The case of violence that afflicts humanity has motivated the agents of change civilization to realize the perspective of life (way of life) and social institutions more just. Human slavery, colonial peoples, resource deprivation, violence against workers and minorities, as well as all types of gender-based violence into the world’s major issues are discussed and encouraged in such a way as to be stopped. Cases related to husband-wife relationship, are still ask a lot of victims from among women and children. Therefore, all social and cultural values should be criticized and encouraged to contribute at the same time order of justice to eradicate all types of domestic violence, including through legal instruments, as one cornerstone of the search and enforcement of justice.
The expression that Islam comes to bring justice to humanity agreed upon by almost all scholars. To reinforce this, the statement of Ibn al-Qayyim al-Jawzi (691-751 H/1292-1350 M) is an important re-presented, namely: “That the Islamic shariah entirely fair, affectionate, serious benefits, and wise. Therefore, every problem that comes out of justice to injustice, of affection toward the opposite, from serious benefits to be damage, and from policy into arbitrariness, is not Islamic law. ”
The question is, how do we define justice itself, for example in terms of relations of men and women, especially regarding family law issues? Legal source texts, the Koran and Hadith, when deciding a particular legal case, whether this decision is an absolute or conditional, precisely by looking at the basis of justice? How then reformulate justice in different contexts and changing from one place to another, and from one period to another period? Does the idea of justice can change a law postulates?
Endeavor Ulama Indonesia
In this discussion, ijtihad of Indonesian clerics about the divorce that must be implemented before the court could be an example. In Islamic jurisprudence (fiqh) legal postulates, divorce is the right and full authority of the husband, whenever he wants, anywhere, and in any condition. If the divorce was pronounced husband, then fell for divorce against his wife. In the context of unequal social, legal postulates can be used arbitrarily husband and divorce will result in the neglect of women and children. To minimize this possibility, ijtihad of Indonesian clerics set that divorce must be pronounced before the court.
Ijtihad is born to ensure that divorce is a husband with full responsibility and not bring violence to the wife and or children. Because basically, the idea of divorce in Islam was born as a solution to a responsible and fair when the institution of marriage is no longer able to present good on both sides. In the current context, in this ijitihad, the idea of ’divorce fair and responsible’ is only possible if he had done before the court. In this ijtihad decision, husbands and wives can be controlled so as not to use the divorce courts as a medium to perpetuate violence.
If using a literal approach, ijtihad is contrary to the text of the hadith which states that the divorce could fall if pronounced by husband earnestly (jaddun) and playing games (hazlun). Text hadith, “There are three things which if pronounced (husband) seriously and playfully, still falling and legitimate, ie marriage, divorce, and reconciliation.” (Abu Dawud, Turmudzi, Ibn Majah). But with the contextual approach, ijtihad on actually trying to implement the Qur’an command, that marriage should be done with kindness (fa-bi imsakun ma’rufin) and divorce should also be done with kindness (aw-tasrihun bi ihsan). (Surat al-Baqara, 2: 229).
The definition of marriage enshrined in Marriage Act of 1974 and in the Islamic Law Compilation (KHI), is a fairly revolutionary leap compared to what was written on sheets of the book of Islamic jurisprudence (fiqh). In both these legal texts, marriage is defined as follows:
“Mentally and physically bond between a man and a woman as husband and wife with the aim of forming a family (household) on the basis of a happy and eternal divinity of the Almighty.” (Article 1, Law no. 1 / 1974).
“Marriage is marriage according to Islamic law, that is a very strong contract or mitsaqan ghalizhan to obey the commands of Allah and do worship.” (Article 2, KHI Year 1991).
“Marriage is aimed bringing domestic life that sakinah, mawaddah, and mercy.” (Article 3, KHI Year 1991).
In Islamic jurisprudence (fiqh) legal postulates, as noted al-Jaza’iri, most schools of Islamic jurisprudence (fiqh) scholars define marriage as a contract of ownership over women’s sexuality, or the contract of men to gain sexual advantage of women. This definition gave birth to view the totality of ownership over women’s sexuality, which in turn can deliver a variety of domestic violence. Therefore, the Marriage Act 1974 and KHI will seek to offer another definition to ensure a fairer perspective. But the endeavor of this rule may not be influential in efforts to achieve real justice for women, if people still are on the order of cultural values that are not friendly to women.
In the context of a patriarchal culture, the robustness of the wedding will be charged to the women to care for and maintain, and usually will be a mistake if there is a rift household target. The man can divorce his wife conveniently when considered problematic, or would think to switch to other women. Robustness of marriage was a burden for women, and the beginning of the rigors of another. The concept of eternity and the robustness of marriage then do not be a foundation to foster joint responsibility of husband and wife in marriage to carry and preserve life.
The lack of awareness justice perspective on women, causing many people to easily make violence against women. Domestic life is assumed to be built to foster security and peace, instead turned into a place for women who are most vulnerable to all forms of violence. Cases of domestic violence, which hit women and children, in some Muslim countries not exactly small. In Saudi Arabia, Pakistan, Egypt, Marocco, Indonesia, Malaysia and other parts of the world. Even in some countries, the rate is quite large and horrible. In fact, cases of humanity, one person who became the victim is a serious problem and hurt human dignity. And Islam, as confirmed by the Qur’an and Hadith, was present to remove the inequality and injustice, and ensure peace and compassion for humanity (rahmatan lil-‘alamin).
How to Read on Source of Islamic Law
One other initiative that also very important is the way reading of the sources of law itself, the Qur’an and Hadith. How to read this get in on the three levels of legal construction, cargo or text, structure and legal culture. Hadith texts for example, is the source for more forms of public culture rather than formal legal postulates that enactment. Therefore, presenting and disseminating a fair way of reading, especially for texts related problems in our family traditions, are inevitable. Without reading a fair way, it is hard to ensure justice perspective that can be born from the hadith texts related to marriage that almost everything was literally addressed to men as subjects and women as objects.
In the Hadith Dirasah Swara Rahima 26th edition, it has described how reading what I call the ‘Theory of Reciprocity’ in reading texts female relationships and men in various books of Islamic jurisprudence (fiqh), including texts of Hadith. In this theory, a text that only lead to someone who pairs also have to bring meaning correlative (lawâzim) and reciprocity which also leads to their partners, to create a synergy within the meaning of these pairs institutions. How to read is also important so as not to bear a condescending view of one sex pairs. For example, when there is text stating that women are the teaser (libel) for men, then at the same time we must read the ‘reciprocity’ that men can also be a teaser (libel) for women. Therefore, they were asked to look after each other ‘capacity as a teaser’ is for them not to fall in sin and insult.
In domestic life, for example, the hadith texts that demand to do good wife to her husband and be grateful for any gift, should read ‘reciprocity’ that husband are demanded the same thing in order to create synergy for the purpose mu’asyarah bil-ma’ruf in the family institution. How to read is based on general rules such as in the text of the hadith “Someone who does not thank people, then he does not thank Allah” (Reported by Abu Dawud and at-Turmudzi). Husbands who are not grateful to his wife, means not grateful to God, and the behavior of a husband who is not thankful to God, can make them go to hell. Same case with the wife who is not thankful to their husbands, who could make him go to hell.
Instead they will both be residents of heaven, if they familiarize themselves with each other to pay homage to their partner, expressed the gratitude, meet the needs, satisfying their demands are justified and their partners to seek happiness. Wife to husband, husband to wife and vice versa. Thus the principle taught by the Koran, to behave one another with a ma’ruf (al-mu’âsarah bil Ma’ruf, QS. An-Nisa, 4: 19), in which the husband becomes a fun outfit wife, and wife is also into clothing a nice husband (Surat al-Baqara, 2: 187). Such households would be a paradise happiness for both partners, before the real paradise in the hereafter.
Justice Perspective in Marriage Hadith Texts
How to read the ‘reciprocity’ can be applied to texts related problems in our family traditions, especially regarding marriage, divorce, and children’s rights obligations married couples. For example, the first text on marriage in the book Bulûgh Marâm of Ibn al-Hajar al-‘Asqallâni (772-852 H/1372-1449M) are quite famous among the schools, namely: “O young men, who among you who are ready and able to marry, marry! because he will appease the eyes and make holiness preserved. Anyone who is not capable, then fasted, because he could be a shield for him “. (Reported by Bukhari and Muslim).
Literally, the text of this tradition is only addressed to men, who were asked to prepare themselves before marriage. If there is no readiness, they were asked to fast beforehand, in order to stay awake and avoid all the bad result of libido which is usually high in the young. Without a way of reading the ‘reciprocity’, women only will be the object of the meanings that evolved from the text of this tradition. In the conventional way of reading, not to be important for women to prepare themselves physically, psychologically, and material before entering the stage of marriage. But by reading the ‘reciprocal’, women demanded the same from the text of this tradition, because marriage in Islam is not just for men but also for women. If the wedding preparations necessary for the good of men, then the same is required for women for her good and also good partner.
How to read this can also be applied to texts that even if expressly placing men as subjects and women as objects. Like the Hadith texts: “The woman was married (male) because of four things: their wealth, social status, beauty, and moral religion. Marry those who have a moral commitment to religion, for your luck “. (Reported by Bukhari and Muslim). Women also, of course, advisable to choose a man who has a commitment to morality and religion, not only on consideration of wealth, beauty, and social status of men.
Likewise text of Hadith, “Women are good fun when the husband looked at, provided that the husband wants, does not reject the desire husband against her body and not against in matters of property.” (Reported by an-Nasai). The same properties should also be prosecuted in turn from a husband in relation to the wife. Because the principles outlined ma’ruf mu’asyarah bil Qur’an is only possible if both parties had the same and do positive things in synergy with the couple, not by demanding that one and let the other. By the way read like this, we can reformulate the postulate of more just of family law.
Demand that the State Guarantee
In addition to ensuring justice perspective of the individual communities in the way of reading the sources of Islamic law (fiqh) related family relations, the state also became the most responsible part for ensuring ‘legal justice’ for women and children. State in the Islamic perspective, is the institution established to ensure justice and welfare for the people who are weak. The expression of the Caliph Abu Bakar ra is very famous, “That they are weak in the eyes of society, is strong in my eyes, because I have to pursue their rights” (a la fa-inna ADH dhaîfa fîkum qawiyyin ‘Indi âkhudza hatta al-haqqu Lahu), is an important reference in guarantee of justice for poor people by the state.
One of the guarantees of justice is to produce laws and regulations that ensure justice for women and children. Banning marriage early age (children) and the cessation of all forms of domestic violence including the responsibility of states to justice those who are weak in domestic relations, ie women and children. Registration of marriage, as an official document that allows the parties to be committed, must also be pursued as much as possible by the state as a form of guarantee of justice for those who are weak. With this document, the husband and wife shall be bound legally and with the monitoring of the state, to commit to providing the best and do not commit violence against the couple.
If the goal, the main purpose, and spirit of the laws of Islam is justice, as alluded to Ibn al-Qayyim al-Jawzi, then all the scholars and the community should also support and seek public obedience to the laws of the state of positive ijtihad results in ensuring justice for those who weak. This is all, again, because marriage and family shaped by Islam, not as a means for one party to act arbitrarily against the other. Injustice is forbidden and all forms of violence are prohibited. Conversely, we all, individually, socially and state, responsible and obliged to realize the principles and values that based on paired on the kindness (mu’asyarah bil ma’ruf) and reassuring (sakinah), and love (mercy wa mawaddah ), as outlined by the Qur’an and Prophet Muhammad practiced. And Allaah knows best.  ______________________________
Reading: Ibn al-Qayyim al-Jawzi, I’lâm al-Muwaqqi’în, Juz III, p. 14.
See: ash-San’ani, Subul as-Salam, juz III, p. 175.
See: al-Jazairi, al-Fiqh ‘ala al-Arba’ah Madzâhib, juz IV, p. 8-9.
See: QS. An-Nur, 24: 30-31.
See: Jami ‘al-usul, No. Hadith: 1033.
Read: Bulûgh al-Maram, Hadith an-fourth of the Book of Marriage.
Read: Subul as-Salam, juz III, p. 111.
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