Jurnal Ilmiah MIZANI Vol. 09, No.

01, 2022 P-ISSN: 2355-5173

E-ISSN: 2656-9477

SYAR’U MAN QABLANÂ AND IT’S IMPLEMENTATION IN

SHARIA ECONOMIC LAW (MU’ÂMALAH MÂLIYYAH)

Panji Adam Agus Putra

Sharia Faculty of Islamic University Bandung
[email protected]

Abstract: The terms of the earlier people's sharia or called syar’u man qablanâ are one of the legal
arguments in Islam that have been debated by scholars related to their validity. Therefore, it is necessary to
conduct related research on the concept of syar’u man qablanâ and its implementation in the field of
mu’âmalah mâliyyah. This research uses a normative juridical approach. The sources of this study are
primary and secondary sources. This research is descriptive and classified as qualitative research. The
results showed that the implementation of the sharia of the previous people in the field of mu’âmalah
mâliyyah was the Ju’âlah contract, the Ijârah contract, the Dhamân Mâ Tafsadahu al-Dawwâb al-Mursalah,
the kafâlah bi al-wajh (bi al-nafs) contract and the qismah muhaya’ah contract.

Keywords: Syar’u man qablanâ, Islamic Sharia, Mu’âmalah mâliyyah.

Abstrak: Syarat-syariat umat terdahulu atau disebut dengan syar’u man qablanâ merupakan salah satu dalil
hukum dalam Islam yang menjadi perdebatan para ulama terkait dengan keabsahannya. Oleh karena itu,
perlu dialkukan penelitian terkait mengenai konsep mengenai syar’u man qablanâ dan implementasinya
dalam bidang mu’âmalah mâliyyah. Penelitian ini menggunakan pendekatan yuridis normatif. Sumber
penelitian ini adalah sumber primer dan sekunder. Penelitian ini bersifat deskriptif dan tergolong penelitian
kualitatif. Hasil penelitian menunjukan bahwa impelementasi syariat umat terdahulu dalam bidang
mu’âmalah mâliyyah adalah akad Ju’âlah,akad Ijârah, Dhamân Mâ Tafsadahu al-Dawwâb al-Mursalah, akad
kafâlah bi al-wajh (bi al-nafs) dan akad qismah muhaya’ah .

Kata kunci: Syar’u man qablanâ, Syariat Islam, Mu’âmalah mâliyyah

Jurnal Ilmiah Mizani: Wacana Hukum, Ekonomi dan Keagamaan | 81

80
Vol. 09, No. 01, 2022 Syar’u Man Qablanâ And It’s Implementation
P-ISSN: 2355-5173 E-ISSN: 2656-9477 In Sharia Economic Law (Mu’âmalah Mâliyyah)

Introduction the previous sharia which was no longer

enforced for his people. This means that
Juridically, Islamic law from a
what the people have to do, among them,
methodological aspect can be understood as
some are the same as the previous people's
a law derived from the Qur'an and hadith of
sharia and there are new sharia provisions
the Prophet through a process of reasoning
altogether. The discussion that developed
or ijtihad. Islamic law is elastic and
because of this was whether the sharia
accommodating. This status can occur when
before Islam was still in force so that it was
viewed from the aspect of the wiggle room
still required to carry out the rule. 3
of its methodology between revelation as a
source of law containing global instructions Because sharia is related to legal
and the position of ijtihad as a function of issues, the study of Shari'a Man Qablanâ is
development. Thus the characteristics of often found in the books of Ushul fiqh as a
Islamic law based on revelation and reason means of producing Islamic law.4 In addition,
are the characteristics that distinguish in the books of ushul fiqh the study of syar’u
Islamic law from other sides of law. 1 man qablanâ is a thick discussion of scholars'
differences of opinion regarding the validity
Islamic law is relatively more
of being used as a legal postulate.
developed than in other dimensions. At the
time of the Prophet, the problems of the law Syar’u man qablanâ was the shari'a of
were solved directly by the Prophet through the earlier prophets before the existence of
his revelations or sunnahs. After the Prophet Islamic sharia brought by prophet
died, Islamic law developed. New problems Muhammad Saw. but often it is still used as
cannot be solved relying solely on the text a method. In this regard, ushul jurists use
of the existing verses of the Qur‟an al- syar’u man qablanâ to distinguish between
Hadith. The Companions were no longer sharia or the law before the Prophet
able to ask the Prophet directly. One of the Muhammad Saw became an Apostle and the
solutions they do is berijtiha, both personally law when he was sent as an Apostle.
and collectively so that ijmâ‟occurs. In the Nevertheless, the ushul jurists have a
next century, the methods used to establish different perspective in looking at syar’u
laws were growing. In the second century man qablanâ. This difference is apparent
the discipline of ushul fiqh was formed when they discuss the attachment of the
which reviewed the istinbâth methods of Prophet Muhammad after becoming the
Islamic law. On the realm of methodology Prophet and his followers to the previous
scholars differ in opinion. The implication is shari'a. 5
that the laws produced will not be uniform. 2
regardless of the differences of ushul
Every Prophet who came later, in fiqh scholars in viewing syar’u man qablana
addition to being in charge of bringing a new as a legal postulate, in the context of sharia
sharia to his people, also made a kind of economic law or mu’âmalah mâliyyah, the
correction (refinement) and annulment of
3
Imam Yazid, Analisis Teori Syar’u Man
1
Zumrotul Wahidah, Metodologi Hukum Islam Qablana, Al Mashlahah Jurnal Hukum Dan Pranata Sosial
Perspektif Al-Ghazali, MEDIA KEADILAN Jurnal Ilmu Islam, Vol 2, No 04, 2014, p. 370.
4
Hukum, Volume 11 Nomor 2, Oktober 2020, p. 205. Imam Yazid, Tafsir Ayat Ahkam Tentang
Syar’u Man Qablana Dan Kehujahannya Sebagai Dalil
2
Kawakib, Yusuf, Hafdz dan Syuhud, Sadd Al- Hukum, Al-Usrah: Jurnal Al Ahwal As Syakhsiyah, Vol. 5,
Dzarî’ah Sebagai Dalil Hukum Islam (Studi Komparatif No. 1, 2017, p. 43.
5
Ibnu Al-Qayyim Al-Jauziyah Dan Ibnu Hazm), Al-Bayan: Abdul Helim, Memposisikan Kembali Syar’u
Jurnal Ilmu al-Qur'an dan Hadist, Volume 4, No.1. Man Qablana Sebagai Istinbat Hukum Islam, HIMMAH
Januari 2021, p. 78. Vol. Vll No.20 September - Desember 2006, p. 36.

Jurnal Ilmiah Mizani: Wacana Hukum, Ekonomi dan Keagamaan | 81

82
Panji Adam Agus Putra Vol. 09, No. 01, 2022
P-ISSN: 2355-5173 E-ISSN: 2656-9477

shari'a of the earlier people which is still the earlier peoples that the Shari'a
valid today. 6 Thus it is necessary to conduct passed down to the prophets and
a study of the forms of syar’u man qablanâ in rasul_nya to be conveyed to his
the context of mu’âmalah mâliyyah. people".

Method In line with the above definition, Zaki

al-Din Sha'ban gives the following definition
The approach used in this study is a
of syar’u man qablanâ:
normative juridical approach. The normative
juridical approach is carried out through a ‫االحكام اليت شرعها هللا تعايل لالمم السابقة‬
philosophical, systematic and critical analysis
approach. Because this research is based on ,‫بواسطة انبيائو الذي ارسلهم اىل تلك االمم‬
a normative juridical approach, the technical
data collection in this study is through ‫كسيدان ابراىم وموسى وعيسى عليهم‬
8
literature study, namely studying and ‫الصالة والسالم‬
examining primary materials in the form of
books on ushul fiqh, especially those related "The laws that Allah Swt decreed
to the concept of syar’u man qablanâ. The upon the earlier people through the
secondary materials in this study are the intermediary of His prophets whom he
books of jurisprudence that are relevant to sent to the people, such as Ibrahim,
the focus of the research. This research is Moses, Isa 'Alaihim al-Shalatu wa
descriptive because this research is carried Salam".
out to find as precise and complete data
about the characteristics of a condition or Musthafa Sa'id al-Khin gives the
symptoms that can help strengthen the old definition of syar’u man qablanâ in his book
theory of syar’u man qablanâ to build a new al-Kâfȋ al-Wâfȋ Fȋ Ushȗl al-Fiqh al-Islâmȋ as
theory of its implementation in the field of follows:
mu’âmalah mâliyyah.
‫ما نقل الينا من احكام تلك الشرائع الىت‬
Definition of Syar’u man qablanâ
‫انزلت على االنبياء قبل نبينا دمحم عليو الصالة‬
The definition of syar’u man qablanâ is
not found in the books of ushul classical
‫ والىت كانوا مكلفني ابلعمل هبا على‬.‫والسالم‬
jurisprudence. Contemporary scholars, ‫ وما بينو هلم‬,‫اهنا شرع هللا عز وجل هلم‬
however, formulate that what is meant by
9
syar’u man qablanâ as stated by Abd al-Karim .‫رسلهم عليهم الصالة والسالم‬
Zaidan is as follows:
"What applies to us from the sharia
‫االحكام اليت شرعها هللا تعايل ملن سبقنا من‬ laws passed down to the prophets
before the Prophet Muhammad and
‫ وانزهلا على االنبيائو ورسلو لتبليغها‬,‫االمم‬ they are the subject of the law over
7 the shari'a that it is the sharia of Allah
.‫لتلك االمم‬ Swt for those whose sharia is present
through the intercession of their
"The laws that Allah Swt mandated for

6 8
Panji Adam, Fikih Muamalah Kontemporer: Zaki al-Din Sya’ban, Ushȗl al-Fiqh al-Islâmȋ,
Perkembangan Akad-Akad dalam Hukum Ekonomi (Istambul: Dâr Tahqȋq al-Kitâb, 2019), p. 215.
9
Syariah, (Malang: Inteligensia Media, 2021), p. 63. Musthafa Sa’id al-Khin, al-Kâfȋ al-Wâfȋ Fȋ Ushȗl
7
Abd al-Karim Zaidan, al-Wajȋz Fȋ Ushȗ al-Fiqh, al-Fiqh al-Islâmȋ, (Beirut: Muasasah al-Risâlah, 2000), p.
(Beirut: Muasasah al-Risâsalah, 2015), p. 247. 233.

82
83 | Jurnal Ilmiah Mizani: Wacana Hukum, Ekonomi dan Keagamaan
Vol. 09, No. 01, 2022 Syar’u Man Qablanâ And It’s Implementation
P-ISSN: 2355-5173 E-ISSN: 2656-9477 In Sharia Economic Law (Mu’âmalah Mâliyyah)

Apostles" his didi. Similarly, if there is an uncleanness

that is stuck in the body, it will not be holy
Based on the definition of
except by cutting off the limb of the body,
contemporary scholars above, it can be
and the laws thereof. 10
concluded that what is associated with
syar’u man qablanâ are the laws that have In response to the enactment of syar’u
been prescribed to the people before the man qablanâ, there are several things that
people of prophet Muhammad Saw which scholars agree on: first, that the laws of
were brought by the previous Prophets and shari'a established for the people before us
Messengers and became a legal burden to are not considered to exist without going
be followed by the people as long as the through the sources of Islamic law, because
existence of the sharia of the Prophet among Muslims, the value of a law is based
Muhammad Saw. on the sources of Islamic law; secondly, all
things that are abolished with Islamic sharia,
The concept of Syar’u man qablanâ automatically the law does not apply to us.
Basically, the sharia of samawi is Thus, the laws, which are reserved for a
one. This is in accordance with the word of particular people, do not apply to Muslims
Allah Almighty: such as the monasticity of some food/meat
for the Children of Israel; thirdly, all that is
‫وحا َوالَّ ِذي‬ ِِ َّ ‫َشرع لَ ُكم ِمن ال ِّدي ِن ما و‬
ً ُ‫صى بو ن‬ َ َ َ ْ ََ
established by the nash-nash which is valued
by Islam as also established by the past
‫وسى‬ ِ ِ ِِ َّ ‫أَوحيػنا إِلَيك وما و‬
َ ‫صْيػنَا بو إبْػَراى َيم َوُم‬ َ َ َ َ ْ ََْ ْ samawi religions, remains true for Muslims,
‫ين َوَال تَػتَػ َفَّرقُوا فِيو‬ ِ ِ
ُ ‫يسى أَ ْن أَق‬
َ ‫يموا ال ّد‬
ِ
َ ‫َوع‬
because of the provisions of the Islamic
nash, not because it was decreed by Him for
He has warned you of what religion He the past umat. Whereas the laws of the
has watched over to Noah and what We people before us which are not agreed upon
have revealed to you and what We have by the scholars on their value or power are
revealed to you and what We have told the laws of the past samawi which there is
Ibrahim, Moses and Isa which is: Establish no proposition establishing them, or
religion and do not divide it... (Q.S Ash- rejecting them. 11
Shura: 13). According to Muhammad al-Khudari
12
If the Quran and the shahȋh's sunah Beik, with regard to syar’u man qablanâ
tell of a law that has been enshrined in the there is a provision of law that is overturned
earlier people through the Apostles, then by our sharia (Islam) and this does not cause
the nash is obliged to us as it is required of a quarrel that the Prophet Muhammad Saw
them, then there is no doubt that the sharia did not worship with him. There are also
is shown to us. In other words, it is some that are not mentioned in the nash
obligatory to follow, as the word of Allah regarding its annulment and in this case
Swt regarding the obligation of fasting in there are two parts, first, the part stipulated
the Quran surah al-Baqarah verse 183. On by the sharia and there is no problem in it
the other hand, if it is said that a sharia has that we worship with it, because it belongs
been established to the previous people, but
10
the law has been abolished for us, the Rachmat Syafe’i, Ilmu Ushul Fiqih, (Bandung:
Pustaka Setia, 2015), p. 143-144.
scholars agree that the law is not prescribed 11
A. Djazuli dan I. Nurol Aen, Ushul Fiqh:
to us, such as the sharia of prophet Moses Metodologi Hukum Islam, (Jakarta: PT RajaGrafindo
A.S. that a person who has committed a sin Persada, 2000), p. 204-205.
12
will not be forgiven his sins, except by killing Muhammad al-Khudari Beik, Ushȗl al-Fiqh,
(Kairo: Dâr al-Hadȋts, 2003), p. 249.

Jurnal Ilmiah Mizani: Wacana Hukum, Ekonomi dan Keagamaan | 83

84
Panji Adam Agus Putra Vol. 09, No. 01, 2022
P-ISSN: 2355-5173 E-ISSN: 2656-9477

ِ َ‫يل ُُمَّرما علَى ط‬ ِ ِ

‫اع ٍم‬ َ ً َ ََّ ِ‫قُ ْل َال أَج ُد ِِف َما أُوح َي إ‬
to islamic sharia; and secondly, the unaltered
passages, among which there are those told
ِ
by Allah Swt to us in His book or through His
Prophet without any nash that he is obliged
‫وحا أ َْو‬ً ‫يَطْ َع ُموُ إَّال أَ ْن يَ ُكو َن َمْيػتَةً أ َْو َد ًما َم ْس ُف‬
َِّ ‫ََلم ِخْن ِزي ٍر فَِإنَّو ِرجس أَو فِس ًقا أ ُِى َّل لِغ ِْي‬
‫اَّلل بِِو‬
upon us as required of them. Then among َْ ْ ْ ٌ ْ ُ َْ
ٍ
َ َّ‫اضطَُّر َغْيػَر َاب ٍغ َوَال َعاد فَِإ َّن َرب‬
them there is a section that is not mentioned
at all. ‫ور‬
ٌ ‫ك َغ ُف‬ ْ ‫فَ َم ِن‬
As for the unnamed, then there is no )541( ‫َرِحي ٌم‬
question that we do not worship with it
either, for there is no way to know it except Say: "I have not obtained in the
by tawâtyr and this is not approved for the revelation revealed to me, something
Bookman, so there is limited to his talk in that is forbidden to the one who will
terms of what is told to us. According to al- eat it, unless the food is carrion, or
Khudari the chosen one is that we worship flowing blood or pork, for indeed it is
with him, because the clerics agree on the filthy or an animal slaughtered in a
establishment of the postulate with the name other than God. Whoever is in a
word of Allah Swt: state of compulsion is not wanting it
and does not (also) go beyond the
َّ ‫َوَكتَػْبػنَا َعلَْي ِه ْم فِ َيها أ‬
ِ ‫َن النَّػ ْفس ِابلنَّػ ْف‬
‫س‬ َ limits, then verily your Lord is All-
Forgiving again All-Merciful." (Q.S al-
And we have decreed against them in An'am: 145)
it (At torah) that the soul is
‫ادوا َحَّرْمنَا ُك َّل ِذي ظُُف ٍر َوِم َن‬ ِ َّ
(reciprocated) with the soul,... (Q.S al- ُ ‫ين َى‬ َ ‫َو َعلَى الذ‬
Maidah: 45).
‫وم ُه َما إَِّال َما‬
َ ‫الْبَػ َق ِر َوالْغَنَ ِم َحَّرْمنَا َعلَْي ِه ْم ُش ُح‬
The above verse shows that the
mandatory application of the qishâsh sharia ‫اختَػلَ َط بِ َعظٍْم‬
ْ ‫اَلََو َاَي أ َْو َما‬ْ ‫ورُُهَا أَ ِو‬ ُ ‫ت ظُ ُه‬ ْ َ‫ََحَل‬
in our religion and if we do not worship with
)541( ‫ص ِادقُو َن‬ ِ ُ َ‫ك جَزيْػن‬ ِ
it (living it) is undoubtedly invalid its istidlal. َ َ‫اى ْم ببَػ ْغيِ ِه ْم َوإِ َّان ل‬ َ َ ‫َذل‬
The Shari'a or law that applies in the Say: "I have not obtained in the
same religion that Allah passed down to the revelation revealed to me, something
Prophets before the Prophet Muhammad that is forbidden to the one who will
Saw is often also told in the Quran and eat it, unless the food is carrion, or
sunah to Muslims. The form of the story is flowing blood or pork, for indeed it is
distinguished in 3 (three) forms, each of filthy or an animal slaughtered in a
which has different consequences for name other than God. Whoever is in a
Muslims, namely as follows. 13 First, there state of compulsion is not wanting it
are clues about his nasakh. The scholars and does not (also) go beyond the
agreed that the no longer validity of sharia limits, then verily your Lord is All-
for muslims. An example is the word of Allah Forgiving again All-Merciful." (Q.S al-
Swt in surah al-An'am verses 145 and 146 as An'am: 146).
follows:
In verse 145 of surah al-An'am above
describes all the food that is forbidden in
Islamic law whereas in verse 146 what is
13
Sulaiman Abdullah, Sumber Hukum Islam: forbidden of the Jews alone eats some of
Permasalahan dan Fleksibilitasnya, (Jakarta: Sinar the good as torture and whipping against
Grafika, 2007), p. 69-72.

85 | Jurnal Ilmiah Mizani: Wacana Hukum, Ekonomi dan Keagamaan

84
Vol. 09, No. 01, 2022 Syar’u Man Qablanâ And It’s Implementation
P-ISSN: 2355-5173 E-ISSN: 2656-9477 In Sharia Economic Law (Mu’âmalah Mâliyyah)

those who are immersed in the creed to the scholars do not differ in opinion about being
degree of tyranny, as a sanction for their recognized and required to practice by
killing of the Prophets, and the various Muslims. For example, the obligation to fast
wrongs they have committed. as stated in the Quran surah al-Baqarah
verse 183. Thus the law of fasting is
Examples of hadiths that narrate
obligatory upon muslims as is required of
about the nasakh of the law/sharia of the
the previous people. Similarly, the hadith of
previous people include the hadith narrated
the Prophet narrated by Imam Ahmad of
by Imam al-Bukhari and Muslims of Jabir Ibn
Zaid Ibn Arqam regarding sacrificial worship
Abdullah:
is as follows:

ُ‫صلَّى هللا‬
َِّ ‫ول‬
َ ‫اَّلل‬ ُ ‫ال َر ُس‬ َ َ‫ ق‬:‫ال‬ َّ ‫ابُِر بْ ُن َعْب ِد‬
َ َ‫ ق‬،ِ‫اَّلل‬ ‫ ََي‬:‫ أ َْو قَالُوا‬:‫ت‬ َ َ‫َع ْن َزيْ ِد بْ ِن أ َْرقَ َم ق‬
ُ ‫ قػُ ْل‬:‫ال‬
ِ ِ
‫َح ٌد‬
َ ‫يت َخَْ ًسا ََلْ يػُ ْعطَ ُه َّن أ‬ُ ‫ " أ ُْعط‬:‫َعلَْيو َو َسلَّ َم‬ ُ‫ " ُسنَّة‬:‫ال‬ َ َ‫اح مي؟ ق‬ ِ ‫هللا ما ى ِذ ِه ْاألَض‬
َ َ َ
ِ ‫ول‬ َ ‫َر ُس‬
14
)‫(رواه البخاري ومسلم‬...‫ِم َن األَنْبِيَ ِاء قَػْبلِي‬ " :‫ال‬ َ َ‫ َما لَنَا ِمْنػ َها؟ ق‬:‫ قَالُوا‬." ‫أَبِي ُك ْم إِبْػَر ِاى َيم‬
"I was given the right of 1/5 of the ِ ‫ول‬
‫هللا‬ َ ‫ ََي َر ُس‬:‫ قَالُوا‬." ٌ‫بِ ُك ِّل َش ْعَرٍة َح َسنَة‬
spoils of war, which was not given to
the Prophet before me". ‫وؼ‬ِ ‫ص‬ ‫ " بِ ُك ِّل َش ْعَرةٍ ِم َن ال م‬:‫ال‬ َ َ‫وؼ؟ ق‬ُ ‫ص‬ ‫فَال م‬
ِ ِ 16
‫ فَأَمُّيَا‬،‫ورا‬
ً ‫ض َم ْسج ًدا َوطَ ُه‬ ُ ‫ت ِيل األ َْر‬ ْ َ‫َو ُجعل‬ )‫َح َسنَةٌ " (رواه اَحد‬
ِ َّ ُ‫َر ُج ٍل ِم ْن أ َُّم ِيت أ َْد َرَكْتو‬
‫ت‬ْ َّ‫ َوأُحل‬،‫ص ِّل‬ َ ُ‫الصالَةُ فَػ ْلي‬ from Zaid ibn Arqam he said; I said or

‫(رواه‬...‫َح ٍد قَػْبلِي‬ ِ ِ ِ they asked, "O Messenger of Allah,

َ ‫ِيل املَغَاًلُ َوََلْ ََت َّل أل‬ what is this sacrificial animal for?" he
15
)‫البخاري‬ replied: "That is the sunnah of your
father Ibrahim." They asked again,
"Then what good shall we get from
"The earth is made a mosque and holy
him?" he replied: "Every strand of his
to me. So wherever a man of my
fur is goodness." They asked again,
people enters the time of sholeh, then
"What about sheep?" he replied:
let him pray. Farm animals are justified
"Each strand of fleece is worth one
for me, and not justified for someone
good."
before me".
Thirdly, There is no clue as to its
These hadiths show that the law in the
recognition and di-nasakh, so in this case
shari'a of the previous people was not halal
scholars differ in opinion on whether it is still
to livestock, the invalidity of prayer in an
valid or not anymore. In this case there are 2
unspecified place for it, had been nasakhed
opinions as follows: 17
in Islamic law.
1. Some scholars among them the majority
Secondly, There are instructions about
of scholars from the Hanafiyyah,
being recognized and sustainable, so the

16
Abu Abdullah Ahmad Ibn Muhammad Ibn
14
Muhammad Ibn Isma’il Abu Abdullah al- Hanbal Ibn Hilal Ibn Asad al-Syaibani, Musnad al-Imâm
Bukhari, Shahȋh al-Bukhârȋ, (Kairo: Dâr al-Hadȋts, 0228), Ahmad Ibn Hanbal, (Beirut: Muasasah al-Risâlah, 2001),
j 1, h. 222. Lihat juga, Muslim Ibn al-Hajaj Abu al-Hasan j. 32, p. 34.
17
al-Qusyairi al-Naisaburi, Shahȋh Muslim, (Kairo: Dâr al- Muhammad Musthafa al-Zuhaili, al-Wajȋz Fȋ
Hadȋts, 1997), j. 1, p. 383. Ushȗl al-Fiqh al-Islâmȋ, (Damaskus: Dâr al-Khair, 2006),
15
Ibid. j. 1, p. 275.

Jurnal Ilmiah Mizani: Wacana Hukum, Ekonomi dan Keagamaan | 85

86
Panji Adam Agus Putra Vol. 09, No. 01, 2022
P-ISSN: 2355-5173 E-ISSN: 2656-9477

Malikiyyah and Shafi'iyyah circles argue themselves to Allah, by their alims

that sharia is practiced by Muslims, and their pastors, because they were
arguing: commanded to keep the books of
a. All sharia is equally one. Allah is God and they became witnesses to
infidelized in the Surah Ash-Shura them....(Q.S al-Maidah: 44)
verse 13 as above. This verse
Among the instructions of this
establishes the unity of this
verse is that the laws of the Torah
religion/sharia and the unity of its
contain instruction, light and grace.
laws. So it is obligatory to do charity
Then which of them is not in nasakh,
according to the laws of the
then it is still obligatory to be
previous sharia, except against those
recited.
that there are arguments that show
b. That the Messenger of Allah Saw
that it is a temporary sharia for the
often made reference to the Torah
previous people, or nasakhed in
to decide matters including those
Islamic law. This is reinforced by the
relating to the jewish law of adultery
word of Allah Swt directed to His
proposed to him
Prophet in the Quran, which is as
In connection with this
follows:
...‫اَّللُ فَبِ ُه َد ُاى ُم اقْػتَ ِد ْه‬ ِ َّ ِ‫أُولَئ‬ opinion, hanafiyyah clerics imposed
َّ ‫ين َى َدى‬
َ ‫ك الذ‬َ a balanced qishâsh law as mentioned
in surah al-Maidah verse 45 for
They are the ones who have been Muslims, even though the verse was
instructed by God, so follow their directed at Jews. Based on this
instructions.... (Q.S al-An'am: 90). opinion muslims who kill dzimmi

‫ني‬ ِ ِ ‫وأَنْػزلْنا إِلَيك الْ ِكتاب ِاب َْل ِق م‬ infidels (who get protection) are
َ ْ َ‫ص ّدقًا ل َما بػ‬
َ ُ َّ َ َ َ ْ ََ َ subjected to qishâsh just as dzimmi
ِ َ‫ي َديِْو ِمن الْ ِكت‬
‫اب‬ infidels kill Muslims. Meanwhile, the
َ َ Shafi'iyyah clerics who did not
enforce the Jewish sharia for
And We have handed down to you
Muslims understood the verse that
the Qur'an by bringing the truth,
there was no need for a balance in
justifying what was before, namely
the practice of qishâsh between
the books (which were handed
Muslims and non-muslims as
down earlier)... (Q.S al-Maidah: 48).
imposed on Jews. Therefore, if
‫ور ََْي ُك ُم ِهبَا‬ ِ ِ
ٌ ُ‫إ َّان أَنْػَزلْنَا التػ َّْوَراةَ ف َيها ُى ًدى َون‬
muslims kill dzimm infidels, then the
law of qishâsh does not apply. But
ِ َِّ ِ َّ ِ
‫ادوا‬ُ ‫ين َى‬ َ ‫َسلَ ُموا للذ‬ ْ ‫ين أ‬ َ ‫النَّبيمو َن الذ‬
what is the dzimmi kafir who killed
the Muslims, then the qishâsh was
‫استُ ْح ِفظُوا ِم ْن‬ ِ
ْ ‫َحبَا ُر ِبَا‬
ِ َّ ‫و‬
ْ ‫الرَّابنيمو َن َو ْاأل‬ َ imposed
َِّ ‫اب‬
‫اَّلل َوَكانُوا َعلَْي ِو ُش َه َداء‬ ِ َ‫كِت‬ 2. According to the scholars of Mu'tazilah,
Shi'a some of the Shafi'iyah circles and
one of the opinions of Imam Ahmad, the
Verily We have sent down the Book sharia before Islam, that is, there is no
of the Torah in it (there is) clue about nasakh or its permanence,
instruction and light (which does not become sharia for Muslims and
illuminates), by which the Book was is not obliged to be practiced. Their
decided the cause of the Jews by the reasons are as follows:
prophets who surrendered a. That the earlier sharia was temporary

86 | Jurnal Ilmiah Mizani: Wacana Hukum, Ekonomi dan Keagamaan

87
 Vol. 09, No. 01, 2022 Syar’u Man Qablanâ And It’s Implementation
P-ISSN: 2355-5173 E-ISSN: 2656-9477 In Sharia Economic Law (Mu’âmalah Mâliyyah)

during that time, limited, and specific by Abu Dawud as follows:

‫ َع ْن‬،َ‫ َع ْن ُش ْعبَة‬،‫ص بْ ُن عُ َمَر‬ ُ ‫َح َّدثػَنَا َح ْف‬
to the earlier people, while the
Islamic sharia came for all the people
‫ث بْ ِن َع ْم ِرو ابْ ِن أ َِخي‬ ِ ‫اَلا ِر‬ ٍ
and nasakh) was another sharia, as
the prophet Muhammad Saw
َْ ‫ َع ِن‬،‫أَِيب َع ْون‬
narrated by Imam Ibn Abi Syaibah in ‫ َع ْن أ َُان ٍس ِم ْن أ َْى ِل‬،َ‫الْ ُمغِ َْيِة بْ ِن ُش ْعبَة‬
his Mushanaf as follows:
َّ ‫ أ‬،‫اب ُم َع ِاذ بْ ِن َجبَ ٍل‬
‫َن‬ ِ ‫َصح‬ ِ ٍ ْ‫َِح‬
3. َ ْ ‫ م ْن أ‬،‫ص‬
ِ َّ ‫ث إِ َىل قَػوِم ِو خ‬ ‫صلَّى هللاُ َعلَْي ِو َو َسلَّ َم لَ َّما أ ََر َاد أَ ْن‬ َِّ ‫ول‬
‫ت‬
ُ ْ‫ َوبُعث‬،ً‫اصة‬ َ ْ ‫َوَكا َن النِ م‬
ُ ‫َِّب يػُْبػ َع‬ َ ‫اَّلل‬ َ ‫َر ُس‬
18
ِ ‫إِ َىل الن‬
)‫َّاس َع َّامةً (رواه ابن ايب شيبة‬ ‫ف‬ َ ‫ « َكْي‬:‫ال‬ َ َ‫ث ُم َعا ًذا إِ َىل الْيَ َم ِن ق‬ َ ‫يػَْبػ َع‬
ِ
"The earlier prophets were sent for :‫ال‬ َ َ‫ ق‬،»‫ضاءٌ؟‬ َ َ‫ك ق‬ َ َ‫ض ل‬ َ ‫تَػ ْقضي إِذَا َعَر‬
‫ «فَِإ ْن ََلْ ََِت ْد ِِف‬:‫ال‬ َ َ‫ ق‬،ِ‫اَّلل‬ ِ َ‫ضي بِ ِكت‬ ِ ْ‫أَق‬
his people only, while I (Muhammad)
was sent to man entirely" َّ ‫اب‬
‫صلَّى‬ َِّ ‫ول‬ ِ ‫ فَبِسن َِّة رس‬:‫ال‬ َِّ ‫اب‬ ِ َ‫كِت‬
So, if there is no specific َ ‫اَّلل‬ ُ َ ُ َ َ‫ ق‬،»‫اَّلل؟‬
‫ «فَِإ ْن ََلْ ََِت ْد ِِف ُسن َِّة‬:‫ال‬ َ َ‫ ق‬،‫هللاُ َعلَْي ِو َو َسلَّ َم‬
argument for the stay of the
previous sharia, it is not mandatory

‫ َوَال ِِف‬،‫صلَّى هللاُ َعلَْي ِو َو َسلَّ َم‬ َِّ ‫ول‬ ِ ‫رس‬

َ ‫اَّلل‬
for Muslims to recite. This is as allah
swt said as follows: َُ
‫ َوَال آلُو‬،‫َجتَ ِه ُد َرأْيِي‬ ْ ‫ أ‬:‫ال‬ َ َ‫اَّللِ؟» ق‬َّ ‫اب‬ ِ َ‫كِت‬
َّ ‫اح ُك ْم بػَْيػنَػ ُه ْم ِِبَا أَنْػَزَل‬
‫اَّللُ َوَال تَػتَّبِ ْع‬ ْ َ‫ف‬...
‫صلَّى هللاُ َعلَْي ِو َو َسلَّ َم‬ َِّ ‫ول‬
‫اَلَ ِّق لِ ُك ٍّل َج َع ْلنَا‬
ْ ‫أ َْى َواءَ ُى ْم َع َّما َجاءَ َك ِم َن‬ َ ‫اَّلل‬ ُ ‫ب َر ُس‬ َ ‫ضَر‬ َ َ‫ف‬
ِ ِ ِ ‫َّلل الَّ ِذي َوفَّ َق‬ َِِّ ‫اَلم ُد‬
ْ َْ « :‫ال‬ َ َ‫ َوق‬،ُ‫ص ْد َره‬ َ
...‫اجا‬ ً ‫مْن ُك ْم ش ْر َعةً َومْنػ َه‬
... then decide their cause according ،»ِ‫اَّلل‬ َّ ‫ول‬ َ ‫اَّللِ لِ َما يػُْر ِضي َر ُس‬ ِ ‫ رس‬،‫ول‬
َّ ‫ول‬ ُ َ َ ‫َر ُس‬
19
to what God sent down, and you
shall not follow their passions by
)‫(رواه ايب داود‬
forsaking the truth that has come to It has told us Hafsh bin Umar of the
you. For each of the people among Syu'bah of Abu 'Aun of Al Harits bin
you, We give rules and paths of 'Amru son of brother Al Mughirah bin
light.... (Q.S al-Maidah: 48). Syu'bah, of some of the inhabitants
of Himsh who were some of the
The verse shows that each companions of Mu'adz bin Jabal. That
people has their own sharia. That the Messenger of Allaah sallallahu
means that the shari'a of the 'alaihi wasallam when he was going
previous prophet no longer applies to send Mu'adz bin Jabal to Yemen
to the people of Prophet he said: "How do you give a decision
Muhammad Saw
when there is a judiciary that is faced
b. When Mu'adz Ibn Jabal was sent to with you?" Mu'adz replied, "I will
be a judge in Yemen, the Prophet decide to use the Book of God." He
Saw asked him as the hadith narrated said: "If you had not found it in the

19
Abu Dawud Sulaiman Ibn Al-Asy’ats Ibn Ishaq
18
Abu Bakar Ibn Abi Syaibah, al-Kitâb al- Ibn Basyir Ibn Syidad Ibn ‘Amr al-Azdi al-Sijistani, Sunan
Mushanaf Fȋ al-Ahâdȋts wa al-Âtsar, (Riyadh: Maktabah Abȋ Dâwud, (Beirut: al-Maktabah al-‘Ashriyyah, t.th), j.
al-Rusyd, 1409 H), j. 6, p. 303. 3, p. 303.

Jurnal Ilmiah Mizani: Wacana Hukum, Ekonomi dan Keagamaan | 88

87
Panji Adam Agus Putra Vol. 09, No. 01, 2022
P-ISSN: 2355-5173 E-ISSN: 2656-9477

Book of God?" Mu'adz replied, "I will Zahrah,21 the issue of syar’u man qablanâ
return to the sunnah of the should not be a topic that revolves around
Messenger of Allaah sallallahu 'alaihi the dissent of scholars. for according to him,
wasallam. He said again: "If you do every matter established by Allah in the
not get in the Sunnah of the Quran and mentioned by the hadith as the
Messenger of Allaah sallallahu 'alaihi law of shari'a which applies specifically to
wasallam and in the Book of Allah?" some of the people of the past, must be
Mu'adz replied, "I will use my supported by the existence of a postulate
opinion, and I will not diminish." Then that shows that specificity, or the existence
the Messenger of Allaah sallallahu of a postulate that indicates the permanent
'alaihi wasallam patted his chest and validity of the provisions of that law which
said: "All praise be to Allah who has are universal for all ages.
instructed the messenger of the Abu Zahrah further explained that,
Messenger of Allah to do what based on the results of research on the nash-
pleases the Messenger of Allah. nash of the Quran or hadith, it was found
that there was not a single nash-pun that
In the dialogue, there was no raised the story of the earlier people without
instruction from the Prophet being equipped with the information that
Muhammad Saw to refer to the the legal provisions contained in the story
shari'a of the earlier prophets. If the were special or general. If this is the case,
sharia of the earlier prophets could then the scholarly dissent should not have
be used as a reference by Mu'adz, it occurred. For the sharia of the earlier
would have been that the Prophet people, if there is a proposition that explains
Saw gave instructions for it. that it applies specifically, it cannot be used
as a hujjah by the agreement of the clergy.
According to Abd al-Wahab Khalaf,20 whereas if there is a postulate that explains
the râjih (superior) opinion between the generally applicable, it can be used as a
two pendpaats above is the first opinion, hujjah .
that is, the opinion that states that it
remains valid and obligatory to be recited
Result and Discussion
over the syar’u man qablanâ. The reason is
that Islamic sharia only invalidates laws that Based on the author's findings, there
happen to be different from Islamic sharia. are at least 5 forms of contract in the study
Therefore, all the sharia laws of the previous of mu’âmalah mâliyyah which is a form of
prophet mentioned in the Quran without implementation of the previous sharia
any stipulation that the laws have been (syar’u man qablanâ) in mu’âmalah mâliyyah
nasakhed (abolished), then those laws transaction activities, namely as follows:
remain valid for the people of Prophet
Muhammad Saw. In addition, the mention of Akad Ju’âlah
these laws in the Quran which is a guide for Ju’âlah is unique in terms of the
Muslims, indicates the validity for the people science of contract in the fiqh of mu'âmalah
of Muhammad Saw. mâliyyah. In general, scholars argue that
According to Muhammad Abu Ju’âlah belongs to the domain of treaty
agreements, as stipulated in the law of
treaties (also known as the law of
20 21
Abd al-Wahab Khalaf, ‘Ilm Ushȗl al-Fiqh, Muhammad Abu Zahrah, Ushȗl al-Fiqh, (Kairo:
(Kairo: Dâr al-Rasyȋd, 2008), p. 84. Dâr al-Fikr al-‘Arabȋ, t.th), p. 294.

89 | Jurnal Ilmiah Mizani: Wacana Hukum, Ekonomi dan Keagamaan

88
Vol. 09, No. 01, 2022 Syar’u Man Qablanâ And It’s Implementation
P-ISSN: 2355-5173 E-ISSN: 2656-9477 In Sharia Economic Law (Mu’âmalah Mâliyyah)

engagement), because Ju’âlah contains (can (wages), and a period of time. 24 The
give birth to) rights and obligations born Hanafiyyah cleric only allowed the Ju’âlah
because of agreements. 22 contract to return the fleeing slaves on the
Literally, the word Ju’âlah means a grounds of istihsan, i.e. allowed him to give
promise to give a reward or 'iwadh/jâizah (al- gifts to those who managed to carry out the
Ju’âlah aw al-wa'ad bi al-jâizah) to another fleeing slaves for a period of three days or
party if it succeeds in achieving a certain more in exchange (ju’l) amounting to 40
natȋjah. The 'âmil party is not entitled to a dirhams.
reward from the jâ'il party if it is unable to
According to the Malikiyyah,
achieve natȋjah perfectly. In other words,
Shafi'iyyah and Hanabilah scholars, they
Ju’âlah language has the meaning of a
argue that the law of Ju’âlah is permissible.
promise to give a gift (i.e. the giving of a gift,
It is based on the syar’u man qablanâ (shari'a
wages, fees or specified compensation). It is
of the earlier people) which is the story of
a contract or covenant based on personal
the Prophet Yusuf which is contained in the
will.
Quran surah Yusuf verse 72 as follows:
In terms of syara' which is enshrined
with the Ju’âlah contract is as follows:
‫ك َولِ َم ْن َجاءَ بِِو َِحْ ُل‬
ِ ِ‫اع الْمل‬
َ َ ‫ص َو‬
ِ
ُ ‫قَالُوا نػَ ْفق ُد‬
‫ أو‬،‫التزام عوض معلوم على عمل معني‬
)27( ‫يم‬ ِ ِِ ٍ ِ
23
‫ عسر علمو‬،‫جمهول‬ ٌ ‫بَعْي َوأ ََان بو َزع‬
"The impersonators said: "We lost the
"A commitment to providing a clear king's trophy, and whoever can return
reward for a particular or unknown it will get food (as heavy as) the
job that is difficult to learn" burden of a camel, and I guarantee
In simple terms, it can be said that against it". (Q.S Joseph: 72).
Ju’âlah is a request from a person to return The above verse is a postulate for the
the lost goods with the specified majority of scholars to allow the Ju’âlah
payment/wage. In this simple sense, the contract. In addition, according to the
Ju’âlah contract is almost similar to the Scholars Malikiyyah and Hanabilah, verse 72
competition institutions that are commonly of the above letter of yusuf is a form of
practiced in society. syar’u man qablanâ and the law still applies
According to the Hanafiyaah school, as a result of the proposition that nasakh it.
25
the Ju’âlah contract is not broken because it
contains the element of gharar in it, namely Akad Ijârah
the vagueness of the work and the specified
period of time. Hanafiyyah scholars Ijârah is etymologically the mashdar
analogize with the Ijârah contract which of the word ‫ياجر‬-‫( اجر‬ajara-ya'jiru), that is, the
requires the existence of a job, kataah wages given as compensation for a job.
According to M. Rawas Qal'aji, Ijârah comes
from the sentence ‫اجارة‬-‫ياجر‬-‫ اجر‬plural ‫ اجور‬which
means ‫( الجزاء على العمل‬something you give to

22 24
Jaih Mubarok dan Hasanudin, Fikih Panji Adam, Fikih Muâmalah Mâliyyah:
Mu’amalah Maliyyah: Akad Ijarah dan Ju’alah, Konsep, Regulasi dan Implementasi, (Bandung: Refika
(Bandung: Simbiosa, 2017), p. 272. Aditama, 2017), p. 352-353.
23 25
Wahbah al-Zuhaili, al-Fiqh al-Islâmȋ wa Musthafa Dib al-Bugha, Atsar al-Adillah al-
Adillatuh, (Beirut: Dâr al-Fikr al-Mu’âshir, 0210), j. 4, p. Mukhtalif Fȋhâ: Mashâdir al-Tasyrȋ’ al-Tabi’iyyah Fȋ al-
578. Fiqh al-Islâmȋ, (Beirut: Dâr al-Qalam, 2013), p. 545.

Jurnal Ilmiah Mizani: Wacana Hukum, Ekonomi dan Keagamaan | 89

90
Panji Adam Agus Putra Vol. 09, No. 01, 2022
P-ISSN: 2355-5173 E-ISSN: 2656-9477

others in the form of wages in work). 26 us) is a strong man who can again be
trusted". (Q.S al-Qashash: 26).
The definition of Ijârah contract in
sharia terminology as presented by Umar The person who works in this verse
Abdullah Kamil is: means to work with the Ijârah contract.
Providing rentals for services owned by the
27
‫االجارة شرعا عقد يفيد متليك املنافع بعوض‬ Prophet Moses. Renting someone's services
to do a certain job is an Ijârah contract that
"An agreement that results in a is allowed in mu’âmalah mâliyyah activities.
transfer of ownership of a benefit The tenant of the services in the story as
accompanied by a reward/wage"
stated in the voice of al-Qashash verse 26
The Ijârah contract is the association above is the father of the two women while
of property with benefits. Because of such a the one who is hired for services is the
definition, scholars generally call it the sale Prophet Moses, while his job is to herd the
and purchase of benefits (bai’ al-manâfi’). goats belonging to the family. 29
The Ijârah contract in terms of its object can
Dhamân Mâ Tafsadahu al-Dawwâb al-
be divided into 2 (two), namely: (1) Ijârah Mursalah
whose object benefits over an item/object
called rent (al-Ijârah); and (2) Ijârah whose The next implementation according
object of service (labor or expertise of to the scholars based on syar’u man qablana
mansusia) is called wages or labor for in the field of mu’âmalah mâliyyah is the
services (al-kirâ). According to the obligation to compensate for crops or
Malikiyyah scholar's version, rent whose anything that has been damaged by a
object is human labor/merit is called al- person's livestock. In fiqh terms mu’âmalah
Ijârah, while rent whose object benefits an mâliyyah the concept of indemnity for crops
object is called al-kirâ.28 damaged by one's farm animals is called
"Dhamân Mâ Tafsadahu al-Dawwâb al-
One of the juridical foundations of the
Mursalah".
Ijârah contract is allowed based on syar’u
man qablanâ, namely the kisan of Prophet According to the view of Imam Malik,
Moses 'Alahi Salam and the two daughters Shafi'i and Ahmad Ibn Hanbal, the damage
of prophet Syu'aib. This is as stated in the done by a person's livestock must be
Quran surah al-Qashash verse 26 as follows: reimbursed by the owner of the livestock if
the destruction occurs at night, but if the
‫استَأْ ِج ْرهُ إِ َّن َخْيػَر َم ِن‬ ِ ُ ‫ت إِ ْح َد‬
ْ ‫اُهَا ََيأَبَت‬ ْ َ‫قَال‬ destruction occurs during the day, then

)71( ‫ني‬ ِ ‫استَأْجرت الْ َق ِو م‬ there is no obligation for the owner to

ُ ‫ي ْاألَم‬ َ َْ ْ compensate. This means that the owner of
One of the two women said: "Yes, my the animal cannot be held accountable for
father, take him as a person who replacement. Imam Malik took this view
works (on us), because indeed the according to syar’u man qablanâ, which is
kindest person you take to work (on the story of the Prophet Dawud which is
told in the Quran as follows:

ِ ْ ‫ان ِِف‬ِ ‫وداوود وسلَيما َن إِ ْذ ََي ُكم‬

ْ ‫اَلَْرث إِ ْذ نػَ َف َش‬
26
Muhammad Rawas Qal’ahji, Mu’jam Lughat
al-Fqahâ, Dar al-Nafais, Beirut, 1998, p. 28. ‫ت‬ َ ْ َْ ُ َ َ ُ ََ
ِ ِ ِ ِ ِِ
27

ِِ
Umar Abdullah Kamil, al-Qawâ’id al-Fiqhiyyah
al-Kubrâ wa Atsaruhâ Fȋ al-Mu’âmalât al-Mâliyyah, )23( ‫ين‬ َ ‫فيو َغنَ ُم الْ َق ْوم َوُكنَّا َلُكْمه ْم َشاىد‬
(Kairo: Universitas al-Azhar, t.th), h. 508.
28
Ahmad Hasan, Nadzariyyah al-Ujȗr Fȋ al-Fiqh
29
al-Islâmȋ: Dirâsah Tahlȋliyyah Mubtakirah li Fiqh al- M. Pudjihardjo, dkk, Ushul Fikih Ekonomi
Mu’âmalât al-Mâliyyah, (t.t: Dâr Iqra, t.th), h. 13. Syariah, (Malang: UB Press, 2021), h. 131.

91
90 | Jurnal Ilmiah Mizani: Wacana Hukum, Ekonomi dan Keagamaan
Vol. 09, No. 01, 2022 Syar’u Man Qablanâ And It’s Implementation
P-ISSN: 2355-5173 E-ISSN: 2656-9477 In Sharia Economic Law (Mu’âmalah Mâliyyah)

31
"And (remember the story of) David ‫ِف التزام اَلق‬
and Solomon, when both gave
decisions about crops, because they "Guarantees given to persons who have
were ravaged by the goats of their dependents in fulfilling their obligations".
kindred. And is We witnessed the
decision given by them it (Q.S al- The scholars of the 4 schools of
jurisprudence differ in terms of guarantee,
Anbiya: 78).
first, the Hanafiyyah scholars use the term
According to Musthafa Sa'id al-Khin, the kafâlah and are divided into two, namely
phrase nafasyat in the text verse 78 of surah kafâlah al-mâl and kafâlah al-wajh (kafâlah bi
al-Anbiya above means destruction that al-nafs); second, Malikiyyah scholars use the
occurs at night. The law that was in force term al-dhamân and are divided into two,
during the time of prophet Dawud as namely dhamân al-mâl and dhamân al-wajh
recounted in the Quran was used as the (dhamân al-nafs); third, Shafi'iyyah scholars
basis for the legal determination of the use the term kafâlah which includes only
mandatory compensation/dhamân for kafâlah bi al-mâl (excluding kafâlah bi al-
damages done by livestock belonging to a nafs); and fourth, Hanabilah scholars use the
person done at night, as in Imam Malik's terms kafâlah and dhamâan with two
view above different uses, namely (1) dhamân is used for
property guarantee (dhamân al-mâl) and
Akad Kafâlah bi al-nafs
kafâlah is used for guarantee of the ability to
Kafâlah linguistically as stated in the present a person (kafâlah bi al-nafs) for the
Hanafiyah and Hanabilah books means al- purposes of court proceedings/trials. 32
dham i.e. dependent, and according to
One form of implementation of syar’u
Shafi'iyah means al-iltizâm. Akad kafâlah has
man qablanâ is the kafâlah bi al-nasf
word equivalents including: (1) al-dhamân,
which is a word used for guarantees related contract. Kafâlah bi nafs is an agreement to
to property; (2) al-hamâlah, i.e. the word provide a personal guarantee. For example, in
used for guarantees relating to the payment banking practice for the form of kafâlah bi
of diyat sanctions; (3) al-zâ'im, that is, a word nafs is a customer who gets financing with the
used for guarantees relating to large guarantee of the good name and shop of a
amounts of property; (4) al-kâfil/kafâlah, i.e. person or community leader. Although the
a word used for guarantees related to the bank does not physically hold any goods, it
soul; and (5) al-shabir, which is a word used hopes that the figure can seek payment when
for guarantees of a general nature.30 the financed customer has difficulties..33
As for the definition in sharia One form of implementation of syar’u
terminology, the kafâlah contract as man qablanâ is the kafâlah bi al-nasf contract.
conveyed by the Hanabilah scholars is as Kafâlah bi nafs is an agreement to provide a
follows:
31
Abd al-Rahman Ibn Ibrahim Ibn Ahmad Abu
‫ألن الضمان ضم ذمة الضامن إىل ذمة املضمون عنو‬ Muhammad al-Din al-Maqdisi, al-‘Uddah Syarh al-
‘Umdah, (Beirut: Dar al-Kutub al-‘Ilmiyyah, 0225), h.
230.
32
‘Ala al-Din Za’tari, Fiqh al-Mu’âmalât al-
Mâliyyah al-Muqâran: Shiyâghah Jadȋdah wa Amtsilah
Mu’âshirah, (Damaskus: Dâr Al-‘Ashmâ, 0212), h. 495.
33
Muhammad Syafi’i Antonio. Bank Syariah dari
30
Jaih Mubarok dan Hasanudin, Fikih Teori ke Praktik, (Jakarta: Gema Insani Press, 2001), h.
Mu’amalah Maliyyah: Akad Tabarru’, (Bandung: 124-125.
Simbiosa, 2017), h. 191.

Jurnal Ilmiah Mizani: Wacana Hukum, Ekonomi dan Keagamaan | 91

92
Panji Adam Agus Putra Vol. 09, No. 01, 2022
P-ISSN: 2355-5173 E-ISSN: 2656-9477

personal guarantee. For example, in banking contract or covenant is as follows:35

practice for the form of kafâlah bi nafs is a
customer who gets financing with the ‫ ىي عبارة عن قسمة املنافع‬:ً‫واملهاأية فقها‬
guarantee of the good name and shop of a
person or community leader. Although the "Agreement on the distribution of
bank does not physically hold any goods, it benefits"
hopes that the figure can seek payment Another definition according to
when the financed customer has difficulties. Malikiyyah scholars states that what is

‫ك َولِ َم ْن َجاءَ بِِو َِحْ ُل‬

ِ ِ‫اع الْمل‬ ِ meant by muhaya’ah is:
َ َ ‫ص َو‬ ُ ‫قَالُوا نػَ ْفق ُد‬
ِ ِِ ٍ ِ ‫أبهنا اختصاص كل شريك عن شريكو ِف شيء‬
)27( ‫يم‬ ٌ ‫بَعْي َوأ ََان بو َزع‬ ‫ ِبنفعة شيء‬،‫ أو متعدد كدارين‬،‫متحد كدار‬
"The impersonators said: "We lost the
king's trophy, and whoever can return it :‫ وبناء عليو‬.‫متحد أو متعدد ِف زمن معلوم‬
will get food (as heavy as) the burden ،‫ إذ بو يعرؼ قدر االنتفاع‬،‫تعني الزمن شرط‬
of a camel, and I guarantee against it".
(Q.S Joseph: 72). .‫وإال فسدت املهاأية‬
According to Ibn 'Abbas asserts that "An agreement on the specificity for
what is enshrined by the word al-za'im in the each partner of the expediency of an or
surah of Yusuf verse 72 above the maksd is for more than one item, such as two
al-kâfil. According to the Hanabilah scholar houses separately and alternately".
as quoted by Musthafa Dib al-Bugha, that
The qismah muhaya’ah contract is a
verse 72 of the Yusuf surah relates to the
concept of syar’u man qablanâ regarding the form of implementation of syar’u man
ability of the kafâlah bi al-nafs contract. qablanâ, it is based on the word of God as
follows:
Qismah muhaya’ah
ٍ ‫َن الْماء قِسمةٌ بػْيػنَػهم ُك مل ِشر‬ ِ
The qismah muhaya’ah contract was
‫ضٌر‬
َ َ‫ب ُُْمت‬ ْ ْ ُ َ َ ْ َ َ َّ ‫َونػَبّْئػ ُه ْم أ‬
born to end the incorporation of multiple )73(
parties' ownership of an item and/or asset,
either because of the relevant efforts (e.g. And tell them that indeed the water is
the syirkah contract) or for natural causes divided between them (with the female
(e.g. the inheritance [al-mauruts] due to the camel); each drinking turn is attended
death of a person). With qismah, the (by the one who has the turn). (Q.S al-
ownership of each party becomes clear and Qamar: 28).
separate from the previous entisas syirkah.34
And the word of God is as follows:
The word muhaya’ah comes from the
word al-hai'ah which literally means real ‫ب يػَ ْوٍم‬ ِ
ُ ‫ب َولَ ُك ْم ش ْر‬
ِ ِ ِ َ َ‫ق‬
ٌ ‫ال َىذه َانقَةٌ َهلَا ش ْر‬
)511( ‫َم ْعلُ ٍوم‬
state. The real state in question is that the
partners use the same goods with the same
form of use. The definition of the muhaya’ah
"The shaleh replied: "This is a female
camel, she has her turn to get water,
and you have your turn to get water on
34
‘Ali Haidar, Durar al-Hukkâm Syarh Majallat al-
Ahkâm, (Beirut: Dâr al-Kutub al-‘Ilmiyyah, 1991), j. 12, h.
35
176. Wahbah al-Zuhaili, al-Fiqh al-Islâmȋ..., h. 4776.

92 | Jurnal Ilmiah Mizani: Wacana Hukum, Ekonomi dan Keagamaan

93
Vol. 09, No. 01, 2022 Syar’u Man Qablanâ And It’s Implementation
P-ISSN: 2355-5173 E-ISSN: 2656-9477 In Sharia Economic Law (Mu’âmalah Mâliyyah)

a certain day" (Q.S al-Syu'ara: 155). ‘Ashriyyah, t.th.

The concept of qismah muhaya’ah is an Ahmad Hasan, Nadzariyyah al-Ujȗr Fȋ al-Fiqh al-Islâmȋ:
Dirâsah Tahlȋliyyah Mubtakirah li Fiqh al-
implementation of syar’u man qablanâ which Mu’âmalât al-Mâliyyah, t.t: Dâr Iqra, t.th.
is the sharia of the prophet Sholeh and the
law remains in force before the discovery of ‘Ala al-Din Za’tari, Fiqh al-Mu’âmalât al-Mâliyyah al-
Muqâran: Shiyâghah Jadȋdah wa Amtsilah
any proposition that composes it. Mu’âshirah, Damaskus: Dâr Al-‘Ashmâ, 0212.
Conclusion ‘Ali Haidar, Durar al-Hukkâm Syarh Majallat al-Ahkâm,
Beirut: Dâr al-Kutub al-‘Ilmiyyah, 1991.
Syar’u man qablanâ is one of the legal
arguments disputed as to its validity as a Amir Syarifuddin, Ushul Fiqh, Jakarta: Kencana Prenada
Media Group, 2011.
method of ijtihad. However, the majority of
scholars view that the sharia of the former Imam Yazid, Analisis Teori Syar’u Man Qablana, Al
people/syar’u man qablanâ can be used as Mashlahah Jurnal Hukum Dan Pranata Sosial
Islam, Vol 2, No 04, 2014.
hujjah in settling the law. The concept of the
previous shari'a of the people/syar’u man Imam Yazid, Tafsir Ayat Ahkam Tentang Syar’u man
qablanâ is implemented in the field of sharia qablana Dan Kehujahannya Sebagai Dalil Hukum,
Al-Usrah: Jurnal Al Ahwal As Syakhsiyah, Vol. 5,
economic law (mu'âmalah mâliyyah)
No. 1, 2017.
including: (1) the Ju’âlah contract; (2) Ijârah
contract; (3) Dhamân Mâ Tafsadahu al- Jaih Mubarok dan Hasanudin, Fikih Mu’amalah
Maliyyah: Akad Ijarah dan Ju’alah, Bandung:
Dawwâb al-Mursalah; (4) the contract of
Simbiosa, 2017.
kafâlah bi al-wajh (bi al-nafs) and (5) the
contract of qismah muhaya’ah . , Fikih Mu’amalah Maliyyah: Akad
Tabarru’, (Bandung: Simbiosa, 2017.
Reference Kawakib, Yusuf, Hafdz dan Syuhud, Sadd Al-Dzarî’ah
A. Djazuli dan I. Nurol Aen, Ushul Fiqh: Metodologi Sebagai Dalil Hukum Islam (Studi Komparatif
Hukum Islam, Jakarta: PT RajaGrafindo Persada, Ibnu Al-Qayyim Al-Jauziyah Dan Ibnu Hazm), Al-
2000. Bayan: Jurnal Ilmu al-Qur'an dan Hadist, Volume
4, No.1. Januari 2021.
Abd al-Karim Zaidan, al-Wajȋz Fȋ Ushȗ al-Fiqh, Beirut:
Muasasah al-Risâsalah, 2015. M. Pudjihardjo, dkk, Ushul Fikih Ekonomi Syariah,
Malang: UB Press, 2021.
Abd al-Rahman Ibn Ibrahim Ibn Ahmad Abu
Muhammad al-Din al-Maqdisi, al-‘Uddah Syarh al- Muhammad Abu Zahrah, Ushȗl al-Fiqh, Kairo: Dâr al-
‘Umdah, Beirut: Dar al-Kutub al-‘Ilmiyyah, 0225. Fikr al-‘Arabȋ, t.th.

Abd al-Wahab Khalaf, ‘Ilm Ushȗl al-Fiqh, Kairo: Dâr al- Muhammad al-Khudari Beik, Ushȗl al-Fiqh, Kairo: Dâr
Rasyȋd, 2008. al-Hadȋts, 2003.

Abdul Helim, Memposisikan Kembali Syar’u man Muhammad Ibn Isma’il Abu Abdullah al-Bukhari,
qablana Sebagai Istinbat Hukum Islam, HIMMAH Shahȋh al-Bukhârȋ, Kairo: Dâr al-Hadȋts, 0228.
Vol. Vll No.20 September - Desember 2006.
Muhammad Rawas Qal’ahji, Mu’jam Lughat al-Fqahâ,
Abu Abdullah Ahmad Ibn Muhammad Ibn Hanbal Ibn Dar al-Nafais, Beirut, 1998.
Hilal Ibn Asad al-Syaibani, Musnad al-Imâm
Muhammad Syafi’i Antonio. Bank Syariah dari Teori ke
Ahmad Ibn Hanbal, Beirut: Muasasah al-Risâlah,
Praktik, Jakarta: Gema Insani Press, 2001.
2001.
Muslim Ibn al-Hajaj Abu al-Hasan al-Qusyairi al-
Abu Bakar Ibn Abi Syaibah, al-Kitâb al-Mushanaf Fȋ al-
Naisaburi, Shahȋh Muslim, Kairo: Dâr al-Hadȋts,
Ahâdȋts wa al-Âtsar, Riyadh: Maktabah al-Rusyd,
1997.
1409 H.
Musthafa Dib al-Bugha, Atsar al-Adillah al-Mukhtalif
Abu Dawud Sulaiman Ibn Al-Asy’ats Ibn Ishaq Ibn
Fȋhâ: Mashâdir al-Tasyrȋ’ al-Tabi’iyyah Fȋ al-Fiqh al-
Basyir Ibn Syidad Ibn ‘Amr al-Azdi al-Sijistani,
Islâmȋ, Beirut: Dâr al-Qalam, 2013.
Sunan Abȋ Dâwud, Beirut: al-Maktabah al-

Jurnal Ilmiah Mizani: Wacana Hukum, Ekonomi dan Keagamaan | 94

93
Panji Adam Agus Putra Vol. 09, No. 01, 2022
P-ISSN: 2355-5173 E-ISSN: 2656-9477

Musthafa Sa’id al-Khin, al-Kâfȋ al-Wâfȋ Fȋ Ushȗl al-Fiqh

al-Islâmȋ, Beirut: Muasasah al-Risâlah, 2000.

Panji Adam, Fikih Muâmalah Mâliyyah: Konsep, Regulasi

dan Implementasi, (Bandung: Refika Aditama,
2017.

, Fikih Muamalah Kontemporer:

Perkembangan Akad-Akad dalam Hukum
Ekonomi Syariah, Malang: Inteligensia Media,
2021.

Rachmat Syafe’i, Ilmu Ushul Fiqih, Bandung: Pustaka

Setia, 2015.

Sulaiman Abdullah, Sumber Hukum Islam:

Permasalahan dan Fleksibilitasnya, Jakarta: Sinar
Grafika, 2007.

Umar Abdullah Kamil, al-Qawâ’id al-Fiqhiyyah al-Kubrâ

wa Atsaruhâ Fȋ al-Mu’âmalât al-Mâliyyah, Kairo:
Universitas al-Azhar, t.th.

Wahbah al-Zuhaili, al-Mu’âmalât al-Mâliyyah al-

Mu’âshirah, Beirut: Dâr al-Fikr al-Mu’âshir, 0220.

Wahbah al-Zuhaili, al-Fiqh al-Islâmȋ wa Adillatuh, Beirut:

Dâr al-Fikr al-Mu’âshir, 0210.

Zaki al-Din Sya’ban, Ushȗl al-Fiqh al-Islâmȋ, Istambul:

Dâr Tahqȋq al-Kitâb, 2019.

Zumrotul Wahidah, Metodologi Hukum Islam

Perspektif Al-Ghazali, Media Keadilan Jurnal Ilmu
Hukum, Volume 11 Nomor 2, Oktober 2020.

94 | Jurnal Ilmiah Mizani: Wacana Hukum, Ekonomi dan Keagamaan