Positive law is a series of legal principles and rules that apply today in the form of oral or written

In the Big Indonesian Dictionary (KBBI), law is defined as regulations or customs that are officially considered binding, which are confirmed by the authorities or the government; laws, regulations, and so on to regulate community life; benchmarks (rules, provisions) regarding certain events (nature and so on); decision (consideration) determined by the judge (in court); verdict.

Etymologically, law can be translated as law (English), recht (Dutch), loi or droit (French), ius (Latin), derecto (Spanish), dirrito (Italian). Launching from one of the articles on the internet, the law can be interpreted in several ways as follows.

  1. Law is defined as a product of the ruler’s decision, a set of regulations set by the authorities such as the Constitution (UUD) and others.
  2. Law is defined as a product of judge decisions, decisions issued by judges in convicting a case known as jurisprudence (jurisprudence).
  3. Law is defined as legal officers/workers. Law is defined as the figure of a law officer like a policeman on duty. This view is often found in traditional societies.
  4. Law is defined as a form of attitude/behaviour. A behavior that is fixed so that it is considered as law. As the saying goes: “everyone who rents a boarding house, according to the law, must pay a boarding fee.” It is often heard in public talks and for them it is the rule/law.
  5. Law is defined as a system of norms/rules. Rules/norms are rules that live in society. These rules/norms can be in the form of norms of decency, decency, religion, and (written) laws which are binding on all members of society and subject to sanctions for violators.
  6. Law is defined as the legal order. In contrast to the explanation of number 1, in this context law is defined as a regulation that is currently in effect (positive law) and regulates all aspects of people’s life, both concerning individual interests (private law) and interests with the State (public law). These private and public regulations are embodied in various legal rules with different levels, limits of authority and binding powers. Law as a legal system, its existence is used to regulate social order and is in a hierarchical form.
  7. Law is defined as a system of values. The law contains values ​​about good and bad, wrong and right, just and unfair and others, which apply in general.
  8. Law is defined as science. Law is defined as knowledge that will be explained systematically, methodically, objectively, and universally. These four things are the requirements of science.
  9. Law is defined as a teaching system (legal discipline). As a teaching system, law will be studied from the dassollen and das-sein dimensions. As dassollen, the law describes what it aspires to be. This study will give birth to laws that should be implemented. While the dassein side is a form of law enforcement in society. Between dassollen and das-sein must be the same color. Between theory and practice must be in line. If das-sein deviates from dassollen, there will be deviations from the implementation of the law.
  10. Law is defined as a social phenomenon. Law is a symptom that exists in society. As a social phenomenon, law aims to seek a balance of various kinds of one’s interests in society, so that it will minimize the occurrence of conflict. The process of interaction of community members to fulfill their life needs needs to be guarded by legal rules so that positive cooperative relations between community members can run safely and in an orderly manner.
  11. Legal terminology is still very difficult to give precisely and satisfactorily. This is because law has so many aspects and forms that it is impossible to cover all aspects and forms of law in one definition.

Sudiman Kartohadiprodjo provides an example of different legal definitions as the following illustration.

  1. Aristotle: “Particular law is that which each community lays down and applies to its own members. Universal law is the law of nature” (a certain law is a law that each community lays down as a basis and applies to its own members. Universal law is natural law).
  2. Grotius: “Law is a rule of moral action obliging to that which is right” (law is a rule of moral action that will lead to what is right).
  3. Hobbes: “Where as law, properly is the word of him, that by right had command over others “
  4. Philip S. James: “ Law is body of rules for the guidance of human conduct which are imposed upon, and enforced among the members of a given state” imposed on experts of a State).
  5. Immanuel Kant: “Law is the whole of the conditions under which the free will of one person can conform to the free will of another, obeying legal regulations concerning freedom”.
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In the law itself there are three elements that can be found in it. The following are the three legal elements formulated by Notohamidjojo.

1. Regular Elements

The regular element is a form of legal norm that provides certainty for the resolution of every problem in society regarding what or how the law is on that problem. So, the law is used as the goal of creating order and legal certainty.

2. Element of Justice

In Liber Primus (book I) Instutiones of the emperor Justinianus (533 AD) in chapter I, the formulation of legal justice is: “Iustiutia est et perpetua voluntas ius suum cuique tribuere. ius produentia est divinarum etque humanarum rerum notitia, iusti etque iniusti scientia” (Justice is a steady will to give to each part).

3. Elements of Humanizing Humans

The purpose of law to humanize humans is one of the deepest and most essential elements. With the application of this element will keep humans treated as humans. In a dictatorial country, humans are treated like animals, manipulated, oppressed, discriminated against, and dehumanized.

Definition of Positive Law

Positive law is a series of principles and legal principles that are currently in force in the form of oral or written, the validity of the law is specifically binding and generally enforced by the judiciary or government institutions that live in a country.

Positive law can also be interpreted as a legal system that applies at a certain time in a certain area. In detail, positive law is the law that applies now to a certain community in a certain area.

Positive law includes several elements including regulations regarding human behavior in social relations, regulations held by official bodies with the authority, regulations are coercive, and sanctions for violations of these regulations are strict.

Indonesian positive law according to its form consists of written law (statutory regulations) and unwritten law (customary law). There are two sources of positive law in Indonesia, namely material sources of law and formal sources of law.

The material source of law is the legal awareness of the community or the legal awareness that lives in a society that is supposed to be. Material sources of law consist of religion, custom, a person’s legal feeling or public opinion, and legal politics rather than government.

Meanwhile, formal sources of law are places where we can find laws, procedures, or ways of forming laws. Sources of formal law consist of laws, customs or habits, jurisprudence, treaties, and legal doctrines. The following details the legal sources.

1. Legislation

The law becomes a regulation that has binding legal force which is maintained by the state authorities. For example laws, government regulations, statutory regulations, and so on.

The law is often used in two senses, namely the law in the formal sense and the law in the material sense. Laws in the formal sense are decisions or decrees that are seen from the form and method of making are referred to as laws.

The law, seen from its form, contains preambles and dictums (ruling orders). Meanwhile, from the way it is made, laws are decisions or stipulations produced by authorized institutions. In Indonesia, the authorized institutions consist of the President and the DPR (UUDS 1950 article 89 UUD 1945 article 5 paragraph [1] in conjunction with Article 20 paragraph [1]).

Laws in the material sense are decisions or decrees which are seen from their contents referred to as laws and are binding on everyone in general. In this sense what is of concern is the content of regulations which are binding in nature without questioning the form or who formed them.

Laws in a material sense are often referred to as regulations ( regeling ) in a broad sense. The law in the formal sense is not by itself a law in the material sense. Vice versa.

2. Customs and Habits

In Sudikno’s view, habit is a steady, fixed, normal or customary pattern of behavior in a particular society or association. This association of life is a narrow environment like a village, but it can also be broad, namely including the people of a sovereign State. Fixed or steady behavior means that human behavior is repeated.

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Repeated behavior has normative power, has binding power. Because it is repeated by many people, it binds other people to do the same thing, thereby giving rise to a belief or awareness that it should be done, that it is customary.

Meanwhile, customs are a series of rules of social customs that have long existed in society with the intention of regulating order. In general, these customs are sacred (something sacred) and are a tradition.

To distinguish between customary law and custom, Utrecht gives his thoughts as follows.

  • The origin of customary law is sacred. Customary law originates from the will of the ancestors, religion and traditions of the people, as preserved in the decisions of the customary rulers. Meanwhile, the customs maintained by the rulers that do not belong to the statutory environment, for the most part are in contrast between the western and eastern parts. But this customary law can be accepted in the original national Indonesian law.
  • Most of customary law consists of unwritten rules, but there is also written customary law. While habits all consist of unwritten rules.

3. Treaty

Treaties are agreements entered into between two or more countries. Usually contains legal regulations. The treaty is divided into several of them as follows.

  • Bilateral treaties, namely treaties that occur between two countries only.
  • Multilateral treaties are treaties made by more than two countries.
  • Collective treaties, namely multilateral treaties that open opportunities for those who do not participate in the agreement to become members.

4. Jurisprudence

Jurisprudence comes from the word jurisprudentia (Latin) which means legal knowledge. the word “jurisprudence” means a court of law or no court. In English, jurisprudence is used with the terms low case or judge made law.

The word jurisprudence in German means the science of law in a narrow sense. Then from the point of view of jurisprudential judicial practice, a judge’s decision is always used as a guide for other judges in resolving similar cases.

5. Legal Doctrine

Doctrine in Sudikno’s view is interpreted as the opinion of legal scholars which is a source of law where judges can find the law. It often happens that the judge in his decision mentions a law degree. Thus it can be said that the judge found his law in that doctrine. Such a doctrine is a source of formal law.

Doctrines that have not been used by judges in considering their powers are not yet a source of formal law. Therefore, to become a source of formal law, doctrine must meet certain requirements. Doctrine is also transformed into a judge’s decision.

I Ketut Artadi is of the opinion that both written law and unwritten law are products of human creation whose purpose is to regulate social life in society, so that in this social life humans and their work are maintained.

Positive law is also referred to as ius constitutum which means a collection of principles and rules of written law which are currently in force and legally binding or specifically enforced by or through the government or courts in the country of Indonesia.

In more detail, the Supreme Court of the Republic of Indonesia explains that positive law is a collection of principles and rules of written law that are currently in effect and generally or specifically binding and enforced by or through the government or courts within the State of Indonesia.

Sources of law are materials used as a basis by courts in deciding cases. In Sudikno’s view, the word source of law is often used in several meanings as follows.

  • As a legal principle, as something that is the beginning of law, for example God’s will, human reason, the soul of the nation and so on.
  • Shows the previous law that gave substance to the current law that applies, such as French law, Roman law.
  • As a source of validity, which gives the power to apply formally to legal regulations (rulers, society).
  • As a source from which we can know the law, for example documents, laws, papyrus, inscribed stones, and so on.
  • As a source of law. Sources that give rise to the rule of law.