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Islamic Banking Law Perspective in the Concept of National Law

*Muhyidin Muhyidin  -  Fakultas Hukum Universitas Diponegoro || Indonesia, Universitas Diponegoro, Indonesia

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Abstract

Abstract

The focus of this article is the perspective of Islamic Banking Law in the concept of national law, both from the institutional aspect, the aspect of business activities. As well as aspects of liquidity management and financial instruments used, both at the level of laws and implementing regulations; and influencing socio-political, cultural and economic factors. Islamic banking law is a new entity in which there is interaction and mutual greeting between Islamic law and national law. In other words, Islamic banking law lies in two areas of law: Islamic law and national law. Sharia banking law, as the name implies, is Islamic law because it is formed on the principles of Islamic law. At the same time, Islamic banking law is also part of national law because it is formed by the competent state institution with the infrastructure and mechanisms that are formally justified. The discussion focuses on the dynamics of the encounter between Islamic law and national law as the elements of its formation. Such efforts can not ignore the factors - factors that influence it, whether political, cultural or economic.


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Keywords: Sharia Banking, Politics, National Law.

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  1. In general, financial institutions can be grouped into two categories, banks and non-banks. Both of these financial institutions are engaged in raising and distributing funds . What distinguishes the two is the manner and orientation. If a bank raises funds either directly in the form of deposits, public funds (savings, current accounts, deposits) or indirectly from the public (valuable paper, investments, loans / credits from other institutions), then non-bank financial institutions only collect funds indirectly from the community (especially through valuable paper, and it could also be from participation and loans / credits from other institutions). In channeling bank funds , it does so both for the purpose of working capital, investment and consumption, to businesses and individuals, and for the short, high and long term. Meanwhile, non-bank financial institutions channel funds primarily for investment purposes, to business entities, and for the high and long term. Read more Totok Budisantoso and Sigit Triandaru, Banks and Other Financial Institutions, Issue 2, Jakarta: Salemba Empat Publisher, 2006, p. 5. Another perspective makes a different classification under the name of the financial system. According to this perspective, the financial system is divided into two, namely the monetary system and other financial institutions. Hermansyah, Indonesian National Banking Law, revised edition, 2nd printing (Jakarta: Kencana Prenada Media Group. 2006), p. 1-2
  2. The prohibition of usury is certain because it has been stated explicitly in both the Koran and the Sunnah. However, whether the bank interest is usury, there are differences of opinion among the scholars. That is why the legal status of bank interest is still disputed among scholars. Some argue that it is absolutely haram, because it is identical to usury. Some are of the opinion that it is haram with restrictions, that is, if it is for consumptive purposes and not carried out by a government bank. There are also those who allow it. good for reasons not including riba which is forbidden. or for emergency reasons. Ahmad Azhar Basyir. Islamic Law on Riba, Debt-Receivables, Pawn, second printing (Bandung: PT. Alma'arif. 1983), p. 28-32; and Ahmad Azhar Basyir, Reflections on Islamic Issues Regarding Philosophy, Law, Politics and Economics (Bandung: Mizan, 1993), p. 183
  3. Tan Sri Datuk Ahmed Mohammed Ibrahim, “Legal Issues in Implementation of Islamic Banking and Finance”, Labuan International Summit on Islamic Finance / & Investment Instrument, 16-18 June 1997 as quoted by Zainul Arifin, Basics of Islamic Banking Management , print 4, revised edition (Jakarta: Pustaka Alvabet. 2006), p1m. 2. Mulya Siregar mentions these things as characteristics of Islamic banking operations. According to him, the operating characteristics of Islamic banks are prohibiting interest (usury). transactions that are not transparent (gharar) and speculative (maysir). Mulya Siregar, "Islamic Banking Development Agenda for a Healthy Economic System in Indonesia: Evaluation, Prospects and Policy Direction," in Iqlisad, Journal of Islamist Economic, Volume 3 No. 1, Muharram 1423 / March 2002. p . 47
  4. The increasing number of legal norms related to Islamic banking and the term Sharia is seen from two perspectives, namely the main norms and norms of detail / implementation. From the perspective of the main norms , the increasing number and comprehensiveness of legal norms related to Islamic banking can be seen from the increase in articles and / or paragraphs in Law Number 10 of 1998 and Law Number 23 of 1999. If in Law Number 7 of 1992 the legal norms of PbS are only three post-sub article, then in Law Number 10 of 1998 the legal norm of PbS increases to more than 10 articles / sub articles, including Article 1 points 3, 4, 12, 13, 18, and 23, Article 6. Article 7, Pasa18, Pasa1 11 paragraph (1), (2), and (4A), Article 13, and Article 29 paragraph (3). If in Law Number 13 of 1968 there are no articles / sub-articles related to PbS, then in Law Number 23 of 1999 there are legal norms for PbS, including Article 1 point 7, Article 10 paragraphs (2) and (3) and Article 11. In the perspective of details / implementation norms . the increase in legal norms for PbS is no longer in the count of articles and / or sub-articles, but in the unit of legislation product in the form of Bank Indonesia Regulations (PBI) and Circular Letter B which are numerous. Compare this with the laws and regulations governing the implementation of Sharia banking during the regime of Law Number 7 of 1992 which has only one piece, namely PP Number 72 of 1992
  5. Abdul Wahhab Khallaf, the science of Ushul al-Fiqh. twelfth printing (Kuwait: Dar al-Qalam. 1978/1398), p. 11; Wahbah al-Zuhayli, AI-Waji: ji Ushul aI-Fiqh, second printing (Damascus, Syria: Dar al-Fikr, 1995/1446), p. 14; and A. Qodri Azizy, Building the Economic Foundation of the Ummah. Looking at the Prospects for the Development of Islamic Economics, printed I (Yogyakarta: Puataka Pelajar, 2004), p. 185
  6. Lawrence M. Friedman, The Legal System, A Social Science Perspective (New York: Russell Sage Foundation, 1975), p. 223; and Law and Society (New Jersey: Prentice-Hall. 1977), p. 7
  7. Tan Kamello, "Character of Civil Law in Banking Functions through Relationships between Banks and Customers," Speech inaugurating the Position of Professor in the Field of Civil Law at the Faculty of Law, University of North Sumatra, Medan, 2 September 2006, p. 6
  8. Peter Mahmud Marzuki, Introduction to Law (Surabaya: Kencana Publisher, 2008), p. 261-299
  9. Roberto M. Unger, Critical Legal Theory, Legal Position in Modern Society, translated by Dariyatno and Dena Sri Widowalie from Law and Modern Society: Toward a Criticism of Social Theory, 1 V print (Bandung: Nusa Media, 2010), p1m .67-69
  10. MUl though in fact part of the cultural system is called itself separately because of the role it plays. Likewise, with the same considerations, B1 is called itself separately even though in fact it is part of the economic system
  11. Article 26 of the PbS Law

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