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58 J.L. Pol'y & Globalization 112 (2017)
The Harmonization of Islamic Law and Civil Code in the Murabahah Contract: A Case in Indonesia

handle is hein.journals/jawpglob58 and id is 113 raw text is: 

Journal of Law, Policy and Globalization                                                     www~iiste.org
ISSN 2224-3240 (Paper) ISSN 2224-3259 (Online)
Vol.58, 2017

        The Harmonization of Islamic Law and Civil Code in the
                   Murabahah Contract: A Case in Indonesia

            Siti Hamidah*   Mohammad Bakr       Abdul Rachmad Budiono      Bambang Winarno
        Faculty of Law, Brawijaya University, M.T. Haryono 169 Malang (65145), East Java, Indonesia

This research aims to analyze the murabahah contract by focusing on the congruence of the principle that should
be applied according to the Islamic Law and Civil Code. As a legal research, the approach are using statute
approach, conceptual approach, and comparative approach. The legal material is in the form of contract and
some laws. From the comparison, there are some similar principles including al-hurriyah with the freedom of
making a contract, al-musawah with the parity principle, ash-shidq with the good deed principle. Some
principles in Civil Law do not have certain names in Islamic Law, such as pacta sunt servanda principle. In
contrast, some Islamic contract principles are not in the Civil Law, which is Illahiyah principle.
Keywords: Contract, Murabahah, Islamic law, Civil Code

1. Background
Besides akhwalusy syakhsiyah (family law) considered as the special characteristic of structure and civilization
of Islam which are applied tangibly in the state courts which use Islamic law, the implementation of muamalah
law grows significantly with the existence of Islamic finance institution, especially banking. It it same as what
happens in Indonesia, the aspect of Islamic banking gets strong yuridicial base with Consitution number 21 year
2008 about Islamic banking.
        Basically, Islamic bank and conventional bank have similarities on its functions as intermediary
institution. The main difference is on the bank operational concept. Islamic bank is operated by following the
Islamic law based on Al Qur'an and hadits which manage about the ways to trade, one of them is the law of
forbidding the use of interest which is categorized as the usury.
        The contract for Islamic banking in Indonesia is obliged to two systems: Civil Code and Islamic Law.
Different from conventional bank which is based on the credit contract in the concept of funding and lending set
by Civil Law, so the funding contract of Islamic bank has some contracts based on its concepts.
        The contract, according to Islamic Law, is the main concern on trade transaction. The contract is
implemented in form of ijab qabul to show the voluntary, reciprocity, and agreement of the contract content and
the obligations which should be fulfilled, based on Allah's stipulation which means 0 ye who believe! Fulfil
your indentures.  (Al Qur'an, Al Maidah: 1). It is also based on Article 1338 of Civil Law. A contract is the
constituion for the parties. Therefore, all contract is made legally. The parties should be obedient and those who
break the law and the requirement will get punishment as set in the lawbreaking toward the constitution.
However, the similarities above do not mean that all aspects has been harmonious because basically every law
system absolutely has a principle which becomes the base or the foundation of the law Principle is as the
beginning, the foundation, and the base point. The legal deposition is the element which reveals the strength and
the weakness of the cause of action, the severity and the amnesty of lawlessness, the law defense, and the
confirmity with the society's willingness.
        Therefore, the harmonization of two law systems for Islamic banking in Indonesia is considered as a
need started from the principle harmonization as the base of Islamic bank law norms in Indonesia. Because the
law principle is the broadest base of law norms inception, thus every law norms will return to the aforementioned
principle. Law principle is a reason or ratio legia of a nonn. Even though law principle is not a norm, but no
law that can be understood without understanding the law principle in it.
        From some Islamic banking funding types, purchase and sale funding by way of murabahah contract
has a significant increase. The profit of this funding is place at the first rank compared to other fundings. This
domination is caused by some factors: easy use, predictable income, the bank cannot interefere to the customer's
business management (Wiroso, 2005), it can fulfill the customer's demand (Hamidi, 2003), and it leads the offer
level for the better monetary stability.
        However, murabahah funding gets Islamic scientist's critiques because it is considered it still keeps the
practice of interest imposition and avoids the risks. Thus, murabahah practice nowadays does not fulfill the
requirements of murabahah and no difference with the interest system in the conventional bank (Sjahdeini,
1999). The research conducted by Azhar shows that the pillar of murabahah purchase and sell as set in the
Advise of the National Islamic Senate of Indonesia Muslim Scholar Council is not applied yet by several Islamic
banks. It is also relate to the down payment (urbun), the fine, the discount from supplier, the discount of the fast
acquittance, the forbidden trade(ba 'iataini fi bai 'atin) (Azhar, 2005). That is why Budi Utomo, the member of
the National Islamic Senate of Indonesia Muslim Scholar Council, assumes that there some practices of Islamic

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