ASSESSING VALIDITY OF SOME CRITIQUES TOWARDS THE FATWAS OF THE DSN-MUI ON MU Ḍ ĀRABAH WITHIN THE PERSPECTIVE OF THE AQWĀL OF ISLAMIC LEGAL EXPERTS

: Abdullah Saeed and Mervyn K. Lewis argue that the implementation of contracts in Islamic banking has deviated from fiqh. With the same critical framework, some researchers in Indonesia also criticize the fatwas of the DSN-MUI (Na-tional Sharia Board of the Indonesian Ulema Council) on the mu ḍ ārabah contract. This paper, however, argues that all of those criticisms can be categorized as a khilā fiyyah (differences of opinion among muslim jurists). Again this backdrop, this paper will assess the validity of those critiques towards the fatwas of the DSN-MUI on mu ḍ ārabah within the perspective of the aqwāl of islamic legal experts ( madh āhi b ) as well as prove that the mu ḍ ārabah model in Islamic banking in Indonesia does not deviate from fiqh. After reviewing relevant library sources, this paper shows that the fatwas of the DSN-MUI on mu ḍ ā rabah are supported by the aqwāl of islamic legal experts among Ḥ anbal ī , Ḥ anaf ī , M ā lik ī , and Sh ā fi ʻ ī schools. Moreever, although it is different from the mu ḍ ā rabah form known by many people in fiqh, the mu ḍ ā rabah contract system adopted by the DSN-MUI can be categorized as a model of mu ḍ ā rabah permitted by islamic legal experts.


Introduction
Dewan Syariah Nasional (DSN, National Sharia Board), a body under the Majelis Ulama Indonesia (MUI, Indonesian Ulema Council), henceforth DSN-MUI, has a special duty to issue fatwas related to Islamic finance. Officially, this institution was formed in 1998 in response to the rapid development of Lembaga Keuangan Syariah (LKS, Islamic Financial Institutions) in Indonesia, while Bank Indonesia (BI) and the Ministry of Finance, two institutions that has authority in the financial sector, but not in the field of sharia. 1 Sharia Bank carries out its business activities based on the sharia principles. 2 Its birth stems from the rise of the Islamic movement in the early 20 th century when Muslims wanted to practice their religion in all aspects of their lives, including the economy. 3 Therefore, the fatwas of the DSN-MUI regarding Islamic banking and the system/mechanism of its contracts must convince the religious "ummah" that all of their activities are in accordance with the sharia principles.
As a responsibility to ensure that the contracts used in Islamic banking are conforming to the Islamic rules, the DSN-MUI issues fatwas by following the guidelines set by the Fatwa commission of the MUI. Stating that every issue discussed in the fatwa commis- sion, including the issue of Islamic finance, must be based on four principles; Quran, Sunnah, Ijmāʻ and Qiyās. The very first step of fatwa issuance is thus to carefully review the opinions of the Imams of the madhhab regarding the issue and their arguments. When the problem in question has a qaṭʻī (certain) basis, such as the Quran, then the fatwa can be immediately issued according to that basis. 4 Since its establishment until the end of 2019, the DSN-MUI has issued 130 fatwas on contracts in Islamic banking, sharia insurance, and sharia business. Out of 78 fatwas that have been published in the Fatwa Association book, 53 fatwas are related to Islamic banking. 5 The fatwas of the DSN-MUI on Islamic banking, however, seem to have no basis, although it is deemed new and different from what has been circulating in the community. Even the early fatwas such as those on giro, savings, deposits, murābaḥah, muḍārabah, mushārakah, ijārah and others did not at all attach the opinion or aqwāl of the scholars of madhhab . Therefore, it is just logical that these fatwas have received a lot of criticism from various parties: scholars, academics, and researchers. Cholil Nafis, for example, generally questions the independence of the DSN-MUI because it is more influenced by opinions in the Shāfiʻī school. 6 4 Majelis Ulama Indonesia, Himpunan Fatwa MUI Sejak 1975(Jakarta: Penertbit Erlangga, 2011 DSN-MUI-BI1, Himpunan Fatwa Dewan Syariah Nasional MUI, 1 (Jakarta: Gaung Persada, 2006). 6 M. Cholil Nafis, Teori Hukum Ekonomi Syariah, p. 82.

Al-Risalah
Vol. 20, No. 1, December 2020 259 Amir Syarifuddin 7 criticizes the DSN-MUI Fatwa for not providing an explanation for the use of the argument or wajh istidlāl (method of argumentation) which forms the basis of a fatwa.
Among the contracts that receive a lot of criticism is the muḍārabah; one which is considered an icon of Islamic banking in its position as a more equitable system in providing the benefit of the people. The criticism is directed to both the theoretical system and its implementation in the field. 8 Criticism of the system and mechanism of the muḍārabah contract in Islamic banking, which is formally based on the DSN-MUI fatwas, indirectly questions the validity of these fatwas. On the other hand, a fatwa must obtain the miṣdāqiyah (recognition) of the people that the fatwa is truly based on sharia principles. One way of convincing them is by providing an explanation that these fatwas have strong arguments and are supported by the opinion or aqwāl of the scholars of madhhab whose capacity and integrity have been recognized.
This article discusses the fatwas of the DSN-MUI on muḍārabah and places them among the opinions (aqwāl) of the scholars of madhhab. It questions whether the fatwas are supported by the aqwāl of the scholars or the rather new "ijtihad" of the DSN-MUI; and why the DSN-MUI chooses one of the aqwāl if there is a dispute regarding the problem in question. By doing so, this article provides answers to the criticism raised on the system and mechanism of muḍārabah implemented in Islamic banking. This is a library research with the main data obtained through a review of the litera- ture related to the research object. The focus is on the thoughts of the fiqh scholars from some schools reflected in their fatwas. It employs comparative method or, as Muslim scholars call it, muqāranah al-madhāhib. The type of data in this research is mainly secondary data obtained from libraries, consisting of primary materials from standard fiqh books from various schools, and secondary and tertiary ones which consist of studies and research of mutaʼakhkhirīn (contemporary) scholars. It initially collects the responses that either support or against the fatwas of the DSN-MUI on muḍārabah; lists the themes that are often questioned in the implementation of it and more generally the contracts practiced in Islamic banking; elaborates the aqwāl of the scholars of madhhab related to these themes, and; finally compares them with the fatwas of the DSN-MUI. Conclusively, this article uses the framework developed in fiqh and uṣūl al-fiqh and presents the results with a qualitative descriptive method. 9

DSN-MUI's Fatwas on Muḍārabah: Pros and Cons
We have mentioned before that the fatwas on this issue have received a lot of criticism. ing. Their main critique is on the profit sharing in the muḍārabah scheme which is based on the prediction of profit at the beginning of the contract, carried out every month, and is not based on the real profit known at the end of the contract. Riri Anggraini criticizes the profit sharing with the revenue sharing system (for revenue sharing) instead of a pure profit and loss sharing system. 11 Similar to Abdullah Saeed, Muhammad Sjaiful also questions the legal standing of Islamic banks which has dual status, as muḍārib on the one hand and as ṣāḥibu al-māl on the other. According to Sjaiful, this lack of clarity causes the muḍārabah contract to turn into dayn (debt). Muhyidin, Muhammad Mukhtar Shidiq and Triyono argues that charging muḍārib a guarantee payment has changed the muḍārabah into dayn. 12 Khudari Ibrahim says that the practice of muḍārabah in Islamic banking which obliges muḍārib to pay for insurance will burden the muḍārib and be regarded a violation of sharia compliance. 13 A. Chairul Hadi and Sofhian are of the opposite opinion, that banks or ṣāḥibu al-māl is allowed to charge muḍārib an amount of guarantee for the capital they distribute. Both of them do not present the arguments of the aqwāl of ulama, but consider it as almaṣālih al-mursalah that conforms the needs, situations and conditions of the ummah. According to Sofhian, the guarantee from muḍārib is not to secure the capital, but rather to ensure that the muḍārib will not violate the agreement. 14 11 Riri Zuhirsyan and Nurlinda argue that with regard to savings and time deposits, Islamic banks have implemented real profit sharing. 15 However, Nosain finds that Islamic financial institutions does not really implement the muḍārabah contract, but instead provide a working capital (mainly shortterm) loan, to regulate the procedures for withdrawing funds, and share profits based on bank regulations. 16 Therefore, Popon Srisusilawati emphasizes the urgency of intensive supervision in the implementation of muḍārabah by Islamic banks ensuring that it runs in accordance with the principles of Islamic law and realizes justice for both parties. 17 Abdullah Saeed and Mervyn K. Lewis, supported by M. Maksum, concludes that Islamic financial activities do not fully implement the fiqh contract model, in fact they are very contrary to it. 18 Rahman Ambo Masse also argues that the practice of muḍārabah by Islamic banking has undergone a fundamental change from its basic rules in  Abu Majid Harak also admits that the fiqh debate on Islamic banking practices still leaves many problems, for example; time restrictions that would damage the muḍārabah contract. 21 Furthermore, it also distributes the illegitimate capital instead of cash according to scholars. 22 However, this article will explore the aqwāl of legal scholars regarding the models of muḍārabah contracts through their works, then measure the validity of the criticisms towards the fatwas of the DSN-MUI.

The Aqwāl of Islamic Legal Experts
Having compiled the pros and cons on the fatwas of the DSN-MUI, the following pages will provide an elaboration of ten subthemes under the issue of muḍārabah. The discussions below will help us assess the validity of the fatwas and see whether they conform or rather violate the arguments developed in various legal schools.

Muḍārabah with Non-Cash Capital
In its fatwa on muḍārabah, the DSN-MUI declares that it is allowed to conduct muḍārabah with either cash or non-cash (goods/assets) capital. This triggers questions particularly from Muslim scholars for the majority of legal scholars (jumhūr al-'ulamā`) to regard it illegitimate to conduct than dīnār and dirham (cash), including al-'urūḍ and as-silā` (assets). 23 The majority says that it is difficult to return the capital due to fluctuations in the price of goods; 24 the so-called "cash capital" is safer for it allows muḍārib and ṣāḥib al-māl to take the profit without any risks. Furthermore, the non-cash capital also provides both parties with uncertain profit. 25 However, there are names such as Ṭāwūs, Auzā"ī, and Ibn Abī Lailā, 26 that regards it to be legitimate (ṣaḥḥ) to make use of goods and assets because they belong to the category of māl (property). If one is allowed to conduct muḍārabah with "cash capital", one is also allowed to do so with goods and assets. 27 However, the latter argument by Ṭāwūs is similar to a marjūḥ (weak) argument ascribed to Imam Aḥmad b. Ḥanbal who says that the price of those goods can be the nominal of capital when the contract begins, but if it increases, the surplus cannot be regarded as profit. 28 Thus, in this regard the DSN-MUI seems to follow the argument of Ibn Abī Lailā and the marjūḥ (weak) argument of Imam Aḥmad, rather than the jumhūr"s. I argue that this is the right choice, for the basis for jumhūr"s argument is yet arguable. The price fluctuation does nowadays apply to the money. Its currency when the contract begins might not be the same when it terminates. Therefore the return on capital will depend on the agreement between the two parties, even when the capital is in the form of money; in which form will the capital be returned. Either way, both parties will refer to the market price at the time of the contract. There is indeed a little uncertainty regarding muḍārabah profit, as it is in the contract of musāqāh and other kind of businesses. However, such uncertainty is natural and does not lead to the void of the contract. That is why Muslim legal scholars allow a little jahālah (uncertainty) as long as it is gairu fāḥisy (insignificant) or cannot be avoided. 29

The Object of Muḍārabah Is Not Trade
The DSN-MUI's fatwa regarding muḍārabah does not limit its form and business activities to trade or commerce. It thus sort of violates the general definition commonly known in the fiqh books; muḍārabah is a cooperation between two parties, in which one party (ṣāḥib al-māl) provides capital to the other (muḍārib), to be traded, under the condition that profits are shared between them according to the agreed percentage. The loss, if any, is borne by the owner of the capital. This means that the form of muḍārabah activity is limited to trade/commerce.
A close reading to the fiqh literatures present a high disputes between legal scholars on this issue. The Shafiite and Hanafite scholars only allow muḍārabah in the scheme of trade or other scheme the profit of which comes from trading or trading-like activities. 29 Sābiq, Fiqh Al-Sunnah, p. 136.
In Kifāyatul-Akhyār we can find a great example; if one conducts a muḍārabah for (to buy) wheat and one bakes a cake from it, the muḍārabah will be void. The same applies to a case of someone who conducts muḍārabah for yarn then he/she spins, weaves and sells it. This is due to the status of muḍārabah as a rukhṣah (permission) which can be applied in emergency. It is initially unlawful for the profit uncertainty, but is then allowed for a ḥājah. Spinning, weaving, and cake-baking, however, can be conducted through ijārah (lease). In this case, muḍārabah returns to its basic status, that is unlawful. 30 The Hanafites go further by saying that those kinds of activities belong to the category of skill outside trade or commerce and are thus not incorporated in the muḍārabah contract. 31 On the other hand, the Hanbalites allow muḍārabah with trading plus other forms of work or productive activity by muḍārib. It bases its argument on qiyās (analogy) to musāqāh and muzāraʻah, both of which engage other form of productive activities. These three contracts share similar aspect, which is passing on capital or assets to another party so that the latter can manage the capital/assets and both parties may gain some profit. According to this legal school, if one (ṣāḥib al-māl) gives yarn to a tailor (muḍārib) and the latter sells it and gains profit, the profit can be shared by both parties. 32 In this regard, DSN-MUI clearly follows the argument of the Hanbalite scholars who allow the contract with either trade/commerce or other productive activities.

Muḍārib (A) Conducting Muḍārabah with Another Muḍārib (B)
In other fatwa, the DSN-MUI states that in their status as muḍārib, banks can carry out various kinds of business and development that are not against sharia principles, including conducting muḍārabah with other parties. 33 M. Maksum quoting El. Gamal calls the second muḍārabah the silent partnership. 34 The concept of parallel muḍārabah is also acknowledged by Majma "al-Fiqh al-Islāmi, which firmly places the bank as a muḍārib who performs another muḍārabah to a third party (muḍārabatul-muḍārabah), not as an intermediary between customers and muḍāribs. 35 Legal scholars from many schools have discussed this issue. First they agreed that muḍārib should not give capital that he/she received as muḍārabah to other muḍāribs, if the ṣāḥib al-māl did not give permission. 36 According to Mālikiyah muḍārib should not do so unless ṣāḥib al-māl orders it. Otherwise, muḍārib is considered to have committed a mistake (violation), so that he/she must be responsible if the business incurs a loss. But if the business is profitable, he is still entitled to a share of the profits from both contracts. 37 Nevertheless, the scholars of the school differed on the opinion of muḍārib conducting another muḍārabah with other muḍārib by the permission from ṣāḥib al-māl, and regarding the sharing of the profits. 38 Sayid Sabiq absolutely prohibits this practice, 39 the same argument with that of the Shāfiʻiyah scholar in Nihāyah al-Muḥtāj. 40 The reason for this prohibition is the confusion about who is the actual manager and that the bank does not act as an intermediary for a job. This makes the bank not eligible for profit sharing. On the other hand, Ḥanafiyah and Ḥanābilah scholars allow this practice only with the permission of ṣāḥib al-māl. 41 The DSN-MUI in this regard follows the opinion of Ḥanafiyah and Ḥanābilah. I would argue again that this is the right choice, mainly because there is no naṣṣ which prohibits this practice. The second reason is due to the significant contribution of intermediary and therefore it is worth receiving a reward. It might be difficult for the ṣāḥib al-māl to directly find a trustee (muḍārib) to manage his/her capital, and the otherwise for a muḍārib to find ṣāḥib al-māl to fund his/her business. Moreover, banks also select ṣāḥib al-māl by assessing the feasibility of business and management. They do not just pass on the funds. Third, muḍārib already knows the character of their business partners, namely as intermediaries with

Muḍārib Gains Other Capital from Other Ṣāḥib al-Māl
Investment with muḍārabah contracts in LKS is a collective investment. This means that the bank as a muḍārib also receives funds from other ṣāḥib al-māl. This applies to Islamic banking even though it is not explicitly stated in the fatwa.
As in the previous sub-theme, legal scholars have different opinions on this issue. Ḥanafites and Ḥanbalites permits and considers it as a management method which becomes the authority of the muḍārib, because ṣāḥib al-māl has handed it over to the muḍārib. 43 Only if the muḍārib"s sustenance comes from the muḍārabah fund, then the muḍārib may not receive muḍārabah funds from other ṣāḥib al-māl. This is because it will be detrimental to the first ṣāḥib al-māl, unless he/she gives permission. The author of al-Inṣāf that if the contract says the sustenance of muḍārib is borne by ṣāḥib al-māl, then he/she serves as the worker and therefore he/she must not work for other people (by accepting muḍārabah from others).

According to Ibn Qudāmah, muḍārib
should not receive funds from other ṣāḥib almāl because it would disturb the first muḍārabah. If the muḍārib does and he/she cannot differentiate between each muḍārabah, he/she must take the responsibility for whatever that may happen. However, if ṣāḥib al-māl gives permission, then the muḍārib may receive muḍārabah funds from other ṣāḥib al-māl. A simple statement that the ṣāḥib al-māl will accept muḍārib"s considerations suffices. 45 Imam Malik also allowed receiving muḍārabah funds from other ṣāḥib al-māl under the condition that muḍārib would not neglect the first contract. Accordingly, if the capital from the first is already significant, it is better for the muḍārib not to receive funds from others. 46 Shāfi"ite scholars also allow the muḍārib to cooperate with two ṣāḥib al-māl at the same time because in practice he/she will conduct the same thing. If the share of profits for muḍārib in the two muḍārabahs is the same, then he will receive according to the agreement. In fact, if it is different in each contract, for example with one party he gains 50%, and 25% from the other, it does not invalidate the muḍārabah as long as each are described in the contract.
From the above explanationm it is understood that the scholars of the madhhab agrees that muḍārib can receive muḍārabah capital from several ṣāḥib al-māl as long as the first ṣāḥib al-māl gives permission and all parties are clearly aware of each of the benefits. It seems that the DSN fatwa is in accordance with the opinion of the majority of the ʻulamāʼ (jumhūr), and this is what every Sharia Bank practices. One can find in many cases that bank as a muḍārib also includes its capital in the muḍārabah that it conducts. The DSN-MUI uses the term muḍārabah musytarakah, which is a combination of muḍārabah and musyārakah. The bank acts as musyārik and at the same time as muḍārib. The profit sharing is differentiated between the profit from the musyārakah contract and the profit from the muḍārabah contract. 47

Muḍārib Encloses His/Her own
The practice of combining muḍārabah funds with that of muḍārib has been discussed by scholars. According to Hanbalite and Ḥanafite scholars, this practice may be permitted with the permission from ṣāḥib almāl before the business starts. A simple statement that the ṣāḥib al-māl will accept muḍārib"s considerations suffices. 48 For Ibn Qudamah, the muḍārib may see that the merger brings more benefits and this becomes his/her main consideration. 49 Imam Malik also allowed this practice only with orders from ṣāḥib al-māl. 50 According to Ibn Juzayy, in al-Qawanin al-Fiqhiah Shāfiʻite scholars are reported to have two opinions. The stricter one reports the prohibition of such practice, while the weaker one discloses its allowance under the condition that the ṣāḥib al-māl clearly gives permission. However, according to Mālikiyah, if the muḍārib can manage two assets at once then he/she is allowed to combine them, otherwise it is not allowed. However, if the capital makes the ṣāḥib al-māl funds unused, then the muḍārib is obliged to return the funds. Ulama prohibit muḍārib from combining with muḍārabah property and his/her own after the contract terminates, because it will cause the uncertainty of the profit. The Ulama also prohibit muḍārib from combining their own funds with that of muḍārabah unless the ṣāḥib al-māl gave a permission. 51 The system in Sharia banking, which divides capital into the core capital and third party funds, is in accordance with the opinions of Hanbalite scholars including Ibn Qudamah, Ḥanafites and Imam Malik, who allow muḍārib to combine his/her own capital in muḍārabah with the partners. 52 In its implementation, Islamic banking prioritizes the distribution of third party funds in the financing scheme. Thus, if the third party funds received are equal to the financing channeled, then all the financing is calculated to come from third party funds.

Profit Sharing When Muḍārib Conducts Another Muḍārabah with Funds of the Former
We have explained that the DSN-MUI allows banks as muḍārib to conduct muḍārabah with other muḍārib. Some scholars also supports this concept. However, the DSN-MUI does not explain the profit sharing system. It simply says that the profit sharing should be based on the rules regarding profit sharing. On a practical level, the funds from savers are managed collectively, and the profits to be distributed to savers are the profits from all forms of financing. The benefits that the ṣāḥib al-māl gains do not come from transactions made only with their own capital. The profit distributed is also not from the net profit obtained by the bank or pure profit sharing, but rather from the financing distributed before deducting the bank"s operational costs, which is also known as revenue sharing. contract with the customer (second muḍārib) agrees with 30% for the customer, then what the bank will share with the saver is 50% of 70% of the profit. In other words, savers will only receive 35%, not 50%. On the other hand, savers will benefit from the percentage of their average balance in a certain month (this comes from the amount of third party funds) multiplied by the profit to be divided, multiplied by the agreed profit sharing ratio.
The dispute of the scholars in this matter is quite extreme. According to the scholars of Hanbali and Maliki schools, the benefits obtained are the right of the ṣāḥib al-māl and the second muḍārib. The first muḍārib is not entitled a sharing, because he/she is not the funding party nor the manager. The right to muḍārabah benefits only falls to these two categories. Ibn Qudamah in al-Mugni even states that if ṣāḥib al-māl gives permission, muḍārib may do so in the status of a representative of ṣāḥib al-māl. Being in this position, he/she would not get the power as the real ṣāḥib al-māl nor the manager. Thus, he/she is not allowed to receive the profit. 53 In contrast, according to Imam Malik, muḍārib can take the benefit as much as the difference in sharing ratio between the two muḍārabahs. If the agreement in the contract between ṣāḥib al-māl and the first muḍārib agrees the ratio of 50:50, and the contract between the first and the second muḍārib agrees 1/3:2/3, then ṣāḥib al-māl will gain ½ of the profit, the second muḍārib gets 2/3 according to the agreement, and the first muḍārib has to pay an amount of 1/6 of the total profit. 54 Al-Kasani from the Ḥanafi school also argues that the benefits of the two muḍārabahs are the rights of all three parties. In Badā`i 'he describes a condition in which ṣāḥib al-māl gives muḍārabah muṭlaqan i.e. without specifying the manager, with a profit ratio of 50:50, then the muḍārib conducts another muḍārabah with other people with a profit 53 Ibn Qudāmah, Al-Mughnī, p. 161. 54 Al-Tanukhī, Al-Mudawwanah al-Kubrā, p. 104. ratio of 1/3 for this second muḍārib. In this condition the first muḍārib only receives the rest of the profit, ½-1/3 = 1/6. 55 Profit sharing as it is practiced today is not found in the literatures written by the ulama of mazhab. The muḍārabah contract at that time might still be carried out individually and the first muḍārib was not really considered as a muḍārib. In this matter, the DSN-MUI gives permission and issues a new fatwa, although it was similar to Ḥanafiyah"s opinion. This kind of ijtihad might be what Yusuf al-Qardawi calls ijtihad intiqā`ī insyā`ī. I would also argue that profit sharing as explained above is allowed as long as it runs on the basis of taāḍin between muḍārib and ṣāḥib al-māl. This is in accordance with a fiqh slogan al-Muslimūna "alā syurūṭihim. I also see that the profit sharing between ṣāḥib almāl (savers) and muḍārib (banks) with the revenue sharing system is in accordance with the provisions of muḍārabah, where the operational costs of the muḍārib are borne by him/herself.

Profit Sharing Before the Contract Terminates
The DSN-MUI does not explicitly regulate the profit sharing term. The DSN-MUI fatwa does not explicitly regulate the timing of profit sharing. The DSN-MUI fatwa only states that profit is the amount obtained as an excess of capital. Yet in practice profit sharing in Islamic banking muḍārabah scheme, be it in the form collection such as savings or distribution, is conducted monthly. In fiqh discussion, we may state that the profit sharing is carried out before the capital is returned and before the end of the contract period.
Fiqh scholars point out that muḍārib gains a share of the net profit only after the contract ends or muḍārabah activity has termi-55 Al-Kasānī, Badāiʻ al-Ṣanāiʻ Fī Tartīb al-Sharāiʻ, p. 97.

Al-Risalah
Vol. 20, No. 1, December 2020 267 nated. According to Ibn Munzir, as cited by Ibn Qudamah, the profit can only be known when the capital has been returned to ṣāḥib al-māl. The muḍārib, accordingly, did not have the right to profit before the business activities have concluded. 56 Shāfiʻite scholars argue that the benefits of muḍārabah cannot be determined until one of the following three things occurs: converting all assets into cash, returning the capital and terminating the contract; or changing the assets and terminating the contract without profit sharing, or; changing the assets as much as the nominal amount of the initial capital and dividing the remaining assets and finally terminating the contract. 57 Abu Hanifah argued that profit sharing should not be carried out before ṣāḥib al-māl received all his capital back.
Ibn Qudamah the Ḥanbalite is the only scholar who says that muḍārib may take some of the profits before the contract is completed if ṣāḥib al-māl gives permission, because the funds actually belong to them both. However, this way of sharing the profit only applies temporary until the real profit is known. 58 According to him, if one party asks for a profit sharing before the agreed term, and the other party refuses, then the law will side with the latter. However, if both of them agree to share the profits before the muḍārabah contract terminates, then the shariah allows it, for the profit is the right of both of them. If it turns out afterwards that they bear loss or their capital are exhausted, the muḍārib who has received temporary gains must do one of two things: returning what he/she has taken or bearing the loss at the percentage of the profit he/she received. 59 The above explanation shows that the reasons for forbidding profit sharing before the contract terminates are the uncertainty of the profit and the difficulty in returning the capital. This opinion tends to protect the interests of the ṣāḥib al-māl by ensuring a return of the capital. However, according to Ibn Qudamah, if the ṣāḥib al-māl has agreed to share the profits before the contract termination, it is then allowed by the sharia. The worst scenario is when the muḍārib cannot return the capital of ṣāḥib al-māl or ṣāḥib almāl must give up the profits received by the muḍārib.
The fatwa of the DSN-MUI is quite similar to Ibn Qudamah"s opinion. In its latest fatwa No. 115 / DSN-MUI / IX / @ 017, the DSN-MUI emphasized that the advantages and disadvantages of muḍārabah must be clear and agreed by both parties in order to avoid the misunderstanding. However, it is not that strict, in that the muḍārib may ask for a few percent of the surplus if the profit has reached such a high amount. The DSN-MUI implicitly allows the sharing of muḍārabah financing profits before the contract termination with the revenue sharing system, under the condition that all profit and loss calculations will be completed at the end of the contract (known as profit and loss sharing). The DSN-MUI implicitly adds that muḍārib must cash out the muḍārabah assets at the end of the contract.
In practice of the muḍārabah system, mainly the financing aspect, with this provision is very difficult to do, especially for customers from the MSME sector. The challenge mainly lies in the difficulty of MSMEs in creating and providing proper and reliable financial reports. Many of them have run a business with no financial records at all. Therefore, Islamic financial institutions that have used muḍārabah financing products only rely on profit predictions made at the time of contract signing. This very point has received critics from both academics and legal Vol. 20, No. 2, December 2020 Al-Risalah 268 scholarships, saying that LKS makes no difference from conventional banks for profit sharing and the profit sharing ratio is fixed at the initial stage of the contract. This also leads to the fact that only a few Islamic banks use muḍārabah even though it constitutes the icon of Islamic banking.
On the other hand, the muḍārabah contract system is well implemented in the fund-raising sector, both in savings and time deposits products. The barriers to the practice of muḍārabah financing do not apply to the case of saving and deposits. The difference between the two lays in the ability of the muḍārib, in this case the Islamic bank, to carry out neat and reliable financial records. Profit sharing for savings and time deposits is made every month based on the profit earned or bank income for that month. Each saver makes a profit based on the average balance for the month and the agreed profit ratio. Pure profit and loss sharing can be done in muḍārabah muqayyadah, where muḍārabah funds are used for certain projects and profit calculations are made after the project is completed. Meanwhile, in muḍārabah muṭlaqah what is done is only monthly revenue sharing, because muḍārabah has no end.

Muḍārabah Operational Cost
According to the DSN fatwa, the bank as a muḍārib pays operational costs using the profit that is due to it. However, the fatwa No.115 / DSN-MUI / IX / 2017 60 on muḍārabah explains that the costs for doing business on behalf of a party involved in muḍārabah may be borne by the party. However, as stated by M. Maksum, muḍārabah operational costs are borne by the muḍārib. In other words, costs should not be charged to the muḍārabah funds. 61 60 See the official website of DSN-MUI, dsnmui.or.id 61 Maksum, "Fatwa Dewan Syariah Nasional

Majelis Ulama Indonesia Dalam Merespon
The scholars have different opinions about the payment of operational costs by the muḍārib, whether he/she may take it from the muḍārabah funds or from his/her personal assets, such as the profit sharing ratio he/she receives. Ḥanafite and Māliki scholarships argue that muḍārib may take his/her sustenance from the muḍārabah fund when he/she is on a trade mission. Otherwise, he/she must not do so. It is assumed that muḍārib will not do a trade mission with other people"s capital if the sustenance only comes from profit, for it is yet uncertain. 62 The Shāfiʻite scholars agree that muḍārib is not entitled to sustenance when he/she is not on a trade mission. Yet they have different opinions when it comes to the case in which the muḍārib is on a trade mission. Some Shafi'ite scholars state that muḍārib will gain the standard amount of sustenance, while others argue that the muḍārib is not entitled to earn a living other than the agreed sharing (the latter is more sound). 63 According to Shāfiʻī himself, the right to muḍārib had been agreed upon in profit sharing, so he/she is no longer entitled to other form of benefits. However, if the ṣāḥib al-māl agrees to take the operational costs from the muḍārabah fund, then it is allowed. 64 Hanbalite scholars agree that muḍārib is only entitled to operational costs when there is an agreement. If the agreement does not specify any amount of money, the muḍārib will receive the standard amount. 65

269
In this regard, the DSN-MUI is closer to the opinion of Ḥanbalite and Shāfiʻite scholars. This opinion is indeed more suitable with the muḍārabah practiced in Islamic banks, where they only serve as intermediaries between customers and muḍārib in the real sector. The same also applies to a contract between the bank and the customer or the second muḍārib, in which the operational costs of muḍārib are borne by him/herself. Ḥanafite scholars" argument that muḍārib will not carry out the muḍārabah if he/she must bear the sustenance his/her own, is incorrect. An entrepreneur can estimate the profits he/she will get and the operational costs required for it. Thus, when muḍārib agrees the profit sharing ratio, he/she must have known the operating costs.

Muḍārib Guarantees the Muḍārabah Funds
In the fatwa no. 07 / DSN-MUI / IV / 2000 regarding muḍārabah, DSN-MUI explains that basically the guarantees are not a requirement for muḍārabah financing. However, to ensure that muḍārib will not commit any form of violation, the bank may ask for guarantees from muḍārib or a third party. The Financial Services Authority (OJK) as the party assigned by the government to supervise financial institutions even requires all financing to use a collateral. The DSN-MUI accommodates OJK regulations for the aforementioned reasons. Therefore, the DSN-MUI added that the guarantee could only be disbursed if the muḍārib was proven to have violated the agreement. This is then reinforced by the fatwa of the DSN-  Financing Muḍārabah, Musharaka, and Wakalah bi al-Istiṡmar). 66 In the so-called fiqh mu'āmalah (transactional law), muḍārib serves as a yadu amānah; a person who holds other's wealth / property with permission, without any intention of owning the wealth/property, for the benefit of the owner or of the holder or of both, such as muḍārib, syārik, muzāri' or musāqī. 67 Basically, yadu amānah cannot be charged for compensation even if the property under his/her protection is damaged, as long as there is no kind of negligence. A fiqh rule reads ‫األميه"‬ ‫يضمه‬ ‫‪c‬ال‬ ‫والظالم‬ ‫تفريظ‬ ‫وال‬ ٍ ‫تعد‬ ‫بال‬ ‫العيه‬ ‫تلف‬ ‫ا‬ ً ‫مطلق‬ ‫"يضمه‬ (a person who was given a mandate was not asked to guarantee. However, the original ḥukm/law can be changed if there is a reasonable factor).
I would argue that this is part of a discussion on adding other terms and conditions that may change the original nature of a contract. The addition of guarantee as one of the requirements for contracts involving yadu amānah such as muḍārib, musta'jir, wadī', representatives and syārik was responded differently by legal scholars. There are at least three opinions on this. 68 First, Hanafite, Shāfiʻite, Māliki and Ḥanbalite scholars who argues that the addition of guarantee as a condition is void. This is a more well-known opinion ascribed on them. The argument they put forward is a "conflict" with the consequences of the contract. This is also the opinion of aṡ-Ṡaurī, al-Auza"ī, Ishaq, Third, Qatadah, Uthman al-Battī, Ubaidillah ibn al-Hasan al-'Anbarī, Daud az-Ẓāhirī and Ahmad (there is another tradition ascribed to him) argue that it is legitimate to make ḍamān a requirement for an aqd (transaction) characterized as yadu amānah. This is an opinion that is not well circulating in the Māliki school. It is even deemed weak in the Ḥanafite school. Yet a contemporary scholar asy-Shaukānī supports it. According to them, for the people who has the status of yadu amānah agreed to such mechanism and chooses (not forced) to be responsible, it is considered to be legitimate. Agreement (riḍā) is a factor that allows someone to take other"s property. On the other hand, a Muslim is bound by the conditions that he/she agrees upon. According to Ibn Qudamah, when someone asks Imam Ahmad whether it is allowed to make ḍamān a requirement on a transaction in which daman is not basically required, Ahmad says: ‫شروطهم‬ ‫على‬ ‫.المسلمىن‬ This shows that whether or not ḍamān is required depends on the conditions when the contract begins, for the Prophet said: ‫المسلمىن‬ ‫شروطهم‬ ‫".على‬ 73 However, this contradicts Ahmad"s own argument saying that if ṣāḥib almāl dan muḍārib have agreed to bear the loss of muḍārabah, then that particular requirement is nulled. 74 According to Ibn al-Hajib, as cited by Nazih Hammad, when ḍamān is required in an 'aqd it is not supposed to be, ulama have disputed regarding this issue. There is a group of ulama who regards it to be legitimate, and their dissents. Al-Maqarri in his book al-Qawā'id also points out the same. 75 Thus, the fatwa of the DSN-MUI which is issued to anticipate the violation of muḍārib is closer to the fatwa of Imam Ahmad, Dawud al-Zahiri, and al-Shawkani. 76 This is to me quite suitable to the current condition. It is not easy today to find an amīn, a person we can be fully trusted. A bank, on the other hand, needs to act very carefully. It still needs to ensure that the liquidation can only be done when the losses are proven to be caused by violations and negligence of the muḍārib. Accordingly, making ḍamān a requirement does not change muḍārabah status into dayn (debt), for ‫بالمقاصد‬ ‫العقىد‬ ‫في‬ ‫األصل‬ ‫والمباوي‬ ‫باأللفاظ‬ ‫ال‬ ‫.والمعاوي‬

Specified Period for Muḍārabah
One of the characters of muḍārabah is a contract period which regulates the term for return on capital. This is agreed by both parties at the initial stage of the contract. with the DSN fatwa No. 07 of 2000 concerning muḍārabah, stating that it is allowed to prescribe a specified period for muḍārabah, 77 as the actual banking law requires it. A bank is even prohibited from investing its funds into long-term projects such as buying shares.
Again, legal scholars have disputed on this issue. Shāfiʻī regards it illegitimate for the specification implies that neither one of the parties is allowed to terminate the contract before the agreed term. Shāfiʻī sees that this is not the character of muḍārabah. It is jāʼiz (allowed), then it is not that binding (dūna lāzim). One is allowed to conduct muḍārabah without any specified period. Otherwise, muḍārabah is not allowed. 78 Al-Mawardī argues that specifying the period makes the 'aqd void (fāsid), with the same argument as Shāfiʻī. in other words, a particular 'aqd that is characterized as muṭlaq (has no specified period) will be nulled once it becomes specified, similar to trade transaction and marriage. 79 Maliki school has the same stance and argument. Muḍārabah is jāʼiz (allowed), then it is not that binding (dūna lāzim). One is allowed to conduct muḍārabah without any specified period. Defining a specified period violates the character of muḍārabah itself. Al-Bājī even states that it needs to make sure that each parties can end/terminate the contract whenever they wish. Thus, it is not allowed to specify the period of muḍārabah. 80 Scholars of Hanafite and Hanbalite school rather allows the specified period. Al-Kasāinī asserts "if one says "take this as a muḍārabah fund for a year," it is allowed for us." He further says that muḍārabah is similar to tawkīl which can be specified in certain period. 81 According to Ibn Qudamah the period of muḍārabah can be specified, such as "take this as muḍārabah for one year, when it is over, do not sell or buy." He reported to have asked Ahmad about this issue, and Ahmad says that when the period is over, the fund turns into qarḍ (loan), and it is allowed. 82 We would argue that the position of the Hanafite and Hanbalite scholars is stronger. The other one is disputable. Muḍārabah is closer to taukīl than bai' (sale) for the muḍārib makes use of the fund under the permission of ṣāḥib al-māl. It is different from bai' which causes the transfer of ownership. The loose character of muḍārabah only applies as long as there is no specification in any aspect. If the contract sets a form of specification, in time for example, it is then not flexible. However, the specification set must be based on the maṣlaḥah for both parties. If one of them requires longer period to run the business, then he/she should receive longer period.
Thus, the fatwa of the DSN-MUI that the muḍārabah can be specified in period is in accordance with the argument of Hanafi and Hanbali schools. I would argue that this is stronger and more suitable for various kinds of business. Yet, in practice one needs to make sure that the ṣāḥib al-māl will not proscribe the muḍārib to run the business in case the period has been over and the fund remains. This is to allow muḍārib to gain more profit. This shows that partially the muḍārabah as practiced in today"s bank system is in accordance to the aqwāl of the scholars of mazhab. Generally speaking, the basis for the fatwas seems to be Hanbalite school, particularly Imam Ahmad. Only in few themes can we see the argument of Hanafi, Maliki, and Shafi"i. The argument that has been put forward is merely the general regulations on muḍārabah. The dispute on technical matters, such as how far the agreement influences the transaction, the application of ḥīlah and makhārij is out of the scope. Having compiled all these, we can see that this dispute provides us with alternatives and further proves the flexibility of muḍārabah. We can say that this would make muḍārabah relevant for many years to come.

Conclusion
Having compiled the themes that often receive criticisms from many parties, there are ten subthemes regarding DSN-MUI's fatwas on muḍārabah one needs to elaborate further. They are: muḍārabah with Non-cash Capital; the Object of Muḍārabah is not Trade; muḍārib (A) conducting muḍārabah with another muḍārib (B); muḍārib gains capital from other Ṣāḥib al-māl; muḍārib encloses His/Her own capital to the muḍārabah; profit sharing when muḍārib conducts another muḍārabah with funds of the former one; profit sharing before the contract terminates; muḍārabah operational Cost; muḍārib guarantees the muḍārabah funds, and; Specified Period for muḍārabah.
Closely reading the literatures regarding the aforementioned subthemes, we would argue that ulama have discussed quite deeply on all the subthemes one can find in the