Thinking Paradigm of Judges for Law Enforcement in Indonesi: from Positivism to Realism

DOI: 10.5176/2251-3809_LRPP17.11

Authors: Dr. Boy Nurdin

Abstract:

The amendment of the 1945 Constitution, particularly Article 1 (3) carries a very significant change in the field of law enforcement by a judge in Indonesia. The paper presented taking into consideration that Indonesia has mostly followed a Legal Positivism, which however was proved unable to meet the public's sense of justice. Legal Positivism depends entirely on how sentences found as written in the law, while the Legal Realism uses those written law as a reference only. The discussion paper uses Normative and Empirical Juridical approach. The results have concluded that the Judge in Indonesia should have their thinking paradigm in line with the Legal Realism and Legal Statements written in the Constitution used as the reference only so called Legal Positivism Paradigm of thinking. Alternatively, the Judges may use combined Paradigm of thinking both Legal Positivism and Realism. It basically should be understood that the law is a tool and the goal is Justice.

Keywords: Law Enforcement, Justice, Legal Positivism, Legal Realism, Rechtsvinding,1 Justice.