma'had Aly was

the involvement of non-Moslem in the class. In this pesantren, the involvement of

non-Moslem was usual view in discussion forums. Underlied by the violence based

on religion and the awareness of strong text domination in religious life, Ma'had Aly

cooperated with Lembaga Kerjasama Lintas Agama Toleransi Malang to hold

religion comparison study on May 9-11, 2002 that involved some non-Moslem

groups.84 The event with theme Umat Reality in the Perspective of Religions’ Holy

Texts/Realitas Umat Dalam Pandangan Teks Suci Agama-Agama was held to see

other religion in the perspective of holy text with some practical purposes as follows: 84 All data of this program taken from essays of inter-religious studies, Realitas Umat Dalam Pandangan Teks Suci Agama-Agama, Fiqh Expert Cadre Institution (Ma'had Aly) Situbondo cooperated with Lembaga Kerjasama Lintas Agama Toleransi Malang, (Situbondo, 2002) and interview with committee. Hoirul Anwar, May 2, 2005.

1. To understand and know the journey of religious life.

2. To understand the religion strategic position in the pressure of history and

civilization.

3. To understand the difference of holy text language and the other.

4. To understand the way of interpreting holy text in the attempt of

overcoming social problem.

5. To grow togetherness in handling ummat problems.

Besides events held by Ma'had Aly and other group of religion, Ma'had Aly also

often invited figures from other religions to be sources in internal events. To avoid

polemic and defamation, Ma'had Aly sometimes camouflaged its events. Ma'had Aly

usually wrapped the event with Islamic language (Arabic) to hold an event. As the

candidates of fiqh experts, santri of Ma’had also have to protect the Islam feeling

because support from people was the most important thing in determining the success

of a program in pesantren.

What had been done by Ma’had aly and Sukorejo in making a law product

related to inter-religious dialogue and exploring process which involved other groups

was the evidence of commitment from Ma’had aly and Sukorejo to build dialogue

together for goodness. Not all activities related to law policy formulation or

framework, but concrete cooperation also done by this institution. From all dialogue

requirements proposed by Swidler, not all of them were fulfilled. Ma’had Aly never

did the last requirement, experiencing other religions. Indeed not all requirements

were fulfilled but the main prerequisites had been fulfilled. It was acceptable if the

last requirement, which was “in the end of dialogue, all participants had to experience

the partner’s religion or ideology from inside”, had never been done because Ma’had

aly was a pesantren that had religious principle which should be appreciated. Besides,

Ma’had Aly and like other pesantren, was also built by traditional Islam people that

had not been able to accept the requirement. By making experiment of experiencing

other religion, Ma’had Aly would loose its legitimate.

C. Dialogical Fiqh

The two analysis points above were expected to give clear description of how

dialogical fiqh worked. Dialogical Fiqh was a way of inter-religious establishment

built by the potential of fiqh, whether in form of methodology power or people’s

support. In other words, dialogical fiqh was a fiqh that had inter-religious dialogue

character.

Dialogical Fiqh was the development of new fiqh proposed by Sahal Mahfudz

in which dialogue character given. In this fiqh, the interests of inter-religious dialogue

would be struggled with support of fiqh justification. Technically, the formation of

dialogical fiqh developed from Uşûl fiqh contextualization (method of Islam law

exploration) which had been barren for quite long in pesantren tradition. Uşûl fiqh

would be used as the medium to explore Islam law which appropriate to society

context. The law sources used were not only primary law sources such as Al-Qur’an,

hadiś, Ijma’ or Qiyas, but also other sources like maşlahah concept developed by

some fiqh experts. Here was the description of maşlahah concept which often used in

Ma’had Aly

Basically, maşlahah stated by some ulama’ was only on the realization of

mudlarat benefit and disclaimer in all aspects of human’s life. However, this

expression criticized by al-Ghazali. According to him, maşlahah with this

understanding would only refer to the human’s importance without touching

transcendental religiosity. Al-Ghazali argued maşlahah had to be tended on two

sides; ilâhiyyah and insâniyyah side. The paradigm developed by Al-Ghazali (445-

505 H) became a great inspiration for respected intellectuals in the next generation of

Islamic thinking such as Ibnu Taimiyah (728 H), Ibnu Qayyim Al-Jauziyah (751 H),

Ibnu Subki (771 H), and Al-Syathibiy (790 H). These intellectuals seemed to agree to

build maşlahah based on human’s interest; transcendentally or practically.

There were five things which had to be maintained their existence in

realizing the orientation of maşlahah ilâhiyyah and insaniyah. First, maintaining

religion (hifd al-din); second, maintaining the soul safety (hifd al-nafs); third,

maintaining mind potential (hifd al-aql); fourth, maintaining heredity (hifd al-nasl);

fifth, guaranteeing wealth (hifd al-mal). To maintain religion’s firmness (hifd al-din),

religion applied some punishment to the holders who tried to ruin image and

authority of religion, for example the sanction for bid’ah executants who accused of

threatening the development and persistence of religion. Another example was

“murder” sanction for kafir people who tried to influence the faith of Muslim.

To maintain the soul safety of other people (hifd al-nafs), religion firmly

imposed qishash sanction for people who intentionally hurt body or committed

murder. This sanction to create humans’ lives which free of crime and minimize

violence that could threat human’s safety. In maintaining mind potential (hifd

al-‘aql) to be normal and could be functioned as it was, religion applies had sanction

for anyone who did any activity that could influence mind potential to be inactive

functionally and normally, for instance intoxicating things like wine, drugs, etc.

As an attempt to preserve the descendant (hifd al-nasl) to be organized and

focused, religion strictly applied had sanction for people who committed adultery.

Admitted or not, this act became the scorn target and could neglect the descendant. In

the matter of wealth maintenance (hifd al-mal), religion applied sanction that could

make people did not want to do it again, for instance sanction for executors of

ghashab and robbery.85

In the study conducted by Al-Syathibi, the above frame known as preventive

action intended to make maşlahah could be real activity, not intellectual imaginary.

Al-Syathibi committed ’ibaroh for this frame with mura’ah al-maşlahah min janîb

al-‘adam. On the other hand, the other frame intended to realize maşlahah, could be

seen from some examples proposed by Al-Syathibi. One example was faith

robustness must be defended in maintaining the religion. It was like axiom which its

existence could not be bargained. The faith urgency of someone became the main

pillar toward the religion sustainability. Besides faith, the practice of prayer, charity,

85 Al-Ghazali, Op. cit. p. 286-288.

fast, pilgrim, and other became the religious ritual which had to be preserved for

religion’s greatness and robustness.

To guarantee the mind and soul safety, religion also gave regulation for

humans not to cross things which endangered their soul and minds. Thus, religion

gave explanation about allowed or forbid food and clothes. All of these intended to

maintain human’s soul and safety. As Allah SWT decreed in al-Baqarah verse 172,

Allah firmly ordered humans to consume good and useful things for their body and

psychology development. This verse also prohibited people to consume dirty things

like carcasses, blood, pork, etc. To realize maşlahah in maintaining wealth and

heredity aspect, religion gave regulation related to human interaction with others such

as trading, heritance, marriage, etc. This was known as mura’ah al-maşlahah min

janib al-wujûd, practical action as the manifestation of maşlahah from religion to be

sustained in society.86

86 Al-Syathibi, al-Muwafaqat Fi uşûl al-Ahkam, Beirut: dar al-Fikr, tt., Juz II, p. 4.

CHAPTER V

CONCLUSION1. Conclusion

It should not be questioned anymore that the involvement of religion groups

in inter-religious dialogue becomes an important thing in creating understanding and

eliminating justification of violence in the name of religion. If the elites of each

religion can be responsible toward the awareness of their community, which is not to

conduct violence or minimally to do something for the importance of their group,

then the violence problem solving on religion basis will be easier. Ma'had Aly, an

institution of fiqh expert cadre that concentrates on the formulation of Islamic law,

has worked hard based on its discipline. As an institution which concentrates on fiqh,

Ma'had Aly formulates a perspective of new dialogical fiqh. Besides fiqh formulation,

this pesantren has also initiated inter-Maźhab or inter-religious dialogue with other

groups. In addition, Ma’had Aly also dialogues its jtihâd result with other

community.

Having inter-religious dialogue with fiqh mainstream becomes the

characteristic of Ma'had Aly. The characteristic of dialogue pattern with this model is

giving justification toward dialogical fiqh method with holy or salaf ulama’ texts in

critical presentation. The application of qowaid al-fiqh and uşûl al-fiqh in law

determination enables Ma'had Aly to do ijtihâd fiqhy that can be accounted

methodologically. The target of dialog development conducted by Ma'had Aly is

focused on the Islam people in Indonesia. Although they consider the developed fiqh

product must not be followed, Ma'had Aly supports its idea with reference of valid

Islamic law sources, al-Qur’an and Hadist, and administrates those sources with the

available method; thus, it will be easy to be accounted and will have law power as

well as bind those who believe in their ijtihâd. The dialogue development with this

fiqh mainstream considered effective because Indonesian people majorly oriented on

fiqh.

Dialogical Fiqh basically is the phenomena in classic Islamic study tradition

which still uses classical thoughts built by ulama’ in the fourth and fifth century of

hijriah calendar. The usage of classic logic in viewing Islamic law problem in

Indonesia actually has been done by many individuals or other groups besides

Ma’had Ali. The one that differentiates Ma’had Aly with the other is its consistency

toward methodology. Some followers of classic Maźhab do not have ability or

bravery to use fiqh determination method for a new ijtihâd. Fiqh method is only used

as eternity of old sciences which has to be maintained and people are not confident to

apply it.

Three things that become the characteristics of dialogical fiqh development

which differentiates to other fiqh product is the revitalization of uşûl al-fiqh,87 the

usage of competitor texts, and expansion of ta’wil area. With these three methods, the

inter-religious dialogue problem is discussed with fiqh perspective. Then, the result of

discussion, which mostly refers to the classic texts is dialogued with social reality. In

developing its idea, Ma’had Aly publishes its works through radio, bulletin, bahstul

masail, religious consultation service via telephone, and the spread of its cadres to

some areas and pesantrens that become its development.

Responding the phenomena of this dialogical fiqh, people give different

response. At least, two groups of people become researcher’s concentration. First,

ulama and pesantren’s administrators; there are two different responses from them.

First, they give positive response totally; second, they give ambiguous comment. In

one side, they admit the success of Ma’had Aly in realizing the dream of fiqh ulama’

rebirth; on the other side, they consider Ma’dah aly is a liberal institution and cannot

maintain the heritage of salaf ulama’. According to the writer, this comment is

87 Uşûl al-fiqh is knowledge about procedure of fiqh determination. See Zarkasi Abdul Salam and Oman Fathurohman, Pengantar Ilmu Usul Fiqh, Yogyakarta: Lembaga studi Filsafat Islam, 1994, p. 63-67

reactionary and less basis; it is comment which pro established and cannot accept the

raise of young ulama’. The second group is “consumers” of dialogical fiqh.

Consumers here mean the readers of bulletin and client of Islam spiritual service. The

consumers do not too pay attention how Ma’had Aly builds its idea and how the

character of its fiqh product; for them, the answers given by Ma’had Aly which

strengthened by texts or fiqh argumentation are the things they need. According to

them, Ma’had Aly, has authority toward the development of fiqh and they admit the

truth of its ijtihâd.

Some reasons above strengthen the reason why Ma’had Aly uses fiqh as the

medium of inter-religious dialogue. Another reason is because fiqh has clear

development method. Fiqh is also the representation of Indonesian Islam people and

it has admitted law power. From its presentation which completed by law

determination method, dialogical fiqh belongs to contemporary fiqh proposed by

Sahal Mahfudz, fiqh that has dialogical character between text and context. In the

perspective of inter-religious dialogue, the writer considers Ma’had Aly is still careful

in determining its action toward the position of “the other”. This can be shown from

the way of their dialogue, admission toward the truth of “the other” tradition, and the

bravery in cooperation which has been totally done. However, the experience to be

the other as required by Swedler has never been experienced seriously and

institutionally. The term dialogical fiqh to call fiqh developed by Ma’had Aly is

arguable. However, the result of this research clearly shows the developed fiqh has

new fiqh criteria and main aspect in dialogue.

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