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Tuntutan pelaksanaan hukum syariat berkumandang di mana-mana.
Tuntutan pelaksanaan hukum syariat berkumandang di mana-mana.

Hukum Syariat Masih Berlaku? Q&A Islam

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IslamLib – Apakah hukum Islam yang sering disebut dengan hukum syariat masih bisa diberlakukan sekarang? Pertanyaan yang tak mudah dijawab, juga sensitif, apalagi di tengah-tengah maraknya tuntutan penerapan hukum ini di seluruh dunia Islam, termasuk di Indonesia pasca-reformasi.

Sebelum menulis lebih jauh, saya perlu menyampaikan beberapa catatan. Tuntutan penerapan hukum ini berkumandang membahana sejak dekade 80an sebagai bagian dari politik kebangkitan Islam (al-shahwah al-Islamiyyah). Kebangkitan ini menandai suatu era baru di dunia Islam modern sebagai akibat, antara lain, dari kemenangan revolusi Islam di Iran pada 1979.

Tuntutan ini sangat bisa dipahami sebagai bagian dari upaya umat Islam menyatakan diri sebagai suatu “blok peradaban” yang memiliki identitas berbeda dari peradaban-peradaban lain, terutama peradaban Barat yang dipandang hegemonik. Dengan kata lain, penerapan syariat adalah semacam manifesto politik bahwa umat Islam adalah kekuatan yang setara dengan bangsa-bangsa lain; bukan umat yang inferior.

Apa yang disebut dengan hukum syariat? Dengan sedikit simplifikasi, saya ingin katakan bahwa apa yang disebut hukum syariat pada dasarnya adalah hukum fikih yang literaturnya sebagian besar ditulis oleh sarjana Islam pada abad pertengahan. Memang ada perbedaan mendasar antara hukum syariat dan hukum fikih. Tetapi dalam prakteknya, keduanya nyaris identik. Karena itu saya tak terlalu mempersoalkan terlalu jauh perbedaan pengertian antara dua istilah itu dalam esei pendek ini.

Yang hendak mengkaji lebih jauh evolusi dan perkembangan hukum syariat ini, silahkan membaca karya Wael Hallaq: Shari’a – Theory, Practice, Transformation (2009).

Sekarang pertanyaannya: Apakah hukum syariat masih berlaku? Atau masih bisa diberlakukan? Jawabannya secara sederhana adalah sebagai berikut. Ada bagian-bagian dalam hukum syariat yang masih layak diberlakukan (ahkam syar’iyyah ma’mul biha), dan ada yang sudah tidak bisa sama sekali (ahkam syar’iyyah ghair ma’mul biha).

Bagaimana membedakan antara kedua kategori itu? Apakah ada semacam parameter dan kriteria yang jelas? Jawaban yang rinci untuk pertanyaan ini membutuhkan tulisan yang panjang dan mendalam. Secara ringkas, bisa saya katakan bahwa kriteria pokok untuk membedakan antara keduanya adalah konteks zaman, atau, memakai istilah fikih yang standar, ‘urf.

Rasa keadilan masyarakat berkembang sesuai dengan perkembangan zaman dan tingkat kematangan peradaban manusia. Dulu, misalnya, memperbudak tawanan perang (POW/prisoner of war) adalah hal yang lazim. Hukum syariat pun tidak melarang. Tetapi, sekarang, menjadikan tawanan perang sebagai budak (dalam istilah hukum Islam disebut istirqaq) jelas haram dan dilarang oleh konvensi internasional (Konvensi Jenewa tentang Perlakuan atas Tawanan Perang, Artikel 3).

Dulu hukuman salib adalah hal yang tidak dianggap secara moral kejam dan brutal. Qur’an pun masih mengadopsi hukum ini (QS 5:33). Sekarang, hukuman badan (corporeal punishment) tidak lagi diterima oleh komunitas internasional dan dianggap berlawanan dengan rasa keadilan masyarakat modern.

Dulu hukum nyawa balas nyawa dan mata balas mata (qisas) adalah praktek yang lumrah; bukan merupakan temuan orisinal dari Islam. Hampir semua bangsa pra-modern menerapkan hukum qisas ini. Sekarang, hukum itu dianggap tak lagi sesuai dengan rasa keadilan. Bahkan hukuman mati pun, sekarang, sudah banyak dipertanyakan landasan moral-etisnya.

Hukum syariat, sebagaimana hukum manapun, adalah hukum yang “time and space bound”, terikat dengan ruang dan waktu yang khusus. Ia kontekstual. Begitu ruang dan waktu berubah, relevansinya harus dipikirkan ulang. Kaidah ini berlaku untuk hukum manapun, tanpa kecuali, termasuk hukum syariat.

Dengan demikian, kita bisa mengatakan bahwa hukum syariat yang sudah tak sesuai dengan rasa keadilan masyarakat saat ini, ia tak bisa diberlakukan lagi. Contoh hukum syariat yang masuk kategori ini banyak sekali. Sekedar contoh: hukum rajam, potong tangan, qisas, hukum penyaliban, dsb.

Sementara banyak hukum syariat yang masih bisa berlaku sekarang. Hukum-hukum syariat yang berkenaan dengan kegiatan ritual seperti bagaimana salat, puasa, dan haji, hampir semuanya masih berlaku hingga sekarang. Sebab ritual memang wataknya permanen.

Hukum syariat tentang kegiatan perdagangan yang harus didasarkan pada dua prinsip, yaitu sukarela (taradlin) dan tak ada penipuan (ghassy), jelas masih relevan hingga kapan pun. Fair trade sebagaimana diajarkan oleh syariat adalah prinsip universal yang berlaku sampai kapanpun selama manusia masih ada di muka bumi.

Prinsip dasar yang dianut oleh hukum Islam adalah dua saja: adil (‘adl) dan tak mencederai pihak lain (la darara wa la dirara). Prinsip ini bersifat universal. Penerapannya (tahqiq al-manath) dalam suatu konteks tertentu bisa saja menimbulkan perbedaan tafsir antara satu sarjana dan sarjana yang lain. Tetapi sebagai sebuah nilai, ia berlaku universal.

Pertanyaan yang sudah bisa saya duga adalah sebagai berikut: Jika syariat harus mengikuti perkembangan rasa keadilan masyarakat yang bisa berubah sesuai dengan perkembangan peradaban, bukankah ini artinya Islam mengikuti zaman, bukan sebaliknya: zaman mengikuti Islam?

Jawabannya sebagai berikut. Ada dua jenis hukum dalam agama, sebagaimana saya kemukakan di muka. Ada hukum yang berlaku universal: seperti ajaran Islam tentang keadilan, perdamaian, kesetaraan, menghormati hak-hak orang lain, dsb. Hukum ini memang tak bisa berubah dengan perubahan zaman. Dalam hal ini, zaman harus mengikuti hukum agama, bukan sebaliknya.

Tetapi juga ada hukum-hukum yang “temporal”, berlaku sementara waktu saja, seperti hukum-hukum yang sudah saya sebut di atas. Sejauh menyangkut hukum-hukum temporal ini, kita tak bisa berkata bahwa zaman harus mengikuti hukum ini, apapun resikonya. Sebaliknya, hukum temporal harus mengikuti perkembangan zaman.

Penjelasan saya ini hanya bersifat umum saja untuk meletakkan landasan pokok bagaimana memahami hukum yang sering disebut hukum agama. Intinya: Tidak semua hukum syariat berlaku sepanjang zaman. Nabi sendiri tak menghendaki semua hukum agama berlaku sepanjang zaman. Nabi menghendaki umat Islam untuk berpikir kontekstual. Salah besar jika kita berpikir sebaliknya.[]

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