Ambiguitas Terminologis Kafalah dan Dhomman dalam Fatwa DSN-MUI dan Implikasinya terhadap Kepastian Hukum Perbankan Syariah

Abstract

This study examines the terminological ambiguity between kafalah and dhamān in DSN-MUI Fatwa No. 11/DSN-MUI/IV/2000 on Kafalah and Fatwa No. 12/DSN-MUI/IV/2000 on Hawalah, as well as its implications for legal certainty in Islamic banking in Indonesia. Using a juridical-normative approach with a literature review design, this study traces the genealogical roots of both terms in the classical fiqh tradition across madhhabs, analyzes the wording of the DSN-MUI fatwas, and compares them with international regulatory practices. The findings reveal three main critical issues: the absence of an explicit definition of dhamān as a distinct category; the lack of an explanation of the madhhab-based rationale for distinguishing hiwalah muthlaqah from kafalah; and the absence of standard guidelines regarding the permissibility of ujrah in guarantee contracts. An analysis using Radbruch’s legal certainty framework and the maqashid al-sharia reveals that this ambiguity has the potential to cause inconsistencies in interpretation among Islamic financial institutions. Comparative findings also reveal that similar issues exist between Bank Negara Malaysia and AAOIFI, confirming that this challenge is structural in nature, rather than a singular failure of the DSN-MUI. This study recommends the issuance of additional technical clarifications to define the terminological boundaries of these three contracts, thereby strengthening legal certainty in the national Islamic banking sector.