The Positivisation of National Sharia Board Fatwa About Mudaraba into Financial Service Authority Regulation

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.