Inconsistency of Guarantee Norms on The Mudharabah Fatwas in Indonesia

Abstract

The fatwa is the legal basis for Islamic banking in carrying out business activities as referred to in Article 26 paragraph 1 of the Sharia Banking Law. In providing a legal basis for Islamic banking activities, the Indonesian Council of Ulama issued fatwa 07/2000 and fatwa 105/2016. However, these two fatwas confuse the Islamic banking industry players and theoretically are problematic because there are conflicting norms in those two fatwas. The purpose of this study is to find and analyze the legal basis for the mudharabah fatwas of the Indonesian Council of Ulama number 07/2000 and number 105/2016 and analyze the difference in norms in the two fatwas from the perspective of Islamic law methodology (ushul al-fiqh). This type of research is explanatory normative juridical research using a conceptual approach and a statutory approach. Based on this research, it was found that the legal basis used in the determination of fatwa number 07/2000 has a weakness because it is based on weak Hadits so that it cannot be used as a legal basis for establishing a fatwa. In the perspective of ushul al-fiqh, changes in fatwas are allowed as long as they are aimed at realizing the benefit under Sharia objectives.