TINJAUAN TERHADAP USHUL FIQH JUMHUR ‘ULAMA : STUDI METODE ISTINBATH FIQH PEREMPUAN BERWAWASAN KEADILAN GENDER

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Hamidah, Tutik (2012) TINJAUAN TERHADAP USHUL FIQH JUMHUR ‘ULAMA : STUDI METODE ISTINBATH FIQH PEREMPUAN BERWAWASAN KEADILAN GENDER. In: Conference Proceedings: Annual International Conference on Islamic Studies (AICIS) XII, 5 – 8 November 2012, Surabaya – Indonesia.

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Abstract

Classic fiqh is less friendly to women. There are limitations of women right in classic fiqh, even discrimination against women. Ushul fiqh as science in istinbath principle have major influence in fiqh. Therefore, discrimination against women in fiqh, must be traced its origin in ushul fiqh which jumhut ‘ulama use as fiqh formulation method. This paper criticize ushul fiqh by evaluating istinbath method that used by Husein Muhammad in women fiqh reactualitation based on gender equality. Approach in this paper is ushul fiqh science, by analyzing if there is continuance in istinbath method that Husein used with teachings in ushul fiqh science. This paper conclude that istinbath method in Husein is placing Quran ideal as foundation on understanding verses that explaining particular rule. While verse in explaining particular rule contextually understood. With that method, Islamic law became flexible. As situation and condition in need for change, the law can change as well. The method is combination of kulliyyât-juziyyât of Imam Syatibi, taghyîr al-hukm of Imam Ibn Qayyim al-Jauziyyah and Muhammad Musthafa Syalabi. On the contrary, the method is contradicting with grand theory in ushul fiqh, the qath’I theory, which Jumhur ‘ulama believe is not the area for change and not ijtihad zone. However Husein has presented logic argumentation namely taghyîr al-hukm is not brogation. Thus, the method used by Husein is not a deviation from the science of usul fiqh. Therefore, can be used as an alternative method of renewal of Islamic law in Indonesia.