A study of umar bin Khatab’s Ijtihad in an effort to formulate Islamic law reform

Abstract

This study examines Umar bin Khatab’s Ijtihad, in an effort to formulate Islamic law reform. Umar is known as the Imam Al-Mujtahidin and also a brilliant contributor to the development of Islamic law. A visionary, he is widely adopted by modern Islamic intellectuals to find new legal rulings, whose values are in accordance with present times. Even today, several practices of Umar’s Ijtihad are often used as a source of inspiration in the development of Islamic law. He dared to take policies that were no longer in accordance with the literal understanding of the verses of the Qur’an or the Sunnah that were carried out by the Prophet Muhammad SAW. This research method is qualitative or commonly called library research. Library research examines data by exploring, observing, examining, and identifying existing knowledge in the literature to obtain a dependable conclusion, both philosophical and empirical. This study concludes that, in principle, Umar bin Khattab’s Ijtihad continues to hold the Qur’an and Hadith as sources of Islamic law. However, his views are not technically the same as the textual provisions of the texts which are judged by ushul fiqh scholars as qath’iy texts, such as not giving the right to receive zakat to converts, not cutting off the hands of thieves, not taking spoils of war (ghanimah), as well as adding caning punishment for alcohol drinkers. What Umar bin Khattab did in some of these cases did not mean he was against the law that had been set by the Prophet Muhammad SAW and other companions, however it is to achieve a law that will be able to fulfill Al-Mashlahah which is Maqashid Al-Shari’ah or the goal of Shari’ah, specifically preserving human mind, achievement of benefit and prevention of harm.

Keywords:

• Ijtihad
• Umar bin Khattab
• Reform
• Islamic Law

1. Introduction

Umar bin Khattab, the second Caliph, succeeded Abu Bakr in 634 AD up to 644 AD. During his reign, Islamic territory expanded to Palestine, Syria, Iraq and Persia in the north and Egypt in the southwest (Mohammad Daud Ali, 2006: 174). Apart from expanding the Islamic territory, he was also able to run a good and orderly government. With his intelligence, state and legal issues are always resolved wisely, objectively and fairly.

In addition, Umar also determined the Islamic year known as the Hijri Year based on the circulation of the lunar month. The establishment of the Hijri year was carried out in 638 AD with the help of the historians of hisab at that time (Supriyatni & Renny, 2011, pp. 78–79). Furthermore, Umar is also known as Imam Al-Mujtahidin (Ansori & Harahab, 2008, p. 60), and is also known as a contributor to brilliant thoughts in the development of Islamic law (Fitra, 2016, p. 49).

In addition to the skills mentioned above, Umar bin Khattab is also known as a creative thinker, especially in the field of Islamic law, so that the basics of thought and knowledge of Umar’s way of thinking and how he expresses his opinions are widely adopted by modern Islamic intellectuals in finding new legal solutions whose values are in accordance with the times. In fact, even today, several forms of ‘Umar bin Khattab’s Ijtihad are often used as a source of inspiration in the development of Islamic law. Umar bin Khattab’s Ijtihad in principle, is still oriented to Kalamullah and As-Sunnah as sources of Islamic law. However, his thinking is textually different, even different from the instructions from the Qur’an and As-Sunnah which are judged by ushul fiqh scholars as qath’iy texts, such as not giving the right to receive zakat to converts, even though, at the time of the Prophet Muhammad, there was a group called muallafa qulubuhum as stated in the Qur’an Surah At-Taubah (9) verse 60; as well as not cutting off the hands of thieves who clearly committed the theft and admitted it, as commanded in the Qur’an Surah Al-Maidah (5) verse 38.

In connection with the description above, this article analyses Umar’s Ijtihad thinking in the framework of the formulation of Islamic law reform.

2. Research method

The research method used in writing this research is descriptive qualitative. The type of research is library research, namely collecting data or papers related to the ijtihad thinking of Umar bin Khattab which is literature. Descriptive qualitative research is a combination of descriptive and qualitative research. Qualitative descriptive research displays the results of data according to the original without the process of manipulation or other treatment.

In Sukmadinata’s explanation, qualitative descriptive methods are more directed to describe various kinds of phenomena that are natural or human engineering, more about the characteristics, quality and interrelationships between activities. On the other hand, descriptive research does not provide treatment, manipulation, or change in the variables studied, but rather describes a condition as it is. The only treatment given is the research itself conducted through observation, interviews, and documentation (Sukmadinata & Nana Syaodih, 2011).

Meanwhile, Satori revealed that qualitative research was conducted because researchers wanted to explore non-quantifiable phenomena that were descriptive in nature such as the process of a work step, the formula for a recipe, the understanding of a diverse concept, the characteristics of goods and services, various images and styles, the procedures of a culture, the physical model of an artifact and others (Djam’an & Aan, 2012). Sugiyono in his explanation said, descriptive qualitative research as a research method based on the philosophy of post positivism which is usually used to research on natural objective conditions where the researcher acts as a key instrument (Sugiyono, 2012).

The purpose of this study is so that readers can find out the ijtihad thinking of Umar bin Khatab comprehensively from various sides, in this case from the social and political side of the law, so that it is hoped that readers in their daily activities can be motivated to carry out Islamic law according to its rules and find Islam as a dynamic, humanist, elastic, and egalitarian religion or called shalihun likulliz zaman wal makan.

3. Ijtihad and its position

3.1. The term ijtihad and its meaning

The term Ijtihad comes from the Arabic word “Jahada”. The word Jahada originally consisted of: (a) Jahdun, and (b) Juhdun. Jahdun means earnest or wholehearted or serious. While Juhdun which means ability or capacity which contains the meaning of difficult, heavy and challenging (Syarifuddin, 2001, p. 223). Ijtihad according to the term is an activity to gain knowledge (Isthimbath) of syara’ law from detailed arguments in shari’ah (Idami, 2011, p. 97).

Subsequently, Ijtihad in terminology, there are several definitions explained by scholars, which generally show almost the same meaning, and between one definition to another are complementary. These definitions include the following:

1. According to Ibn as-Subki, Ijtihad is the utilization of the ability of a fiqh expert to produce zhanni syara’ law (Tajuddin al-Amidi, 2012, 98).

2. According to Al-Amidi, Ijtihad is the maximum exertion of a person’s ability, in finding a zhanni “syara” law, until he feels incapable of generating more than these findings (Al-Amidi, 1984, p. 64).

3. According to Ash-Syaukani, Ijtihad is the mobilization of ability to achieve the sharia law which is feasible by using the istinbath method (Muhammad bin Ali bin Muhammad as-Syaukani, 1996: 250).

Based on the three definitions put forward by the Ushul Al-Fiqh experts above, it can be described that what is meant by Ijtihad, should consist the following elements:

1. Maximum mobilization of reasoning abilities from the person who are called Mujtahids.

2. Using the Istinbath method (legal scrutinizing).

3. The object of Ijtihad is detailed syara’ arguments.

4. The purpose of Ijtihad is to find syara’ law relating to “amaliyyah” issues (not related to aqidah or morals).

5. The syara’ law realized is zhonni’ (strong suspicion; relative), not qath’I (true; absolute).

Meanwhile, the above definition also clarifies that what is meant by a Mujtahid is a person who exerts his maximum reasoning ability to discover the shari’a laws from the shari’a arguments’, through the method of extracting certain laws relating to ‘amaliyyah issues (Dahlan, 2014, p. 340)., Therefore a Mujtahid always directs all the potential that exists in him, the intelligence of his mind, the subtlety of his taste, the breadth of his imagination, the sharpness of his intuition, and the virtue of his wisdom (H.A. Djazuli, 2010, p. 71)., In this regard, the resulting law is a true and wise law. To fulfill the above, the Mujtahid must meet 4 (four) conditions, namely:

1. The Mujtahid must master the Arabic language in all its branches.

2. The Mujtahid must know the texts of the Qur’an regarding the Shari’a laws it contains, the legal verses and how to attribute the law to it. In addition, one must also know asbabun nuzul, nasikh-mansukh, ta’wil and the interpretation of the verses to be attributed.

3. The Mujtahid must know the texts of al-Hadith, that is, understand the shari’a law brought by al-Hadith and be able to issue the law of the actions of the mukallaf from him.

4. The Mujtahid must know Maqashidus-Syar’iah, human behavior and customs that contain benefits and harm and be able to know the ‘illat of law and be able to compare events with other events (Yahya & Rahman, 1986, p. 382).

In addition to the requirements as mentioned above, present-day Mujtahid also needs to have other knowledge, such as sociology, anthropology, and knowledge of the issues in which he/she is trying to resolve. These knowledge become important when the issues to be determined are contemporary issues that are not clearly indicated by the text of the Qur’an and Hadith (Mardani, 2010, p. 145).

3.2. Position of ijtihad

To find out the position of Ijtihad, it is necessary to first know the order of sources of Islamic law. The sources of Islamic law if sorted respectively consists of the Qur’an, Hadith, Ijma’, Qiyas, Ijtihad, Istihsan, and Mashlahah Mur-salah (Rahem, 2015, p. 189). Ijtihad during the reign of the caliph ‘Umar bin Khattab was an unavoidable necessity, because new problems that had never happened before emerged in the midst of real life. At that time Ijtihad was not only directed to issues that were not contained in the texts of the Qur’an and Sunnah, but also to understand the texts contained in these two sources.

In the process of issuing the rule of law, there are scholars that use the qiyas method. However, if this qiyas method cannot be used because the conditions are not met, then Ijtihad becomes the method of choice, in order to avoid deviating from religious rules. Thus, the position of Ijtihad is one method of making a ruling of law in problems that are not clearly explained in the Qur’an and Hadith. Further, it is explained by Ibn Kasir, that the position of Ijtihad in the period after the Prophet’s death was as a tool to explore Islamic law from its source (Kasir, 2008, p. 41).

In line with the above, similarly explained by Hafidz Abdurrahman, that the position of Ijtihad is one of the sources of Islamic law which can only be done in matters of syara’ law in the form of physical actions and furu’, not in the realm of aqidah (belief) and ushul (Abdurrahman, 2003, p. 293). Ijtihad is carried out to answer problems that arise in the community whose legal status is not yet known. Likewise, the Ijtihad of the companions was only carried out to answer problems that actually occurred in real life in the midst of society. They don’t want to speculate on things that haven’t occurred. Even in this latter case, they dislike it, therefore the fatwas of the companions in the field of fiqh are relatively few (Bek, 1987, p. 95).

Ijtihad at the time of the Companions had really functioned as a tool for digging the law and was even seen as a necessity that must be done in order to resolve various cases whose legal provisions were not explicitly and clearly found in the Qur’an and Sunnah (Amin, 1991, p. 49).). The companions did Ijtihad and used qiyas. They hold Ijtihad in various places and make an analogy of some laws against others and compare their reasoning with the reasoning of others (Yusdani, 2005, p. 19).

4. Biography of Umar Bin Khattab and his character

Umar Bin Khattab was born 13 years after the year of the elephant in Mecca. His full name is Umar bin Khattab bin Nufail bin Abd Al-‘Uzza bin Rabah bin Abdullah bin Qurth bin Razah bin Adiy bin Ka’ab bin Adiy bin Ka’ab bin Luay bin Ghalib Al-Quraishi Al ‘Adawi (Ash-Shalabi, 2019, p. 14). The lineage of ‘Umar met the lineage of the Prophet Muhammad at Ka’ab bin Luay bin Ghalib. While his mother’s full name is Hantamah bint Hasyim bin Al Mughirah (Ash-Shalabi, 2019, pp. 14–15). ‘Umar was a companion of the Prophet and the second caliph after Abu Bakr, and he converted to Islam in the month of Dzulhijjah in the 6th year of prophethood at the age of 27 and is one of the ten companions guaranteed to enter Paradise (Al-Suyuti, 1952). : 121).

As a child, ‘Umar worked as a goat herder belonging to his father, and his father taught him in a hard and disciplined manner so that ‘Umar grew up to be a person who is firm and known as a no-nonsense type of person. ‘Umar is vocal, speaks fluently and good at explaining things. He is also a poet, who is able to memorize many poems and even read them to others (Syibli Nu’mani, 1981, p. 30). In addition, ‘Umar bin Khattab is also a person who has advantages, uniqueness and virtues of his own. This can be seen from one of the historical achievements attached to him, resulting in the title “Al Faruq”, given to him by the Prophet Muhammad SAW which he bears throughout time and he’s famous for it, as well as his leadership period which brought glory and authority of Islam to all corners of the world (Thabrani, 2015, p. 263), his thoughts are contained in his Ijtihad.

As for the qualities inherent in ‘Umar, the most important of which are religious steadfastness, courage, extensive experience, authority, strong personality, sharp intuition, intelligent, generous, good example, compassionate, determined, strong-minded, pious, and always cautious in religious matters (Ash-Shalabi, 2019, p. 188). These qualities have led him to become an ambassador or delegate of the Quraysh tribe and a proud representative of their descendants to other tribes. ‘Umar with his firm attitude in every issue, never allows injustice to be done or Islamic law to be violated. He has a sincere nature that makes him willing to sacrifice his soul to defend something he believes in. He conquered many cities with the aim of following in the footsteps of the Prophet in pursuing his foreign policy, as has been explained in history that the prophet Muhammad SAW had sent several envoys to kings and emirs (governors) asking them to convert to Islam (Abbas, 2014, p. 169).

5. Umar’s Ijtihad in the formulation of Islamic law reform

Ijtihad is an important factor in the forming and development of Islamic law, hence, it is absolutely necessary. This is because not all new problems have solutions in the Qur’an and al-Hadith and the Ijma’ of the scholars. Ijtihad, in an effort to reform Islamic law is necessary and indispensible, and even becomes a Sunnatullah that can’t be abandoned in the face of globalization. With the implementation of Ijtihad in solving all legal problems that arises, it is hoped that Islamic law will still exist and be able to keep up with the times and is needed by Muslims in regulating their lives (Manan, 2006, p. 166).

Similarly, Ali Hasballah said: “kamal asy-syari’ah wa shalahiyatuha likulli zaman wa makan” (Hasballah, 1886, p. 410). Then further explained by Wael Hallaq, quoting the opinion of scholars, saying: “al-fiqh shalih li kulli zaman wa makan. The law is adaptable to all times and places” (Hallaq, 1997, p. 248). The expression of the scholars mentioned above, can be considered as a proposition which implies that Islamic law is appropriate for every time and place, which is relevant and significant to serve as a guide in solving legal problems in society. This is explained by a rule, among others: لا ينكر تغيرالاحكام بتغير الازمان meaning: Undeniably, legal changes are caused by changing times (Al-Suyuthi, 1996, p. 119). Thus Islamic law is dependent to the environment, circumstances and place, because the purpose of the law is to be beneficial to human.

In order to deal with the development of society and resolve new problems, especially those related to social events, namely mu’amalah, it is necessary to implement Ijtihad by making optimal use of the most precious gift of Allah SWT, i.e. human mind (Abdad, 2014, p. 39). With the existence of the human mind, Umar bin Khattab carried out Ijtihad in the context of reforming Islamic law. He dared to adjust laws that were no longer in accordance with the literal understanding of the verses of the Qur’an or the traditions that were carried out by the Prophet Muhammad SAW. At first glance, Umar bin Khattab’s decision or Ijtihad seems to contradict the provisions of the Qur’an and hadith (Ridwan, 2018, p. 35). This is natural, because the function of Ijtihad in addition to establishing law on problems that are not clearly explained by the texts, also to provide new interpretations and understandings of the syara texts which contain the basics and principles, so that Islamic law is always in accordance with the times (Usman, 1994, p. 167).

The resulting changes from ‘Umar bin Khattab’s Ijtihad concerning cases within the framework of the formulation of Islamic Law Reform are as follows:

5.1. The case of Mu’allaf (new converts to Islam)

The term mu’allaf is mentioned in the Qur’an Surah at-Taubah (9) verse 60, as one of the ashnaf who is entitled to receive zakat, namely the والمؤلفة قلوبهم group, meaning the mu’allaf who have been persuaded or inspired, by the Messenger of Allah, they are given a share of zakat with the intention of attracting and tame their heart to Islam (Qutaibah, 1934, p. 149). The zakat hopefully will also strengthen the faith of those who are still weak or for the purpose of eliminating the remnants of their evil intentions. It was further explained that the purpose of the Prophet Muhammad SAW giving zakat to converts, holds three objectives, namely: 1) to attract their sympathy to convert to Islam, 2) not to harm the people who converted to Islam, and 3) at the very least, to remove their hostility towards Islam. Therefore, what the Prophet SAW did was a preventive measure to avoid many enemies in the context of developing and strengthening Islam (Ridwan, 2017, p. 248).

During ‘Umar bin Khattab’s tenure as the caliph, he stopped giving zakat to the Muallaf, because Islam at that time was strong and victorious, and the number of Muslims was already large enough, hence these people are no longer worthy of being called converts and are not entitled to that status (Ridwan, 2017, p. 249). Thus ‘Umar bin Khattab canceled the text of the Qur’an, because on the basis of the reality and condition of the Muslims who at that time were already strong, there was no longer any reason to persuade converts. “Umar bin Khattab’s Ijtihad uses the maslahah method, which is something that is considered good by common sense because it brings goodness and avoids evil for humans, in line with the purpose of syara” in establishing law.

5.2. Hand-cutting in legal case

The sanction of cutting off the hands for the perpetrators of theft is a principal sanction. This sanction is the right of Allah, that cannot be overturned, either by the victim or by ulil amri. This is confirmed in the Qur’an Surah Al-Maidah (5) verse 38 which reads:

والسارق والسارقة فا قطعوا ايد يهما

which translates to: “Men who steal and women who steal, cut off their hands… (Ministry of Religious Affairs of the Republic of Indonesia, 2006: 114). This verse clearly states (qath’i) the punishment of cutting off hands for thieves. However, ‘Umar bin Khattab did not impose sanctions on the perpetrators of theft, because there were doubts, coercion or emergency factors, i.e. because that year there was a famine going on (Shubhi Mahmashani, 1982: 69). Thus ‘Umar bin Khattab in applying legal sanctions always looks at the events behind it.

The action of ‘Umar bin Khattab does not mean that he is not carrying out the provisions of the text, but he deliberately seeks a law that is able to realize al-mashlahat which is maqashid al-syaria’h, specifically the interests of people with the aim of achieving benefit and preventing harm. The legal considerations taken by ‘Umar bin Khattab was meant to be a renewal of Islamic law. This refers to new developments that occur in society related to a legal provision that needs to be considered so that the legal provision to be stipulated can be effective and the objectives to be achieved by the law governing a problem can be accomplished and on-target, as well as in accordance with the basic principles and values of Islamic teachings (Usman, 1994, p. 184).

The legal basis for not giving sanctions to people who commit crimes in forced circumstances has been explained in the Qur’an Surah al-Baqarah (2) verse 122 which reads:

فمن اضطر غير باغ ولا عاد فلا اثم عليه

which translates to: …but whoever is forced to (eat it) while he does not want it and does not exceed the limit, then there is no sin for him…(Ministry of Religious Affairs of the Republic of Indonesia, 1992: 42). Allah SWT himself recommends not to plunge ourselves into destruction, however it is permissible to eat carrion when in a state of urgency. Then, further explained by Amir Syarifuddin, that the sentence was annulled because the theft was carried out by people who were forced to steal food (Syarifuddin, 1993, p. 98). Based on the explanation above, the scholars then determined on the principle, “Necessity can make forbidden things permissible” (Abdul Wahhab Khalaf, 1994: 347).

Logically, a person who performs an act out of necessity, is not actually the real perpetrator of the act. This is because, in an involuntary situation, the person is only in the position of being a tool of another person or a situation that forces him or her. Thus the person who is forced to commit the act of stealing cannot be held responsible for the occurrence of the theft. In essence, they may not have the intention to commit theft, but the circumstances compelled them to do so.

5.3. The case of the spoils of war (Ghanimah)

The spoils of war or ghanimah in the Qur’an have been mentioned in Surah al-Anfal (8) verse 41 which reads:

وَاعْلَمُوْٓا اَنَّمَا غَنِمْتُمْ مِّنْ شَيْءٍ فَاَنَّ لِلّٰهِ خُمُسَهٗ وَلِلرَّسُوْلِ وَلِذِى الْقُرْبٰى وَالْيَتٰمٰى وَالْمَسٰكِيْنِ وَابْنِ السَّبِيْلِ

Meaning: Know that whatever spoils you take, one-fifth is for Allah and the Messenger, his close relatives, orphans, the poor, and needy travellers … (Ministry of Religious Affairs of the Republic of Indonesia, 2006: 182).

Meanwhile, four-fifths of the booty was divided among the soldiers who participated in the war. The horse rider gets three parts, two parts for the horse and one part for the rider, and one part is given to the soldiers who walk (Abu Yusuf, 1399 H/1979 M:22). Ghanimah (spoils of war) is a treasure obtained from the disbelievers through battle.

‘Umar bin Khattab did not confiscate vast lands to be distributed to the soldiers who fought in the war, when Iraq, Syria and several other areas fell into the hands of the Muslims. The action of ‘Umar bin Khattab was challenged by several friends such as Bilal bin Rabah, Abdurrahman bin Auf. According to them, the actions of ‘Umar bin Khattab are out of the guidance of the texts of the Qur’an and the Sunnah of the Prophet, whereby the Apostle has issued a fifth for Allah, himself, his relatives, orphans, the poor and ibn Sabil (needy travellers), for example, the Apostle distributed to the soldiers who joined the war (Muhammad Yusuf Musa, 1958: 65).

Umar bin Khattab did not take the spoils of war and left it to the owner, with the reason that it was for the benefit of the local community, however he levied land tax (khazraj) for the purpose of financing the Muslims and spending on State activities, as well as to strengthen and reinforce the position of the State. In general, the Companions accepted the thoughts of ‘Umar bin Khattab. The opinion of ‘Umar bin Khattab on the case of the distribution of spoils of war or ghanimah is a form of response to the development of society at that time. This is in accordance with the theory of “structuring”, which is explained by Giddens, where ‘Umar bin Khattab as an actor acts to establish a law based on the interests of society (structure), for the general benefit of the Islamic Ummah.

5.4. The case of divorce by using three words at once

At the time of the Prophet and during the Caliph Abu Bakr, if a man divorces his wife by pronouncing the word divorce three times at once, then this kind of divorce was considered as one divorce (Mahmashani, 1981, p. 83), or also called talak raj’i (Syarifuddin, 1993, p. 73). However, thru Ijtihad ‘Umar bin Khattab ruled that divorce using three words at once is considered to fall 3 (three) divorces, namely a divorce which is irrevocable and the couple can’t return as husband and wife, unless the former wife married someone else, then divorced and after her iddah period is over, she can return to her first husband with a new marriage contract. This line of law was determined by Umar based on the interests of women, because in his era many husbands easily uttered 3 (three) words at once to their wives to get divorced and marry other women. The reason ‘Umar bin Khattab decided to amend this ruling is to protect women from men who abuse divorce rights, which in Islam is in the hands of men.

In this case ‘Umar forbade the husband to drop 3 (three) divorces at once without the stages of 1 (one) or 2 (two) divorces beforehand, and is intended to stop the husband from abusing his privileges. Juristically and sociologically, Umar’s actions are correct because on the one hand he still respects and holds the divorce rights of the husband and on the other hand the imposition of divorce still protects the wife. In addition, that divorce as the husband’s right is not misused as a tool to persecute the wife, and a balance is realized between the husband’s rights and obligations for divorce with the wife’s rights and obligations to get a good treatment from the husband or mu’asyarah bilma’ruf (because mu’asyarah bil ma’ruf also in the case of divorce). Therefore, in essence “Umar bin Khattab’s ijtihad actually enforces the text through the reality strategy and purpose of the text (syara”) (Yusdani, 2001, p. 39). In this case, the actions of ‘Umar bin Khattab does not contradict the qath’i (definite) texts of the Qur’an. What ‘Umar bin Khattab did was in the context of Ijtihad in understanding the texts (Ash-Shalabi, 2019, p. 453). Of course, ‘Umar bin Khattab’s Ijtihad is controversial, but looking at the benefit, namely the law that prevailed at the time of the Apostle, Abu Bakr and his two-year reign (As-Saayis, 1995, p. 74).

5.5. The case of the hadd punishment for alcohol drinkers

The legal basis for the prohibition of drinking alcoholic beverages has been explained in the Qur’an and Al-hadith. Even gradually the Qur’an explains the prohibition of drinking alcohol with the aim of being accepted by the Arab community. Because drinking alcohol is a deep-rooted practice at that time. When viewed from the policy of Umar bin Khattab in his time, then this policy is the Ijtihad of a faqih who’s brilliance is undoubted. Like the caliphs before ‘Umar bin Khattab, namely Abu Bakr, and succeeding ‘Umar: Uthman bin Affan and Ali Bin Abi Talib, they were called Khulafaurasyidin. They had the authority to make policies on the basis of their Ijtihad. Consequently, as a companion of the prophet, ‘Umar bin Khattab will never abandon Al-hadith. This applies to all forms of his Ijtihad, including in the case of the punishment for alcohol drinkers. To analyze Umar bin Khatab’s policy regarding this matter, obviously the analysis of the Qur’an and Al-hadith will be the basis for determining the extent to which Umar bin Khattab based his ruling on the hadith of the Prophet SAW.

The basic problem in the case of drinking alcohol is the addition of the punishment of lashing by Umar bin Khattab to 80 (eighty) times, in the case of the Prophet Muhammad himself, and Abu Bakr, both of them only whipped people who drank alcohol 40 (forty) times. In this case, ‘Umar bin Khattab changed the lashing provisions for the perpetrators who drank alcohol to 80 (eighty) times, because according to him the punishment of 40 (forty) lashes at that time could not prevent the perpetrator from doing so (Ibn Taimiyah, 1979: p. 91). The policy carried out by ‘Umar bin Khattab did not mean that he was against the law that had been set by the Prophet Muhammad and Abu Bakr, however, he deliberately sought a law that was able to realize al-mashlahah which is maqashid al-shari’ah or the purpose of shari’ah, namely preserving the human mind.

Based on the explanation above, it can be understood that the condition and development of society must be taken into legal consideration so that the law is truly meaningful and has a function in the midst of society, and is able to realize maqashid al-syari’ah, namely the benefit of the people in the form of achievement of benefit and prevention of harm. Making conditions and the environment or new developments that arise in society as one of the legal considerations, that is essentially what is meant by Islamic law reform, because in this way Islamic law is able to realize maqashid al-syari’ah in every place and time (Usman, 1994, p. 184).

6. Conclusion

Based on the description above, it can be concluded that Umar bin Khattab’s Ijtihad in principle still refers to the Qur’an and Hadith as sources of Islamic law. However, his thoughts are not technically the same as the textual provisions of the texts which are judged by ushul fiqh scholars as qath’iy texts, such as not giving the right to receive zakat to converts, not cutting off hands for thieves, not taking spoils of war (ghanimah), and adding caning punishment for alcohol drinkers. What Umar bin Khattab did in some of the examples mentioned above does not mean he was against the law that had been set by the Prophet Muhammad and other companions, but to find a law that is able to fulfill al-mashlahah which is maqashid al-shari’ah or the goal of shari’ah, namely maintaining human mind, achieving benefits and preventing harm. Making conditions and the environment or new developments that arise in society as one of the legal considerations, that is essentially what is meant by Islamic law reform, because in this way Islamic law is able to realize maqashid al-syari’ah in every place and time.

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No potential conflict of interest was reported by the author(s).

Additional information

Notes on contributors

Ishaq Ishaq

Dr. Ishaq, SH., M.Hum (Born In Ujung Pandang 18 Desember 1963). Senior Lecturer at Sultan Thaha Saifuddin State Islamic University Jambi. Position: Vice Dean of The Faculty of Sharia and Law. Address: Jl. Jambi-Muara Bulian KM. 16, Mendalo Darat, Kec. Jambi Luar Kota, Kabupaten Muaro Jambi, Provinsi Jambi, Indonesia. Post Code 36657 Expertise/Field of Study: Islamic criminal law Phone: [phone] Email: [email protected]

Muannif Ridwan

Muannif Ridwan, S.Pd.I, MH (Born In Mugomulyo 26 March 1989). Lecturer at Islamic University of Indragiri, Riau, Indonesia. Position: Chairman of the Centre for Research and Community Service of Universitas Islam Indragiri Address: Jl. Tanjung Harapan, Lr. Tj. Uma, Pekan Arba, Kec. Tembilahan, Kab. Indragiri Hilir, Provinsi Riau, Indonesia. Post Code 29214 Expertise/Field of Study: Islamic law Phone: [phone] Email: [email protected]