APPLICATION OF QOWAID FIQHIYYAH IN CONTEMPORARY ISLAMIC LAW

Qawaid fiqhiyyah is a very important element in the contemporary application of Islamic law for the reason that values contained in the fiqiyyah qowaid is a pulse in any fiqh in-the-istinbath of contemporary Islamic jurists. Not only that qowaid fiqiyyah is a parameter benefit whether law is needed or not, but also its main role to ensure that any fiqh in istinbathkan does not contradict the texts, namely the Quran and Sunnah. By applying qowaid fiqiyyah into every attempt of making or interpreting a law, it can be ascertained that law meets the standards to be applied in contemporary society, so it is not feared that the law would lead to new problems or a conflict of norms to apply. Islamic law and qowaid fiqhiyyah have interrelationship with one another, this is because the dynamism of Islamic law embodied in fiqh is very dependent on qowaid fiqhiyyah, in this case the characteristic of the generality or generality of the rules that make the Islamic law can be applied to all Conditions at all times and times.


Introduction
The discussion on qowaid fiqhiyyah (fiqh rules) is the most important thing in Islamic law discussion, it is due to the knowledge of fiqh will be a common Yuridika: Volume 31 No 1, Januari 2016 in the application of Islamic law, which would make Islamic law always flexible in responding to social, economic, political, cultural and legal issues.As for the definition of qowaid fiqhiyyah, it can be described as follows, qowaid fiqhiyyah consists of two words namely, qowaid and fiqhiyyah.
Etymologically, the word qowaid comes from Arabic Language al-Aqidah which means the foundation which then resulted to word qaidah.Qaidah means base, whereas qowaid is the plural of qaidah.Thus, it defined as basic meanings. 1anwhile, terminologically the word fiqhiyyah comes from Arabic Language, fiqh, which taken from Q.S: At-Taubah verse 122, "liyatafaqqahu fiddin" means to deepen their knowledge of religion … tafaqqahu... referred to fiqh as an al-fahmu or understanding.Therefore, fiqh can be defined as an understanding of sharia or science that understand sharia as the rules set by Allah SWT for his people. 2 Based on the definition above, it can be concluded that qowaid fiqhiyyah has the meaning as general rules in understanding sharia as a set of rules set by Allah SWT for his people.In other words, qowaid fiqhiyyah can be a guide that allows Muslim jurists to conclude the law against legal problem.Clearly, this matter will allow qowaid fiqhiyyah as an outline in doing an ijtihad to a legal problem; recognizing fiqh cannot possibly stand without any basic foundation that makes fiqh stands firm and solving the problem.Hence, it shall be noted that fiqh is distinctive in nature; meanwhile, qowaid fiqhiyyah has a general characteristic.
The description of fiqh distinctiveness and qowaid fiqhiyyah general characteristic can be described as follows, that fiqh is a general understanding of the Islamic principles and the laws contained therein, the understanding of legal issues is divided specifically in accordance with the study of certain legal issues.
For instance, marriage law that regulated in fiqh munahakat, inheritance law that regulated in fiqh faraidh, civil law that regulated in fiqh muamalah, and many other fields of law which arranged in different fiqh.Each branch of fiqh has its own separate discussion, for instance, fiqh muamalah that regulate civil matters only and fiqh faraidh that regulate inheritance matters only.This fiqh stands separately without interfering each other since the difference in its study and legal issues.
Seeing this aspect, it is why fiqh was said to have a distinct characteristic. 3anwhile, qowaid fiqhiyyah was said to have a general characteristic, it is due to every fiqh -either it is fiqh muamalah, fiqh faraidh or fiqh munakahat; all stands on the same foundation.This foundation is also known as qowaid fiqhiyyah, the values contained in qowaid fiqhiyyah should be the basic foundation of every existing fiqh.Therefore, even though the understanding and discussion of each fiqh are different, this fiqh are stand in the same basic foundation.This is why qowaid fiqhiyyah is seen to have general characteristic.Additionally, as a link between qowaid fiqhiyyah and fiqh is ushul fiqh.For instance, when qowaid fiqhiyyah is a foundation to establish a fiqh, the attempt to create fiqh should use the method named ushul fiqh.Between qowaid fiqhiyyah, ushul fiqh and fiqh, each has a clear sequence and relation between each other.All of which is an understanding of Islamic law to be implemented into all aspects of life that are unfettered by time.
Islamic law and qowaid fiqhiyyah have a relation between one to another, this is under the reason of Islamic law dynamicity which embodied in fiqh is very dependent on qowaid fiqhiyyah.In this case, the characteristic of the generality from the rules enables the Islamic law to be applied to all conditions at all times.qowaid fiqhiyyah allows fiqh as a science with distinctive character, relative, and highly influenced by the condition of place and time (qabil lin iqash, qabil lit taghyir).
The development of society, culture, science, and technology indirectly influence the development of Islamic law.Sharia in the other hand cannot be changed due to its eternal nature.Changing sharia means changing the existing provisions in the Qur'an and Sunnah.Nevertheless, the interpretation of sharia itself can be adapted to the development of era through the usage of qowaid fiqhiyyah as the parameter to understand the meaning contained in the Qur'an and Sunnah as outlined in fiqh, as a form of the application of contemporary Islamic law.

Islamic Law
Islam originated from two main sources, namely the Qur'an and Sunnah, which are often said to be the main propositions of Islamic law.Beside Qur'an and Sunnah, there are also some supporting propositions in Islamic law, namely ijma', qiyas, istihsan, masalahah mursalah, urf and syarún man qoblana; which all of them are tools to understand the essential meaning contained in the Qur'an and Sunnah.Discussing Islamic law, there exist two forms which are sharia and fiqh.Sharia is a law in the broad meaning, which includes aspects of aqidah, akhla, and amaliah, which includes the norm in Islam.Therefore, sharia scope is broader.
Meanwhile, fiqh is a practical Islamic law that derived from tafshily or detailed rules that specifically regulate a field of law alone, 4 In other words, it can be understood that the sharia is a rule that Allah provide for human to always be on the right side when answering to God, human and its environment.The science which discusses sharia is called fiqh. 5 Hence, fiqh can be defined as sharia in the narrow sense.As for the difference between sharia and fiqh, it can be described as follows:6 1) sharia has a wide scope covering all actions and deeds of human beings, while fiqh refers only to what is generally understood as human actions based on something that is legal and illegal; 2) Sharia is a study consisting of various provisions contained in the Qur'an and Sunnah which include three main components namely aqidah, akhlaq and fiqh, while fiqh is only one component of sharia; 3) Sharia has a perfect character and is immutable, whereas fiqh has a character that always changes with the changing of time, space, and place where the fiqh is applied; 4) Sharia is based on revelations and derived only from the Qur'an and Sunnah, while fiqh is the result of reasoning and deduction of jurists based on the development of knowledge that is constantly changing with the changing times; 5) Sharia has several levels of action that starts from something allowed to something that prohibited, while the fiqh only regulates legal and illegal actions only.

Further, Yusuf Musa in his book al Madkhal li Dirasah al Fiqh al Islamy
asserts three differences of sharia and fiqh which are: 7 1) For several matters, sharia has a broader scope than fiqh, this is because sharia covers all religious teachings namely aqidah, worship, and law, while fiqh only covering acts only; 2) Seeing from the subject, the subject of sharia is Allah SWT or al Shari, while fiqh subject is human or al-faqih, therefore sharia as a creation of Allah SWT that perfect and eternal, while fiqh can change in accordance with the understanding of the faqih and can be adapted to its socio-cultural and historical factors; 3) From the use of the term, sharia term has been used since the beginning of the history of Islamic development itself, while the use of the term fiqh is more recent, which is after the birth of other religious disciplines in Islam in the second century Hijriyah.The main problem of contemporary Islamic thought is basically related to the attitudes towards tradition (turats) on the one hand, and attitudes toward modernization (hadatsah) on the other side.If traditional thinking responds to modernization with a priori for the sake of conservation, modern thinking addresses tradition as something that must be eliminated for the sake of the realization of progress, since tradition is perceived as a rock that hinders the process of development itself, in which case the concept of contemporary Islamic law is caught in critical disputes between the tradition and modernization.

The phenomenon of contemporary
Secularization in the modern times has slowly affected contemporary culture today.Since the 18th century, when science and technology began to grow in the community, it has already made the human activity to be more effective and efficient.Technological developments that led to the discovery of steam engines by James Watt provides a very significant influence, especially in terms of technology.
Rapid development in modern times generates personal things that made mankind separate them self from the public sphere.It has automatically developed the idea of secularization that separates personal affairs from public affairs.Secularization was initially pioneered by the separation between the powers of the Church and the State, which consequently resulted in State inability to govern its citizen religious life.It is true that partial secularization has had an impact on the development of contemporary Islamic law, but it must be noted that the development of Islamic law should not result in the loss of its true spirit as a divine revelation sourced from Allah SWT.The pureness of Islamic law that comes from the Islamic religion must be maintained, the norms contained in the Qur'an and Sunnah should be applied to all aspects of Muslim life, anywhere and anytime.Extracting the contemporary meaning of the values within nash (Al-Quran and Sunnah) should be accommodated by qowaid fiqhiyyah so that Islamic law is still alive in the contemporary dimension without reducing the meaning and essence as a revelation.

Qowaid Fiqhiyyah
Qowaid fiqhiyyah are the universal rules in which contained parts of the same problem, that can be grouped in one same outline producing various branches of fiqh.Qowaid fiqhiyyah has been set by the jumhur ulama as a foundation that is equally important with the principal and supporting rules in Islamic law, this is because qowaid fiqhiyyah can facilitate a mujtahid to interpret Islamic law.To conduct ijtihad, understanding the rules of fiqh is very necessary.The role of ijtihad is crucial in the renewal of Islamic law.Renewal is not possible without a qualified mujtahid to carry it out.Defining the renewal of Islamic law and ijtihad in Islamic law is like two sides of a coin that can not be separated from one another and complement each other.If the process of ijtihad can be implemented in the process of Islamic renewal correctly, then the laws resulting from the process of ijtihad will answer all the problems arising from the demands of the times.
The scope of fiqh is very broad, it is because of fiqh includes various branches (furu ') which cause the necessity of a main foundation that serves as the root that sustains the branches; the stronger the roots, the more solid the branches and it will produce leafy leaves, beautiful flowers and produce many fruits.In addition, the presence of a solid root will also secure tree and its branches from strong wind.
Likewise with Islamic law, if the roots are strong, the fiqh branches will not have to worry about the storm growing in the era and technology, because the branches stand on a solid root, the fiqh branches will also be solid; in the other hand, if the roots are weak, regardless how good and beautiful these branches, it will surely collapse after the storm.Therefore, it is indeed correct when the al Faraidh al Bahiyah asserts that "actually the problem of fiqh branches can only be controlled Prawitra Thalib: Application of Qowaid by fiqh rules.Thus, memorizing the rules is a very great function". 9The phrase above illustrates that by understanding the rules of fiqh, a mujtahid can understand the law against contemporary problems that arise.
From the fiqh rules, it can be concluded that qowaid fiqhiyyah could accommodate the syarak laws of various problems that are different from one another.Nadawi further stated that the universal fiqh foundation contains syarak law which is general in characteristic to all events that are included in the scope of qowaid fiqhiyyah. 10Therefore, it can be concluded that in the formation of Islamic law, qowaid fiqhiyyah have functions as follows: 11 1) Deep understanding of the rules of fiqh will allow an Islamic jurist to be able to understand fiqh and able to analyze various contemporary problems, which then help him to determine the law; 2) Understanding qowaid fiqhiyyah could support the process of determining the law used for new emerging problem, by seeing the existence of illat and not contradicting the previous decay; 3) Understanding qowaid fiqhiyyah makes Islamic law always flexible since qowaid fiqhiyyah serves as a filter that ensures that contemporary fiqh made to solve contemporary problem, does not conflict with the regulation contained in the nash (Qur'an and Sunnah).
The importance of understanding of qowaid fiqhiyyah is very well realized by the Imams of Four Mazhab (Hanafi, Hambali, Maliki, and Syafi), this is because the rules of fiqh is one of the most important branches of sharia, when it studied by someone, it will allow that person to be faqih or understanding the fiqh rules well.Even according to the jurh ulama, the secret of fiqh is essentially lies in the rules within.Besides, understanding qowaid fiqhiyyah will ease mujtahid to issue a fatwa.Thus, it is undeniable that the main cause of the underdevelopment of Islamic law is lack of attention to the qowaid fiqhiyyah. 12sically, the rules of fiqh established and agreed upon by the ulama are numerous, but in the practice, the jumhur ulama remain guided by the foundation 9 Asjmuni Abd Rahman, Kaidah-Kaidah Fiqh (Bulan Bintang 1976) Yuridika: Volume 31 No 1, Januari 2016 rules or known as qawaid asasiyyah al khams.These five basic rules then produce various kaidah which parts of qowaid fiqhiyyah.In its development, these five basic principles are compressed into the basic principles by Ibnu Nujaim, pronounced as qawaid al kubra, however, the use of five basic principles qawaid asasiyyah al khams, are more popular in comparison.The function of these rules is to be basic guidelines to ensure that the fiqh created by humans does not contradict with the rule of God.The values contained in the rules of fiqh are universal, which can be adjusted with all the developments of the times and problems attached to it.The rules crystallized within fiqh consist of:13 1) The first rule, "All matters depend on its meaning"; 2) The second rule, "Belief cannot be abolished or omitted with doubt"; 3) The third rule, "Every difficulty will bring forth an ease"; 4) The fourth rule "harm or danger should be eliminated"; 5) The Fifth Rule "traditional customs are strengthened".The five points above are the rules promulgated in qawaid asasiyyah al khams, while the additional rules which are often referred to as the sixth rule are "no reward without any intention", but the use of the sixth rule is rarely used, by the mujtahids that are still guided by the five basic rules above.
The application of the five rules of fiqh can be described below: 1) The first rule, "All matters depend on the meaning" -this rule emphasizes the importance of intention in doing all matters, if the intention is good then the result will be good as well.However, when the intention is not good then the result also will not be good.
To carry out an ijtihad it is important to understand that the effort must be initiated with good intention so that the result of ijtihad will have good results, but if ijtihad is done without good intentions it can certainly bring bad impact.Ijtihad shall be done because of the need for a solution to a problem, not intended to facilitate the interests of a group that does not bring benefit to the majority of people.In applying this rule, the Author comes with example of electronic card transaction.On the process of istinbath, Qur'an dan Sunnah did not regulate such matter in detail.However, there is basic muamalah that can be used as illat in making new rules through ijtihad.
In this instance, ijtihad is used in order to accommodate the interests of Muslims further.For this instance, the parameter of customs is the consistence and conformity of such custom with Qur'an and Sunnah.The contradiction between Qur'an and Sunnah automatically make custom cannot be practiced and cannot be used as a guideline in interpreting law.The stipulation of customs to be a living law in a society emphasizes two main things: First, the compliance with Qur'an and Sunnah and the second, creating benefit to mankind.Therefore, if an act is not prohibited in Qur'an and Sunnah, but causes no benefit to mankind, such conduct shall not be done, because it will only lead to waste and futility alone.On the other hand, it can also lead to the act of syubhat, which is an ambiguous conduct that unclear whether it is allowed or prohibited.It is suggested that in the event of someone facing syubhat, the person should then avoid the conduct.This is as pronounced by the Prophet SAW, "who is caught in the case syubhat, in fact he is caught in a forbidden matter".
Affirmed by the abovementioned explanation on qowaid fiqhiyyah and its application, the Author believes that the five basic rules are very much needed in the process of applying contemporary Islamic law, given the nature of universality and the generalities of the Qur'an and Sunnah.It required as a tool as to analyze and find the true meaning of two major sources of Islamic law.Additionally, with qowaid fiqhiyyah, Islamic law can adjust to changes and the development of the era through an instrument called fiqh.Nevertheless, the flexibility of Islamic law is only against problems in the world alone, because the problems that concern on aqidah and worship cannot be interpreted further since it will cause heresy and slander in understanding the true teachings of Islam.

Conclusion
Basically, qowaid fiqhiyyah or fiqh rules serve as the parameters of fiqh formation in the contemporary Islamic law, in order to have a legal power and to be held accordingly to nash, thus the fiqh can be applied in everyday life.In detail, qowaid fiqiyyah is a collection of guidance that contains the values that should be the base foundation of the formation of Islamic law.Therefore, qowaid fiqiyyah Prawitra Thalib: Application of Qowaid can be grouped into five main rules of Islamic law or known as qowaid asassiyyah al khams.These five basic rules govern the basic things that must be obeyed in an effort to isthinbath a law which is reflected in fiqh.
Practically, it can be inferred that Islamic law is none other than fiqh that is an effort of the fuqaha in enforcing Islamic sharia according to the current needs of society.In the terms of adjustment to the Islamic legal period, it has a distinctive characteristic.The distinction of the Islamic law characteristic is takamul (perfect), wasathiyah (harmonious), and harakah (dynamic).Due to the fanaticism in the former mazhab, it resulted in the prolonged process of Islamic law reformation.
The reformation itself intended to adjust Islamic law to fit the present situation and conditions.Recently, due to the increasing demand of the society and the awareness of Islamic scholars, there emerged Islamic law reformation with various thoughts.
For the renewal of this Islamic law, the role of ijtihad and public awareness is crucially needed.
Efforts to understand the intrinsic meaning of Qur'an and Sunnah can be carried out through qowaid fiqhiyyah; this is because the values contained in the fiqh rule are an outline that must be followed when formulating fiqh.On the note that ushul fiqh is a method to formulate fiqh, qowaid fiqhiyyah is the approach used in the method.Thus, the fiqh produced can be ascertained to be in line with the Qur'an and Sunnah and can be used to answer all the problems that appear in every aspect of community life.
Qowaid fiqiyyah should be used as guidelines in making a fiqh in Islamic law.This is not solely because qowaid fiqiyyah is intended to make sure that the fiqh is not contrary to nash and in line with Qur'an and Sunnah.More than that, qowaid fiqiyyah also establishes illat in every fiqh to distinguish between one fiqh to another.Illat arises as a result of the legal rationing which produces regulations in Islamic law.Such thing is very important considering the necessity of each law to have its illat because, without illat, the law is not perfect.Moreover, with the existence of illat, it allows laws in the nash to be flexible and dynamic, so it can answer and solve all problems in each era.
Islamic legal thinking is actually a response to social conditions after the collapse of the Ottoman Empire, the emergence of Islamic reform movements such as Tanzimat and Salafiyah has brought its own color to the development of contemporary Islamic law, on top of it, the influence of secularism and colonialism.These factors directly and indirectly, influenced the development of Islamic law.Such factors strengthen by the defeat of Arab states from Israel in the six-day war of June 1967, which led to the signing of the Camp David treaty, caused the global Islamic world to lost its guard.Muslims have been dispersed; each living by its own way.This condition then gave rise to the urgency of Islamic law renewal, so as to break the skeptical view that Islamic law is out of date.According to Ashiddieqy, Islamic law has three characters that are lasting, eternal and unchanged, namely: first, takamul which means perfect, solid and complete.It is understood that Islamic law constitutes the ummah in a unanimous provision, although they are coming from different nations and different tribes, but they are an inseparable unity.Second, wasathiyat (harmonious), this means that Islamic law is the middle way; a balanced path and not one-sided, not siding to the 7 Renny Supriyatni, Pengantar Hukum Islam Dasar-Dasar Dan Aktualisasinya Dalam Hukum Positif (Widya Padjadjaran 2011).[12-14].Prawitra Thalib: Application of Qowaid right with the emphasis of psychiatric and not siding to the left with emphasizing on differences.Islamic law always aligns between reality and fact with the ideal of willing.Third, Harakah (dynamic) means that Islamic law has the ability to move and develop, have the power to live in the society and can shape itself in accordance with the development and progress of the times.Islamic law is scattered from a broad and deep source, which gives human beings a number of positive laws that can be used at any place and time. 8 Yuridika: Volume 31 No 1, Januari 2016 .[17]. 10 Ali Ahmad al -Nadawi, Al-Qawaid L Fiqhiyyah (Dar al Qalam 2000).[43].