COMPARATIVE CONSTITUTIONAL LAW BETWEEN DEMOCRATIC AND ISLAMIC COUNTRIES FROM THE PERSPECTIVE OF POLITICS AND JUSTICE

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COMPARATIVE CONSTITUTIONAL LAW BETWEEN

DEMOCRATIC AND ISLAMIC COUNTRIES FROM THE

PERSPECTIVE OF POLITICS AND JUSTICE

Introduction

Law is a very complex entity, encompassing multiple societal realities, having many

aspects, dimensions and phases.1 The science of law has a universal reach, beyond the legal

boundaries of a particular nation and state. Legal science has an interdisciplinary nature. We

know this from the use of various scientific disciplines to help explain various aspects

related to the presence of law in society. Various aspects of the law that we want to know

cannot be explained properly without utilizing scientific disciplines, such as politics,

anthropology, economics and others.

Law is always identified with justice, because law must reflect justice and at the

same time be able to maintain justice. Law as a moral category is similar to justice. The

word "justice" is of course also used in the sense of law, in terms of compatibility with

positive law, especially compatibility with the Law.3 It's just that what society always

demands is justice, not law. Since justice is an irrational ideal, and justice is not the goal of

knowledge, what is studied in a science is law, even though justice itself is indispensable to

human will and action.

Law is the crystallization or formalization of rules or other norms in society which

then has its own nature, which is coercive and can be used as a basis for the legal process

imposed by the power of law enforcement. One of the problems that now arises is the

detachment of the spirit of law, namely justice, from many law enforcement processes

because the law is then lived more as a technical-procedural matter. As a result, the law then

becomes a game tool to seek victory in disputes or litigation in court and not to uphold

justice, truth and order in society. Law enforcement then plays or is trapped in a game of

norms without caring about humans as subjects who must be served with laws that are

flavored with justice and based on ethics and morals.4

Justice is something that is difficult to achieve. Seeing the many elements that

influence or parties related to justice itself. Justice that tends to be relative is influenced by

political elements. Legal politics is a legal policy or official line (policy) about the law that

will be enforced either by making new laws or by replacing old laws, in order to achieve

State goals.5 In other words, legal politics is a series of concepts and principles that become

the outline and basis of plans in the implementation of a job, leadership, and how to act in

the field of law.6

In addition to the detachment of justice as the spirit of law that comes from ethics

and morals, another problem we face is the relationship between law and politics as two

societal subsystems. In certain important matters, law is dominated by politics so that in line

with the weakening of ethical and moral foundations, law making and enforcement are

colored by political interests.

The existence of various forms of state will certainly lead to differences in various

concepts and applications of law in each of these countries. The law in a democratic country

will be different from the law in an Islamic country. The only similarity between the two

countries is that they both want to achieve justice. However, the process of achieving justice

is different due to the different concepts applied in each country and along with political

developments that tend to affect the growth of law and justice.

That is a series of explanations that the author can convey about the concept of

justice that is always lured by politics. That is why to maintain social justice, the rule of law

is needed so that it is not always played by politics. Therefore, The author wants to make a

comparison between politics and justice that occurs in a Democratic State and an Islamic

State. So that the author gives the title to this paper, namely "comparative study

(comparative constitutional law) between democratic countries and Islamic countries in

terms of political perspective and justice".

The purpose of this research is to find out the comparison between democratic

countries and Islamic countries in terms of politics and justice. Based on the background

description of the problem, the author formulates the problem as follows: How is the

comparison between the Democratic State and the Islamic State when viewed from Politics

and Justice?

Research Methods

The type of research/approach used by the author is normative legal research, namely

library legal research, because it makes library material the main focus. In this normative

legal research, the author conducts research on legal principles that start from certain areas

of legal system, by first identifying the legal rules that have been formulated in certain

legislation.

As a support, this research also uses an empirical approach, namely obtaining

accurate information by identifying the law and how the effectiveness of the law applies in

society.

In the normative concept, law is a norm, either identified with justice that must be

realized (ius constituendum) or norms that have been realized as explicit orders and which

have been positively formulated clearly (ius constitutum) to ensure certainty, and also in the

form of norms that are the product of a judge (judgements) when the judge decides a case by

paying attention to the realization of benefits and benefits for the litigants. Meanwhile, in

terms of its nature, this research is descriptive analysis.

Results And Discussion

The state is an organization within an area that has the highest legitimate power and

is obeyed by its people. Power is the ability of a person or group to influence the behavior of

another person or group, in accordance with the wishes of the actors. A decision is the result

of making a choice between several Alternatives. Policy is a collection of decisions taken by

an actor or political group, in an effort to choose goals and ways to achieve those goals.

According to R. M. Maclver, the State is a fundamental association for building and

organizing social order, and for this purpose, the central institution is assisted by the

unification of community power. According to H. J. W. Hetherington, the State is an

institution or set of institutions that unites its population in a clearly marked territorial area

under a single authority to ensure the achievement of basic goals and conditions of life

together. Meanwhile, according to Woodrow Wilson, a State is a people organized

according to law within a certain territorial boundary.

According to Prof. Bernard Lewis, there are three explanations of the meaning of Islam9:

 Islam is the revelation and example of the Prophet Muhammad, codified into the

Qur'an and hadith. These two sources of teachings never change. What changes is

the interpretation of them.

 Islam as told in the sciences of kalam (especially the sciences of monotheism,

aqaid, and usuluddin), fiqh, and tasawwuf.

 Historical Islam, which is Islam embodied in civilization and culture developed by

its adherents in a broad sense, including civilization and culture inherited by Islam

even though it is not the work of Muslims.

Politics And Justice In A Democracy

Democracy can be seen as a Weltanschauung or ideology. It can also be seen as a

system that operationalizes ideas. Formulating an ideology in broad outlines is not too

difficult, but operationalizing it is the most difficult.

According to Aristotle's theory of justice, legal justice must be understood in terms

of equality. He divided numerical equality and proportional equality. Numerical equality

gives birth to the principle: "all people are equal before the law". Meanwhile, proportional

equality gives birth to the principle: "give each person what is his right".11 In addition,

Aristotle also interpreted justice as providing goods and respect to each member according

to his position in society as well as equal treatment before the law (distributive justice) and

punishment of people who behave wrongly and evilly, and the law must be implemented

equally before the court (remedial / corrective justice).12.

Next comes the definition of politics. Etymologically, the term legal politics is an

Indonesian translation of the Dutch legal term rechtspolitiek, which is formed from two

words recht and politiek. Recht means law, while in the Dutch dictionary written by Van der

Tas, the word politiek means beleid.13 means beleid. The word beleid itself in Indonesian

means policy. From this explanation, it can be said that legal politics briefly means legal

policy.

Politics And Justice In Islamic Countries

Meanwhile, justice in the Islamic concept is a harmonious synthesis between law and

morality. Justice is summarized in the Qur'an as "adl" which means: equal or not one-sided

or impartial, in favor of the truth, appropriate or not arbitrary. The Qur'an stipulates that one

of the cornerstones of social life is justice. No more and no less. Doing good beyond justice,

such as forgiving the guilty or giving aid to the lazy, can destabilize the pillars of social life.

Indeed, the Qur'an commands just and good deeds (Q.S An-Nahl:16), as Ihsan

(benevolence) is considered to be something that exceeds justice. But in social life, justice is

more important than generosity or Ihsan.

As the ancients rightly said, justice is the principle of government. All religions and

divine laws as well as secular laws play this role. However, justice in Islam is absolute and

comprehensive. Therefore, Islam requires that it be applied to Muslims and non-Muslims

alike, friend or foe. The justice that the Islamic system of governance upholds and considers

to be one of its strong foundations is the ultimate justice for all people, regardless of

nationality and religion. It is a justice that is not affected by kinship, greatness and power.

On the other hand, it should not be influenced by hatred or enmity or any factor other than

those mentioned above.

Therefore, Allah enjoins doing justice and forbids doing the opposite, namely

wrongdoing, as found in many verses of the Qur'an also strictly forbids doing wrong and is

threatened with severe punishment. Likewise, there are many hadiths of the Prophet and his

practice and behavior throughout his life that command justice. Islam is not merely a slogan

and principle, but also a religion, a deed and a practice of the principles it has established.

Therefore, justice was one of the principles of government and its pillars were firmly

established during the time of the khulafaur-rashidin and the caliphs and governors who

followed in their footsteps.16

Islam teaches how society should be organized and managed. Therefore, Islam is full

of political guidance. The principle of halal-haram in relations between humans, civil-

criminal law issues that are guided, cultural issues that must be developed by humans, the

issue of human quality that deserves to be chosen as the leader of the community / nation /

state, the issue of economic behavior that must be adopted, and the like make Islam cannot

be separated from the political dimension of human social life. Power that implements laws

and rules, can also be called leadership activities that have been obliged by shara' on

Muslims. This leadership activity is a power that is used to guard against acts of injustice

and decide disputed issues.17 Internal and external political conditions greatly influence the

strategic role of the Ummah in the formation of more democratic political institutions.18

This is what distinguishes Islam from the teachings of other religions which

generally only provide guidance for spiritual values, rituals, and some basic moral

principles. If Islam also only provides guidance on the aspects of belief (spiritual), worship

(ritual), and morals (general moral principles) only then Islam is no different from other

religions, and should not be involved in political affairs. In fact, the content of the Qur'an is

90% full of social issues, so Islam does have a political dimension in its teachings.

Conscious Muslims certainly should not run away from political affairs in their country.

Conscious Muslims should not be fooled by people to only practice Islam in terms of

philosophizing and rituals.19

Differences Between Islamic State And Democracy

Religion and the State are two distinct historical units. Religion is good news and

warning (basyiran wa nadzira, see QS. Al-Baqarah (2) : 119), while the state is the power of

coercion. Religion has preachers, preachers and scholars, while the State has bureaucracy,

courts and armies. Religion can influence the course of history through collective

conscience, while the state influences history with decisions, power and war. Religion is a

force from within and the State is a force from without.21

Dr. Dhiyauddin ar Rais said, There are some similarities that bring Islam and

democracy together. However, there are more differences. The similarities concern political

system thinking about the relationship between the people and the ruler and the

responsibilities of government. Finally, ar Rais came to the conclusion that Islam and

democracy do not only have similarities in the political field. More than that, the elements

contained in democracy and its privileges are already contained in Islam. In explaining this,

he said, If what is meant by democracy is Abraham Lincoln's definition: from the people and

for the people, this definition also exists in the Islamic state system with the exception that

the people must understand Islam comprehensively. If by democracy we mean the existence

of certain political or social fundamentals (for example, the principle of equality before the

law, freedom of thought and belief, realization of social justice, or guaranteeing certain

rights, such as the right to life and freedom of employment), then all of these rights are

guaranteed in Islam. All these rights are guaranteed in Islam.

If democracy is defined as a system that follows the principle of separation of

powers, it already exists in Islam. Legislative power as the most important system in a

democratic system is given to the people as a whole and is separate from the power of the

Imam or President. Lawmaking is based on the Qur'an and Hadith, ijma, or ijtihad. Thus,

lawmaking is separate from the Imam, and even His position is higher than that of the Imam.

The Imam must obey him and be bound by the law. In essence, the Imamah (leadership) is

in the executive power which has independent authority because decision-making should not

be based on the opinion or decision of the ruler or president, but rather based on the laws of

Shari'ah or the command of Allah.

According to Dhiyauddin ar Rais, there are three things that distinguish Islam and

democracy:

 In the democracy that has become popular in the West, the definition of nation

or people is limited by territorial boundaries, climate, region, ethnicity,

language and crystallized customs. In other words, democracy is always

accompanied by thoughts of nationalism or racism that are led by the tendency

of fanaticism. According to Islam, the Ummah is not bound by territorial or

other boundaries. The essential bond in Islam is the bond of faith, thought and

feeling. Whoever follows Islam, he enters one of the Islamic countries

regardless of type, skin color, country, language or other restrictions. Thus, the

Islamic view is very humane and international.

 The goals of modern Western democracy or democracy that exists at any time

are worldly and material goals. So, democracy is aimed only at the welfare of

the people or the nation with efforts to fulfill worldly needs through

development, increasing wealth or salaries. As for Islamic democracy, in

addition to fulfilling worldly (material) needs, it has spiritual goals that are

more important and fundamental.

 According to Western democracy, the sovereignty of the people is an absolute.

Thus, the people are the ultimate power holders regardless of their ignorance,

injustice or disobedience. However, in Islam, the sovereignty of the people is

not absolute, but is bound by the provisions of the Shari'ah so that the people

cannot act beyond the limits of the Shari'ah, the Qur'an and as-Sunnah without

being sanctioned. According to Islam, supreme power is not in the hands of the

ruler because Islam is not the same as autocracy. Nor is power in the hands of

religious leaders because Islam is not the same as theocracy. Likewise, it is not

in the hands of the law because Islam is not the same as nomocracy or in the

hands of the people because Islam is not democracy in the narrow sense. The

answer is that supreme power in Islam is very real as a fusion of the two things,

namely the Ummah and Islamic law or sharia. Thus, the shari'a holds full power

in the Islamic state.

Dr. Dhiyauddin ar Rasi added that if we have to use the term democracy without

ignoring the substantial differences, the system can be called a democracy that is humane,

comprehensive (international), religious, ethical, spiritual, as well as material. It can also be

called Islamic democracy or, according to al Maududy, theocratic democracy. Such

democracy is what Islamic activists, including the Muslim Brotherhood, understand when

they are involved in the political and state life of a democratic country.

Ustadz Mamun al Hudhaibi hafizhahullah was once asked about the Ikhwan's views

on democracy and individual freedom. He said: If democracy means that the people choose

the person who will lead them, the Ikhwan accepts democracy. However, if democracy

means that the people can change the laws of Allah and follow their will, the Ikhwan rejects

democracy. The Ikhwan only wants to be involved in a system that allows Islamic law to be

enforced and evil to be eliminated. Helping, even a little, is still better than not helping.

Regarding individual freedom, the Brotherhood accepts individual freedom within the limits

allowed by Islam. However, individual freedom that makes Muslim women wear short,

skimpy and or male-like clothing is haram and the Ikhwan will not tolerate it.

Conclusions

Democratic states and Islamic states both use politics. Because, in simple terms,

politics is a strategy, a technique of organizing. Politics has also been used in Islam since the

time of the Prophet Muhammad SAW. He was the one who spread Islam and in spreading

the religion used the same strategy as politics.

Justice is something that has always been the basis of the ideals of every state,

whatever the form of the state, of course, has a vision and mission that is not separated from

the desire to achieve justice. The same applies to democratic and Islamic states. In addition

to the similarities in the vision and mission of justice, other similarities that appear are

related to political system thinking about the relationship between the people and the ruler

and the responsibility of government.

The difference between a democratic state and an Islamic state is that in democracy,

which is popular in the West, the definition of nation or ummah is limited by territorial

boundaries, climate, region, ethnicity, language and crystallized customs while according to

Islam, the Ummah is not bound by territorial or other limitations. And the goals of modern

Western democracy or democracy that exists at any time are worldly and material goals

while Islamic democracy in addition to fulfilling worldly needs (material) has a spiritual

goal that is more important and fundamental. As well as the sovereignty of the people (the

people) according to Western democracy is a absolutism. However, in Islam, the sovereignty

of the people is not absolute, but is bound by the provisions of the Sharia so that the people

cannot act beyond the limits of the Sharia, the Quran and the Sunnah without being

sanctioned.