Samarah: Jurnal Hukum Keluarga dan Hukum Islam

Volume 5 No. 1. January-June 2021

ISSN: 2549 – 3132; E-ISSN: 2549 – 3167
DOI:

ARTICLE TEMPLATE

PHILOSOPHICAL FOUNDATIONS OF SHARIA INSURANCE IN

INDONESIA: MAQASHID SHARIA PERSPECTIVE

Ellectrananda Anugerah Ash-shidiqqi

First Author and Corresponding Author : Lecturer Universitas Slamet
Riyadi Surakarta and Student Doctoral of Law Universitas
Muhammadiyah Surakarta.

Aidul Fitriciada Azhari2

Profesor of Law Universitas Muhammadiyah Surakarta.
Email:aidul.f.azhari@ums.ac.id

Kelik Wardiono
Lecturer of Law Universitas Muhammadiyah Surakarta :
email:kwd268@ums.ac.id

Wardah Yuspin
Lecturer of Law Universitas Muhammadiyah Surakarta :
email:wy204@ums.ac.id

Email
ellectra_aa@yahoo.co.id
Abstract: Differences of opinion about sharia insurance are still a debate
among scholars until now, Sharia insurance itself is a contemporary issue
that becomes ikhtilaf. This study tries to look at the insurance side from the
perspective of maqasid sharia. The implementation of maqashid sharia in
insurance is a meeting point between the objectives of establishing sharia.
Religious protection in sharia insurance is realized in the form of
transactions starting with contributions in the form of tabarru'. In this regard,
the Government has identified the current disaster financing scheme. In this

║ Submitted: ║ Accepted: ║Published:

http://jurnal.arraniry.ac.id/index.php/samarah
1
 2
Title: 3-7 Words
Author
DOI:

scheme, the majority of financing is focused on when a disaster occurs,

namely during emergencies, recovery and reconstruction. In addition,
expenditures related to disasters are still highly dependent on the allocation
of the disaster preparedness budget and the contingency budget. This
condition causes the central government and local governments to cover
disaster financing through the central and regional budgets. This becomes
very difficult because local governments are very dependent on fiscal
transfers from the center. Apart from this, the current financing scheme does
not focus on risk transfer, such as disaster insurance. Some government risk
transfer programs related to current disasters, such as insurance for farmers
and fishermen are not currently within the framework of disaster risk
reduction but are more about food security and life insurance. Good
collaboration between central and local governments and other stakeholders
is required. The last is the availability of accurate data and information as the
key in finding appropriate, efficient handling and financing instruments.
Keywords: Disaster Insurance; Indonesia; Maqashid Syariah

Abstrak: Perbedaan pendapat tentang asuransi syariah masih menjadi

perdebatan di kalangan ulama hingga saat ini, asuransi syariah sendiri
merupakan isu kekinian yang menjadi ikhtilaf. Penelitian ini mencoba
melihat sisi asuransi dari perspektif maqashid syariah. Penerapan maqashid
syariah dalam asuransi merupakan titik temu antara tujuan didirikannya
syariah. Perlindungan agama dalam asuransi syariah diwujudkan dalam
bentuk transaksi yang diawali dengan iuran dalam bentuk tabarru'. Terkait
dengan hal tersebut, Pemerintah telah mengidentifikasi skema pembiayaan
bencana saat ini. Dalam skema ini, mayoritas pembiayaan difokuskan pada
saat terjadi bencana, yaitu pada saat darurat, pemulihan dan rekonstruksi.
Selain itu, pengeluaran terkait bencana masih sangat bergantung pada
alokasi anggaran kesiapsiagaan bencana dan anggaran kontijensi. Kondisi
ini menyebabkan pemerintah pusat dan pemerintah daerah menutup
pembiayaan bencana melalui anggaran pusat dan daerah. Hal ini menjadi
sangat sulit karena pemerintah daerah sangat bergantung pada transfer
fiskal dari pusat. Selain itu, skema pembiayaan saat ini tidak fokus pada
transfer risiko, seperti asuransi bencana. Beberapa program transfer risiko
pemerintah terkait bencana saat ini, seperti asuransi bagi petani dan
nelayan, saat ini tidak dalam kerangka pengurangan risiko bencana tetapi
lebih pada ketahanan pangan dan asuransi jiwa. Diperlukan kerjasama
yang baik antara pemerintah pusat dan daerah serta pemangku kepentingan

http://jurnal.arraniry.ac.id/index.php/samarah
 3
Title: 3-7 Words
Author
DOI:

lainnya. Terakhir adalah ketersediaan data dan informasi yang akurat

sebagai kunci dalam menemukan instrumen penanganan dan pembiayaan
yang tepat, efisien.Kata Kunci: Asuransi Bencana, Indonesia, Maqashid
Syariah

Introduction (First subtitle; bold in first capital letters)

The historical record of disasters in the country has a long list, and is even
still the subject of scientific research at home and abroad. Unfortunately, as a
form of risk mitigation, Indonesia does not yet have a disaster insurance
scheme. Some of the long list of disasters in the country, including the
eruption of Mount Krakatau in 1883 which eroded the ancient city of Banten
and its surroundings, has even been predicted in the ancient history book,
Kitab Raja Purwa, written by the famous philosopher Ronggowarsito in
1869.
An earthquake followed by a tsunami in Nanggroe Aceh Darussalam on
December 26, 2004 killed more than 200 thousand people, and many more in
neighboring countries such as Thailand, the Philippines and Pakistan. The
earthquake in Lombok in late July-mid-August 2018 killed more than 500
people and destroyed more than 76,000 buildings, mostly houses. After the
earthquake and tsunami in Aceh in 2004, the Indonesian government issued
Law Number 24 of 2007 concerning Disaster Management, aimed at
mitigating the impact of national disasters. A year later the National Disaster
Management Agency (BNPB) was formed which has government authority
at the ministerial level and is directly responsible to the President of
Indonesia.
The government also established the Regional Disaster Management Agency
(BPBD). Regulations on disaster management are principally a set of policy

http://jurnal.arraniry.ac.id/index.php/samarah
 4
Title: 3-7 Words
Author
DOI:

tools, legal aspects, action plans and institutional formation to manage and
reduce the impact of losses. Disaster risk management also includes
communication to provide effective and efficient information to the
community. For this reason, disaster risk management includes disaster risk
mitigation measures, emergency response, and post-disaster rehabilitation or
recovery. Law 24/2007 defines disaster as an event or series of events that
threaten and damage property, human life, and human activities due to
disasters, both natural and non-natural disasters.
Major disasters make the government commit to changing the paradigm of
disaster risk management from emergency action to preventive action, and
from the central government to local governments. There have been many
studies related to disaster management as an effort to build community
economic resilience after the earthquake. Also research on forms of risk
mitigation to reduce the impact of losses due to earthquakes. One form of
risk mitigation is the disaster insurance scheme in Indonesia. However,
Indonesia does not yet have a national insurance scheme to protect the
impact of losses that occur.
According to BNPB data, the central government has budgeted an
emergency response fund of Rp. 4 trillion as a reserve for disaster
management. The funds are divided into Rp2 trillion for emergency response
and another Rp2 trillion for post-disaster management, such as revitalization
and re-construction. Meanwhile, for budget injections to BNPB, the number
actually dwindles from year to year. In 2016, the APBN allocation for BNPB
was Rp. 1.6 trillion, but then it was cut by around Rp. 133 billion according
to Presidential Instruction (Inpres) Number 4 of 2016 to Rp. 1.46 trillion. In

http://jurnal.arraniry.ac.id/index.php/samarah
 5
Title: 3-7 Words
Author
DOI:

2017, BNPB only received a budget of Rp. 839.74 billion and this year it has
shrunk again to Rp. 749.38 billion.
Meanwhile, in 2018, the BNPB indicative ceiling was set at around IDR 700
billion. In fact, in the 2015-2019 BNPB Strategic Plan (Renstra), the funding
needs of the institution reached Rp1.94 trillion in 2016, Rp2.19 trillion in
2017, Rp2.5 trillion in 2018, and next year Rp2.81 trillion. Over the past 12
years, the state budget allocation for disaster contingency funds has been
around Rp. 4 trillion every year. This amount is only 20 percent of the value
of the economic loss experienced. The limited ability of the government to
provide contingency funds every year has caused the financing gap to
become even larger. If not immediately addressed, the Government will face
enormous fiscal risks.
Natural disasters also have a negative impact on development and can reduce
production capacity on a large scale which results in financial losses.
Disasters require rehabilitation and reconstruction so that economic life
returns to normal. All of this has the consequence of financing that often
exceeds the economic capacity of the disaster-stricken area so that countries
with limited finances have the potential to increase state debt. In addition,
disasters can stop economic activities for victims and affected areas.
Disaster insurance is a mitigation program for potential losses that may arise
due to natural disasters, such as earthquakes or floods. This product is
covered by Loss Insurance and the protection provided is not limited to
earthquakes and floods. In the Indonesian Earthquake Insurance Standard
Policy - the Indonesian General Insurance Association (AAUI) it is stated
that the risk of earthquakes, volcanic eruptions, fires and explosions

http://jurnal.arraniry.ac.id/index.php/samarah
 6
Title: 3-7 Words
Author
DOI:

following the occurrence of earthquakes and volcanic eruptions and tsunamis

is borne by the insurance company.
Given the high fiscal risk associated with disasters, the Government has
taken the initiative to develop a Disaster Risk and Financing Insurance
(DRFI) strategy. The DRFI strategy was officially launched by Vice
President Jusuf Kalla, at the IMF and World Bank Annual Sessions in Bali
last October 2018. In developing the DRFI strategy, there are four main
things that the Government of Indonesia pays attention to. The first is the
identification of the current government financing scheme for disasters,
followed by identification of existing problems including assessing disaster
risk and fiscal risk. The next stage is to set the priority of handling and the
last is to develop a comprehensive strategy.
In preparing this strategy, the government also adheres to several main
principles in terms of disaster financing. First is timely and adequate
funding, namely the Government must be able to provide funds quickly in
the emergency response phase and funds must also be available adequately
in every phase of disaster management. The second is risk layering, where
no single financial instrument can be a solution for all risks. Comprehensive
financial protection strategies for governments generally incorporate
financing instruments that are mobilized, either before or after a disaster, to
address different response needs. The third is effective disbursement of
funds. Funds will be channeled to the right beneficiaries in an efficient and
pre-arranged manner. Good collaboration between central and local
governments and other stakeholders is required. The last is the availability of
accurate data and information as the key in finding appropriate and efficient
handling and financing instruments.

http://jurnal.arraniry.ac.id/index.php/samarah
 7
Title: 3-7 Words
Author
DOI:

The disaster risk financing and insurance strategy is prepared based on a

comprehensive approach and is integrated with the existing disaster risk
management policy with five financing strategies. First, developing a
combination of financial instruments for disaster risk financing in order to
obtain an efficient and effective financing scheme. Second, bear the risk for
disasters with a high frequency of occurrence but with low to moderate loss
impacts by using APBN sources. Third, bear the risk for disasters with
moderate to high levels of loss with the Contingency Financing instrument
as a complement to the APBN. Fourth, developing a Pooling Fund scheme to
strengthen the role of the Fifth State Budget, transferring risk to disaster
financing with a low frequency, but with a fairly high level of loss through
insurance instruments.
The strategy is also to ensure the availability of financing, not only in the
event of a disaster but also when a disaster does not occur, namely in the
mitigation and preparedness phases. This is because the government is not
only trying to increase funding capacity to cover losses due to disasters but
also trying to reduce the existing disaster risks.
In implementing this strategy, the Government has prepared a roadmap for
the implementation and dissemination of disaster risk financing and
insurance, both in the short and long term. In the short term, several policies
and programs will be implemented, including the implementation of a pilot
project for the State Property Insurance (ABMN), the implementation of a
feasibility study for the pooling fund scheme, strengthening and developing
agricultural and fishery insurance instruments, exploring the potential for
alternative financing schemes and education and strengthening DRFI
capacity.

http://jurnal.arraniry.ac.id/index.php/samarah
 8
Title: 3-7 Words
Author
DOI:

Meanwhile, for the medium term, the policy and program agendas that will
be carried out include the expansion and innovation of ABMN, the
establishment of a pooling fund for Indonesia's disaster financing, issuance
of standby loan instruments, strengthening the fiscal policy framework for
disaster financing at the center and regions (synergy between central and
local governments). , utilization of other alternative disaster financing
schemes, strengthening of risk transfer schemes through insurance
instruments, alignment of DRFI policies with social protection policies and
community empowerment in order to increase the efficiency of fund
distribution and synergies with relevant stakeholders.
With the Government's initiative to develop a Disaster Risk and Financing
Insurance (DRFI) Strategy, it provides fresh air for the insurance industry to
prepare itself to become a partner of the government in managing natural
disaster risk in Indonesia. Like management in Japan, insurance companies
are at the forefront of compensating losses. It is expected that the majority of
Indonesian homes and businesses and government agencies have earthquake
insurance policies so that they comply with the law of large numbers. The
government is behind the insurance industry by providing fiscal support if
the amount of losses reaches a certain level of value. The central and local
governments will draw up a more definite disaster management budget,
disaster loss management will be more targeted because it is managed by
professionals, and the insurance industry will grow even better with a
significant increase in premium income.
The presence of sharia insurance is another option for Muslims, especially in
managing finances to implement risk management that may be faced in the
future, contracts and transactions in sharia insurance are adjusted to contracts

http://jurnal.arraniry.ac.id/index.php/samarah
 9
Title: 3-7 Words
Author
DOI:

that are not allowed or prohibited in Islam. This is also still a legal issue and
adds to legal confusion (debate) for the public in general, so that until now,
insurance is still a legal debate, including sharia insurance, where there are
those who allow, forbid and also suggest the form of sharia insurance itself.
The word insurance itself is not found in the Qur'an or as-Sunnah explicitly.
Insurance, originally was a way of preparing to face risks that might occur
with the agreement of a group of people, namely agreeing that if a risk
occurs in one of these groups there is an accident. Historically, insurance is
known as fire insurance, namely in Western Europe, then in the 13th and
14th centuries there was an increase in sea transportation either for sending
goods or delivering people between islands, so that sea transportation
insurance was also developed from Rome. The type of insurance that
developed at that time was the type of capitalist insurance, where insurance
was formed to earn profits and was based on commercial calculations. In the
19th century, the term life insurance became known. The word insurance
comes from the Dutch language commonly referred to as assurantie
(insurance) and verzekering (coverage).
In English it is called insurance, which in Indonesian has become a popular
language and was adopted in a large Indonesian dictionary with the
equivalent of the word insurance. Sharia insurance is included in financial
institutions based on sharia concepts, the development of this sharia concept
is a solution and another option in the development of the economic concept
of usury, where the concept of usury cannot answer the problems of an
increasingly complex global economy. The presence of sharia insurance is
expected to be able to realize the benefit of humans and the welfare of the
people's economy by not violating the concept of sharia, in realizing this

http://jurnal.arraniry.ac.id/index.php/samarah
 10
Title: 3-7 Words
Author
DOI:

intention, the main guidelines in every activity and operation as well as

products that exist in sharia insurance must pay attention to the guidelines
for the objectives of sharia or called maqashid sharia.
Maqashid sharia is the vision and purpose of implementing Islamic sharia, in
the economic field, Islam has a vision that plays the role of social order to
provide social justice along with the economic prosperity of the people,
therefore Islamic sharia is a procedure or rule of life that comes from Allah
swt. To be a way of life for all mankind. The maqashid sharia approach in
analyzing sharia insurance can provide a rational and substantial mindset and
description of operational activities, contracts and products offered, so that
the products designed are expected to develop according to the needs that
change rapidly according to the times, of course with goals that are in line
with maqashid sharia to realize the benefit of the people. This is different if
you only use a fiqh approach that has a formalistic and textual nature. This
paper will focus on the philosophical foundation of sharia-based disaster
insurance, so that it can achieve benefit as the goal of sharia can be achieved.
Basis of Islamic Law related to Sharia Insurance:
•Surah Yusuf:43-49 “Allah describes an example of human efforts to form a
protection system against bad possibilities in the future.
•Surah Al-Baqarah: 188 Allah says "...and do not eat up the wealth of all of
you in a false way, and do not take the affairs of the property to the judge
who intends to eat up some of the property of others by way of sin, whereas
You know (Al: Baqarah: 188)
•Al Hasyr: 18 Meaning: "O you who believe, fear Allah and let everyone pay
attention to what has been done for tomorrow (future) and fear Allah.
Indeed, Allah knows best what you do.”

http://jurnal.arraniry.ac.id/index.php/samarah
 11
Title: 3-7 Words
Author
DOI:

Discussion
If you look at the history of the development of ushul fiqh before al-Syatibi,
it would not be an exaggeration to say that the term maqashid al-shari'ah or
objective shari'a has not been found explicitly. More about the meaning as
previously explained. This concept can only be found in the works of
modern scholars who were inspired by his thoughts on maqasid al-syari'ah.
Discussions about maqasid al-syari'ah in the era before al-Syatibi can
only be identified implicitly in the themes of the study of 'illah of law and
benefit. interesting when associated with the study of benefits. Meanwhile,
the study of 'illah also enters the area of theological studies when it is related
to the question of whether the law established by God is based on a certain
'illah (causa) or not. To answer this question, it is inevitable, it must involve
theological and legal reasons. In summary, it can be said that all ushul
experts agree that the ultimate goal of law is one, namely maslahah or the
goodness and welfare of mankind.
Concretely, the introduction and discussion of the concept of maqasid
al-Shari'ah has started from Imam al-Haramain al-Juwaini. that one is
incapable of enacting laws before truly understanding the purpose of Allah
issuing commands and prohibitions. He further elaborated on the maqasid al-
syari'ah in relation to 'illat and asl which can be categorized into five parts,
namely asl which falls into the category of dharuriyat (primary), al-hajah
al-'ammah (secondary), makramat ( tertiary), something that does not belong
to the dharuriyat and hajiyat groups, and something that does not belong to
the previous three groups. In short, al-Juwaini divides the origin or purpose
of tasyri' into three kinds, namely dharuriyyat, hajiyyat, and makramat
(tahsiniyyat).
Furthermore, al-Juwaini's thinking was developed by his student, al-
Ghazali. He explained the meaning of shari'ah in relation to the discussion of
al-munasabat al-maslahiyyat in qiyas and on another occasion he explained it
in the theme of istislah. Maslahat according to al-Ghazali is maintaining
religion, soul, mind, lineage and property. The five kinds of benefits above
are on a priority scale and a different order when viewed from the side of the

http://jurnal.arraniry.ac.id/index.php/samarah
 12
Title: 3-7 Words
Author
DOI:

goal, namely primary, secondary and tertiary ranks. Shari'ah has begun to
show its shape.
The next Islamic thinker and jurist who specifically discussed maqasid
al-Shari'ah was Izzuddin ibn Abd al-Salam from the Shafi'iyyah circle. He
emphasized and elaborated on the concept of maslahat essentially in the
form of attracting benefit and rejecting mafsadat. According to him, worldly
benefits cannot be separated from three levels of priority scale, namely
dharuriyyat hajiyyat and takmilat or tatimmat. Furthermore, he stated that
taklif must lead to the realization of human benefit both in this world and in
the hereafter. Based on this explanation, it can be said that Izzuddin has tried
to develop the benefit which is the core of the discussion of maqasid al-
Shari'ah.
A systematic and specific and clear explanation was carried out by al-
Syatibi from the Malikiyyah circle in his book al-Muwafaqat fi Usul al-
Shari'ah. In his famous book, he spends a third of his book discussing
maqasid al-shari'ah. Of course, the discussion about benefits also becomes a
very important part of his discussion. He explicitly states that the main
purpose of Allah establishing His laws is to realize the benefit of life in this
world and the hereafter. Therefore, taklif must lead to the realization of the
purpose of the law. The commands and prohibitions contained in the verses
and hadiths cannot be separated from efforts to maintain the benefit.
Fatkhi ad-Daraini commented that the laws were not made for the law
itself but were made for the purpose of benefit. In a language that is not
much different, Abu Zahrah stated that the essential purpose of Islamic law
is benefit. There is not a single law that is prescribed in the Qur'an and
hadist, but there is benefit in it. The above statement further emphasizes al-
Syatibi's statement that in fact the Shari'ah aims to realize the benefit of
humans in this world and the hereafter. All obligations are created in order to
realize the benefit of the servant. There is no law of God that does not have a
legal purpose. It can be said that the content of maqasid al-Shari'ah is
beneficial. Through the analysis of maqasid al-Shari'ah, benefit is not only
seen in a purely technical sense but in the dynamics and development of law,

http://jurnal.arraniry.ac.id/index.php/samarah
 13
Title: 3-7 Words
Author
DOI:

maqasid al-Shari'ah is seen as something that contains philosophical values

from the laws that God has prescribed to humans.
The benefit that is the goal of this shari'ah is limited in five matters,
namely religion, soul, mind, lineage and property. Everything that contains
safeguards over these five things is called maslahah and everything that
makes the loss of five things is called mafsadah. In an effort to realize and
maintain these five main things, al-Syatibi divides the benefit on three levels,
namely:

 The benefit of dharuri.

This benefit is an interest that must exist for the realization of the
benefit of the world and the hereafter. If these interests do not exist,
then survival in the world cannot be maintained and the hereafter will
suffer eschatological losses. This interest is also known as primary
interest. According to al-Syatibi, the protection of the five benefits
mentioned above is classified into this benefit category. To realize
this goal, punishment is prescribed for people who carry and spread
heretical teachings, qiyas which aims to protect the soul, flogging for
drinking alcohol which aims to protect the mind, the crime of
adultery which aims to protect offspring, criminal theft to protect the
wealth of people who are part of the family. joints of human life.
 The benefits of Hajj,
namely the interests that must exist for the realization of benefits
without which the benefits of life are still maintained, but in
difficulties and are not normal. An example is the granting of rights
to a mujbir guardian to marry a minor. This is different from the right
of the guardian to take care of the interests of children's education
and the fulfillment of other needs that are at the dharuri level because
of the need for livelihood and maintenance which involves the
survival of the child.
 The benefit of tahsini,
namely the embodiment of interests that are not dharuri and not hajj.
In other words, if this interest is not realized, it will not cause

http://jurnal.arraniry.ac.id/index.php/samarah
 14
Title: 3-7 Words
Author
DOI:

difficulties or even threaten survival. Its nature is only

complementary which aims to realize better worship and muamalat
practices and encourage commendable morals and habits.[15] An
example is the opinion of Shafi'i which prohibits the sale and
purchase of dirt and dogs and all unclean objects. The reason is
analogous to buying and selling alcohol and carcasses because of
their uncleanness. The determination of the impurity of the two
objects implies the view that these objects are less useful. If it is
permissible to buy and sell the object, it means giving an assessment
that values the item and this is contrary to signs that consider it a
worthless object.

The concept of maqasid al-Syatibi developed by al-Syatibi has actually

surpassed the discussion of scholars of previous centuries. Thus, al-Syatibi's
maslahat thought is not as bold as the idea of at-Tufi. At-Tufi's view
represents a radical and liberal view of benefit.
At-Tufi argues that the principle of benefit can limit (takhsis) the
Qur'an, sunnah and ijma' if the application of the Qur'an, sunnah and ijma'
texts will make it difficult for humans. Based on the various views of the
scholars above, it can be concluded that they agree that the purpose of Allah
in enjoining a law is to maintain the benefit of all humans, on the other hand
to avoid mafsadat, both in this world and in the hereafter. This goal is
achieved through taklif, the implementation of which is highly dependent on
understanding the main sources of law, the Qur'an and hadith. In realizing
the benefit of humans in the world and the hereafter, there are five main
things that must be maintained and maintained, namely religion, soul, mind,
lineage and property.
This concept has been recognized by scholars and because of that they
formulated a fairly popular rule, "Where there is benefit, there is God's law".
The theory of benefit here according to Masdar F. Masudi is the same as
social justice theory in terms of legal philosophy. As for the essence of the
concept of maqasid al-syari'ah is to realize goodness while avoiding evil or
attracting benefits and rejecting harm, the term that is commensurate with

http://jurnal.arraniry.ac.id/index.php/samarah
 15
Title: 3-7 Words
Author
DOI:

the essence of maqasid al-syari'ah is maslahat, because the stipulation of law

in Islam must lead to benefit.
It has been asserted previously that in doing ijtihad in order to deal
with various situations, the beneficiaries should be a priority, because it is
the ultimate goal of the Shari'a (maqashid ash-shari'a). With reference to the
beneficiaries, the jurisprudence or other products that can be customized
ijtihad, in accordance with the benefit of society. Confirmation of this is
important, because the shari'ah contains the principles of general principles
as a basic strategy that can be applied in various cases and circumstances. In
addition, Shari'a also offers the concept of flexibility, because in the Qur'an
there are no detailed provisions and materials. With the basis of thinking like
this, actually Shari'a can contribute to the benefit of society without colliding
with other norms and values.
All scholars admit that the ultimate goal of Islamic law is maslahah.
However, because all scholars have different thoughts from one another
about the maslahah of a rule, such a situation is very open to the emergence
of understanding subjectivism. , for the sake of derivation of maslahat into a
concrete law as well as for its development, it is better to pay attention to the
hierarchy of Islamic legal norms.
According to this theory, there are three levels of legal norms. First,
basic norms or philosophical values (al-qiyam al-asasiyyah), namely abstract
norms which are basic values in Islamic law such as benefit, justice, freedom
and equality, or the maintenance of the five benefits (maqasid). al-Shari'ah).
This abstract norm is referred to as the goal of law. Second, the intermediate
(middle) norm is used as an intermediary (tool) to achieve legal goals. This
middle norm is the general doctrines of Islamic law. These general doctrines
are concretely divided into two types in Islamic law, namely al-nazhariyyat
al-fiqhiyyah (general principles of Islamic law) and al-qawa'id al-fiqhiyyah.
(the rules of Islamic law). Third, concrete legal norms (al-ahkam al-
far'iyyah) as the application of the two previous norms.
These three layers of norms are arranged hierarchically, where the
most abstract norms are concretized or embodied in more concrete norms.
For example, the basic value of benefit is concretized, among others, in

http://jurnal.arraniry.ac.id/index.php/samarah
 16
Title: 3-7 Words
Author
DOI:

general principles in the form of fiqhiyyah rules, namely al-masyaqqah tajlib

al-taisir (difficulty brings ease). This principle is concretized again in the
form of concrete regulations in civil law, for example, people who are in
financial difficulty are given the opportunity to reschedule their debts.
Another example is the basic value of freedom embodied in the middle
norm, namely the principle of freedom of contract (mabda' hurriyyah al-
ta'aqud). The principle of freedom of contract is concretized again in the
form of a concrete norm that it is permissible to make any new contract, such
as an insurance contract, as long as it does not violate the order of syar'i law
and Islamic morality.
The emergence of new discoveries as a result of advances in science
and technology, will result in shifting perspectives and forming patterns of
thought that bring logical consequences to form new norms in people's lives.
So the progress of science and technology and human civilization should not
be confronted with the texts, but a solution must be sought by ijtihad. In
many ways in economic activity, Islam provides a global normative scale.
To mention one example, the issue of buying and selling activities and
debt guarantees can be raised. In the Qur'an, it is only mentioned that buying
and selling is lawful with no details, for example, which ones are permissible
and which are not, and there is no mention of ways of guaranteeing.
Accounts payable and the law in detail. Matters that are not regulated in the
two main sources of law, the provisions are obtained by way of ijtihad by
making the concept of maqasid as the basic theory in its development, so that
Muslims are encouraged to be active, creative and productive in endeavors
of economic life. they. As long as the purpose of the law can be known, it
will be possible to develop a law related to the problem at hand.
Maqashid shari'ah occupies a very important position in formulating
shari'ah economics, creating sharia banking and financial products.
Maqashid sharia is not only needed to formulate macroeconomic policies
(monetary, fiscal; public finance), but also to create Islamic banking and
financial products as well as other microeconomic theories. Maqashid sharia
is also very necessary in making regulations for Islamic banking and
financial institutions.

http://jurnal.arraniry.ac.id/index.php/samarah
 17
Title: 3-7 Words
Author
DOI:

The emergence of new discoveries as a result of advances in science

and technology, will result in shifting perspectives and forming patterns of
thought that bring logical consequences to form new norms in people's lives.
So the progress of science and technology and human civilization should not
be confronted with the texts, but a solution must be sought by ijtihad. In
many ways in economic activity, Islam provides a global normative scale.
To mention one example, the issue of buying and selling activities and debt
guarantees can be raised. In the Qur'an, it is only mentioned that buying and
selling is lawful with no details, for example, which ones are permissible and
which are not, and there is no mention of ways of guaranteeing. Accounts
payable and the law in detail. Matters that are not regulated in the two main
sources of law, the provisions are obtained by way of ijtihad by making the
concept of maqasid as the basic theory in its development, so that Muslims
are encouraged to be active, creative and productive in endeavors of
economic life. they. As long as the purpose of the law can be known, it will
be possible to develop a law related to the problem at hand.

In the insurance industry, both loss insurance and life insurance, there
are principles that serve as guidelines for all insurance activities wherever
they are located. Sharia principles based on Law Number 40 of 2014 are
principles of Islamic law in insurance activities based on fatwas issued by
institutions that have the authority to determine fatwas in the sharia sector.
The main principle of Islamic insurance is mutual assistance and a sense of
security between members. This principle makes sharia insurance members
as members of a large family who help each other to guarantee and bear the
risk between one member and another. This is because the transactions made
in sharia insurance are based on takafuli contracts (mutual sharing), not
tadabuli contracts (mutual exchange), namely the exchange of premium
payments with the sum assured that has been used in conventional insurance.
Maqashid shari'ah occupies a very important position in formulating
shari'ah economics, creating sharia banking and financial products.
Maqashid sharia is not only needed to formulate macroeconomic policies
(monetary, fiscal; public finance), but also to create Islamic banking and

http://jurnal.arraniry.ac.id/index.php/samarah
 18
Title: 3-7 Words
Author
DOI:

financial products as well as other microeconomic theories. Maqashid sharia

is also very necessary in making regulations for Islamic banking and
financial institutions.
Regarding economic and business activities, Islam has provided
general principles that must be adhered to, namely:

 The principle of not eating other people's property in vanity.

 The principle of mutual willingness, namely avoiding coercion that
eliminates one's voting rights in muamalah.
 The principle does not contain the practice of exploitation and mutual
harm that makes others persecuted.
 In short, any transaction carried out by the mukallaf must not conflict
with the principle of benefit, in the sense of causing harm (mudharat)
or aggravating circumstances (masyaqqah).

The basic concept of sharia insurance is to help in goodness and piety

(al birri wat taqwa). This concept is the basis applied in every business
transaction agreement in the form of mutual assistance (takaful contract)
which makes all participants as a big family who bear each other in the face
of risk, as the word of Allah SWT who commands us to ta'awun ( help) in
the form of al-birri wat taqwa (kindness and piety) and prohibits ta'awun in
the form of al-itsmi wal udwan (sin and enmity). The concept of mutual
assistance is manifested in the implementation of the agreement.
Contributions or premiums collected from insurance participants will be
placed in one container, namely tabarru' funds which then if there is a claim
among the participants the money will be used. Insurance companies only
act as fundraisers and fund managers. So that the participants help each other
in goodness.
There are 3 things that in conventional insurance business practice are
considered normal, but in sharia insurance practice it is prohibited, namely
gharar, maisir, and usury. Gharar (uncertainty) is a condition that exists in
human life. All of humanity is faced with uncertainty in social and business
life, the uncertainty can be translated as risk. Islam does not prohibit humans

http://jurnal.arraniry.ac.id/index.php/samarah
 19
Title: 3-7 Words
Author
DOI:

from facing risks and uncertainties in life. However, Islam prohibits

transactions or buying and selling that can contain the element of uncertainty
or gharar. Every transaction must be clear about the amount and condition,
there should be no confusion. Maisir (gambling or speculation) is gambling
against the basic principles of justice, equality (equality), honesty, ethics and
morals, which are values that must be upheld in Islam. Although in theory
conventional insurance is also intended to avoid forms of gambling in sales
contracts, in practice it is difficult to avoid.
To avoid or eliminate the forbidden elements above such as gharar,
maisir, and usury in sharia insurance, the following is an alternative that can
be used, namely wakalah contracts (agency or representative contracts). In
its operations, sharia insurance companies cooperate with insurance
participants (insurance policy holders) on the basis of the principle of al
wakalah bil ujrah. Wakalah bil ujrah contract is a contract granting power of
attorney from the participant to a sharia insurance company (takaful
manager) to manage participant funds or carry out other activities in
exchange for the provision of ujrah (fee).
Sharia insurance according to Law Number 40 of 2014 is a collection
of agreements, consisting of agreements between sharia insurance companies
and policy holders and agreements between policy holders, in the context of
managing contributions based on sharia principles to help and protect each
other by providing reimbursement to participants or policy holder due to
loss, damage, costs incurred, loss of profit, or legal liability to third parties
that may be suffered by the participant or policy holder due to the occurrence
of an uncertain event; or provide payment based on the participant's death or
payment based on the participant's life with benefits whose amount has been
determined and/or based on results of fund management.
The essence of the maqasid ash-sharia theory is that basically the
purpose of Islamic law is the realization of benefit for humans. According to
al-Ghazali mentions that there are five aspects protected by syara', known as
al-kuliyyah al-khams, covering religion, soul, reason, lineage, and property.
To maintain these five aspects can be done in two ways, first, in terms of
their existence or existence (min nahiyyati al-Manifest), namely by

http://jurnal.arraniry.ac.id/index.php/samarah
 20
Title: 3-7 Words
Author
DOI:

maintaining and maintaining things that can perpetuate their existence, and
secondly, in terms of their absence (min nahiyyati al -'adam) that is by
preventing things that cause their absence.
By nature, humans have the readiness (potential) to know and have
faith in Allah. Every human being needs to rely on the creator because
humans will return to him, in human life will always ask for help from the
creator in the face of all difficulties. The realization of Islam for Muslims is
if they are able to carry out the pillars of Islam well, which consists of
reading the two sentences of the creed, praying, paying zakat, fasting, and
performing the pilgrimage for those who can afford it.
The form of Sharia-based disaster insurance protection in the context
of religion to realize the perfection of human worship. For example, the risk
of people experiencing a disaster, insurance protection is for the benefit of
life to avoid dangers that threaten a person's health or death. Insurance in this
case serves to cover losses incurred and unwanted actions resulting in losses.
The role of insurance in the protection of the benefit of life is to protect
against all life-threatening events, both disability and death. The insurance
context for the benefit of life is more focused on the salbiyah aspect, which
is an effort to prevent, preserve, or protect. The conclusion is that the
existence of Sharia-based disaster insurance has an important role in
protecting human life. Insurance protects aspects of human life, especially in
the health sector. This is like the concept of maqasid ash-Shari'ah in
providing protection of the soul or at least participating in realizing the
benefit of the human soul.
Insurance protection carried out in this context is the benefit of property in
the salbiyyah aspect not in the ijabiyyah aspect. Insurance benefits in the
salbiyah aspect are in the form of services to overcome the risk of loss of
benefits, losses, and legal liability to third parties due to uncertain events.
Salbiyah aspects of the benefit of property are fire, theft, robbery, and others.
In order for property to avoid such things, one should follow an insurance
program to avoid greater losses.

http://jurnal.arraniry.ac.id/index.php/samarah
 21
Title: 3-7 Words
Author
DOI:

Conclusion (bold in first capital letters)

Until now insurance is still a caliphate among scholars. This
contemporary issue that has not been found legal has become a hot
topic of discussion. However, regardless of whether or not insurance
is permitted, this study tries to look at the insurance side from the
perspective of maqasid sharia. The implementation of maqashid
sharia in disaster insurance is a meeting point between the objectives
of establishing sharia. Religious protection in sharia insurance is
realized in the form of transactions starting with contributions in the
form of tabarru' (donations). This Hajj insurance product is contained
in the DSN-MUI fatwa regulation No. 39/DSN-MUI/X/2002
concerning Hajj insurance. Then the Sharia insurance business in the
aspect of protecting the benefit of life lies in things that cause a threat
to life, damage to limbs that causes disability or death of a person.
The role of insurance in the benefit of life is more emphasized on the
prevention aspect (min nahiyyati al-'adam). Furthermore, in the
interests of common sense, insurance does not specifically protect.
However, one of the human efforts to protect the mind is to seek
knowledge. This is where insurance plays its role as a substitute for
losses.
Unfortunately, from the government's perspective, insurance
has not yet become part of the disaster risk mitigation element. There
is no legislation/rules or policies that mention insurance as a
component of risk mitigation methods. This causes uncertainty in the
budget of the central and local governments in allocating disaster
relief funds. It would be different, of course, if the Government
carried out disaster risk transfers through insurance which would
allow the government to set a more definite disaster budget because
of the clarity on the amount of insurance premiums to be paid and
the handling of disaster losses/claims which would be fully managed

http://jurnal.arraniry.ac.id/index.php/samarah
 22
Title: 3-7 Words
Author
DOI:

by insurance/reinsurance companies through the Risk Sharing

method.
However, with the Government's initiative to develop a
Disaster Risk and Financing Insurance (DRFI) Strategy, it provides
fresh air for the insurance industry to prepare itself to become the
Government's Partner in managing natural disaster risk in Indonesia.
Ideally, it is like the management in Japan, namely an insurance
company that is at the forefront of compensating losses. This means
that all or at least the majority of Indonesian homes and businesses as
well as government agencies have an earthquake insurance policy so
that it meets the Law of Large numbers. As in Japan, it is hoped that
the Government will be behind the insurance industry by backing up
if the amount of losses reaches a certain level of value. If this is
realized then at least all Indonesian people are protected from losses
due to disasters, the central and regional governments will make a
more definite disaster management budget, handling disaster losses
will be more targeted because they are managed by professional
personnel, and the insurance industry will grow more even better
with a significant increase in premium income. In the end, if disaster
insurance is applied to the people of Indonesia, it will reduce the
impact of losses on the national economy when a disaster strikes.

References
Abdullah, Syahida. (2015). The Objectives of Takaful and Shariah:
Towards the
Achievement of Maqasid Shariah. Journal of Human Capital
Development.
Vol. 8 No. 1 January – June

Al-Ghazali. al-Mustashfa. (1997). min Ilm Ushul, Tahqiq Muhammad

Sulaiman alAsyqar. Beirut: Al-Resalah.
Ali, AM. Hasan. (2005). Asuransi Dalam Perspektif Hukum Islam
(Suatu Tinjauan

http://jurnal.arraniry.ac.id/index.php/samarah
 23
Title: 3-7 Words
Author
DOI:

Analisis Historis, Teoritis, dan Praktis. Jakarta: Prenada Media.

Ali, Zainuddin. (2008). Hukum Asuransi Syariah. Jakarta: Sinar Grafika.

Al-Syatibi, Abu Ishaq. Al Muwafaqat Juz II. Beirut: Dar Al-Ma'rifah. 1997.

Ambarniati. (2017) Tinjauan Hukum Islam terhadap Pengelolaan Dana

Peserta
Asuransi Syariah di PT Asuransi ASEI Indonesia Cabang
Semarang.Semarang:
UIN Walisongo.

Departemen Agama RI. (2004). Al-Qur’an dan Terjemahnya Al-Jumanatul

‘Ali
(Seuntai Mutiara yang Maha Luhur). Bandung: CV Penerbit
Jumanatul ‘AliArt.

Gemala, Dewi. (2004). Aspek-aspek Hukum dalam Perbankan &

Perasuransian
Syari’ah di Indonesia. Jakarta: Prenada Media.

Hafidhuddin Didin, dkk. (2009). Solusi Berasuransi. Bandung: PT Karya

Kita.

Iqbal, Muhaimin. (2005). Asuransi Umum Syariah Dalam Praktik (Upaya

Menghilangkan Gharar, Maisir, dan Riba). Jakarta: Gema Insani.

Ismanto, Kuat. (2016). Asuransi Syariah Perspektif Maqasid Syaraih.

Yogyakarta:
Pustaka Pelajar.

Jauhar, Ahmad al-mursi Husain. (2010). Maqashid Syariah. Jakarta: Amzah.

Mehr dan Cammack. (1981). Dasar-dasar Asuransi, Jakarta: Balai Aksara.

Agusti, Netta. (2019). “Relevansi Asuransi Syari’ah dengan Konsep

Maqashid

http://jurnal.arraniry.ac.id/index.php/samarah
 24
Title: 3-7 Words
Author
DOI:

Syari’ah: Telaah Indikator”. Saqifah: Jurnal Hukum Ekonomi

Syari’ah. 4 (1);
65-74.

Projodikoro, W. (1981) Hukum Asuransi di Indonesia. Jakarta: PT.

Intermasa.

Sula, M. S. Asuransi Syari’ah. (2004). Konsep dan Sistem Operasional.

Jakarta: PT.
Gema Insani Press.

Warkum Sumitro. (1997). Asas-asas Perbankan Islam dan Lembaga-

lembaga
Terkait. Jakarta: Raja Grafindo.

Wirdyaningsih. (2005). Bank Dan Asuransi Islam di Indonesia. Jakarta:

Prenada Media.

Zaid, M. (1954). Al-Maslahah fi at- Tasyri’ al-Islam wa najmuddin at

http://jurnal.arraniry.ac.id/index.php/samarah