The Theory of Positivism and the Judges’ Social Jurisprudence in Indonesia

Arief Budiono,Lila Afrida Pebriana,Sudi Rahayu,Wafda Vivid Izziyana

doi:10.31603/variajusticia.v15i2.3019

Arief Budiono, Lila Afrida Pebriana + Show 2 more

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https://doi.org/10.31603/variajusticia.v15i2.3019

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Journal: Varia Justicia	Publication Date: Oct 29, 2019
Citations: 1	License type: cc-by

Affiliation: Muhammadiyah University of Ponorogo

Abstract

Positivism is a branch of philosophy, which is a source of knowledge on positive law which is based on the Constitution applied. The positive law is made by the law-making institution. The laws which have been determined and issued must be complied with by all citizens. It is enforced and it comes with strict sanctions. Judges have a big role in enforcing the aims of the law, which are certainty and justice. Apart from holding on to the formal law (the positive law), the judges also have the capability to see the condition in the field empirically and adjust to it flexibly. Thus, judges may have more flexibility in deciding upon a case and in examining the real data to uphold justice. Such decisions may be followed by other judges, which is called jurisprudence

Highlights

Positivism states that the truth or righteousness is only the positive or factual fields of knowledge.If a field of knowledge applies to the scientific positivism method, it will need real observation
The perception of law positivism, which is regarded as the fair, positive law, has positive perceptions of just leaders
Based on the discussion regarding the research problem, it can be concluded that the theory of positivism is a theory of law that is certain and that its legality is acknowledged by the state

Summary

Introduction

If a field of knowledge applies to the scientific positivism method, it will need real observation. There must be real symptoms, and it must use these facts to create scientific laws that explain how -- instead of why -- these symptoms work (Protevi, 2005). Positivism views that actual knowledge comes from examining characters and actions which may be observed, not based on ratio or speculation. It is a theory that is based on social facts instead of moral claims. Positivism holds on to the principle that the only law which fulfills the requirement of the law is that which is based on social facts, which are applied, or it is stated clearly by those in power (the executive, legislative, and others). Positivism views that the law and morality are different fields. The law does not need validity from morality to be deemed as valid

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