Volume 18, Number 2, 2018

EDITOR-IN-CHIEF
Khamami Zada
EDITORS
Fathudin
Maman R Hakim
Windy Triana
Nur Hidayah
Ahmad Bahtiar
INTERNATIONAL EDITORIAL BOARD
Tim Lindsey (University of Melbourne Australia)
Nadirsyah Hosen (Monash University Australia)
Ahmad Hidayat Buang (Universiti Malaya Malaysia)
Raihanah Azahari (University Malay Malaysia)
Mark Elwen Cammack (Southwestern University)
Razeen Sappideen (University of Western Sydney)
Carolyn Sappideen (University of Western Sydney)
Nik Ahmad Kamal bin Nik Mahmod (International Islamic Universiti Malaysia)
Ahmad Tholabi Kharlie (UIN Syarif Hidayatullah Jakarta)
Muhammad Atho Mudzhar (UIN Syarif Hidayatullah Jakarta)
Masykuri Abdillah (UIN Syarif Hidayatullah Jakarta)
Muhammad Amin Suma (UIN Syarif Hidayatullah Jakarta)
M. Arsykal Salim GP (UIN Syarif Hidayatullah Jakarta)
Asep Saepudin Jahar (UIN Syarif Hidayatullah Jakarta)
ASSISTANT TO THE EDITORS
Kamal F. Musa
Erwin Hikmatiar
ENGLISH LANGUAGE ADVISOR
Bradley Holland
Umi Kulsum
ARABIC LANGUAGE ADVISOR
Amany Burhanudin Lubis

AHKAM has been accredited based on the determination of Director General of Research
Reinforcement and Development, Research, and Technology Ministry of Higher Education
of Republic of Indonesia, No. 36/a/E/KPT/2016 (valid until 2021).

AHKAM Jurnal Ilmu Syariah (ISSN: 1412-4734) is a periodical scientific journal
published by Faculty of Sharia and Law of Syarif Hidayatullah State Islamic University
Jakarta in collaboration with Indonesian Scientist and Sharia Scholar Association (HISSI).
This journal specifically examines the science of sharia and obtains to present various
results of current and eminence scientific research. The administrators receive articles as
contributions Sharia and Islamic law disciplines from scientists, scholars, professionals, and
researchers to be published and disseminated.

EDITORIAL OFFICE:
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Website: http://journal.uinjkt.ac.id/index.php/ahkam/index
E-mail: Jurnal.ahkam@uinjkt.ac.id

Table of Contents

251

Arifuddin Muda Harahap
Rules on Wage Standard to Improve Workers’ Living
Needs in the Perspective of Maqasid Al-Shari’ah

265

M. Ikhsan Tanggok
Circumcision Law in Christianity and Islam

285

Abdul Rohman Zulfikar Alfarouq & Nurhasanah
The Positivisation of National Sharia Board Fatwa About
Mudaraba into Financial Service Authority Regulation

305

Muhamad Isna Wahyudi
Women Dealing With the Law in Religious Courts

321

Arif Hidayatullah & Anita Priantina
Toward Zakat Management Integration in Indonesia:
Problems and Solution

347

Muhammad Adil & Muhamad Harun
Fiqh Melayu Nusantara in the Palembang Darussalam
Sultanate Period

375

Sugiri Permana
Implications of Hazairin and Munawir Sjadzali Thoughts
in Establishment of Islamic Inheritance in Indonesia

395

Rifqi Qowiyul Iman
The Competence of Religious Court in Indonesia and
Syahadah Istifadhah (Testimonium De Auditu) in Case of
Itsbat Waqf

417

Mustapa Khamal Rokan & Kama Rusdiana
Configuration of Costomary Law Related to Economy
(Economic Adat Law Study in North Sumatera,
Indonesia)

433

Yayan Sopyan & Muhammad Shofwan Nidzami
Nyabek Toloh Marriage Proposal Tradition in Madurese
Culture: A Review of The Sociology of Islamic Law

453

Nuryani & M. Musyafa
Linguistic Review on Marriage Age Regulation

463

Wetria Fauzi
Regulation of Sharia Insurance After the Enactment of
Law No. 40 of 2014 Concerning Insurance

The Positivisation of National Sharia
Board Fatwa About Mudaraba into
Financial Service Authority Regulation
Abdul Rohman Zulfikar Alfarouq & Nurhasanah

Abstrak: Positivisasi fatwa Dewan Syariah Nasional (DSN) tentang mudarabah
ke dalam regulasi Otoritas Jasa Keuangan (OJK) merupakan upaya yang
dilakukan OJK dalam menjalankan fungsi pengaturan sebagaimana diatur
dalam UU No. 21 Tahun 2011 tentang OJK. Dengan positivisasi ini, fatwa
DSN memiliki kekuatan hukum dan bersifat mengikat karena masuk dalam
hierarki peraturan perundang-undangan sebagaimana diatur dalam UU No.
12 Tahun 2011 tentang Pembentukan Peraturan Perundang-undangan (P3).
Namun, terdapat kesenjangan dan perbedaan konten antara ketentuan dalam
fatwa DSN di atas dengan regulasi OJK akibat pola positivisasi. Selain itu,
meskipun terdapat konten fatwa DSN yang belum terserap ke dalam regulasi
OJK, namun fatwa tersebut tetap memiliki kekuatan hukum dan mengikat
industri keuangan syariah bila ditinjau dari perspektif teori hukum H.L.A Hart.
Kata kunci: positivisasi, fatwa DSN, mudarabah, regulasi OJK, dan kekuatan
mengikat.
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286 - Abdul Rohman Zulfikar Alfarouq & Nurhasanah

Abstract: The positivisation of National Sharia Board (DSN) fatwa about
mudaraba into Financial Service Authority (OJK) regulation is an effort
conducted by OJK in running its regulating function such as arranged in
the Law Number 21 of 2011 regarding OJK. With this positivisation, DSN
fatwa has legal and binding power because it has becaome a regulation such
as arranged in the Law Number 12 of 2011 regarding the Establishment of
Legislation (P3). However, there are gap and the difference in terms of content
between the provisions in DSN fatwa above with OJK regulation due to
positivisation pattern. Moreover, although there is DSN fatwa content which
has not been asorbed in OJK regulation, but it still has legal and binding
power in shari’a financial industry if reviewed from the perspective of H.L.A
Hart’s legal theory.
Keywords: positivisation, DSN fatwa, mudaraba, OJK regulation, and
binding power

‫) بشأن املضاربة يف الئحة‬DSN( ‫ إن التحقق الفتوى من جملس الشرعية الوطنية‬:‫ملخص‬
‫ يف تنظيمه مثل الرتتيب يف القانون‬OJK ‫) هو جهد يقوم به‬OJK( ‫هيئة اخلدمات املالية‬
‫ وفقا للحال صارت الفتاوي لدي جملس هلا مادة قانونية و قوة‬.1102 ‫ لعام‬12 ‫رقم‬
‫ فيما يتعلق‬1102 ‫ لعام‬21 ‫ الن الفتوي داخل يف املادة مثل الرتتيب يف القانون رقم‬,‫ملزمة‬
‫ هناك التعارض أو االختالف احملتويات بني األحكام يف‬،‫ ومع ذلك‬.)3P( ‫بتأسيس التشريع‬
.‫ عالوة على ذلك‬.positivisation ‫ عن طريق منط‬OJK ‫ أعاله مع تنظيم‬DSN ‫الفتوى‬
‫ إال‬،OJK ‫ مل يتم استيعابه) يف الئحة‬DSN ‫على الرغم من وجود حمتوى فتوى من شبكة‬
‫أنه ال يزال يتمتع بسلطة قانونية وملزمة يف القطاع املايل الشرعي يف حال متت مراجعته من‬
‫ تنظيم‬، ‫ املضاربة‬، DSN ‫ الفتوى‬، ‫ الوضعية‬.‫ القانونية‬H.L.A Hart ‫وجهة نظر نظرية‬
..‫ والسلطة امللزمة‬،OJK
‫ والسلطة امللزمة‬،OJK ‫ تنظيم‬،‫ املضاربة‬،DSN ‫ الفتوى‬،‫ الوضعية‬:‫الكلمات املفتاحية‬

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The Positivisation of National Sharia Board Fatwa About Mudaraba - 287

Introduction
As a legal state, norms contained in Islam can be coercive and
binding when it has been positivated into national legal. National legal
is a legal established based on the constitution, both through legislative
and regulatory processes. Based on these, the rules contained in Islamic
certainly can have coercive and binding power in the context of modern
state legal concepts.
In the context of sharia economic law, most after birth the Law
Number 21 of 2011 regarding Financial Service Authority (OJK),
than everything of financial institution generally and sharia financial
institution particularly, regulated and supervised by OJK. Therefore,
the positivisation of National Sharia Board (DSN) fatwa into OJK
regulation is one function arrangement mandated by the Act to OJK.
Legal positivisation occured because the norm system in time is
need to process more concrete institutionalization through written
pouring process accompanied by institutionalization of its enforcement
infrastructure. Related to the positivisation of DSN fatwa into OJK
regulation, the legal formation process is used by regulative rather than
legislative.
DSN fatwa is recognized by institutions or financial authorities in
Indonesia, such as Indonesian Bank (BI) and OJK. Such a scam, DSN
fatwa is not a positive law in the regulative clan (made not by the State
institution). To be a positive law, that legal norms are in the fatwa must
transform into OJK regulation.
According to Shidarta, DSN fatwas have pre-positive legal position
in the regulation/legislation. Because its legally formal, DSN fatwa
not included in the hierarchy of legislation. But, legislation related to
Islamic economic must be guided by fatwas issued by the DSN. The
existence of DSN fatwa cannot be ruled out in the life of the Indonesian
Muslim community. Therefore, the effort to transform the fatwa into
OJK regulation is a necessity. It can be understood that every positive
law is produced from a legal formulation process with strictly regulated,
and formed by the ruler or authorized body.
The principle, positivisation of DSN fatwa into OJK regulation can
be done well without gap. Both elements must show consistency with
each other. But in fact, allegedly there is a gap between the provision
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of DSN fatwa about mudaraba with OJK regulation. This is due to
different patterns of positivisation between one provision and other
provisions. This pattern is sometimes according to the text; namely in
accordance with the fatwa content, but also not often different from
the form of fatwa.
The Legislation System in Indonesia
The Indonesian legal system in the reform era (after the quit of
GBHN) still refers to the National Ideology, namely Pancasila and the
1945 Constitution as the constitution, as well as other legislations such
as the Law Number 17 of 2007 regarding the National Long Term
Development Plan for 2005-2025 and its attachments and the Law
Number 10 of 2004 j.o the Law Number 12 of 2011 regarding the
Establishment of Legislation. Article 1 paragraph (2) and (3) of the
1945 Constitution states that: 1). Sovereignty is in the hands of the people
and is carried out according to the Constitution, and 2). Indonesia is a
legal state. Based on these, the people have a core role in the sovereignty
of the State, especially in the field of legal, and all of that must be based
on the 1945 Constitution.
Everything related to norms must be based on law or according
to law. Whereas in Article 29 of the 1945 Constitution, states that:
1). The state is based on the One God Almighty, 2). The state guarantees
the independence of each citizen to embrace their respective religion and
to worship according to their religion and belief. The Article 29 explains
that the State has accommodated the people to carry out their
respective religions. The law that lives in Indonesia should be able to
accommodate this. The law that applies in Indonesia must not conflict
with any religious rules.
Whereas in Article 1 paragraph (2) the Law Number 12 of 2011,
explained that: The legislation is a written regulation that contains
generally binding legal norms and is established or stipulated by a state
institution or an authorized official through the procedures stipulated in
the legislation. As for article 7 paragraph (1), the hierarchy of legislation
consists of: 1945 Constitution, Decree of the People’s Consultative
Assembly, Law / Government Regulation in Lieu of Law, Government
Regulations, Presidential Regulation, Provincial Regulation, and Regency /
City Regional Regulation.
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In addition, Article 8 paragraphs (1) and (2) explain that; (1). The
types of legislation other than those referred to in Article 7 paragraph (1)
include the regulations stipulated by the People’s Consultative Assembly,
the People’s Legislative Assembly, the Regional Representative Council,
the Supreme Court, the Constitutional Court, the Supreme Audit
Board, the Judicial Commission, Bank Indonesia, the Minister, A level
body, institution, or commission formed by law or government based
on a law order, provincial legislative council, governor, regency / city
regional parliament, regent / mayor, village head or the same level. (2).
The legislations as referred to in paragraph (1) are acknowledged as being
valid and have binding legal force insofar as they are ordered by the higher
legislation or are formed based on authority.
Then, as a logical consequence of that, any form of regulation that
is not determined by or based on the authority of legislation cannot
be called legislation. Thus, the formation process of legislation can be
realized by mean and sure method, raw, and standard.
Pure Legal Theory of Hans Kelsen
In Hans Kelsen’s thought, a norm remains valid as long as it is part
of a valid rule. That means, the applicable law must be formed based on
legal provision or according to certain rule as the criteria of the State.
The law is in the category sollen, not the opposite in the category
sein (social reality). Law is a positive one (real, clear, firm) and applies
generally (how the law is) and not something abstract and unreal
(how the law ought to be). So, people should obey the law because
he is obliged to obey it as a requirement of the State. The question of
whether people in fact obey or not, it is outside of the law which simply
a social reality.
The ideal law must be cleansed from elements outside the law itself
(non-juridical), such as sociological, political, historical, and religious
ethics. This purification of other values is the thought of Kelsen’s
positivism known as pure legal theory.
Kelsen’s thinking can be seen from the doctrine of rule of law
which has several characteristics: a. Formal rules: written in the
form of legislation; b. Procederus: executed through strict rules; c.
Methodologist; deify logic in its application; d. Bureaucreacy: only
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formal institutions are recognized as having the authority to make,
implement and supervise the law (legislative, executive, and judicial).
The other Kelsen’s theory is Stufenbau Theory (stufenbau des recht),
which states that every rule of law in a country is a (hierarchy) rules
(stufenbau) which all come from basic norms (grundnorm). Thus, it
can be interpreted that a law is formed based on other legal provisions
that have a higher position, and it’s binding power according to that
hierarchy. In Indonesia, this can be seen in the hierarchy of legislation
as stipulated in Law Number 12 of 2011 regarding P3.
The rule of law has the essence which consists of: Order, Permit,
Prohibition, and Sanction. This is the essence of binding power in
positive law. In addition, the Law has very broad legitimacy of power.
The law has sovereignty in a region, and with that sovereignty, it
marginalizes all order institutions that were originally in the region.
The sovereign law does not allow other arrangements except with its
permission. The law appears to hold hegemony by almost clearing
out the order communities that existed long before the presence of
modern / positive law. The law makes the regulatory body and only the
regulation produced by that body have valid power. Beyond that there
is no law, that’s the doctrine.
Kelsen’s thought determined by Montesqieue’s trias politica theory,
in his book which title l`esprit de lois (1748). Trias politica divides State
power into three parts of power (this separation is expected not to
abuse the power), namely: executive, legislative and judicial functions.
But, a series of Montesqieue and Hans Kelsen theories caused tension
between written law and the reality that occurred in society. Because in
addition the law that was born by a State institution, it is not part of
the applicable law (das sollen).
The Legal Theory of H.L.A Hart
Herbert Lionel Adolphus (H.L.A) Hart (1907-1992) is a second
generation figure of positivism or known as neo-positivism. Hart is the
antithesis of the classical positivism thought (Austin and Kelsen) which
formulated the natural/ moral law into the positivism course, which
was initially completely separate.
Hart argues that law cannot be defined completely and can be
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accepted by everyone.Law can be understood from the union between
primary and secondary regulations. Hart sure that this primary and
secondary regulation is the essence of law.
Primary regulations consist of standards for behavior that impose
various obligations on the community that claims it. Primary regulations
determine the behavior of legal subjects, stating what must be done and
prohibited. The rule included in this type appear as a result of the need
of the community itself. The binding power of this various types this
rules is based on the majority of community acceptance. This regulation
serves as a fundamental principle that guides human behavior.
There are certain conditions that must be fulfilled by the primary
rule in regulating social order: 1). Make restrictions on violence, theft
and fraud, 2). Receive majority support, 3). Society has relatively
primodial attachments (blood ties, feelings, and beliefs).
Primary regulation is a means of social control, in the form of
the group’s general attitude regarding it’s own behavior standard. While
secondary rule is the rule of the game from the primary rule. According
to Hart, the existence of secondary rule is a step forward from the prelaw world to the world of law and become a legal system.
Hart divides the secondary rule into three types: 1). Rule of
recognition, 2). Rule of change, 3). Rule of adjudication. These three
rules are a term of a legal system. Secondary regulation specify the
ways in which primary regulations can be determined, submitted,
eliminated, altered and fact about violation can be determined.
A community when regulated by primary rule, it has three
weaknesses: 1). Uncertainty, this weakness can be strengthened by
secondary rule, namely rule of recognition. This recognition rule allows
people to recognize the primary rule that apply in their communities
while supporting them with social pressure. In other words, this
recognition rule determines the validity of the primary rule that apply
in a society while reducing doubt related to it’s existence. 2). These rules
are static (static); its development tends to be slow, where the flow of
behavior which is initially considered optional is then a common habit,
and after that becomes mandatory, and the subsequent process is decay.
This weakness can be eliminated by secondary rule, namely the rule of
change. 3). Inefficient social pressure is used to carry out regulations,
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because there is no institution specifically given the power to set
penalty when a violation of law occurs. Therefore, secondary regulation
is given the power to make authoritative provision for individual and
group regarding compliance and violation of a primary rule that has
weakness. This regulation is called the rule of adjudication.
Based on hierarchy, primary is under secondary regulation. In addition,
the dialectic between law and moral does not have to be dichotomized
so complexly. The most important thing is the social pressure behind
the regulation, where it is the primary factor that determines whether
it can be seen as giving rise to obligation or not. Structure resulting
from a combination of primary and secondary regulation; signifying the
existence of the most powerful mean to analyzes many things that have
been confusing to legal experts and political theorists.
The Positivisation of Islamic Law in Indonesia
The idea of positivisation or constitutionalization of Islamic
law into national law in Indonesia has been initiated by Hazairin,
Bustanul Arifin and A Qodry Azizy. Hazairin introduced the theory
of Receptie Exit where after Indonesia gained it’s independence, the
1945 Constitution became the basic law while all the legislations of
the Dutch East Indies which were contrary to the spirit of the 1945
Constitution had to come out of the legal system of independent
Indonesia. According to him, the Receptie theory initiated by Snouck
Hougruenye is contrary to the Qur’an and Sunnah, therefore it is also
contrary to article 29 paragraphs (1) and (2) of the 1945 Constitution:
“The state is based on the Almighty God” and “the State guarantees
independence of each - every resident to embrace his religion and to worship
according to his religion and belief.”
Hazairin gave 2 interpretations of Article 29 paragraphs (1) and (2)
of the 1945 Constitution, namely: 1). In the Indonesian state, something
that is not contradictory to Islamic principles for Muslims, or that is
contrary to the rules of Christianity for Christians, or which contradicts
the Hindu-Bali rules for Hindu-Bali, or contrary to the morality of
Buddhism for Buddhists. 2). The Republic of Indonesia is obliged to
carry out Islamic Sharia for Muslims, Christian Sharia for Christians,
and Hindu-Bali Sharia for Hindus-Bali, just running the sharia requires
the mediation of State power.
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Bustanul Arifin explained that the influence of the understanding
of Sharia “in this context is jurisprudence (fiqh)”, gave a special style in
the application of Islamic Law to the national law face in addition there
is the Dutch colonial legal political engineering. The institutionalization
of Islamic law sociologically is a social legal phenomenon due to the
length of the three legal systems clash; Customary law, Western law and
Islamic law by Dutch law politic. While philosophically normative is
an effort to rectify perception of Islamic Sharia which have experienced
chaos since the 10th century Hijri due to Islamic political upheaval.
In the context of Islamic Law renewal in Indonesia, the positivisation
of Islamic Law into national law remains actual. Islamic law in question
includes criminal and civil law. A Qadry Azizy reinforces the concept
of Islamic Law positivisation because in accordance with the provision
of the State Policy Outline (GBHN) in 1999-2004 (which is now not
applicable), Law Number 17 of 2007 regarding the National Long
Term Development Plan for 2005-2025, and Law Number 12 of 2011
regarding P3, especially Article 18 a-h. Islamic law movement towards
positive law has a big chance with the reformation that is supported by
national law politic which constitutionally strengthens the position of
Islamic law based on Law Number 12 of 2011.
The Pattern of Islamic Law Positivisation
The positivisation of Islamic Law into national law is done by
using the following patterns:
1. Normative and Cultural
The approach of normative and cultural in positivisation of
Islamic law were introduced by A Qodri Azizy. There are 2 (two)
groups involved in the discussion of Islamic law, namely group
that emphasizes normative approach or formalism and group
that emphasizes cultural approach. These normative and cultural
pattern are manifestation of the political life of each group.
2. Adoption, objectification, and adaptation
The Adoption of Islamic Law by the State is carried out with the
ratification of Islamic Law in full and in part. This is in line with
what Mudzhar explained, that in Indonesia the adoption of the
DSN-MUI fatwa in various regulations was carried out in full or
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in part. The examples of the adoption of Islamic law in the field of
sharia finance and business are widely ratified in Muslim countries
such as Indonesia and Malaysia.
		 Whereas objectification is the translation of religious subjective
values in objective categories that can be understood by all people
without need to understand the original values (religion) and can
be approved by anyone without having to approve the original
value. Objectivation is a method for presenting religion more
substantively scientifically rather than ideological normative. In
objectification, the objective values of all religions, ideologies,
beliefs or philosophical schools can communicate with each other,
regardless of their ideological egocentrism. This objectification
pattern is the same as the cultural pattern.
		 The adaptation pattern is provisions in Islamic law that are
accommodated and adapted to other provisions, so that Islamic
law does not manifest in a complex form but transforms in various
provisions, as in Islamic criminal law known as the qishas law,
the death penalty for murderer. Whereas in certain national law
adaptation pattern, capital punishment is applied, although in a
different way.
3. Implicit and Explicit
Shidarta stated that so far the penetration model of Islamic law
still uses two patterns. There is an Islamic law whose substance is
implicitly included, without having to proclaim the public that
the rule is Islamic law, for example what happens in the realm
of marriage law. In addition, there are other patterns that are
explicitly mentioned as Islamic law, for example in the field of
Islamic economic.
4. Copy Paste, Substantive, and Extending Fatwa Provision
Soleh Hasan Wahid introduced three fatwa transformation patterns,
namely: copy paste pattern in the form of copying fatwa into articles
of a law, substantive pattern only taking substance from fatwa, then
translated into articles of legislation with more language formal, and
extending the fatwa provisions and / or translating general fatwa
provisions into a more operational form so that they can be applied
in the operational activities of a financial institution.
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The Positivisation Pattern and Binding Power DSN Fatwa on
Mudaraba
In this paper, the DSN fatwa and the OJK regulation in question
are DSN-MUI fatwas Number 07/DSN-MUI/IV /2000 and Number
115/ DSN-MUI/IX/ 2017 regarding mudaraba and POJK Number
16/POJK.03/2014 with it’s SEOJK, and SEOJK Number 36/
SEOJK.03/2015 with it’s attachment (codification of product and
activity of BUS and UUS).
The DSN fatwa is generally positivated into OJK regulation as a form
of normative, adoption and explicit patterns. The positivisation pattern
of the DSN fatwa as above, is almost found in every regulation relating
to the sharia financial industry, both in its provisions in whole and in
part. Regarding fatwa Number 115 / DSN-MUI / IX / 2017, despite the
issuance after the OJK regulation above, but the values contained in it have
been absorbed into regulation with certain patterns. This happens because
basically in the establishment of OJK regulation (especially POJK) always
involves DSN, namely at the forum group discussion (FGD) or opinion
hearing conference (RDP) stage so that Islamic values are contained in
OJK regulation through thought or input from the DSN.
Following are the specific positivisation patterns used in the
positivisation of the DSN-MUI fatwa Number 07 / DSN-MUI / IV /
2000 and Number 115 / DSN-MUI / IX / 2017 regarding mudaraba
into OJK regulation as above:
The Provision of OJK Regulation which is Content Different from DSN Fatwa
Fatwa Numb. 07 / DSN-MUI/
IV/ 2000
Statement of ijab and qabul must
be stated by the parties to show
their intention to hold contract,
taking into account several things:
a) Offering and re-ceipting must
explicitly indicate the purpose
of the contract,
b) Receipting from the offering
is made at the time of the
contract.

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POJK Numb. 16 / POJK. 03/ 2014
Article (1)
5. Financing is the provision of funds
or equivalent claim in the form of profit
sharing, leasing including leasing of service,
sale and purchase, and lending transaction
based on an agreement bet-ween the Bank
and other parties requi-ring the financed
party and / or given funding facilities to
return that funds after a certain period
of time in return for ujrah, without compensation, margin, or profit sharing
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The provision of ijab and qabul in the DSN fatwa must contain the
purpose of the contract, and acceptance and offer must be made at the
time of the contract. In this case, the OJK regulation specifically POJK
does not include the provision of ijab and qabul or even receipting
and offering according to the text, only mentioning the term of the
agreement between the Bank and the Customer. That provision is only
mentioned in the definition of financing, not specifically regulated in
the points of agreement.
The reason, ijab and qabul can be equated with the term agreement.
OJK does not specify than sentence (ijab and qabul) in POJK or other
OJK regulations, because the substance has been represented in terms
of agreement. The agreement redaction is more often used by the Bank,
making it easier for the Bank to understand the provisions. That word
was used by OJK in formalizing ijab and qabul provision in the DSN
fatwa. Positivisation of this provision is to use a substantive pattern.
The positivisation in this pattern shows a difference in content,
but this difference does not change the essence of the DSN fatwa, so
the binding power the values of DSN fatwa absorbed into POJK has a
binding position equivalent to POJK, because the norm is no longer in
the form of a fatwa, but has become OJK regulation.
In addition to the above pattern that causes difference in content,
there is other pattern used by the OJK in formalizing that fatwa:
Fatwa Numb. 07 / DSN-MUI/IV/ 2000
In principle, there is no collateral in mudaraba
financing, but in order mudarib not to makes
devi-ation, Islamic financial institution (LKS)
can request the collateral from mu-darib or
third party. This collateral can only be disbursed if
the mudarib is proven to have violated the things
agreed upon in the contract.

Codification
II.1.1. Mudaraba Financing
Bank can request the
collateral from customer at
the time of financing distribution.

The above positivisation uses the partial adoption pattern of the
fatwa. While the provision is partly (in the DSN fatwa): “This collateral
can only be disbursed if the mudarib is proven to have violated the
things agreed upon in the contract.,” not formalized. This is certainly a
discourse, where the provision in the fatwa constitutes an inseparable
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unity. Because, between clause with one another is a condition for the
colleteral. However, the OJK did not comprehensively formalize the
provision of the fatwa. In practice this can lead to misunderstanding,
where the collateral can be disbursed to compensate even if there is no
default. That is, even if the loss of mudarib is not caused by mudarib
error, the collateral can be taken as a substitute for loss. This is a practice
that violates sharia principle.
The provision in this codification were largely opposed to the fatwa
DSN, but as Researcher has described above, that by not positivated
provision of DSN fatwa likely cause misrepresentation, more danger
out of the sharia principle.
The principle of a collateral in mudaraba is as an effort to minimize
mudarib in making default, but the collateral is an optional right, thus
the DSN said.
In this context, the provision of the non postitivated DSN fatwa
has the binding power of it’s own. This fatwa provision applies as a
sharia compliance aspect, so that mudaraba product and activity do not
deviate. If viewed from Hart’s perspective, the DSN fatwa is categorized
as primary regulation. Today’s DSN fatwa is a norm that aliving and
legitimizing by the majority of the people even by the government and
it’s recognition is poured into secondary regulation; Article 1 Paragraph
(12) Law Number 21 of 2008 regarding Sharia Banking and Article 1
Paragraph (3) Law Number 40 of 2014 regarding Insurance; “Sharia
principle is the principle of Islamic law in banking / insurance activity
based on fatwa issued by institution that have authority in determining
fatwa in the field of sharia” In addition, DSN implicitly contained in the
provision of Article 26 paragraph (2) Law Number 21 of 2008; “The
sharia principle as referred to paragraph one is stated by the Indonesian
Council of Ulama,” and Article 32 paragraph (2): “The Sharia Supervisory
Board as referred to paragraph (1) is appointed by the General Meeting of
Shareholder on the recommendation of the Indonesian Council of Ulama.”
While explicitly in the explanation of Article 21 paragraph (4) POJK
Number 16 / POJK.03 / 2014 regarding Asset Quality Assessment of
BUS and UUS, explained that: “Fulfillment of the Sharia Principle refers
to the fatwa issued by the National Sharia Board-Indonesian Council of
Ulama”. As for Article 1 paragraph (6) POJK Number 31 / POJK.05
/ 2014 regarding Sharia Business Financing, that provision reads: “The
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sharia principle is the provision of Islamic law based on fatwa and / or the
sharia conformity statement from the National Sharia Board-Indonesian
Council of Ulama”.
The binding power of DSN fatwa was strengthened by the
Supreme Court Decree Number KMA / 032 / SK / IV/ 2006 regarding
Enforcement of Book II Guidelines for the Implementation of Task
and Court Administration; In the KMA stated in part II of the Judicial
Technical, in the sub-chapter of the position and authority of the
Religious Court/Shariah Court (Mahkamah Syar’iyah), there is a
material legal discussion that is used by the Religious Court/Shariah
Court; at number 19 the DSN-MUI fatwa is stated as material law used
by the Religious Court/Shariah Court.
There is also a positivisation pattern in addition to the above, which
has its own uniqueness. Where in this pattern, the DSN fatwa is actually
not formalized, but textually it looks like there is a difference in content:
DSN Fatwa

Codification

Fatwa Numb: 07 /DSN-MUI/IV/2000
Second: Financing Pil-lar and Term
Provider of fund (sahibul mal) and
manager (mudarib) must be lawful.
Fatwa Numb: 115 /DSN-MUI/IX/2017
Fourth: Provision of the Parties
Sahibul mal and mudarib must be lawful
with sharia and applicable legis-lation

II.1.1. Mudaraba Financing
The Bank conducts an analysis of
request for financing from customer
which include personal aspect in the
form of character analysis and / or
business aspect, including analysis
of business capacity (capacity),
financial (capital), and / or business
prospect (condition)

That legal provision is not accommodated in OJK regulation, even
the provision looks different from fatwa. The reason is that there is
no agreement between a lawful and unlawful person in the Islamic
Banking environment.
Because of this, the provision of lawful not become concentrated
in POJK, SEOJK or codification. Whereas the provision in the OJK
regulation did not violate sharia principle, it was a manifestation of the
prudential principle that recognized by the OJK. As for fatwa Number
115 / DSN-MUI / IX / 2017 in this context strengthens the position
of fatwa Number 07 / DSN-MUI / IV / 2000.
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Basically, the DSN fatwa as a fiqh product does not only discuss the
provision of mudarabah in the scope of Islamic banking, but includes a
broader scope, namely the transaction of Islamic economic in daily life.
So, the provision of legal capability is also shown to individuals who
have a tsuna’iyah status.
Positivation in this context uses cultural and / or objectivation
patterns, whereby the OJK does not formally lawful requirement as
in the DSN fatwa into OJK regulation. The provision of lawful flows
just like that, binds, and becomes a habit that must be carried out
without having regulatory formalities (ideological normative). It can be
understood by all people, especially actors in BUS and UUS without
having to understand the original values of the DSN fatwa and can be
approved by anyone without having to approve the original value.
The Result of Positivisation that Experiencing Gap
Fatwa Numb: 07/ DSN-MUI/IV/2000:

Codification

LKS as a provider of fund bears all losses
due to mudaraba unless mudarib (customer) makes a deli-berate mistake, negligent, or violates the agreement.

II.1.1. Mudaraba Fi-nancing
Bank and customer bear the loss
proportionally according to their
respective capital portion

If the loss in musyaraka is divided on the portion of each of the
two parties, the loss in mudaraba is the responsibility of sahibul mal,
except for mudarib default. It is positivated into POJK with a copypaste pattern: ... whereas the loss is borne entirely by the Bank unless the
customer makes a deliberate, negligent, or violating agreement.
Not so with the codification of the product and activity of BUS and
UUS, there is gap in it’s provision with the DSN fatwa as it’s legal source.
The Positivisation of DSN fatwa in the codification provision above uses
the extending of fatwa provision pattern. Tha extending of fatwa led to
gap between DSN fatwa and codification of BUS and UUS product and
activity even with POJK, where loss in mudaraba on the basis of not
the customer’s fault (default), borne by both parties (sahibul mal and
mudarib) in accordance with their respective capital portion. This clearly
resembles the provision for the distribution of loss in the Musyaraka
contract and out of the characteristic of the mudaraba contract.
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That provision is out of the mudaraba principle, because: 1.
Mudaraba is financing carried out by one party (sahibul mal) as a
provider of capital without mixing capital with other parties, and the
other party, namely mudarib, has the obligation to manage asset (capital)
from sahibul mal. Whereas in the codification, it is stated that there is
a portion of capital between the two parties; and 2. Financial loss in
mudaraba is only the responsibility of sahibul mal (except mudarib in
default), and not the responsibility of the mudarib. Mudarib’s loss is in
the term of the energy and time that has been spent without getting a
profit (not replacing financial loss).
The gap must necessarily be revised immediately by the OJK as the
codification publisher, so there will be no misrepresentation in financing
practice and the practice of law enforcement. The reason, if there is a
conflict between the DSN fatwa and the legislation (in this context is
regulation), then the tradition of punishing civil law will put forward
the legislation as the law should. The DSN fatwa’s binding power and
force have condition, namely if it does not conflict with the legislation.
This is also consistent with what Hart said, which is essentially the
hierarchy of primary regulatory under secondary regulatory.
However, in this case, because codification is contrary to the DSN
fatwa or with the POJK as the regulation on it, the contradictory
provision in codification must be ignored. This is in accordance with
legal principle, lex superior derogat legi inferiori.
List of DSN Fatwas Not Been Adopted as OJK Regulations
Fatwa
Fatwa Numb: 07/DSN-MUI/IV/2000
First: Term of Financing
Operational cost is charged to the mudarib
Fatwa Numb: 115 /DSN-MUI/IX/2017
Seventh: Provision for Business Activity
Costs incurred due to business activity on behalf of the mudarabah entity, may
be charged to the mudarabah entity

The fatwa provision number: 115 / DSN-MUI / IX / 2017 regarding
costs arising from mudarabah activity, differs from perspective with the
provision of operational cost in the fatwa number: 07 / DSN-MUI / IV
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/ 2000. In the fatwa number: 07 / DSN-MUI / IV / 2000, operational
cost is charged to the mudarib, while the costs (operational cost)
referred to fatwa number: 115 / DSN-MUI / IX / 2017 are allowed
to be charged to the mudarabah entity sourced from sahibul mal fund.
The argument for the difference in perception is; that the fatwa
provision Number: 07 / DSN-MUI / IV / 2000 is a provision related
to operational cost in the context of mudarabah with profit sharing
system using the method of gross profit margin (net revenue sharing).
Basically the bank can use two methods in the distribution of profit
(result), namely profit sharing, the profit sharing that calculated from
income after deducting capital (ra’su al-māl) and operational costs, and
may also based on the principle of net revenue sharing, namely the
profit sharing calculated from income after deducting ra’su al-māl.
The costs referred to fatwa Number: 115 / DSN-MUI / IX / 2017
are in the context of mudarabah operational cost with profit sharing
system and gross profit margin (net revenue sharing). Thus, sahibul
mal can choose to charge operational cost, so the context may be
charged to the mudaraba entity as above is able to charge costs to the
mudaraba entity or be charged to the mudarib. Both of these DSN
fatwas must be reference to Islamic banking regarding the operational
cost of mudaraba.
Description

Amount

Sale

100

Cost of goods sold

65

Gross profit

35

Burden

25

Net income

10

Profit Sharing Method

Gross Profit Margin
Profit Sharing

Regarding to operational cost, Sayyid Sabiq argued; the sustenance
of the executor of mudarabah is taken from his own wealth while
he is muqim, thus if he traveled for the sake of mudaraba. Because
the sustenance (can be) is sometimes as big as profit, it means (if a
sustenance is taken from mudaraba), he takes it all, while the owner
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of the capital does not get a share. Even though the capital owner has
the share right of the profit, as a legal requirement for mudarabah. The
existence of sustenance taken from mudaraba means that the owner
of the capital gets nothing. However, if the capital owner allows the
mudarib to spend the capital of mudaraba for the purpose of himself in
the middle of the trade trip or because it includes customary practice,
then he may use mudaraba capital.
The provision of that fatwas are not in POJK, SEOJK or codification.
The absence of that provision causes the fatwa to be bind and coercive in
it’s own form when viewed from Hart’s theoretical perspective.
That standards for behavior that impose various obligations on
the community that claims it, and it’s recognition is contained in
secondary regulation, has legal force and binding (as discussed in the
previous sub-heading). The binding power of the DSN fatwa applies if
it does not conflict with OJK regulation based on another DSN fatwa
or OJK regulation relating to the Islamic financial industry. Because,
the legal system in Indonesia is arranged hierarchically from the lowest
to the highest, and applied the legal principle of lex superior derogat legi
inferiori.
Conclusion
Indonesia today has accommodated various kinds of mixed
systems, so the DSN fatwa is recognized in the development of legal
dynamic in Indonesia, especially in the Islamic Financial Industry and
Religious Court. Nonetheless, the civil law tradition or positive law
which is influenced by the idea of classical positivism, still dominates
the legal characteristic.
DSN fatwa about mudaraba is positivated into OJK regulation using
several different patterns. It is make gap and difference in content. In
addition, there is also that provision which not positivating. DSN fatwa
which has positivated, it has binding power equivalent to the regulation,
and the provision that has implication for the gap, then applied the legal
principle of lex superior derogat legi imperiori. Likewise, the provision of
the DSN fatwa that is not positivated, it has binding power, but that legal
principle applying. Thus, the position of the DSN fatwa in Indonesia
occupies the primary regulatory position as stated by Hart.[]
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Abdul Rohman Zulfikar Alfarouq & Nurhasanah, Faculty of Sharia and Law, State
Islamic University (UIN) Syarif Hidayatullah Jakarta, Jl. H. Juanda 95, Ciputat, Jakarta.
E-mail: zulfikaralfarouq@gmail.com, nurhasanah@uinjkt.ac.id
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