Discussion on the epistemology of socilogical study of Islamic law

1. IS ISLAMIC LAW PRONE TO
SOCIOLOGY?
RATNO LUKITO
PRESENTED AT THE 3TH AICOLS, “LAW AND LOCAL VALUE IN MUSLIM SOCIETY: IDEAS,
NORMS AND PRACTICES”, FACULTY OF SHARIAH AND LAW, UIN SUKA YOGYAKARTA, NOV 4,
2019

2. SPECTRUM OF JURISPRUDENCE
Natural
Jurispruden
ce
Positive
Jurisprudence
Sociological
Jurisprudence
Empirical
Jurisprudence

3. TYPE OF
JURISPRUDENCE
PERSPECTIVE OF LAW APPROACH OF STUDY METHOD OF LEGAL
FINDING
NATURAL
JURISPRUDENCE
LAW AS A
REFLECTION OF
NATURAL-SUPER
HUMAN BEING
POWER
GENERIC,
PHILOSOPHICAL,
MACRO-DEDUCTIVE
TEXTUAL AND
QUALITATIVE
POSITIVE
JURISPRUDENCE
LAW AS A
REFELCTION OF
POLITICAL POWER
SPECIFIC, MICRO-
DEDUCTIVE
TEXTUAL,
QUALITATIVE, IPSO
FACTO OR EX-POST
FACTO
SOCIOLOGICAL
JURISPRUDENCE
LAW AS A
REFLECTION OF
SOCIAL VALUES
SPECIFIC, MICRO-
MACRO, DEDUCTIVE-
INDUCTIVE
SOCIO-LEGAL,
CONTEXTUAL, QUID
FACTI-QUID JURIS
EMPIRICAL
JURISPRUDENCE
LAW AS A
REFLECTION OF
NUMBERS
SPECIFIC, MICRO-
MACRO, DEDUCTIVE-
INDUCTIVE
CONTEXTUAL,
QUNTITATIVE,
NUMBERS IN
STATISTICS AND
ECONOMICS

4. CLASSICAL ISLAMIC JURISPRUDENCE
• TRADITIONALLY, ISLAMIC LAW IS STUDIED WITH THE DOMINANT PERSPECTIVE OF LAW AS A
PRODUCT OF SUPER HUMAN BEING (GOD), COMMONLY ATTACHED IN THE DOCTRINE OF
NATURAL LAW
• THE ROLE OF THE JURISTS IS MORE AS A PROGENITOR IN THE PROCESS OF SEARCHING THE
GOD’S LAW
• AS LAW IS IN THE HANDS OF GOD, AND IT IS INSEPARABLE FROM THEOLOGY, THE TASK OF
THE PEOPLE IS MAINLY TO UNDERSTAND WHAT GOD’S INTENTIONS IN LAW, EXPRESSED IN
WHAT THE REVELATION DEFINES AS GOOD AND BAD.
• ISLAMIC LEGAL STUDIES ARE THUS MORE OCCUPIED WITH THE DUTY TO INTERPRET THE
REVELATIONS PERTINENT TO LAW.
• THE BODY OF ISLAMIC LAW THUS CONSISTS IN TWO BIG COMPONENTS: SHARIAH AND FIQH.
SHARIAH IS MORE AS A LEGAL POSTULATE, WHILE FIQH IS THE NORMATIVE ORDERINGS
REVEALED FROM WHAT THE SCHOLARS’ UNDERSTANDING OF THE POSTULATE.

5. MODERN LEGAL TECHNIQUE
• IN THE REALM OF LEGAL PRACTICE, THE PERSPECTIVE OF ISLAMIC LAW HAS
ALSO SHIFTED FOR THE SAKE OF THE NEEDS TO FOLLOW THE DEVELOPMENT OF
MODERN LEGAL TECHNIQUE.
• ISLAMIC JURISPRUDENCE SHOULD BE DEVELOPED TO PACE WITH MODERNITY
AND ISLAMIC LEGAL THEORY IS THEREFORE SUSCEPTIBLE TO NEW PARADIGMS
OF LAW BORN WITHIN CERTAIN LOCUS AND TEMPUS.
• THUS, THE STUDY OF ISLAMIC LAW CAN BENEFIT FROM THE DEVELOPMENT OF
LEGAL THEORY SO AS TO MAKE IT MORE FRUITFUL IN UNDERSTANDING ISLAMIC
LEGAL PHENOMENON.
• IT IS INDUBITABLE TO SAY THAT ISLAMIC LEGAL STUDIES NEEDS NEW LEGAL
PERSPECTIVES TO ENRICH THE HORIZON OF THE STUDY. IT IS HERE THAT AS
ISLAMIC LAW LIVES IN THE ERA OF THE SOCIOLOGICAL JURISPRUDENCE REGIME
THAT SOCIOLOGY BECOMES A PRINCIPAL TOOL IN THE STUDY OF ISLAMIC LAW.

6. SOCIOLOGICAL ISLAMIC JURISPRUDENCE
• ADOPTING ROGER COTTERRELL DEFINITION OF SOCIOLOGY OF LAW,
SOCIOLOGY OF ISLAMIC LAW CAN THUS BE DEFINED AS “THE SYSTEMATIC,
THEORETICALLY GROUNDED, EMPIRICAL STUDY OF ISLAMIC LAW AS A SET OF
SOCIAL PRACTICES OR AS AN ASPECT OR FIELD OF SOCIAL EXPERIENCE”.
• ISLAMIC LAW IS SEEN MORE AS A LEGAL ENTITY LIVING IN THE SOCIETY,
MINGLING WITH OTHER SOCIAL VALUES DEFINING THE LIFE OF THE PEOPLE. IT IS
THUS THE REFLECTION OF LAW EXISTING IN THE ERA OF LEGAL POLICENTRICITY.
• IN THE MATTER OF LEGAL TECHNIQUE, ISLAMIC LAW-MAKING IS MORE AS A
PROCESS IN WHICH THE INFLUENCE OF FOREIGN (NON-ISLAMIC) LAWS GIVES A
POSITIVE TREAT TO THE DEVELOPMENT OF THE SACRED LAW.
• ISLAMIC LAW MAY REMAIN BE A SACRED LAW, YET SECULAR AGENTS OF LAW
ARE INTACT IN THE PROCESS OF ITS TRANSFORMATION TO PACE WITH THE
TIME.

7. THE CLOCK-WISE PROCESS OF ISLAMIC LAW-MAKING
Islamic
Law and
Society
General
Theory of
(Islamic)
Law
Deductive
Process
Islamic Law
in Practice
Inductive
Process

8. POSTULATES OF SOCIOLOGY OF LAW
• QUOTING REZA BANAKAR, “LAW THROUGH SOCIOLOGY’S LOOKING GLASS:
CONFLICT AND COMPETITION IN SOCIOLOGICAL STUDIES OF LAW”
“IN CONTRAST TO THE LAWYER, WHO THINKS PRAGMATICALLY –SEES LAW AS AN
INSTRUMENT TO DO THINGS WITH – AND TENDS TO REASON IN TERMS OF
INDIVIDUAL OR EXCEPTIONAL CASES, THE SOCIOLOGIST IS OFTEN INTERESTED IN
THE GENERAL CHARACTERISTIC OF SOCIAL PHENOMENA AND LOOKS FOR
REPEATED PATTERNS OF SOCIAL BEHAVIOUR. THIS IS IN TURN DIRECTED
TOWARDS PRODUCING A GENERAL KNOWLEDGE OF SOCIETY, I.E., SOCIAL
THEORIES. INDIVIDUAL CASES IN THEMSELVES AND FOR THEMSELVES ARE OFTEN
OF LITTLE VALUE TO THE SOCIOLOGIST.” (2016: 62-63)

9. 3 POSTULATES
• USING ROGER COTTERRELL POSTULATES OF SOCIOLOGY OF LAW,
SOCIOLOGY OF ISLAMIC LAW CAN BE UNDERTAKEN ONLY BASED
ON 3 POSTULATES:
1. ISLAMIC LAW CAN ONLY BE VIEWED AS A SOCIAL
PHENOMENON
2. AS A SOCIAL PHENOMENON, THE LAW SHOULD BE
UNDERSTOOD PRAGMATICALLY AS A RESULT OF SOCIAL
RELATIONS FACTUALLY HAPPENED IN SOCIETY, NOT JUST AN
IMAGINATION OF CERTAIN ELITES.
3. ISLAMIC LEGAL RESEARCH SHOULD BE UNDERTAKEN BASED
ON SYSTEMATIC EMPIRICAL STUDIES, NOT DEVELOPED FROM
ANECDOTAL ARGUMENTS.

10. METHODOLOGICAL FRAMEWORK
LAW
“OUGHT”
QUID JURIS
DOCTRINAIRE
(JURISPRUDENCE)
SOCIETY
“IS”
QUID FACTI
PRAGMATIC
(SOCIOLOGY)
LAW AND SOCIETY
“Is” cum “Ought” -Introspection
Quid juris cum Quid facti -Legal behaviour
Pragmatic doctrinaire
(SOCIOLOGY OF LAW)

11. • 3 METHODOLOGICAL PRINCIPLES:
1. THEORETICAL FRAMEWORK AND LEGAL CONCEPTS SHOULD BE
RELIED UPON SOCIOLOGICAL SCIENCE
2. IN SOCIOLOGICAL LEGAL RESEARCH, LEGAL DATA SHOULD BE
TAKEN AS AN INDEPENDENT OR DEPENDENT VARIABLE
3. SOCIOLOGY OF LAW SHOULD ADOPT EMPIRICAL APPROACHES TO
COLLECT THE LEGAL DATA NEEDED IN THE ANALYSIS.

12. THE CHARACTERS OF THE SOCIOLOGICAL STUDY
OF ISLAMIC LAW
1. THE STUDY FOCUSES MORE UPON LAW-IN-BOOK PERSPECTIVES
2. LEGAL RESEARCHERS MORE UP TO THE THINKING OF “WHAT IT IS” (DAS SAIN)
THAN “WHAT OUGHT TO BE” (DAS SOLLEN)
3. LEGAL DATA IS TREATED AS A SOCIAL PHENOMENON
4. RESEARCH METHODOLOGY IS USED AS A TOOL TO FIND AN EMPIRICAL DATA,
NOT IMAGINATIF AND ANECDOTAL ONES
5. LEGAL RESEARCH COULD ONLY BE DONE TO FIND AN EMPIRICAL AND
PRACTICAL LEGAL DATA, TAKEN FROM EVERYDAY LIVES OF SOCIETY.

13. • CONTEXT DIFFERENT BETWEEN INDONESIA AND ARAB..