1. ijpslir - the sensitivity of positive law towards the reality - TJPRC

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International Journal of Political Science, Law and International Relations (IJPSLIR) ISSN(P): 2278-8832; ISSN(E): 2278-8840 Vol. 6, Issue 2, Apr 2016, 1-6 © TJPRC Pvt. Ltd

THE SENSITIVITY OF POSITIVE LAW TOWARDS THE REALITY OF VALUES DIVERSITY IN SOCIETY: A STUDY OF POSITIVE LAW ESTABLISHMENT AND THE EXISTENCE OF JURISPRUDENCE T. SUBARSYAH Faculty of Law, Jl. Lengkong Besar, Bandung, Indonesia ABSTRACT The paradigm of social changes that influences legal changes, has been discussed by many law experts and societies. They are attempting to explain the relationship between legal and social change in the context of law institution development history. They see law as independent and dependent variables, and emphasize the relationship between law system and other systems in the societies. Therefore, law process is seen as independent and dependent

normative law is not able to fulfill the people need of justice. So that, a supplement is needed to make law becomes a commander in society’s lives. To address this problem, a more comprehensive study between law and sociology sciences is needed. Sociology is the mother of social sciences and it applies empirical approcach, while law mainly studies about values that should be owned by society and it applies normative approach. However, this kind of study is logically difficult, since both of them have different internal logics. This difference leads to the establishment of sociology law study as a

Original Article

variables, namely the cause and the result of social changes. Sociology has role to answer the law problems. But in fact,

medium to relate logics between law and sociology. It is developed in order to solve social problems, specifically to fulfill justice needs in social life practices. The sensitivity term used in this paper is adopted from Robert B. Seidman’s term, namely the influences of social power in law process. Those socials factors (that creating social symptom) start from laws stage development, implementation, and result of expected roles. The law sensitivity reminds all conscious dogmatic law experts of the huge importance of social powers that influences the law development, since the beginning of law development stage. These social powers will always try to effectively and efficiently get in and influence every legislation process. Every issued rule undeniably creates expected result, but it depends to social powers involved. KEYWORDS: Law Sensitivity, Law Establishment, Sociology Law

Received: Jan 13, 2016; Accepted: Feb 12, 2016; Published: Feb 23, 2016; Paper Id.: IJPSLIRAPR20161

INTRODUCTION Many functions performed by law but the function as a social control as the well known can change the community and social integration functions. The concept of law sensitivity will be carried in this paper examine the results of the social work to the social sciences established:“ Therefore, the law will be easier and able to appreciate the social phenomenon.”(Warassih: 2005). Social change carries an impact on the running law, in the sense that the social brought changes on the law. The concept of social changes affect the legal changes that have

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been widely addressed by the - expert legal theory and society “(Chambliss & Seidman, 1971). Their minds were filled with attempt to explain the relationship between legal change and social change. In fact, the normative law can no longer satisfy the justice of society which is the goal of the law itself. Therefore, we need a more comprehensive approach to the sociology of law which was created as a mediator or liaison logical logic of science and sociology of law. The influence of social forces that are in the process of social change will affect the working of the law in society. Broadly speaking, the working of the law in society will be determined by several major factors include the overall components of the legal system, which is a substantial factor, structural factors and cultural factors.

THE SENSITIVITY OF LAW TO REALITY DIVERSITY VALUES IN SOCIETY The term of sensitivity borrow a phrase of Robert B. Seidman, the influence of social forces in the working of the law. Factors such social forces are in the process of further generating social phenomena, which starts from the stage of legislation, its implementation and the expected role. Modern Indonesian law does not actually come from Indonesia itself but rather on imports from other countries (Western / European) which is a- historical. Modern legal intrusion into the social structure Indonesia resulted in the emergence of various conflicts of interest behind the making of legislation and implementation.

SENSITIVITY THEORETICAL ROOTS OF LAW IN LAW REFORM The formulation of Pancasila encountered in Paragraph IV of preamble the 1945 Constitution of the Republic of Indonesia is the source and all sources of law in Indonesia, which is a product of legal philosophy emerged inspired from many tribes, races, and backgrounds, and ideological differences in a pluralistic society, for it came the philosophy of law for Indonesian people to unite in a single nation, a single entity, a single language, and the principles of kinship. The laws are created often in the form of a hybrid between Indigenous law and Western law is particularly the Netherlands, the Islamic law (read: the Qur'an). Concrete examples of Islamic law in the Indonesian constitution is Act 1 of 1974 on Marriage, in which there are chapters polygamy for men, namely Article 3, paragraph 1, Article 4, paragraph 1, 2 , and Article 5, paragraph 1 and 2. Examples Customary laws are "eaten " by the state law is Law No. 5 of 1979 on " Governance Village " that lick up local institutions such as Hamlet, Marga, Gampong, Nagari from sociological roots that community Customary law and replace it with the village - like the villages in Java - which do not have sociological roots . Thus many customary laws as the living law that is the hallmark of science stream Sociological Jurisprudence law have been formally completed. Experience the Dutch East Indies colonial government reconcile 'law sanctioned countries ' with 'customary laws adopted by the people ' through a policy of dualism, which is arguably a little more successful. But not passed in the era of the Republic of Indonesia. Currently in Indonesia there are many laws that are not up to date but it will be retained. Legal regulations require revision and if necessary changed completely with materials that reflect the symptoms and phenomena of today's society. Customary law is also included in the constitution of Indonesia, for example, Agrarian Law and the Law on Regional Autonomy. With the philosophy of law developed through basic idea of Pancasila will be able to accommodate the interests of various ethnic and ideological differences unite. Thus the people of Indonesia will remain in the corridor of Nusa, one nation, one Unity, a Language, and uphold the noble values of Pancasila. Pancasila is the basic state (Grundnorm) and ideals of Indonesia law (Pancasila) because it comes on the outlook and deep philosophy of life, Impact Factor (JCC): 1.9685

Index Copernicus Value (ICV): 6.1

The Sensitivity of Positive Law towards the Reality of Values Diversity in Society: A Study of Positive Law Establishment and the Existence of Jurisprudence

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knotted characteristic, nature , and noble character of the Indonesian nation. If viewed from the side of the philosophical juridical, according Notonagoro, Pancasila became a staple fundamental principle states' staatsfundamentalnorm "set forth in the Preamble to the Constitution of 1945 (1945).” (Hernowo, 2006). Pancasila as the state shows that the Pancasila as the source of all sources of law or the source of the entire legal order in the Republic of Indonesia (RI). Means all sources of laws or regulations , ranging from UUD'45 , MPR , law, decree (Government Regulation in Lieu of Law ), PP ( Government Regulation ), Presidential Decreem (Presidential Decree), and all other implementing regulations , should be based on Pancasila. The concept of state of law of Pancasila is the main characteristic and distinguishing the Indonesian legal system with other legal systems. The state law of Pancasila is prismatic (legal prismatic) that integrates the elements of which are contained in various laws (the legal system). Thus forming a new legal and intact. By based on the principles of Pancasila which are prismatic, it is hoped would be formed the Indonesian national legal system completely.

SOCIOLOGICAL JURISPRUDENCE AND THE LIVING LAW Operation of law in society is affected by the process of the formation of the law itself, and manifest in the application and enforcement. Theory of operation of the law of Robert B Seidman authors use as a tool of analysis, as the basic applications of the use of the social sciences to examine the legal issues. To prove that the law does not work in the empty space the researcher use sociological theory of jurisprudence which is considered a development that is quite revolutionary in an era of globalization, because it can subvert the idea of the law is merely formal - positivistic. According Yesmil Anwar and Adang (2008) that : the view of the flow of jurisfrudence sociological law that proceeds is a socially and culturally, and sterile. Supposedly way arbitrate implemented in Indonesia as a pluralist state is to facilitate the growing development of the living law in society and synchronized with national interests through an effort known as the harmonization of laws. The Living Law are characteristic of the flow in sociological jurisprudence, namely as the social pressure that can be considered by the judge in deciding the case. H.L.A. Hart stated that: "What is important is that the insistence on the importance or seriousness of social pressure behind the rules is the primary factor determining whether are thought of as giving rise to obligation.” (Hart,1981) In the event of a conflict between justice and legal certainty, the judge based Freies Ermessen can choose justice by ignoring the rule of law is not contrary to the public interest or the country, so that justice shall take precedence over the interests of the law." (Mertokusumo,1993); Carl F Von Savigny stated that:" the law is growing along with the growth of society. " (Rasyidi: 1969 ) The formation of sociology of law including sociological jurisprudence is strongly influenced by the philosophy of law. According to Satjipto Rahardjo (2000 ) that: " Philosophy of law in the establishment of the legal sociology has stakes very high for the birth." ; Roscou Pound and Cardozo argued that the law is not a pure application of the legislation, also affect social interests who live in the community . Jurisprudence Sociological influence in the process of law enforcement, in particular by the judge in court yet so real. Though started the Judicial Power Law 1970 to Law No. 4 of 2004 on “Juridical Power " Article 28 paragraph (1) and then also still preserved in Article 5, paragraph 1 of Law No. 48 Year 2009 on Judicial Power which confirms that the judge shall explore, and understand the legal values and sense of justice in society . To illustrate that the judge did not www.tjprc.org

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work in the sterile space of the factors that are outside it can be used the theory of working of law in society by William J. Chambliss and Robert B. Seidman.

LEGAL REFORM AND PANCASILA AS A SOURCE OF LAW AND LEGAL RESOURCES In Law No. 17 of 2007 on National Long Term Development Plan (RPJP) 2005-2025 National calls for law reform, especially the reform form the legal matter, which means no other than the renewal legislation. Pursuant to Article 5 paragraph (1) of Law Number 48 Year 2009 judges are given absolute authority to explore, follow, and understand the legal values and sense of justice in society. , Independent judicial power, according to Bagir Manan (2004) is necessary-to ensure "impartiality" and "fairness" in deciding the case, including cases that directly or indirectly involve the interests of the branches of power to another. In the context of Indonesia, the judge is not the mouthpiece of the law but the mouthpiece of decency, fairness, public interest and public order. Elucidation of Article 28 paragraph (1) of Law No. 4 Year 2004 on Judicial Power states regard the provisions of the values that live in the community is intended to comply with the law and a sense of justice. The term "legal reform" that will be used in this paper actually implies that broadly covers the legal system. According to Friedman (2001): "... consisting of the legal structure, substance or material law and legal culture.” Due to the New Order had occurred bending and bending back against Pancasila and the 1945 Constitution so as to create an authoritarian regime, it gave birth to a movement called reform movement. The movement intends to make changes gradually and thorough review of the state of Indonesia, one of which is done by putting back the state philosophy of Pancasila as the basis or foundation of the state. However, as a result of fairly serious on political manipulation on Pancasila in previous periods had led the public assumption that Pancasila is merely an instrument of authoritarian rule. Therefore, it becomes a certainty that the implementation of Pancasila purely urged to do in every area of national life by forming a concept of Pancasila state administration law that has legally binding force. As the source of any law or rule of law as a source of Indonesia, each product must be sourced law and must not be contrary to Pancasila. Pancasila is listed in the highest provisions of the 1945 Constitution, then incarnated or further elaborated in basic thoughts, which includes the mystical atmosphere of the 1945 Constitution, which is realized or derived from the 1945 Constitution, as well as other positive law. Pancasila as the state shows that Pancasila as the source of all sources of law or the source of all order in the State lukum RI. Means all sources of laws or regulations, ranging from the Constitution of '45, Tap MPR, Act, Perpu (Government Regulation in Lieu of Law), PP (Government Regulation), Presidential Decree (Presidential Decree), and all other implementing regulations, should be based on Pancasila as its legal basis. All products must comply with the law of Pancasila and must not conflict with it. Pancasila has been stated in the explanation of the 1945 Constitution that the state of Indonesia is a constitutional state (Rechtsstaat) is not based on power alone (machtsstaat), which is in Amendment 1945 explanation that Indonesia is a country of law is worth constitutive and then confirmed in Article 1 (3) Constitution of the Republic of Indonesia (the 1945 NRI 1945) which states that "Indonesia is a country of law". In 1945 this change is not mentioned again that Indonesia adheres to the concept of Rechtsstaat but rather translated into the concept of a state of law. The purpose of Indonesia state definitively stated in the fourth paragraph is Preamble NRI of 1945: (1) to protect the people and the country of Indonesia; (2) promote the general welfare; (3) educating the nation; (4) participate in the establishment of world peace based on freedom, lasting peace and social justice. In order to realize the goal of Indonesia,

Impact Factor (JCC): 1.9685

Index Copernicus Value (ICV): 6.1

The Sensitivity of Positive Law towards the Reality of Values Diversity in Society: A Study of Positive Law Establishment and the Existence of Jurisprudence

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then in every state policies taken by the organizers of the country (including efforts to carry out the construction of the national legal system) in an effort to state administration law Pancasila should be in accordance with the four principles of legal ideal (rechtsidee) Indonesia (Pancasila), namely:” (1) Maintain the integration of the nation both ideologically and territorially; (2) Realizing the sovereignty of the people (democracy) and state law (nomocracy) at the same time, as an inseparable unity; (3) Achieving common prosperity and social justice for all Indonesian people; (4) Creating tolerance on the basis of humanitarian and civilized in religious life. "(Hidayat, 2011) The concept of Pancasila state law if it is associated with the concept of social phenomena, then in this case the concept of a social phenomenon sought to examine ideas about the law that already exists, see coherent correspondence and legal functions are created, Indonesia indeed adopts sovereignity of Pancasila. The concept of social phenomena related to the formation of law in Indonesia is the concept of social phenomena importantly in law change towards a more democratic, more directed to the essential needs of the community, the philosophy of law to change the sort order. Operation of law in society is affected by the process of the formation of the law itself, and manifest in the application and enforcement. Law-making process is influenced by the model of society, the values of the society and culture of the people. Robert Seidman (1971) using the theory of operation of law to carry out an analysis of the legal establishment and also the analysis of the implementation of the law; Roscou Pound argues that the law is a process that is getting shape in the formation of legislation and adjudication. Legal Theory Development provides basic function of the law as "a means of renewal of society" (law as a tool of social Engeneering) and the law as a system is needed for Indonesia as a developing country. Legal Theory Development, a legal theory that is modified and adapted from Herold D. Laswell and Myre S. Mc Dougal (Policy Approach) coupled with the theory of the Law of Roscoe Pound (minus the mechanical conception). Mochtar Kusumaatmadja adapt to the conditions in Indonesia which is brilliant to change the legal sense as a tool to become law as an instrument to development of society. Laws that regulate the function of human life in society as intended by Mochtar Kusumaatmadja, can be categorized into law as social control, while the function is called the law as a function of social engineering.

CONCLUSIONS Sensitivity legislation sociologically already started since the advent of the problems in society, even in question may not be aware that the problem will be formulated in a law. Sensitivity formation Law in this case, would conclude that: the legislation is not seen as an activity that is sterile and absolutely autonomous; in this perspective then the work has a social origin and so on. A law should be built on the principles as enshrined in the constitution the principle of kinship. These principles should be able to move the operational activities in the implementation of the laws of motion in society. REFERENCES 1.

Achmad Ali, Keterpurukan Hukum Di Indonesia, PT. Ghalia Indonesia: Jakarta, 2002.

2.

Adam Podgorecki CJ Whelan, Pendekatan Sosiologis Terhadap Hukum, Bina Aksara: Jakarta, 1987.

3.

Anthon F. Susanto, Menggugat Fondasi Filsafat Ilmu Hukum Indonesia, Dalam: dalam Butir-Butir Pemikiran dalam Hukum; Memperingati 70 Tahun Prof. Dr. B. Arief Sidharta., SH, Refika Aditama: Bandung, 2008.

4.

Bagir Manan, Menegakkan Hukum, Suatu Pencarian, Asosiasi Advokat Indonesia: Jakarta, 2009.

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T. Subarsyah 5. 6.

Carl F Von Savigny, Von Beruf Unsrer Zeit fur Gesetzge bung und Rechtwissenchaft, Berlin, 1914. Lawrence M. Freidman, American Law An Introdution; Second Edition : Hukum Amerika Sebuah Pengantur, Indek: Jakarta. 2001.

7.

Lawrence W. Friedman, American Law: An invaluable guide to the many faces of the law, and how it affects our daily our daily lives, W.W. Norton & Company. New York, 1984.

8.

Legal Culture and Social Development, Stanford Law Review, New York.

9.

Law in America: a Shor History, Modern Library Chronicles Book, New York, 2002

10. Hart, H.L.A., The Concept of Law. Inggris: Oxford University Press, 1981. 11. Hernowo, Implementasi Pancasila Menjamin Integrasi Nasional Berdasarkan Wawasan Kesatuan dan Persatuan Bangsa, LPPKB: Jakarta, 2006. 12. Jeremy Bentham, Teori Perundang-Undangan: Prinsip Legislasi Hukum Perdata dan Hukum Pidana, Nuansa Media: Bandung, 2006. 13. Satjipto Rahardjo, Pendekatan Holistik Terhadap Hukum, Bacaan Untuk Mahasiswa Program Doktor Ilmu Hukum Universitas Dipenogoro, Tidak Diterbitkan, Oktober 2005. 14. Satjipto Rahardjo, Hukum Adat Dalam Negara Kesatuan Republik Indonesia (Perspektif Sosiologi Hukum), Makalah disampaikan pada Lokakarya Hukum Adat diselenggarakan oleh Mahkamah Konstitusi, 4-6 Juni 2005. 15. Satjipto Rahardjo. Sisi-sisi Lain dari Hukum di Indonesia, Penerbit Buku Kompas, Jakarta. 2001 16. Satjipto Rahardjo, Pendekatan dan Pengkajian Sosiologis Terhadap Hukum Makalah Seminar, Pebruari 1993, hlm.8. 17. Satjipto Rahardjo, Pemanfaatan Ilmu-ilmu Sosial Bagi Pengembangan Ilmu Hukum. Binacipta: Bandung, 197. 18. Warassih, Esmi., Pranata Hukum: Sebuah Telaah Sosiologis, PT. Suryandaru Utama: Semarang, 2005. 19. William J. Chamblis & Robert B. Seidman, Law, Order and Power, Reading, Mass: Addision-Wesley, 1971. 20. Walter Friedman, Teori & Filsafat Hukum Telaah Kritis atas Teori-Teori Hukum (Susunan I). Diterjemahkan oleh Muhammad Arifin. Cetakan Kedua. PT. Raja Grafindo Persada: Jakarta. 1994. 21. Yesmil Anwar & Adang, Pengantar Sosiologi Hukum, PT. Gramedia Widiasarana Indonesia: Jakarta. 2008. 22. Yudi Latif, Pancasila Sakti, Artikel pada Majalah Gatra, Edisi No. 48 Tahun XVII, 12 Oktober 2011. 23. Sudikno Mertokusumo, Bab-bab Tentang Penemuan Hukum, PT. Citra Aditya Bakti: Bandung, 1993.

Impact Factor (JCC): 1.9685

Index Copernicus Value (ICV): 6.1

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1. ijpslir - the sensitivity of positive law towards the reality - TJPRC

International Journal of Political Science, Law and International Relations (IJPSLIR) ISSN(P): 2278-8832; ISSN(E): 2278-8840 Vol. 6, Issue 2, Apr 2016...

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