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LAW IN POSITIVISM PARADIGM AND

ISLAMIC LAW
A PAPER
Prepared to completing application requirements of
Program Kaderisasi Ulama UNIDA Gontor

Prepared by :
M. Yakub Mubarok, S.H.I

SURAKARTA
2015

Law in Positivism Paradigm and Islamic Law

I. Definition of Positivism Paradigm, History and Development

Positivism was born of the conflict between thinkers who construct the
world from a priori concepts and ideas and thinkers who focus on the material
of the idea. Two groups of thinkers known as the idealist and materialist or
positivist versus metaphysical and ontological versus empirical. If traced to
ancient Greek philosophy, the idealists followed Plato (427-347 BC) and the
materialists continue ideas of Aristotle (384-322 BC).
Positivism in the various studies have many variations in terms of
placement of figures / pioneers in the stages of a stream or periodization of
history and this depends entirely on the reason for the author include them.
According to Theo Huijbers, in positivism there are three branches,
namely:
1. sociological positivism viewed as a purely social phenomenon, so it can
only be investigated through a new science that emerged in the century, ie
sociology with a pioneered by Saint Simon (1760-1825), Auguste Comte
(1798-1857), Herbert Spencer (1820 to 1903).
2. legal positivism want to ask the meaning as a separate phenomenon,
according to the method of positive science wich is pioneered by Rudolf
von Jhering (1818-1892)
3. and another stream close to the juridical positivism, namely: the general
teaching which is pioneered by Adolf Merkl (1836-1896), Karl Bergbohm
(1849-1927), Ernst Bierling (1841-1919), and John Austin (1790-1859).
While Hans Kelsen (1818-1973) is classified on the adherents of
neokantianism schools and H.L.A Hart (born 1907) is classified in
neopositivisme.
In some of the history of philosophy and theoretical discourse in
general, positivism is known to be two sub-streams are: analytical positive
stream (analytical positivism) wichs is pioneered by John Austin and pure
positive stream (reine rechtslehre) which is pioneered by Hans Kelsen.

Analytical Positive Stream interpret it as a command of the lawgiver, a

command from those who hold supreme power or sovereignty held. Regarded
as a logical system, and is still "closed logical system". It is also mentioned by
Austin, "A law is a command the which obliges a person or persons...... Laws
and other command are said to proceed from superiors, and to bind or oblige
inferiors". The relationship between the moral clearly be separated, so of
matters relating to justice and not based on theconsideration or good-bad
judgment.
John Austin who is known by his doctrine of The Imperative School,
divides up:
1. Law set by God to men or the Law of God
2. Law set by men to men or Human Laws which comprises
a. in the strict sense (positive) which is also called laws properly so
called (possitive law) has 4 elements, namely: command, sanction,
duty and sovereignty. Provisions that do not contain this four positive
elements is not positive, but they just positive morality
b. in the unstrict sense which is also called laws improperly so called
(that do not meet the requirements because it does not set or made by
the authorities). He defines as a rule laid down for the guidance of an
intelligent being by an intelligent being having power over him.
Austin stated that the only source is the highest authority in the
country, while other sources are low.
Science is defined as a autonomous positive theory and able to meet
him (self sufficiency) and his job was to analyze the elements of modern
systems.
The Austins theory can be compared with the theory of power from
Thomas Hobbes (1588-1679). Countries viewed as a reality taken for granted
by people in certain areas. States arise and be maintained due to the most
subordinate in the habit of obeying orders. When the habit is stopped then it is
no longer the country.

There are various reasons to obey the government. There are those who
obey because they cling to prejudices that governments always have to be
obeyed. Someone else to be obedient, because they are afraid of chaos, when
the state is changed. All this is confirmed in the experience. Value is not
questioned. No doubt also that the ruling is the only source. On top of that
ruling was not found. This was revealed by Austin as follows: every positive
law is determined directly or indirectly by an individual or a group of
authoritative people for a dignified group of people or for a member or
members of a sovereign political community, in which the builder is the
highest.
Hans Kelsen's pure positive stream is actually a rebellion against the
ideological science, namely that only developed as a tool of government in
totalitarian countries. The origin of philosophical thinking is based on Hans
Kelsen Neokantianisme, while Austin refers to the utilitarian. These Stream of
have a strong influence of the predecessor schools of thought, namely Legisme.
This flow has developed since the Middle Ages, the equation with the law as a
big idea. Beyond that does not exist.
The basic principle in this stream is to be cleared from the elementselements that are not legal, such as the elements of ethical, sociological,
political and historical. Reine Rechtslehre seeking scientific knowledge that is
not interfered with by instinct, will, desire and so forth should be exempt from
the moral element as taught by the natural stream (the ethical elements), also
from the perception of the habit of (sociological), and the conception of justice
(political element) are as they are in the regulations. It does not ask "how it
should be" (what the law ought to be) but "what it" (what the law is). It is said
that the sciences are normative, they are in das sollen world not in das sein
world. In other words is a sollen categorie not sein categorie, which is used
constitutum ius, not ius constituendum. It is hypothetical, born of the will and
human reason. Kelsen stated that instead of dealing with the formal not
material. Justice as the content is outside. It may be unfair, but he remains as
issued by the authorities. It is never a violation, but only science. Reine

Rechtslehre of Kelsen tried to look for provisions that theoretically (as a single
object) can be known about, of any kind, from any time and any circumstances.
II. Definition of the Law in the point of view of positivism and Islam
To be able to draw a common thread between the positive law with
Islamic law, it is necessary to first look at the definition of law in Positivism
point of view and Islamic law.
Legal positivism was born in the 19th century in the midst of the
struggle of European law theorists. Legal positivism was born as a critique of
paradigm arbitrate when it is considered to be too idealistic and not able to
meet the desires of the rule of law (law certainty) because it ignores
codification aspects of the law which he said is the heart of law enforcement in
order to create legal certainty.
Legal positivism depart from the preliminary view that the law should
be codified in aseparate legislation to construct the other norms as well as
characterize legal positivismthat leads to the creation of legal certainty.
Certainty in question is a strong belief that the rules are adhered to and
executed by state officials strictly in accordance with the mandate of the law,
not based on analysis of legislation, namely the abstract values intothe handle
and guide of life.
Positivism actually has good intentions, especially in accommodating
the developmentneeds of the community and the legal system more systematic
and positivistic. Legal certainty to be in stone to build a state that puts the law
and make law as a commander.
While the Islamic law perspective, law is the word of God that relate to
the actions of mukallaf that contains commands, prohibitions and choices.
Islamic law is often referred to as sharia. Islamic law somtimes is also called
by fiqh, although there is a clear distinction between sharia and fiqh, which has
been discussed in previous discussions.

III.

Analysis
Looking at the above phenomenon, that in fact there is a relationship

between legal positivism and Islamic Law. In terms of its formation, the law,
both of positivism as well as Islamic law is a command.
However, much of the difference between positive law and Islamic law.
that positive lawis only based on the rule of law, that law issued by the
government and do not involve moral issues.
Where as in Islamic law, a moral issue is one purpose of the law (the
coming of the Prophet with a message of God is to improve the moral), in
addition, Islamic law is not purely made by God or the ruler. Islamic law is
partly the result of human ijtihad to the words of God.

IV.

References :
Djamil, Fathurrahman, Filsafat Hukum Islam, 1997, Jakarta : Logos Wacana
Ilmu
Azizi, A. Qodri, Hukum Nasional, Eklektisime Hukum Islam dan Hukum
Positif, 2004, Jakarta : Teraju
Saifullah : http://www.uin-malang.ac.id/index.php?
option=com_content&view=article&id=1478:menggugat-paradigmapositivisme&catid=36:kolom-pr2