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Journal of Business and Tourism Special Issue: ICCSS, Indonesia

November, 2017

Makrum & Fitri 267 ISSN: 2520 - 0739

Terrorism: Considering Maslahah and Madharat in the Perspective of Maqâshid S

harî’ah

Makrum

Islamic Law Faculty of State Islamic Institute of Pekalongan, Indonesia

Email: [email protected]

Ahmad Asrof Fitri

Arabic Departement of Al-Aziz Islamic Institute Indramayu, West Java, Indonesia

[email protected]

Abstrak

This paper examines the positive (maslahah) and negative (madharat) aspects of

terrorism viewed by the maqâshid sharî’ah’s perpective. The writing is inspired by the facts

that since the attack on the World Trade Center (WTC) on September 11, 2001 and the

expansion of the United States into the Middle East, terrorist acts have become increasingly

widespread. The terrorists, who act in the name of jihad, seek the legitimacy of religious

texts. This raises a negative view among the wider community that Islam legalizes terrorism

to strengthen its position. In fact, this understanding is not true. The data obtained from

library research of various research results, books, and news in the mass media were analysed

by using a qualitative approach. The results of this study indicate that terrorism causes a lot

of madharat rather than mashlahah, at least causing bad image of Islam. In this case,

maqâshid sharî’ah jihad can be divided into three, namely: First, maqâshid âmmah jihad, i.e.

justice and freedom. Second, maqâshid khâshshah , namely.e. the fulfilment of the basic

human right to live. Third, maqâshid juz`iyyah , i.e. fighting oppression, protecting people

from outsiders threatening salvation, warning the polytheists to be consistent on the

agreement or the result of collective agreements, and eradicating disbelief. Terrorism which

has a religious motif in Islam arises because of the application of jihad ghairu muqtadhâ al -

hâl (regardless of the context of the problem and the type of solution required). If extremists

fully understand the concept of jihad muqtadhâ al -hâl (contextual, in a solutive way),

undoubtedly the acts of terrorism which they believe to be jihad fi sabilillah, will not be

pursued.

Keywords: terrorism, maslahah, madharat, maqâshid sharî’ah

Introduction

This paper examines the positive (maslahah) and negative (madharat) aspects of

terrorism by using maqâshid sharî’ah as a point of view. The writing of this article is inspired

by the available facts that since the attack on the World Trade Center (WTC) on September

11, 2001 and the expansion of the United States (US) into the Middle East, terrorist acts are

becoming increasingly widespread. Moreover, the study of terrorism since the event of 11

September 2001 received serious attention. The collapse of the WTC building that was hit by

Boeing 767 and Boeing 757 American Airlines seemed to be the first milestone in the study


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of terrorism that is attributed to the Islamic world. 1 Moreover, Al-Qaeda claimed its

responsibility for the incident and declared its actions in the name of jihad.

The case of terrorism acts is increasing in number after the US took a policy of

expanding into the Middle East under the pretext of fighting terrorists. The US occupation of

Afghanistan and Iraq has spawned a number of counter-attacks from extremists. Some of the

bombings are directed to US citizens in various countries. In Indonesia, the bombing of Sari

Club and Paddy's Club in Legian, Kuta, Bali (better known as Bali Bombing), is a testament

to the "jihadist" response to the US invasion of Iraq and Afghanistan that they value more

sadistic and cruel than the attack on the WTC twin buildings.2

The bombers consider their actions as a form of jihad to realize the welfare of Muslims

who are currently being oppressed by the infidels - the US and its allies. This can be seen

from the statement of Imam Samudra, one of the Bali bombers, as follows:

"... In my view, jihad is First, in terms of language, it means ‘must’. Second, jihad is a

term for being sincerely to enforce Islam. Third, the shari'a says that jihad is fighting

against the infidels and its allies, especially the greatest jihad today, the jihad of fighting

American terrorists and their allies that involved in the crusading against Muslims all over

the world."3

Then, the question is “Is it true that the acts of terrorism that they do can be categorised

as jihad fi sabilillah?” Under the pretext of bringing benefit to Muslims, can the actions of

these extremists be justified on the orders of jihad viewed from maqâshid sharî’ah

perspective? This study used a qualitative approach to assess the positive and negative

aspects of terrorism by using maqâshid sharî’ah as a point of view. Based on this analysis, a

thorough understanding of the legal istinbath process will be obtained. The data obtained

through library research of various research results, books, and news in various mass media.

Terorism, Radicalism, dan Fundamentalism

Etymologically, terrorism can be defined by the use of violence and intimidation,

especially for political purposes;4 the use of force to inflict fear in an attempt to achieve

certain goals, especially politics.5 In Islam, the terms attributed to terrorism include al-irhâb ,

1 Adian Husaini, Jihad Osama Versus Amerika, Jakarta: Gema Insani Press, 2001, p. 1-2.

2 Imam Samudra, Aku Melawan Teroris, Cet. 2, Solo: Jazera, 2004, p. 107-109.

3 Imam Samudra, Aku Melawan Teroris..., p. 108.

4 A. S. Hornby, Oxford Advanced Dictionary of Current English, Oxford: Oxford University

Press, 1987, p. 892.

5 B. N. Marbun, Political Dictionary, Jakarta: Pustaka Sinar Harapan, 2002, p. 530.


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al-hirâbah (robbery), qâthi 'ath -thâriq (robber), al-baghyu (rebellion), and al-'unf (opposite

of gentleness).6 The term al-irhâb comes from the word arhaba-yurhibu which means to

intimidate or threaten,7 and also to mean akhâfa which means to create fear, and fazza'a

which means to make horror.8 In the Qur'an itself, the terms related to jihad are physically

mentioned among others in surah. At-Taubah, 9: 29, 107, 123; Al-Maidah, 5: 33; and Ali

Imran, 3: 167.

The issue of terrorism is often associated with the movement of fundamentalism and

radicalism. According to Abu Ridho, fundamentalism (al-ushûliyah ) is an ideology that

tends to fight for something radically. While radicalism (al-judzriyah) is the idea that requires

change or social and political reform in a violent or drastic way. This understanding rejects

the gradual improvement of economic, social and political conditions.9 According to M. Dian

Nafi', the difference between fundamentalism and radicalism lies in the realm of its

implementation. Fundamentalism is still in the realm of ideology or thought, whereas

radicalism demands a real change in the form of action.10

One example of the fundamentalist movement that once coloured the history of Islam is

the Wahabi movement which was acclaimed Muhammad bin Abdul Wahab (1703-1792 AD),

which includes the theme of purification of Islam (purification). This movement is divided

into two, namely Wahabi Haraki and Tarbawi.

To realize his ideals, Wahabi Haraki proclaims jihadist movement destructively and

offensively, while Wahabi Tarbawi jihad through the provision of educational facilities and

infrastructure, worship, book procurement, and other educational things to spread their

understanding.11

6 Muhammad bin Mukarram bin Manzhûr Al -Afriqî Al-Mishrî, Lisân Al -'Arab, Juz 4, Beirut:

Dâr Shâdir, t.th., p. 97.

7 Ahmad Warson Munawwir, Al-Munawwir Dictionary, Surabaya: Progessif Library, t.th., p.

539.


Dâr Shâdir, t.th., p. 436. See also Louis Ma'luf, Al-Munjid fî Al-Lughah wa Al-A'lâm , p. 282.

9 Abu Ridho, Terrorism, Jakarta: Pustaka Terbiatuna, 2003, p. 97 and 101.

10 M. Dian Nafi ', the material was presented in "Capacity Building Training for All Elements

of Abah Luthfi Center Foundation", on Friday, August 28, 2015, in Ungaran, Semarang, Central Java.

11 Kaswar of Salenda, Terrorism and Jihad in the Perspective of Islamic Law, Cet. I, Jakarta:

Research and Development Agency and Ministry of Religious Affairs RI, 2009, p. 6-7.


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Referring to the definition of Nafi', Wahabi movement can be regarded as a movement

of fundamentalism, but also radicalism at once. In the context of thought, both Wahabi

Tarbawi and Haraki belong to the category of fundamentalist movement and radicalism,

because they not only play in the realm of understanding, but also practice, despite using

different and very contrasting methods - one is done subtly, while others use the way they

tend to be destructive. Nevertheless, there is a clear distinction between Wahabi Tarbawi and

Haraki, if referring to Abu Ridho's definition. Wahabi Tarbawi cannot be said to be a

radicalist movement because the methods that they use are not frontal and carried out

systematically. Unlike Wahabi Haraki who uses offensive actions to realize his idealism.

Therefore, Wahabi Haraki's movement includes the movement of radicalism.

According to Law no. 15 Year 2003 Article 6,

"Terrorism is an act perpetrated by anyone who deliberately uses violence or the threat

of violence to create an atmosphere of terror or fear of a widespread or massive victim by

seizing independence or loss of life and property of another person or causing damage or

destruction of strategic or environmental vital objects or public facilities or international

facilities."12

However, according to Azra, not all terror can be included in the category of terrorism. In

other words, the act of terror is not necessarily terrorism because terror may be perpetrated by

a criminal for personal and criminal purposes.13

Referring to Azra's view, it can be seen that

the motive of terrorism is much more complex and has communal elements than ordinary

crime. Terrorism usually has a more ideological and complex motive than a criminal

behavior that is generally driven by economic interests.14

Muniroh and Ahmad for example, stated that the discourse of terrorism is not always

related to the discourse of radicalism and religious fundamentalism. According to them,

terrorism has pushed into various fields and segments of human life. Terrorism not only

adorns social, legal, and cultural faces, but also politics. In fact, terrorism can be said to be

12

Law of the Republic of Indonesia Number 15 Year 2003 regarding Stipulation of

Government Regulation in Lieu of Law Number 1 Year 2002 on Eradication of Criminal Acts of

Terrorism. Elucidation of Article 6 can be seen in Government Regulation in Lieu of Law Number 1

Year 2002 on Eradication of Criminal Acts of Terrorism.

13 Azyumardi Azra, "Jihad and Terrorism", in Tabrani Sabirin (ed.), Sues Terrorism, Jakarta:

Karsa Rezeki, 2002, p. 70.

14 Abu Ridlo, Terrorism ..., p. 73.


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quite attached to the world of politics, because it can be used as a supporting justification at a

certain time or condition, but at other times it can also be a dangerous opponent.15

US political policy can be a real example of the argument. In combating terrorism, the

US uses a double standard that is far from objectivity. Since the incident of terrorist attacks

on September 11, 2001, the US is keen to invade countries in the Middle East. The 9/11 event

is used as a justification to legitimize its offensive policy. They strongly condemn terror

attacks in Western countries, but innocently, it supports Israeli aggression over Palestine.

In this context, there is a bias on the definition of terrorism. If a country commits acts

of terror over another country, is its action justified to be a right action? If a group fights

against a repressive and destructive government, is its action considered terrorism? More

specifically, if a country annexed another country by resorting to violence in order to achieve

its objectives, does it not include terrorism?

Therefore, it is necessary to clarify the criteria of actions that can be categorized as

terrorism. According to Kasjim Salenda, an act can be called terrorism if it meets the

following criteria:

1. There is an act of threats or illegal violence.

2. Such actions affect the society, whether physical, psychic, their property and public

facilities, both domestic and international scale.

3. Increase fear and panic of a group or community.

4. There is a goal or interest to be achieved by the perpetrators, who are generally political

nuances.

5. Victims of action are not always directly related to the objectives to be achieved.

6. The perpetrator may be an individual, an organized group, or a ruler within a legitimate

government.16

However, the criteria offered by Salenda seem to use only one point of view: from

government or country only. This can be viewed from the first point that states the legality of

an act of violence. In other words, Salenda states, if an act of terror is conducted illegally,

15

Siti Mumun Muniroh and Maghfur Ahmad, Women Behind Terrorists: Religiosity,

Adjustment and Relationship Pattern, Pekalongan: Ministry of Religious Affairs of the Republic of

Indonesia, 2013, p. 37-38.

16 Kaswar of Salenda, Terrorism and Jihad in the Perspective of Islamic Law, Cet. I, Jakarta:

Research and Development Agency and Ministry of Religious Affairs RI, 2009, p. 85.


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then it will be labelled as terrorism. However, if it is conducted by state order, the act may be

justified.

The first criterion raises the understanding that the state is authorized to create chaos

that is available for specific purposes. When a country experiences difficult times, the

government is allowed to perform repressive actions, both in the form of threats and terror

with the pretext of maintaining state stability. Therefore, according to the author's opinion,

the first criterion needs to be changed into: the existence of threats or violations that are

inconsistent with the law and universal values, whether committed by a group or a state.

Thus, any terror action deliberately set by the state for a particular interest can be categorized

into terrorism. Similarly, the act of annexation of a state over another country by the way of

terror, including acts of terrorism, or even be regarded as colonialism.

The Evolution of the Meaning of Jihad

Linguistically, jihad is derived from the words "al-juhdu" and "al-jahdu" which means

ability (ath-thâ qqah), difficulty (al-masyaqqah), and effort (al-wus'u). From these two words

then develop the term ijtihad which means an outpouring of all efforts to probe the legal

provisions of the Qur'an and As-Sunnah through the qiyas method; and the term jihad is

defined as fighting the enemy by expending all effort and ability, either through speech or

deeds.17

Jihad, according to Romli and Sjadzili, undergoes a meaningful evolution that, in

chronologies, can be categorised in six stages. Firstly, during the phase of Makkah (610-622

AD). Here Jihad means an individual struggle in the face of difficult Muslim conditions

because of the actions of enemies of Islam. Secondly, jihad means individual and communal

struggles with the Makkah polytheists, in the form of material, psychological, and spiritual

sacrifices when the hijra. Thirdly, jihad means fighting the infidels who want to attack

Muslims in Medina. Fourthly, jihad also means fighting until the polytheists in Makkah will

believe, which occurs during the fathu Makkah and afterwards. Fifth, jihad still means war,

targeting those who deny the religious teachings of the scribes and who violate the Medina

17

Muhammad bin Mukarram bin Manzhûr Al -Afriqî Al-Mishrî, Lisân Al -'Arab, Juz 3, Beirut:



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Charter (Mitsaq Madinah). Sixth, jihad changes its meaning into a spiritual and moral

struggle in the face of life problems.18

In this case, jihad experiences contextualization of meaning according to the condition

of Muslims. In fact, in the early days of the development of Islam, jihad is not only

interpreted by war. Referring to the opinions of Romli and Sjadili, jihad has four meanings,

including psychological sacrifices (bears on the torture of the polytheists), spiritual

(reinforcing the faith in responding to problems that arise), material (providing material aid

for Islamic propagation), and physical (war). Among of the six meanings of jihad expressed

by Romli and Sjadili, there are three meanings of jihad which mean war, but it does not

necessarily indicate that jihad is identical with warfare. However, at that time, the situation

and conditions demanded that Muslims must defend themselves against the infidels' attacks,

thus inevitably having to fight to protect their rights.

In the current context, in countries where the rights of Muslims are ensured, the

relevant form of jihad is spiritual jihad through academic (intellectual) and social efforts to

overcome life challenges and difficulties. However, in a conflict-prone country that causes

oppressions to Muslims, such as in Palestine, the meaning of jihad as a war or physical

resistance, is considered to be more relevant, because Muslims in Palestine are the victims of

Israeli atrocities that illegally annex Palestinian territories.

This is in line with Majid Khadduri's statement that Islam permits jihad (in the sense of

war) in order to defend the sovereignty of the state, which is divided into three forms. First,

fighting for the sovereignty of a foreign invasion (occupation or annexation state). Second,

expand territory of Islam. And third, protect against the attacks of Muslims who undermine

the integrity of the state. In fact, if Muslims are attacked by enemies (other countries), then

all members of society, including women and children, are required to defend the sovereignty

of the state. The law of jihad which was originally fardhu kifayah rose its level to fardhu

'ain.19

Terrorism in Islamic History and Contemporary Period

18

Moh. Guntur Romli and A. Fawaid Sjadzili, From Jihad to Ijtihad, Jakarta: LSIP, 2015, p.

14-15.

19 Majid Khadduri, War and Peace in the Law of Islam, Virginia: The William Byrd Press,

1955, p. 59-62.


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In the history of Islam, terrorism is identical with the existence of the Khawârij, the

group of followers of Alî bin Abî Thâlib who came out and broke away because of

disillusionment over Alî's policy of doing tahkîm (arbitration) to settle the dispute with

Mu'âwiyah bin Abî Sufyan. The Khawârijs then disbelieved Alî and Mu'âwiyah and all those

who agreed with the policy, with the consequences they may be killed for being political

opponents.20

According to Azra, Khawârij is indeed synonymous with acts of terrorism,

using acts of violence. They do not even hesitate to commit murder and mistreatment of

people who disagree, both in religion and politics.21

Even so, before the Caliphate of Alî bin Abî Talib, precisely at the time of Caliph

Utsmân bin Affân, ripple of terrorism has emerged. Various rebellions took place in Islamic

jurisdictions because of the dissatisfaction of the Utsmân government which was considered

wasteful in the use of the treasures of the baitul mal and gave the title only to his family of

Umayyad descendants. This is further exacerbated by the propaganda of Abdullah bin Saba`

which says that Alî bin Abî Talib should be appointed as caliph after the death of the Prophet.

The propaganda managed to inflame the spirit of the supporters of Alî and those who disliked

Uthmân's Khalîfah, who ultimately attacked Madinah and killed Uthmân ibn Affân.22

Violent acts of guilt also occurred during the Abbasid period, the era of the Caliph Al-

Ma'mûn (813 -833 H), Al-Mu'tashim (833-842 H), and Al-Watsiq (842-847 H). The

Mu'tazilite Caliphs impose their understanding that the Qur'an is a being. In fact, the scholars

joined the victims, one of whom is Imam Ahmad bin Hanbal, who was thrown into prison. In

Shi'a, there is an Assassin Sect, an extremist splinter of Ismaili Shi'ah, led by Hassan Ash-

Shabah. He permitted the killing of his political opponents from the Bani Saljuq in the 11th

and 13th

centuries.23

It also used the extreme Isma'ili Islami doctrine that encouraged the

seizure of both urban and mountainous areas. Many people became the victims of this group's

ferocity. One of them was Nizam Al-Mulk, the minister of the Sultan of Baghdad. His terror

20 Kasjim Salenda, Terorisme dan Jihad..., p. 2. Lihat juga, Harun Nasution, Teologi Islam:

Aliran-aliran, Sejarah Analisa Perbandingan, Jakarta: UI-Press, 1986, p. 6-7, 11-13.

21 Azyumardi Azra, "Jihad and Terrorism", in Tabrani Sabirin (ed.), Sues Terrorism, Jakarta:

Karsa Rezeki, 2002, p. 72-73.

22 Abu Ja’far Muhammad bin Jarir Ath-Thabari, Târîkh Ath-Thabari: Târîkh Ar-Rasûl wa Al -

Mulûk , Juz III, Kairo: Dar Al-Ma’ârif, 1963, p. 450-465.

23 The Chief of Salenda, Terrorism and Jihad ..., p. 3.


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continued to spread to Persia, Syria and Palestine. The majority of the victims they killed

were Sunni Muslims.24

From the early twentieth century up to now, terrorist groups have sprung up since the

establishment of the Ikhwanul Muslimin.25

Although, it is not directly responsible for the

birth of extremist groups, the Ikhwanul Muslimin is considered to be the "inspiration" of

resistance to colonialism and oppression. This theory is related to the birth of a terrorist group

as a splinter of the Ikhwanul Muslimin, it was not purely born from the Ikhwanul Muslimin's

womb. Salenda noted that the pattern of the Ikhwanul Muslimin's struggle can be grouped

into two, namely the Ikhwanul Muslimin version of Hudaibism which took the parliamentary

path (demanded systemic change) and the Qutbism Ikhwanul Muslimin opted for a radical

way. At a later stage, this Qutbism version of the Ikhwanul Muslimin inspired the birth of a

group of thought-shaped splits radicals, such as Tanzhim Al-Jihad, At-Takfir wa Al-Hijrah,

Al-Jama'ah Al-Islamiyah, and An-Najun min An-Nar.26

In addition to Egypt, the terrorist movement also existed in Afghanistan, formed by

Osama bin Laden with the name Al-Qaeda. Originally, the movement was established with

the aim of recruiting and financing Arab mujahedeen in the battle against the Soviet Union in

Afghanistan. However, in later developments, Osama bin Ladin expanded his jihad field by

joining other radical organizations, such as the Taliban.27

Al-Qaeda also has a major role in

the emergence of a number of terrorist groups, including the Islamic State in Iraq Syria

(ISIS). Although "officially" established in 2013, the embryo of ISIS has existed since 2004.

24

A. M. Hendropriyono, Terrorism: Fundamentalist, Christian, Judaism, Islam, Jakarta:

Kompas, 2009, p. 57.

25 The Ikhwanul Muslimin Movement was formed by Hasan Al-Banna in 1928 in response to

the British government's occupation of Egypt, as well as the rise of Christianization and secularization

among Egyptian society due to British influence. Therefore, at first, the Ikhwanul Muslimin intended

to liberate Muslims in Egypt from British colonization, as well as straighten their creed and lifestyle

that began to be contaminated by Western culture. To confront the threat of Britain and Israel, Hasan

Al-Banna formed Tanzhim al-Khash in 1940 which eventually took to the battlefield between

Palestine against Israel in 1948 and defeated the Israeli army. See A. Yani Abeveiro, "Starting from

Al-Ikhwan Al-Muslimun; Shouting Jihad Spreads Terror ", in A. Maftuh Abegebriel, A. Yani

Abeveiro, and SR-Ins Team, State of God; The Thematic Encyclopaedia, Cet. 1, Jakarta: SR-Ins

Publishing, 2004, p. 287-289.

26 The terms Hudaibism and Qutbism appear to be derived from the names of Ikhwanul

Muslimin leaders who have contradictory thoughts. The Hudaibism version was pioneered by Hasan

al-Hudaibi, the leader of the Ikhwanul Muslimin post Hasan Al-Banna, who tended to be

compromising the political and peaceful path. The Qutbism version is driven by Sayyid Qutb, who

calls for jihad and physical resistance (war). The Chief of Salenda, Terrorism and Jihad ..., p. 175-

178.

27 Kasjim Salenda, Terrorism and Jihad ..., p. 185-186.


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Historically, the origin of ISIS is inseparable from the existence of Tawheed wa Al-Jihad, the

insurgent group against America and its allies. The group's leader, Abu Mushab Al-Zarqawi

of Jordan, later declared al-Qaeda's allegiance (bai’at). However, in June 2006, Al-Zarqawi

was declared dead and replaced by Abu Hamzah Al-Muhajir, which was later taken over by

Abu Umar Al-Baghdadi.28

On October 15, 2006, the group of Tawheed wa Al-Jihad then allied with various tribes

in Iraq. The combination of Tawhid wa Al-Jihad and the tribes in Iraq then formed the Islamic

State in Iraq (ISI) and chose Abu Umar Al-Baghdadi as the leader.29

After fighting the US and

Iraqi government for 4 years, in 2010 Abu Umar al-Baghdadi was killed. The ISI Command fell

into the hands of Abu Bakr Al-Baghdadi.30

On April 17, 2013, the ISI declared independence

from Al-Qaeda fi Al-Iraq (AQI). After leaving AQI, Al-Baghdadi officially proclaimed the

establishment of the Islamic State of Iraq and the Levant/Syria (ISIL/ISIS).31

History of Maqâshid Sharî’ah Study

Etymologically, maqâshid sharî’ah derives from the two words: maqâshid and sharî'ah.

Maqâshid (plural of the word maqshûd ) means purpose,32

whereas sharî'ah means "the way to

water".33

Shaltut defines sharî'ah as the rules created by God to be a guidance for

mankind in arranging its relationship with God, human (both Muslim and non-Muslim),

nature, and whole life.34

Thus, maqâshid sharî’ah can be defined as the purpose of Allah and

His Messenger in formulating Islamic laws. Such a purpose can be traced in verses of the

28 Reno Muhammad, ISIS: The Cruelty of Global Conspiracy, Cet. I, Bandung: Noura Books,

2014, p. 29-30.

29 Reno Muhammad, ISIS: The Cruelty of Global Conspiracy ..., p. 31.

30 Aaron Y. Zelin, "Al-Qaeda Announce an Islamic State in Syria", in The Washington Institute

for Near East Policy, on April 9, 2013.

31 Reno Muhammad, ISIS: The Cruelty of Global Conspiracy ..., p. 31-32. Al-Qaeda's top

official officially declared a severance of al-Qaida's relationship with ISIS on February 2, 2014. See,

Aaron Y. Zelin, "Al-Qaeda Disaffiliates with the Islamic State of Iraq and al-Sham", in The

Washington Institute for Near East Policy, on 4 February 2014.

32 Hans Wehr, A Dictionary of Modern Written Arabic, London: Mac Donald & Evan Ltd.,

1980, p. 767.

33 Muhammad bin Mukarram bin Manzhûr Al -Afriqî Al-Mishrî, Lisân Al -'Arab, Juz VIII,

Beirut: Dâr Shâdir, t.th., p. 175.


November, 2017


34 Mahmud Syaltut, Islam: 'Aqeedah wa Sharî’ah, Cairo: Daar al-Qalam, 1966, p. 12.

Qur'an and hadith as a logical reason for the formulation of a law oriented to the benefit of

man.35

Most Muslim academics use the thoughts of Asy-Syatibi when they discuss maqâshid

sharî’ah. He was mentioned as a scholar who popularized maqâshid sharî’ah in the study of

ushul fiqih. However, according to Raisuni, maqâshid sharî’ah has actually been developed

by the Mujtahids before Asy-Syatibi. According to Raisuni, the term maqâshid itself was first

used by At-Turmudzi Al-Hakim which mentions the term maqâshid sharî’ah in his books,

among others Al-Shalat wa Maqâshiduha, Al -Hajj wa Asraruh, Al-'Illah, 'Ilal Ash-Sharî’ah,

and 'Ilal Al-'Ubudiyyah.36

However, to be investigated further, de facto, the use of the principle of maqâshid

sharî’ah in istinbath al-ahkâm actually already existed since the time of the scholars of the

mazhab. Imam Malik ibn Anas (d.164 H) in the Book of Al-Muwaththa' for example, has

written a tradition narrated on the case of the use of maqâshid in the days of the Companions

of the Prophet. After that, Imam Asy-Shafi'i (w. 204 H) in his book, Ar-Risâlah, mentions

ta'lil al-ahkâm (the search for reasons of laws) and some elements of maqâshid kulliyât such

as hifzh an-nafs and hifzh al-mâl .37

After Imam Asy-Shafi'i, Al-Hakim At-Turmudzi appeared, followed by Abu Bakr

Muhammad Al-Qaffal Al-Kabir (w. 365 H) with his Mahâsin Ash-Sharî'ah which reviewed

the reasons and wisdoms of a law to be more easily understood and accepted by humans.

Thereafter, there is Ash-Shaykh Ash-Shadiq (w. 381 H) in his book 'Ilal Asy-Syarâ'i' wa Al-

Ahkâm collected ta'lil al-ahkâm narrations from Shi’a scholars, and Al-'Amiri (w. 381 H)

through his work Al-I'lam bi Manaqib Al-Islam which alludes to adh-dharû riyât al -khamsah

(five aspects of the primary needs of human life: keeping religion, soul, mind, descent, and

possessions).38

Imam Al-Juwaini (d.478 H) came after him by examining three aspects of human need

(dharû riyâ t, hajiyâ t, and tahsȋniyâ t) in his work, Al-Burhân fi Ushûl Al -Fiqh. Then there was

Imam Al-Ghazali (w 505 H) which discussed some methods of knowing maqâshid , while

35 Satria Effendi M. Zein, Ushul Fiqih, Jakarta: Kencana, 2005, p. 233.

36 Ahmad Ar-Raisuni, Nazhariyyat Al-Maqâshid 'inda Al -Imam Asy-Syathibi, Beirut: Al-

Muassasah Al-Jami'iyyah Li Al-dirasat wa Al-Nasyr wa Al-Tauzi', 1995, p. 32.

37 Ghilman Nursidin, Construction of Thought Maqâshid Syarî'ah Imam Al-Haramain Al-

Juwaini (Socio-Historical Review), Synopsis of Thesis, Semarang: IAIN Walisongo, 2012, p. 9.

38 Ghilman Nursidin, Construction Thought Maqâshid Syarî'ah ..., p. 9-10.


November, 2017


offering a way to keep maqâshid sharî’ah through two sides, namely al-wujud (affirming its

existence) and al-'adam (guarding of things that can ruin it). After that, there was the Imam

of Ar-Râzi (w 606 H), then Al-Amidi (w 631 H), Izzuddin Abdussalam (660 H), Al-Qarafi

(684 H), Najmuddin Ath-Thufi 716 AH), Ibn Taymiyyah (728 AH), Ibn Al-Qayyim Al-

Jawziyah (pp. 751 AH), and then followed by Asy-Syatibi.39

However, according to Nawir Yuslem, Asy-Syatibi was the third person after Imam Al-

Haramain Al-Juwaini and Al-Ghazali, who developed the theory of maqâshid . Al-Juwaini

was the man who first developed the (pioneer) maqâsh id sharî’ah. While Asy-Syatibi

repeated and referred the ideas that have been matured by Al-Ghazali, who previously was

initiated by Al-Juwaini.40

Method of Identifying Maqâshid sharî’ah

According to Abdul Wahab Khallaf, the content of the Qur'an as the main source of

Islamic law, can be classified into three broad categories. First, aqidah, which deals with the

fundamentals of faith. Second, khuluqiyah, which is related to ethical and moral issues.

Third, amaliyah, which is related to human speech and deeds. 41

Islamic law has certain

characteristics that make it different from other laws. The Islamic scholars explore the trait of

the characteristics by performing a series of identification of various laws and the process of

determination made by Allah as the Maker of Shari'a (Ash-shâri’). Although scholars

disagree on some of the characteristics of Islamic law, in general the principle they express

has the common point.

Kasjim Salenda identifies the five characteristics of Islamic law, among others: First,

universal or relevant to all mankind, when and where they are. Islamic law still protects those

who are non-Muslims. Second, it is elastic and dynamic. Elasticity of Islamic law is to

respond to various problems that arise. Therefore, Islamic law concerns with various aspects

of life such as the areas of worship, muamalah, morals, jinâyah , and siyâsah (politics). This

39 Ghilman Nursidin, Construction Thought Maqâshid Syarî'ah ..., p. 10.

40 Nawir Yuslem, "Maqâshid Ash-Sharî'ah Al-Ghazali on the Development of Islamic Law" in

Amir Mahmud (ed.), Islam and Social Reality in the Eyes of Indonesian Muslim Intellectuals, Jakarta:

Edu Indonesia Synergy, 2005, p. 241.

41 Abdul Wahhab Khallaf, Ilm Ushul Fiqh, Beirut: Daar al-Fikr, t.th., p. 32.


November, 2017


dynamicity of Islamic law allows for a change of law in accordance with the changing illat

that lies behind a case.42

Third, Islamic law is perfect and systematic, which contains fundamental principles that

cover all dimensions of human life in a global form related to human relationships with God,

human beings with humans, and people with the environment. Fourth, humanity and

morality, namely Islamic law contains social solidarity that teaches the virtues that directly

come into contact with the intent of human beings, both material and non material. Fifth, is

ta'aqquli in the realm of worship mahdhah and ta'abbudi in the realm of mu'amalah.43

Those characteristics of Islamic law are in line with the purpose of establishing the

Shari'a (maqâshid sharî’ah), namely bringing benefit to humanity and rejecting all forms of evil. Jasser Auda classifies maqâshid into three. First, Maqâshid â mmah, the common values

and meanings that exist in all tasyri conditions' or in most of them, such as justice, freedom, and

convenience. Second, maqâ shid khâshshah , are serious benefits and values to be realized in a

special chapter in the law, such as providing a deterrent effect (on the application of

Qisas) and eliminating gharar (vagueness) in Muamalah. Third, maqâ shid juz`iyyah, are the

purpose and values to b e realized in specific legislation, such as honesty and rote learning

objectives in the provision of the number of witnesses that is more than one person,

eliminating the problem of the permission of not fasting for those who cannot afford since

there udzur shar'i.44

In the view of Asy-Syatibi, maqâshid sharî’ah can be seen from two points of view.

First, based on the purpose of Allah as the Maker of Sharî’ah (qashdu Ash-Shâri '). Secondly,

based on the objective of the man who is exposed taklȋf law (qashdu al-mukallaf). The first

viewpoint contains four aspects, namely God's original purpose in setting Shari'a (qashdu

ash-shâri’ fi wadh’i ash-sharî’ah ibtidâ`an ), the purpose of the determination of law as

something that can be understood (qashdihi fi wadh’iha lil ifhâm ), the purpose of the

establishment of shari’a as something that must be conducted according to the context

42 Kasjim Salenda, Terrorism and Jihad .., p. 46-51. There is a rule that says, "Al-hukmu yadûru

ma'a illatih wa sababih wujûdan wa 'adaman " which can be interpreted by "the existence of a law

relating to the presence or absence of illat (reason) or the accompanying cause". Therefore, God

associates a law with a cause or reason. If the cause or reason is lost, then the rule also declines. See

Ibn Qayyim Al-Jawziyya, I'lam al-Muwaqqi'in 'an Rabb al-Alamin, Juz 4, Maktabah Syamilah, t.th.,

p. 414.

43 Kasjim Salenda, Terrorism and Jihad ..., p. 51-58.

44 Jasser Auda, Maqâ sid Al-Shari’ah as Philosophy of Islamic Law: A Systems Approach,

Herndon: The International Institute of Islamic Thought, 2007, p. 5.


November, 2017


(qashdihi fi wadh’iha li at-taklif bi muqtadhahâ ), and the purpose of God to bring people

into the shade of the Shari'a (qashdihi fi dukhul al-mukallaf tahta hukmiha).45

To understand maqâshid sharî’ah, the scholars use three approaches, namely: First,

consider the meaning of zahir lafadz. Second, consider the inner meaning and reasoning.

Third, combine the meaning of zahir, inner meaning, and reasoning.46

In order that the three

approaches to be applied, the Mujtahids need to look at the following four aspects: (1) clear

orders and restrictions on ashl; (2) illat command and prohibition; (3) principal purposes or

objectives (al-maqâshid al -ashliyah) and supplementary (al-maqâshid at -tabi'iyah); and (4)

the absence of information or silence of Asy-Syâ ri'.47

In this case, the silence of the

Sharî’ah-maker (sukut Ash-shâri’) is divided into 2, i.e. silence in the absence of motivator

motives, and silence despite the driving factors.48

Asy-Syatibi added, to identify maqâshid sharî’ah, there are several steps that can be

done. First, understand the purpose of legislation of a law through the logic of language in

Arabic. Second, to understand al-amr and an-nahy in sharî’ah texts, both textually and

contextually. Third, understand the primary goals (al-maqâshid al -ashliyah) and secondary

(al-maqâshid at -tabi'iyah). Fourth, apply the induction method (istiqra').49

Meanwhile,

Yusuf Al-Qardhawi also provides insight into how to know maqâshid sharî’ah, namely by (1)

examining every illat (reason of law), either expressed (manshushah) or implied (ghairu

manshushah) in the Qur'an and Hadith, then (2) examine and analyse the laws of a particular

nature to conclude the mind of the result of its integration.50

Maslahah as Maqâshid Sharî’ah Orientation

According to the linguistics, maslahah has several meanings, among them is goodness,

usefulness, merit, feasibility, harmony, and propriety. The opposite of maslahah is mafsadah

45 Abu Ishaq Ibrahim ibn Musa ibn Muhammad Asy-Syatibi, Al-Muwafaqâ t fi Ushul asy-

Syari'ah, Volume II, Cet. I, Saudi Arabia: Daar Ibn Affan, 1997, p. 7-8.


Sharî’ah, Volume II, Beirut: Daar Pole al-Ilmiyah, 2003, p. 392-393.


Sharî’ah, Volume II, Beirut: Daar Pole al-Ilmiyah, 2003, p. 393-403.

48 Totok Jumantoro and Samsul Munir, Kamus Ilmu Ushul Fikih, t.tp .: Amzah, 2005, p. 197-

198.

49 Muhammad Khalid Masud, Islamic Legal Philosophy: A Study of Abu Ishaq Al-Syatibi's Life

and Thought, New Delhi: International Islamic Publishers, 1989, p. 221-225.

50 Yusuf Al-Qardawi, Fiqh Maqâshid Syarî'ah: Islamic Moderation between Textual Flow and

Liberal Flow, translated by Arif Munandar Riswanto, Jakarta: Al-Kautsar Library, 2007, p. 23-25.


November, 2017


which means damage.51

Meanwhile, there are several definitions of the term stated by the

scholars. In the view of Al-Ghazâlî for example, maslahah is attracting benefit and denying

danger (jalb al-manfa'at wa daf'u al-madharrat). Maslahah also means the effort to preserve

and realize the purpose of the five Sharî’ah (hifzh ad-din, an-nafs, al-'aql, an-nasl, wa al-mâl

). Conversely, the actions that can disturb or damage the five things are categorized as

mafsadah.52

According to Najmuddin Ath-Thufi, urf (custom), maslahah is the cause of good and

benefit, as well as a trade that causes a person to gain profit. Meanwhile, from the side of the

Shari'a, maslahah is the cause that leads to the purpose of Asy-Syâri ' (Allah), both related to

worship and muamalah.53

Based on the presence or absence of the authenticity of nash shari’a justification,

maslahah is divided into three types. First, maslahah that has legal basis in the shari'a texts

and accepts (maslahah mu'tabarah). Second, maslahah that does not have a legal basis in the

texts, but rejects (maslahah mulghah). 54

Third, maslahah that does not get ash-shari’a

justification, either to acceptance or rejection (maslahah mursalah).55

According to Thahir bin Assyria, maslahah is divided into two kinds. First, maslahah

âmmah , that is something that contains the good/benefit for society in general. Second,

maslahah khâshshah , that contains benefit that is only perceived by individuals or certain

parties. The first kind of maslahah is the main goal of law-making in the Qur'an and



52 Muhammad Al-Ghazali, Al-Mustashfa min 'Ilm al-Ushul, Juz 1, Beirut: Muassasah Ar-

Risalah, 1997, p. 416-417.

53 Mushtofa Zaid, Al-Mashlahat fi At-Tasyri Al-Islamiy wa Najmuddin Ath-Thufi, t.tp .: Daar al-

Fikr Al-'Arabiy, 1964, p. 211.

54 This maslahah is rejected because the element of miscommunication is much greater than its

benefits. For example, is the prohibition of khamr and gambling in the QS. Al-Baqarah: 219. In the

verse it is recognized that in khamr and gambling there are benefits for humans. However, the

negative impact caused by both is far greater than the positive side. Therefore, Islam forbids taking

khamr and gambling.

55 Abu Hamid Muhammad bin Muhammad Al-Ghazali, Al-Mustashfa min 'Ilm al-Ushul, Juz I,

Beirut: Muassasah Ar-Risalah, 1997, p. 414. Muhammad Adib Salih gives an interesting account of

the definition of maslahah mursalah. He sees maslahah mursalah as maslahah that is not mentioned

explicitly in the texts, but the maslahah is included in the scope of discussion and purpose of the

Shari'a. Since no texts cancel or support their existence, they are called mursalah (apart from the

scope of the Shari'a). See Muhammad Adib Salih, Mashdar at-Tasyri 'al-Islamiy wa Manahij al-

Istinbath, Cairo: Daar al-Fikr, t.th., p. 466.


November, 2017


Sunnah.56

Jamil argues, this categorization of maslahah is related to the priority scale if there

is a conflict between the common maslahah and the personal maslahah. When the two

maslahahs are opposite, Islam prioritizes the common maslahah rather than personal

maslahah.57

Izzuddin bin Abdus Salam proposed a different classification of maslahah. According

to him, maslahah can be categorized into three types. First, the maslahah that are contained

in issues that are allowed (maslahah mubâhah ). Second, the maslahah contained in the

affairs of the nature of sunnah (maslahah mandû bah). Third, maslahah that are mandatory

(maslahah wâjibah ). Meanwhile, mafsadah can be divided into two kinds. First, mafsadah

contained in things that are makrû h (mafsadah makrû hah). Second, the mafsadah that is

haram in nature (mafsadah muharramah). Something that is considered to be maslahah if it

meets two criteria (dawâbith al -maslahah).58

First, maslahah is absolute. It means that it has

relative or subjective elements that allow it to be subject to lust. Secondly, maslahah is

universal (kulliyyah) and its universality is not contradictory with its particular part

(juz’iyyah).59

To identify the maslahah, according to Muhammad Hashim Kamali, there are several

ways that can be conducted, namely (1) studying the sharî’a texts, especially related to the

command (al-amr) and the ban (an-nahy); (2) explore the illat and wisdom contained in the

shari’a texts; and (3) do istiqra'. The identification of maslahah through the study of nushû sh

ash-sharî’ah is embraced by the scholars of Islamic law theorists who tend to be textual, such

as Madzhab Zhahiri. The second way of identifying maslahah, through the searching process

of illat and wisdom, which is used by the majority of scholars. The third, istiqrâ ', that is

recommeded by Abu Ishaq Asy-Syatibi.60

56 Tâhir ibn 'Âsyûr, Maqâsid al -Syarî'ah al-Islâmiyyah , Cairo: Daar as-Salâm, 2006, p. 63.

57 Fathurrahman Djamil, Philosophy of Islamic Law, Cet. I, Jakarta: Logos Wacana Science,

1997, p. 124.

58 Izzuddin bin Abdus Salam, Qawa'id Al-Ahkam fi Mashalih Al-Anam, Juz I, Beirut: Daar Al-

Jail, 1980, p. 9.

59 Muhammad Khalid Mas'ud, Shatibi's Islamic Law, Islamabad: Islamic Research Institute,

1995, p. 157-159.

60 Mohammad Hashim Kamali, The Dignity of Man: An Islamic Perspective, Kuala Lumpur:

Scientific Publisher, 2002, p. 93.


November, 2017


According to Asy-Syatibi, the maslahah that is the main goal of Islamic law is only

realized if it meets the three levels of human needs, namely the primary needs (dharû riyât ),

secondary needs (hajiyât ), and complementary needs (tahsȋniyât ).61

At the dharû riyât level (primary), there are five key elements that must be well

preserved. The five elements include the maintenance of religion (hifzh ad-dîn), soul (hifzh

an-nafs), descendants (hifzh an-nasl), treasures (hifzh al-mâl ), and reason (hifzh al-'aql).62

Al-Qarâfî adds one more element, namely the protection of self-esteem (hifzh al-'irdh).63

Said Ramadan Al-Buthi states, to realize the maslahah, there are five criteria that must

be met. First, prioritizing shara' goals. Second, it does not contradict the Qur'an. Third, it is

not against As-Sunnah. Fourth, it is not contrary to the principle of qiyas because qiyas is one

of the ways istinbath law which has the main purpose: bring maslahah to mukallaf. Fifth,

notice the greater maslahah that can be achieved.64

To make maslahah mursalah as the rule of law, the Maliki and Hanbalî madhhab

scholars set three conditions. First, the maslahah is in line with the will of shara' and includes

the kind of benefit that is supported by the texts in general. Second, the maslahah is rational

and definite, not approximate, so the law really benefits and negates the madharat. Third, the

maslahah concerns the interests of the people, not personal or certain group’s interests.65

However, with regard to the third condition, according to Al-Ghazali, the maslahah should not

necessarily be related to the interests of the people. As long as it belongs to the dharuriyât

(primer) category maslahah, it is acceptable, although it only concerns the private maslahah.


Sharî’ah, Volume II, Cairo: Mustafa Muhammad, t.th.,, p. 25.

62 Abu Ishaq Ibrahim ibn Musa ibn Muhammad Asy-Syatibi, Al-Muwafaqâ t fi Ushul ash-

Shari’ah, Jilid II, Beirut: Dar Kutub al-Ilmiyah, 2003, p. 10. See too, Abu Hamid Muhammad bin

Muhammad Al-Ghazali, Al-Mustashfa min ‘Ilm Al-Ushul, Juz I, Beirut: Dar Al-Kutub Al-Ilmiyyah,

1983, p. 286-287.

63 Shihâb al-Dîn al-Qarafi, Syarh Tanqîh al-Fusûl fi Ikhtisâr al -Mahsûl fi al -Usûl , Egypt: al-

Mathba'ah al-Khairiyyah, 1307 H. One contemporary Muslim thinker, Jasser Auda, places these six

things As the most fundamental element for human life. See Jasser Auda, Maqâ sid Al-Shariah as

Philosophy of Islamic Law: A Systems Approach, Herndon: The International Institute of Islamic

Thought, 2007, p. 3.

64 Muhammad Said Ramadan Al-Buthi, Adh-Dhawabit Al-Mashlahat fi Ash-Shari'ah Al-

Islamiyah, Beirut: Muasasah Al-Risalah, 1997, p. 23.

65 Abdul Azis Dahlan (et al.), Encyclopedia of Islamic Law, Volume 4, Cet. I, New York:

Ichtiar Baru van Hoeve, 1996, p. 1146-1147.


November, 2017


In addition, the maslahah hajiyât (secondary) can rise to the level of maslahah dharuriyât

when it concerns with the interests of the general public.66

Terrorism in Perspective Maqâshid Sharî’ah

Terrorism is synonymous with violence, threats, and crime all of which belong to the

category of madharat (harmful negative things). This stigma appears due to the facts that the

various acts of terrorism are always followed by the victim, both life and injury, so it is not

surprising that people view terrorists as cruel criminals and always bring destruction of

others. Moreover, if the acts cause innocent people to be killed as the victims. Instead of

being martyred, terrorists will be labelled as murderers.

In fact, the terrorists see their actions as jihad fi sabilillah to uphold the religion of

Allah SWT. This shows the contradiction between their reality and their idealism. "Jihad"

which is considered to bring maslahah, will actually gives madharat for the community. The

question is, what is wrong with their "jihad"? Are there any restrictions that can be used to

identify the maslahah and madharat of jihad activity, so that their maqâshid sharî’ah can be

achieved?

The author will analyse the term jihad from two aspects: maqâshid sharî’ah and

maslahah to answer the question. The first discussion concerns with the purpose of the

Shari'a on the order of jihad and its relation to terrorism. While the second discussion is

related to the boundaries of jihad that bring maslahah and "jihad" which resulted in

madharat.

In identifying maqâshid sharî’ah jihad, the author uses the method offered by Asy-

Syatibi. The sequence of steps that the author used the idea of Asy-Syatibi is as follows:

1. Understand the purpose of legislation (illat) of jihad law through the logic of language

in Arabic.

2. Understand al-amr and an-nahy in shari’a texts, both textually and contextually.

3. Understand the primary purposes (al-maqâshid al -ashliyah) and the secondary (al-

maqâshid at -tabi'iyah) jihad.

4. Implement the induction method (istiqrâ' ).

To implement the method, the first step is to collect the various texts that discuss about

jihad. Then, a lughawi study was conducted to explore its legislative objectives. After that, a

66

Abdul Azis Dahlan (et al.), Encyclopedia of Islamic Law..., p. 1147.


November, 2017


study of the command and prohibition was conducted, both textually and contextually, then

find out the primary and secondary objectives of the jihad law. Furthermore, the istiqrâ

'metho

d is

perfor

med.

The verses that mention about the theme of jihad -which is often

misinterpreted to

legalize acts of terrorism- can be

grouped into four:

1. The command of patience in the early period of Islamic da'wah: QS. Al-

Baqarah, 2: 109; Al-An'am, 6: 106; Al-Hijr, 15: 85; Al-Jatsiyah, 45: 14; Qaf,

50: 39; Al-Muzammil,

7

3: 10; Al-Insan, 76: 24. 2. The commencement of the battle command: QS. Al-Baqarah,

2: 190 and Al-Hajj, 22:

3

9. 3. Jihad obligation: QS. Al-Baqarah, 2: 216 and 244; Al-Ma’idah, 5: 54; Al-

Anfal, 8: 39

and 57; At-Taubah, 9: 5, 12, 14, 29, 36, 73, 123 ; and

Muhammad, 47: 4. 4. Wisdom of jihad commands: QS. Al-Baqarah, 2: 193,

251; Al-Anfal, 8: 39; At-Taubah,

9: 12, 13, 14-15, 16, and

Muhammad, 47: 4.

Of all the above verses, which indicate the purpose of the jihad as obligation

are QS.

Al-Baqarah, 2: 190, 193, 251; Al-Anfal, 8: 39; At-Taubah, 9: 5, 12, and 13; Al -

Hajj, 22: 39.67

In QS. Al-Baqarah , 2: 190, believers are commanded against those

who fight them. If they are not fought, then this command will not come out. Not

only that , the Muslims must also pay attention to the ethics in the fight, among

them are the ban of killing old people, children, and women. This fight ethic

provides restrictions to prevent Muslims from crossing the line (lâ ta'tadû ). In

QS. Al-Baqarah, 2: 193 and Al-Anfal, 8: 39, Allah reminds us that the war

67

The explanation of those verses are

as follows:

هللافي سبیل (QS. Al-Baqarah, 2: 190)وا ال تعتدو ین یقاتلونكم الولذاقاتو

-QS. Al)مین

Baqarah, 2:

193)

(QS. Al-

Baqarah,

2: 251)


November, 2017


(QS. Al-Hajj, 22: 39)الموظ ھمبأنن للذین یقاتلورض أذن أل ت ابعض لفسدلو بو بعضھمء یشاس لناافع هللامماد علمھالو لحكمة والملك ام هللا هتاآ زو فھت جالواوود

-QS. Al)بصیر ن و

Anfal, 8: 39)

(QS.

At-

Tauba

h, 9:

5)

سبیلھما فخلوة لزكاا اتوة وآ لصال ا اقاموا وأ تابون لھم كل مر صد فإوا دقعوام وھ لمصراحوامالوفاقت وھخذمو لحرامشھرھ جدتموو ألالخیث نسحا

(QS. At-Taubah, 9:

12-13)

كم ءوم بدل وھ لرسواج ابإخ را وا قوما نكثو 12)ن التقاتلونأ ینتھو(علھم لھم لن یماأ نھم ال و إ لكفرامھ ئمةعھدأ بعد اینكممنفقاتلود یمانھمفيا أ عنوا كثو

(13)كنتم مؤ منین ه إن تخ شو ةأن قمرحأل أو


November, 2017


command ends with the slander (attack, hostility) of the unbelievers. The language used by

the Qur'an is hattâ lâ takûna slander (until there is no slander). Thus, if they have stopped

hostile to Muslims, then there is no obligation to fight it.

In QS. Al-Baqarah, 9: 251, Allah SWT declares that through the battle between Goliath

army and Talut, which ends with the death of Goliath in the hands of David, God intends to

reject the ferocity (wrongdoing) of one human group over another. For, if not so, there will be

destruction on earth. This verse makes it clear that one of the reasons for the war's command

is to resist oppression and maintain peace in the world. The editors used in the Qur'an are

lafasadat al-ardh (undoubtedly destroyed/damaged earth).

In QS. Al-Hajj, 22: 39 it is stated, the Muslims are allowed to fight because they have

been wronged (bi annahum zhulimû ). This shows, jihad (in the qitâl sense) is not offensive,

but defensive as a form of self-protection in maintaining the elements of life. In contrast to

the verses about the motivation of the previous jihad, QS. At-Taubah, 9: 5 puts more

emphasis on the religious aspect. In this verse it is mentioned that jihad is conducted to

uphold the religion of Allah. Consequently, when the unbelievers are willing to accept Islam

as their religion and are willing to practice its Sharî’ah, their jihad is no longer valid. Allah

uses the editors "fa in tâbû wa aqâmû ash -shalât wa û az -zakât fa khallû sabîlahum ",

meaning "then if they have repented (from kufr) and established prayers and paid zakat, then

give them freedom to walk."

The reason for the advocation of jihad in At-Taubah, 9: 12 is that the leaders of the

polytheists do not keep their promises and condemn Islam. This jihad command is required

until they (the leaders of the unbelievers) believe and are willing to carry out every covenant

made with the Muslims. Similarly in At-Taubah, 9: 13, the cause of the demise of jihad

commands is because the unbelievers disobey the agreement that has been made with the

Muslims (nakatsû aymânahum ). In addition, they intend to expel the Messenger of Allah and

start a war against the believers first (hammû bi ikhrâj ar -rasûl wa hum bada`ûkum awwala

marrah).

The motivation of jihad as mentioned in the above verse is: First, protect yourself from

enemy attack. Second, maintain the sustainability and peace on earth. Third, prevent injustice

and retain the essential elements of life. Fourth, establish the religion of God. Fifth, give a

warning so that the infidels do not violate the agreement. In accordance with the motivation,

based on the classification maqâshid Jasser Auda version, maqâshid sharî’ah jihad can be


November, 2017


divided into three, namely: First, maqâshid ammah jihad that is for the sake of justice and

freedom. Second, his maqâshid khashshah is the fulfilment of the basic human right to live.

Third, his maqâshid juz`iyyah , which is fighting for the oppression, protecting the people

from outside attacks that threaten salvation, warning the polytheists to be consistent with the

agreement or mutual agreement outcome, and eradicating disbelief.

The second discussion is the boundaries of jihad that bring maslahah and "jihad" which

result in madharat. As Romli and Sjadili put it, the meaning of jihad evolves, even up to six

times. According to the author's opinion, the evolution of this meaning also has some

implications for the implementation of jihad which varies, depending on the demands of the

condition (muqtadhâ al -hâl ). If jihad is called terrorism, which in fact focuses on violent

acts, then there will be erroneous interpretation of sharia texts. This is because jihad is not

only conducted by way of war, but also in another elegant way. However, disproportionate

jihad - not in accordance with muqtadhâ al -hâl - does not rule out the possibility of being

said to be terrorism.

In this context, the author divides jihad into two terms. First, jihad which is muqtadhâ

al-hâl , that is jihad whose way of implementation takes the social side, the condition and the

situation and the problems that exist in society into consideration. Second, jihad ghairu

muqtadhâ al -hâl , that is a jihad whose practice only uses one way, i.e. through war or

physical resistance, wherever and whenever, regardless of the context of the problems that

arise in social life.

The first way of jihad tends to be dynamic and flexible, because it adapts to the needs

of mankind. In areas where citizens are experiencing poverty, the most appropriate form of

jihad is to move the wheels of the economy, by creating jobs, equipping people with certain

skills, or forming a business group. For areas where people are illiterate, the most ideal form

of jihad is by teaching them how to read and write them. While in conflict-stricken areas,

jihad is conducted by seeking reconciliation. However, for regions or countries that are

attacked by other countries, the only jihad's best option is to fight in order to safeguard the

sovereignty of the nation and state. It can be said, whether it is for maslahah or not, jihad is

considered to be conditional.

In contrast to the second way of jihad, which tends to be static and rigid. Jihad is

simply understood by radical resistance, for the sake of fundamental change and in a

relatively fast tempo. If this second jihad is applied in a non-conflicted country, then the


November, 2017


action will bring madharat to the people. As a result, the deeds that were originally

considered and intended by jihad were then labelled as acts of terrorism, because they ruined

the peaceful atmosphere existing in the community.

Conclusion

From the above description it can be concluded that religiously-motivated terrorism-

identified with violence and threats-in Islam, arises because of the application of jihad ghairu

muqtadhâ al -hâl , i.e. jihad whose implementation only uses a way of war or physical

resistance, regardless of the context of the problems that arise in society and the kind of

solutions needed. Conversely, if the jihad muqtadhâ al -hâl is applied, then the community

will feel the maslahah, because the jihad provides a solution that adjusts to their situation and

condition, and it is more acceptable. Hence, a principle emerges that the maslahah of jihad

are closely related to the demands of their circumstances (maslahah al-jihad tunsabu bi

muqtadhâ hâlihi ). Thus, terrorism in the sense of jihad ghairu muqtadhâ al -hâl is haram,

because it causes madlarat. While terorism in the sense of jihad muqtadhâ al -hâl can be

incorporated into the category of dharuriyât , hajiyât , or tahsiniyât , depending on the

circumstances.

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Special Issue: ICCSS, Indonesia

November, 2017

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