PENGUASAAN, PEMILIKAN DAN KONSEP AT-TA’MIM: DISKURSUS AGRARIA DALAM PERSPEKTIF MODERN HUKUM ISLAM

Ahmad Syafi’i Sulaiman Jamrozi, NIM.: 1630016007 (2021) PENGUASAAN, PEMILIKAN DAN KONSEP AT-TA’MIM: DISKURSUS AGRARIA DALAM PERSPEKTIF MODERN HUKUM ISLAM. Doctoral thesis, UIN SUNAN KALIJAGA YOGYAKARTA.

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Abstract

This dissertation studies land tenure system, in particular from Prophet Muhammad pbuh era to the four caliphs (al-khulafa’ al-rasyidun), and at-ta’mim concept. Using theory of property rights, theory of continuity and change, and theory of vacuum zone (mint}aqah al-faragh), the research discusses several important issues, namely: 1) the concept of legal relationship between the state and land also the feature of land ownership; 2) the dynamics of the state’s control over land (agrarian resources); 3) the implication of the state’s control over land; 4) the concept of at-tamim policy and the reasonable formula of ideal public good as the agrarian public concern moral base. This literature study employed modern Islamic law perspective, viz. rational, ethical, and comparative approaches and discovered several essential points. First, legal relationship between the state and land (agrarian resources) in Islamic law perspective manifests as controlling and not as ownership relationship while the concept of land tenure features is communalistic-religious in nature where the state keeps the control to represent public concern by enriching the value of spiritualism and religious moral that make them different from secular socialism ownership system. Second, the state’s control of land in Islamic law began as the prophet Muhammad pbuh moved to Madinah and Muslim community transformed into nation in a plural religious-politic atmosphere. The control was inserted during religious address activities either in peace treaty (bi as-sulh) or in military conquer (bi al-fath). The activities, however, left inevitable excesses of social, politics, economy, and culture at that time. Third, the logical implication of state-control of land concept had put the nation a public institution representation that had land authorities, including 1) state-control over land authority; 2) taking over to other party authority (tauliyah al-siyasi); 3) state land management authority; and 4) limiting, even withdrawing, individual ownership. Fourth, at-ta’mim concept is basically a logical consequence of a concept in Islam which says wealth possession has social function. It gave the ruler a room to fill the vacuum zone (mintaqah al-faragh) or a vacant of law and issued a state intervening policy on individual land ownership. The intervention could be at-ta’mim policy on putting public interest in action. Being the basis of at-ta’mim policy, the public concern must have the following formula: 1) the principle’s statement “public concern must be above any individual interest” is not absolute. The statement applies only when both interests are of equal qualification; 2) the public concerns must meet two basic principles: on the need and benefit basis and on understanding and agreement principle; 3) benefits (maslahah) can be used a legal argument when it meets the following requirements: it is in line with establishing Islamic law; it is categorized as daruriyyah – related to particular case – or daruriyyah-sense hajiyyah; it addresses everyone and comprehensive (kulliyyah) in nature; and it must be certain (qat’iyyah); and 4) since public concern concept is dynamic and consensus (ijma’’) is one method to reach public concern, ijma’ must be believed a living concept (living ijma’) and dynamic with present and future orientation, not old-fashioned. The study proves that Islam has put the basic of agrarian law reform, from oppressive and feudal-exploitative pre-Islam ownership system to fair and human-religious one. To elaborate the agrarian reform in Islamic law perception, the dissertation presents historical data on state-owned land system, in particular in the early history of Islam. The shifting paradigm from monopolistic system prone to pre-Islam feudal to communal-religious ownership system of Islam under the control of prophet Muhammad as head of state (waliyyu al-amr) on fairness principle basis and followed by his successors was based on the spirit of reaching public good. There are two points should be noticed. First, the fact of different views on land tenure during the prophet era and his successors among Muslim clerics confirms the unreduceable heterogeneity of land history, and agrarian too. This is possibly due to a social formation overlap of land as it is in a proverb “Land differs from one foot of ground to the next” (al-ard bitifriqi ‘ala syibr). Second, there are continuity and change processes in some Islamic agrarian concepts. Terms of law such as iqta’, hima, and kharaj are connotative and linguistic products and social doctrine before Islam. It also confirms the thesis from Ira M. Lapidus who stated that the Middle Eastern Islamic societies were built on the institution of ancient institutions with an Islamic cultural style and identity.

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