Vol. 6, Issue 1 (2019)
Alignment of Islamic banking law into national positive legal system: Indonesia context
Author(s): Try Widiyono
Abstract: The enactment of Law No. 21 of 2008 on Islamic Banking Law is a new milestone in Indonesia because it has applied an Islamic legal system to be the Positive Law of Indonesia. Nevertheless, the act uses many concepts without any explanation of its conception, leading an interpretation that the concepts are subject to the same conception set forth in the Indonesian Civil Code (ICC). In fact, sharia and the Civil Code principles have a fundamental difference regarding the covenant principle. Sharia principles are derived from various sources of Islamic law while the ICC principle embraces an open principle; namely, providing the parties involved in the covenant their own as long as it is not against the law, morality and public order. The covenant not only binds the things expressly stipulated in the covenant, but also all things which by their nature are required by propriety, customs and laws. Therefore, it is necessary to harmonize sharia banking principles with the provisions stipulated in the ICC. It is also important to develop a codification of Islamic Civil Code as a substitute of the ICC in the sharia principles to accommodate the development of Islamic banking and sharia economy in Indonesia.