KEDUDUKAN FATWA DITINJAU DARI HUKUM ISLAM DAN HUKUM POSITIF (ANALISIS YURIDIS NORMATIF)

Abstract

e-mail : erfanriadi@yahoo.ac.id

ABSTRACT

The recent phenomena showed many organization and law institution with syari’ah based did its activities according to law in a fatwa product from Islamic Scholar Association of Indonesia, then the fatwa product also caused controversy among society, in this case, our country was a law country who has arranged and legal regulation base. The research purposes: to find out how is the fatwa concept in Islamic law according to the Islamic Scholar’s perspective? And also to find out how the fatwa position in Islamic Law and Positive Law in Indonesia? The research used normative legal research with normative juridical approach, which seen law as developed norms and existed in society. Law material used was primary law material, that was law source with direct relation with the research did; secondary law, that was supporting primary law and tertiary law which gave direction and explanation about primary and secondary law source. Law source collection technique used literatures. Then law source analysis used was comparative analysis, which compared the fatwa existence in Islamic Law and Positive law. The exact result showed that fatwa was not a tight law product, so it has no position in Islamic Law and positive law, so it never be a law base, since fatwa only unbinding advice (legal opinion).

Kata-kata Kunci :

Fatwa (Islamic Instruction), Fatwa Position, Islamic Law, Positive Law