Abstract INTRODUCTION

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1 RELEVANCE OF LEGAL CULTURE APPROACH TO CREATE SOCIAL JUSTICE IN INDONESIA 1 Muh. Afif Mahfud Doctoral Program Student of Faculty of Law of Diponegoro University afifmahfud4@gmail.com Siswadi Doctoral Program Student of Faculty of Law of Diponegoro University Lecturer of Universitas Panca Bhakti, Pontianak Abstract Legal positivism has been integral part of law making and law enforcement in Indonesia. Legal positivism only create procedural justice not substantive justice include social justice. Based on that, it is important to change national legal order which is based on legal positivism to be based on legal culture approach. In this research, there are two issues namely Firstly, the weakness of legal positivism in creating social justice in Indonesia. Secondly, relevance of legal culture approach in creating social justice in Indonesia. This is a normative research. Data is collected through literature research, analyzed qualitatively and provided descriptively. Based on analysis, it can be concluded that : firstly : the weakness of legal positivism in creating social justice is caused by dualism and objectivity as its characteristic. Legal dualism has separated law from justice which consequently make law can not create substantive justice. For positivism, justice is meta juridical and in das solen sphere that must be separated from law. Besides, objectivism in legal positivism has separated law from its society. It makes legal positivism has been fail in considering justice values include social justice for Indonesian. The impact is legal positivism only create procedural justice. In positivism perspective, act has been legal base to uphold justice and procedure is much more important than justice itself. Secondly, legal culture approach is very relevant in making social justice. It is caused legal culture approach not only consider law as legal text but also figure out people legal culture in its implementation. Moreover, social justice in Pancasila as the purpose of Indonesian law is based on Indonesian legal culture. Keywords : Legal Culture, Approach, Social Justice, Indonesia INTRODUCTION Article 1 verse 3 of Indonesian Constitution 1945 has regulated that Indonesia is rule of law. Indonesia as rule of law must be based on Pancasila (Indonesian ideology) include social justice for all Indonesian. Social Justice as one of article 1 This paper is sponsored by Indonesian Endownment Fund For Education (Lembaga Pengelola Dana Pendidikan) 134

2 in Pancasila is substantive justice. In order justice in Pancasila can be achieved, national legal system must be designed and directed to be in accordance with social justice value. Recently, Indonesian legal system has not been directed to achieve that purpose. One of the basic reason is Indonesian legal system is still based on legal positivism. Legal positivism consider law as regulation. Based on positivism perspective, state is the only law maker. Law is command of authorized person to create order. Positivism perspective which put law as regulation only create formal or procedural justice not substantive or social justice because everything is considered to be just if accord with regulation. Implication of this principle is every regulation that has been stipulated by legal authority must be considered as law and must be obeyed whatever its content whether it is just or not. 2 This happen because legal positivism separates law and value (include justice) as stated by John Austin 3, Hans Kelsen 4, and H.L. A Hart 5. In Hans Kelsen perspective, justice is not part of legal study. Justice is meta juridical. Justice is not rational thing and has unclear border so that it is not satisfying to be studied from pure law. 6 Formalistic perspective of legal positivism deplete possibility to ask whether positive law is just or not. However it is bad, when an article has been regulated, judge and people are bound on it. Such a consideration has made law is no longer used to people interest (law for man) or law can not create a substantive justice but only create a procedural justice (law for law itself). Legal positivism, separate law and justice, which can not create substantive justice has caused many critics. Critic on legal positivism is firstly begun by historical teaching created by Karl Von Savigny. This teaching consider law not only arise from act stipulated by authorized party but also people conscience 2 Faisal, 2008, Menggagas Pembaharuan Hukum Melalui Studi Hukum Kritis, Edisi II. STIH IBLAM, Jakarta: Jurnal Ultimatum, page 8 3 Praglbh Bhardwaj, 2014, Legal Positivism : An Analysis of Austin and Bentham, International Journal of Legal Jurisprudence, Volume I Issue 6, page 3 4 Hans Kelsen, 1967, Pure theory of law, Second Edition (Translated by Max Knight), University of California Press, Page 66 5 H.L.A. Hart, 1994, The Concept of Law, Second Edition, Clarendon Press, page JimlyAshiddiqie dan M. Ali Safa at, 2012, Teori Hans Kelsen Tentang Hukum, Jakarta: Konstitusi Press, page

3 (volkgeist). 7 Conscience (volkgeist) in Indonesia is people habit, morality and spirituality. The same critic is also delivered by Eugen Ehrlich state that good law is law which accords to law in society because the center of gravity of legal development lies not in legislation, nor in juristic, nor judicial decision but in society. 8 Both critiques show that law has tight relationship with people as the object of enforcement. Law is for people not for it self. Satjipto Rahardjo say that legal existence to work in society must be related to social reality or law is deeply rooted in socio-cultural matrix. 9 Satjipto rahardjo statement shows that law making and enforcement must be contextual or according to people legal culture. Legal culture is related to people awareness on law. In Indonesian context, values and legal culture of society is crystallized in Indonesian ideology namely Pancasila. Pancasila can depict Indonesian people legal culture because the values of Pancasila derives from Indonesian original culture. So that, it is precise to place Pancasila as rechts idee, legal philosophy and main source of law. In such position, Pancasila must base all of law making and law enforcement. The acme of Pancasila value is social justice as the fifth article which is similar to prosperity. 10 Prosperity in Indonesia is not only in economic but also social and cultural standard. Ironically, the desire to create prosperity has not been achieved by Indonesian recently. One of the cause is legal positivism used by Indonesian. Legal positivism has been integral part of law making and enforcement in Indonesia which at the end, only create procedural justice not social justice as substantive justice. Based on that, it is important to change national legal order which is based on legal positivism to be based on legal culture theories. This explanation motivates me to make an essay entitle Relevance of Legal Culture Approach in Implementing Social Justice in Indonesia. Based on background, there are several issues to be analyzed. Firstly, the weakness of legal positivism in creating social 7 Friedirch Karl Von Savigny, System of The Modern Roman Law. Madras : J. Higginbotham, 1867, page 26 8 Shidarta, 2013, Hukum penalaran dan penalaran hukum, Yogyakarta :Genta Publishing, page 55 9 SatjiptoRahardjo, 2006, Hukum dalam jaga ketertiban, Jakarta :UKI Press, page Suteki, Rekonstruksi politik hukum tentang Hak Menguasai Negara Atas Sumber Daya Air Berbasis Keadilan Sosial, 2008, Dissertasi in Doctoral Law Program of Diponegoro University, page

4 justice in Indonesia. Secondly, relevance of legal culture approach in creating social justice in Indonesia. ANALYSIS A. THE WEAKNESS OF LEGAL POSITIVISM IN CREATING SOCIAL JUSTICE Positivism developed since 19 th century pioneered by Auguste Comte as denial to natural law. 11 Positivism is based on ratio to create an objective order to change metaphysic in natural law. Legal positivism, based on natural science, put object as phenomenon that can be controlled, generalized and predictable. Legal positivism treat law as logic-empiric, objective, reductionist, deterministic and value free. Value free characteristic influence dualism thought in legal positivism with John Austin as main figure. Austin state that there are four elements in legal positivism namely : (a) command; (b) sanction); (c) duty; and (d) sovereignty. Without those elements, an order is not a positive law but positive morality. In Austin perspective, law science only consider positive law without differ whether it is good or bad, acceptable or unacceptable by people. Austin opinion is so dualistic that he separate between idealism metaphysic (moral-religion) and reality of legal positivism material. Extremely, Austin separate law from justice. Austin change kindness as legal basis with power or authority. 12 Austin consider law science identic with regulation which must be acceptable without paying attention whether it is morally good or not. Such perspective is also delivered by Hans Kelsen in pure theory of law. Pure theory of law can be characterized as follows: Law must be separated from moral, politic, economic and other consideration 11 Adji Samekto, Ilmu Hukum dalam Perkembangan Pemikiran Menuju Postmodernisme, Bandar Lampung: Indepth Publishing, 2012, page Maryati, Kritik Terhadap Teori Positivisme Hukum dan Beberapa Pemikiran Dalam Rangka Membangun Teori Hukum yang Berkeadilan, Jurnal Inovatif, Volume VII Nomor II Mei 2014 page Hans Kelsen. Op. Cit. Page

5 2. Law must be objective without any prejudice 3. Justice is the matter of ought to be not is Based on that analysis, to treat law science as natural law, law must be separated from unreal and irrational element such as morality and kindness. In Hans Kelsen perspective, substantive justice include social justice is not part of positive law science. In his perspective, justice has unclear border and irrational so that it can not be a satisfying concept from pure theory of law teaching. 14 This legal positivism teaching also prevail in Indonesia. Legal positivism in Indonesia which separate law and value is not according to Pancasila as a value system. Pancasila has several values namely religious value (First Article), Humanity value (Second Article), Unity (Third Article), Democracy Value (Fourth Article) and Justice Value (Fifth Article). Those value is put in hierarchy in which the first article base second article until fifth article. It means that the fifth Article of Pancasila namely Social Justice for All Indonesian is based on other four articles. In another word, social justice in Indonesia is justice based on religion, humanity, unity and democracy value. 15 Pancasila as an ideology has a very central position as main legal and ethical source so that law and ethical enforcement must be based on Pancasila. 16 It means that law which prevail in Indonesia must be value laden. So that, the division of law and value in legal positivm is contrast with Pancasila. Another difference namely Pancasila is heavily based on communalistic spirit and in another hand, legal positivism is based on liberal individualistic. In such context, law in Indonesia must be returned to Pancasila and not legal positivism as which recently prevail. Legal positivism has made law for itself not for human. It means that law has lost its function as a tool to create justice, harmony and prosperity in society. 14 Ibid Page Kaelan, 2013, Negara Kebangsaan Pancasila: Kultural, Historis, Filosofis, Yuridis dan Aktualisasinya, Yogyakarta :Paradigma, page E. Fernando M. Manulung,. 2015, The Purpose of Law, Pancasila and Legality According to Ernst Utrecht : A Critical Reflection. Indonesian Law Review Second Edition, page

6 The difference between Pancasila and legal positivism can be seen at the following table : No Indicator Pancasila Legal Positivism 1 Source Communalistic Liberal Individualistic (Indonesian Socio Cultural) 2 Value Value Laden Value Free 3 Property Respect to individual property but limited by social function 4 Role Government and society (Communalistic Spirit) 5 Prevail Contextual (Consider socio cultural condition) 6 Purpose Create Justice, Harmony and Prosperity (substantive justice) Respect to individual property without limitation of social function Government only Universal (not consider socio cultural condition) Legal Certainty (procedural justice) 7 Privilege For the poor Equality Based on that table, there is a lot of differences between legal positivism and Pancasila. Pancasila is very value laden and in contrast, legal positivism is value free. In another word, from ideological perspective, the implementation of legal positivism in Indonesia is imprecise. This perspective is also the same as Mochtar Kusumaatmadja opinion that law as societal order that can not be separated from prevailing values in society. Deeper analysis shows that value free assumption is not according to dogmatic law science as part of practical science. Practical science need continuous evaluation from social reality. Social reality is full of value. Even, separate law science from values is deviation of practical science character. 17 Separation of norm and value is the same as separate spirit and 17 Shidarta, 2006, Karakteristik Penalaran Hukum dalam Konteks Keindonesiaan, Bandung : CV Utomo, page

7 body because in social context, norm is no more than place of society value embodied in regulation by law maker. It means that regulation in Indonesia must be according to Indonesian legal culture embodied in Pancasila and social factor must be figured out in law making and law enforcement. Separation of law and morality (dualism) in legal positivism which prevail in Indonesia bring a very big consequence namely law only create procedural justice not social justice. Positivism is based on rationality which is marked by procedural legal regulation. Procedural legal base is more important in law enforcement than justice itself. Legal positivism has been bound by procedural aspect so that searching for justice can be fail because of procedural violation. All cases must be according to the procedure. It shows the importance of procedure for legal rationality. In contrast, all other efforts in seeking for truth in law enforcement is unacceptable and considered as out of legal thought or even illegal. In legal positivism, justice is given by positive law. The use of legal positivism has been obstacle in searching for the truth and justice so that it is unattainable because of procedural aspect. It means that procedural justice is not the true justice. Dualism in legal positivism is then strengthened by objectivism element which oblige researcher to make distance with the object and neutral. This distance is necessary in order subjective interpretation can be minimized (in dogmatic law science, thinking is an activity of legal subject bound by particular culture). To defend objectivity, objectivism treat man as non life object. Objective truth is claimed to be looked for and found by this science. Dualism (separation of law and morality) and objectivity in legal positivism has brought a very big implication in Indonesian law include in trial. Satjipto Rahardjo say that court is no longer home of justice but home to implement the regulation and its procedure. Legal positivism which created injustice in Indonesia seem on judge verdict in Jogja Expo Center Case. Judge in deciding Jogja Expo Center Case in which based on trial the perpetrator had been proven to corrupt five million rupiahs of state s finance. The perpetrator is punished based on Article 12 of Corruption Act for four years person. Based on Syamsuddin s research, the judge is not sure about 140

8 that decision and considered it is not just because the perpetrator must be punished below four years namely two years in prison for justice but the judge impose four years prison because according to the minimum punishment in Article 12 even though the judge has different perspective and sense of justice. Actually, the judge aware that there is an error in article 12 of Corruption Act especially related to gradation of punishment. In this article the highest punishment is minimum 4 years and maximum all life prison and the second grade is minimum four years and maximum twenty years. The judge realized that error because in his mind when the level of maximum punishment decrease, the minimum punishment also must decrease. Nevertheless, the judge still follow the minimum punishment in corruption act for legal certainty even though must sacrifice justice. 18 In this case, the judge had chosen to defend objectivity and sacrifice justice. From legal positivism perspective, the judge has taken precise decision because not involve his subjectivity in his decision. In Pancasila perspective, it is not precise decision because create injustice. Objectivity, like used in this case is criticized by Gadamer which think that truth in law will not arrive at the absolute truth position. Gadamer explain as follows : 19 Fundamentally, understanding is always a movement in this kind of circle, which is why the repeated return from the whole to the parts, and vice versa, is essential. Moreover, this circle is constantly expanding, since the concept of the whole is relative, and being integrated in ever larger contexts always affects the understanding of the individual part. It is important to be understood that man behavior can change according to influencing factor. Social phenomenon is naturally subjective and can not be considered as an objective material. In other side, man behavior can not be described and depicted based on external criterion. Man can not be objectified from its external action. The same action can create various interpretation. Social science will always be a subjective science and must contain understanding on the attitude and its meaning. So that, validity of 18 M. Syamsuddin, 2010, Konstruksi Baru Budaya Hukum Hakim Berbasis Hukum Progresif, Dissertation in Diponegoro University, Semarang, page Hans Georg Gadamer, 2006, Truth and Method, Second Revised Edition, New York : Sheed & Ward Ltd, page

9 legal positivism based on reality, objectivity and neutrality must be questioned. Explanation above shows that law must be based on its social basic. So that, law need a continuous evaluation from social reality. Critic over objectivity in legal positivism is also stated by Widodo Dwi Putro in his dissertation. He state that positivist opinion which consider law as an objective science is an illusion of positivist. Legal positivism that want to deplete subjective thing to make an objectivity is absurd. 20 Based on that analysis, it can be understood that legal positivism with its objectivity is impossible to be implemented in law totally. Judge in sentencing a case can not purely base his verdict on prevailing legal norm because judge has been influenced by education, gender, psychology, sexual orientation, religion, social status, social class, tradition or even science ideology. So that, normative juridical is a socio psychological claim but can not be fully recognized by the interpreter himself. Dualism and objectivity in legal positivism have created injustice and this is the problem that must be solved. There are two ways in solving this problem namely the judge must not only base his decision on regulation text but also must use his logic and consider social aspect in implementation. 21 Consideration of social aspect in implementing justice means that to create social justice, consideration on legal culture is an absolute requirement. In this term, Indonesian legal purpose to create social justice is an absolute thing. The enforcement of social justice also can be done if Indonesian law deplete legal positivism and base its law to Pancasila as crystallization of Indonesian legal culture. In that condition, it is very relevant even very important to use legal culture approach in creating social justice in Indonesia. It is relevant in all law spheres namely law science, law making and law enforcement. The use of legal culture approach is important because law prevail in particular place and time not in void. Law must be influenced by place. It means 20 Widodo Dwi Putro, 2011, Tinjauan Kritis-Filosofis Terhadap Teori Positivisme Hukum, Jakarta :Universitas Indonesia, dissertation in University of Indonesia, page Satjipto Rahardjo, 2007, Biarkan Hukum Mengalir :Catatan Kritis Tentang Pergaulan Manusia dan Hukum. Jakarta :Penerbit Buku Kompas, page

10 that law in Indonesia must be influenced by Indonesian culture namely communalism and religious magic. If law is not according with such value, the law is considered invalid. 22 Law will be meaningful and has function in society if it is according to people legal culture. The accordance of law and Indonesian value is also main presupposition to create justice. 23 The use of legal culture approach is much more relevant in Indonesian diversity context. Indonesia has tribes in which each of those tribes has their own legal culture. 24 It means that when we enforce law in particular tribe we must understand about legal culture of the tribe and purpose of law in that society. It means that law can not be universal or general, legal positivism character, to be prevailed in Indonesia. Another problem of legal positivism in Indonesia is the government not the sole authority because there are a lot of local authorities that also has the same role namely to enforce its local law. It means that government is not the only authority and state law is not the only law but local law also exist. In such diversity condition, social justice also give a space to prevail local law for local people with the same purpose as Pancasila namely create justice, harmony and prosperity B. RELEVANCE OF LEGAL CULTURE APPROACH IN CREATING SOCIAL JUSTICE IN INDONESIA Positivist which consider law as written article is not always according to empirical fact or difference between law in books and law in action. This difference is caused by man life which is always influenced by interaction and cultural pattern. This cultural pattern create foundation for interaction so that integration of people relations in society can be relatively stabile. 25 People involvement in law implementation shows the relation between 22 Brian Z. Tamanaha, A General Jurisprudence of Law and Society Theory, New York, Oxford University Press.Page 3 23 Franz Magnis-Suseno, 1994, Etika Politik :Prinsip-Prinsip Moral Dasar Kenegaraan Modern, Cetakan Keempat, Jakarta : P.T. Gramedia Pustaka Utama, page Widiastuti, Analisis SWOT Keragaman Budaya Indonesia, Jurnal Widya, Volume I Nomor 1 Mei-Juni 2013, page Satjipto Rahardjo. Masalah Penegakan Hukum quoted from Professorship speech of Esmi Warasih Pemberdayaan Masyarakat dalam Mewujdukan Tujuan Hukum (Proses Penegakan Hukum dan Persoalan Keadilan) in Diponegoro University April 14 th 2001, page

11 culture and law so that obedience and disobedience to law is much influenced by legal culture. Legal culture determine people attitude on law in society. Lawrence M. Friedman state that legal culture relate to habit, the way of thinking and behave from people on law. 26 Achmad Ali state that legal culture include opinion, habits, the way of thinking and the way of action from law officer and society. 27 Lev explain that legal culture is related to procedural legal values and substantive legal values. Firstly, relate to the people order and conflict management. Secondly, substantive component from legal culture consist of fundamental assumptions relate to distribution of resources in society, what is considered as just and unjust. When talking about definition of legal culture from all of those experts, it seem imprecise to depict legal culture which prevail in Indonesian because Indonesian legal culture is different from legal culture in western country. The difference in Indonesian legal culture is influenced by religion value and in another hand, western country is secularist. In such circumstance, it is precise to define that legal culture is combination of morality, custom, rationality and spirituality of society about a good order of life. There is two difference in this definition : the first, this definition include spiritualistic which influence Indonesian legal culture such as in Sabu people which combine divinity and ratio in creating law to make a harmonious life. This definition also make people are easier in understanding legal culture holistically with spiritual value as its composition. The second, it is always related to a good order of life which is for Indonesian mainly local people is to create harmony, justice and brotherhood. Legal culture aspect shows that in studying human action, it is also necessary to analyze about human aspect. Esmi warasih state that implementation of justice, man factor can not be separated from law. In term of this, perspective used no longer external perspective but internal 26 Lawrence M. 1975, Friedman, The Legal System : A Social Science Perspective, New York: Russel Sage Foundation, page Achmad Ali, 2002, Keterpurukan hukum di Indonesia: penyebab dan solusinya, Jakarta :Ghalia, page

12 perspective which involve normative and evaluative aspect. Reality is part of meaning that can be understood from internal experience of the legal subject manifested in subject interaction with others. 28 Interaction between subject is categorized as symbolic interactionism. Blumer state that symbolic interactionism approach contain three major premises, namely: first, man behave based on meaning. Secondly, meaning is the result of social interaction. Meaning develop through human interaction in daily life. It is according to cultural development as shared system of meanings. Those meaning is studied, revised, maintained, bordered and broadened in human interaction context. So that, meaning can be narrowed and even depleted because of social interaction. Thirdly, meaning is modified and handled through interpretation used by individual in dealing with signs met. 29 Previous explanation shows that approach in legal enforcement must pay attention interaction of people in its socio cultural environment. Socio cultural aspect which then create legal culture. Legal culture context from a nation has significant influence to a state legal system. It means that Indonesian legal culture will influence substance and law enforcement. Satjipto Rahardjo say that effort to consider Indonesian tradition and value in legal system is a self defining effort. So that legal system always innate in a peculiar form of social life. From this perspective, it seems that self defining is part of legal culture. Legal culture is about how the law is made and accepted by a nation. 30 Self defining in Indonesian law seems in Pancasila. Pancasila is Indonesia state foundation as stated in Preamble of Indonesian Constitution 1945 as well as Indonesian legal dan moral source based on TAP MPRS No. XX/MPRS/1966. The purposes of Pancasila are to create individual freedom, nation freedom, humanity, social justice and social peace. There are four principles of Indonesian ideology (Pancasila), namely : (1) protect all nation 28 Warasih. Op. Cit, Page Suteki. Op.Cit. Page Satjipto Rahardjo, 2006, Hukum dalam jagat ketertiban, Jakarta : UKI Press, page

13 for integration; (2) creating social justice in economic and society; (3) implementing people sovereignty (democracy) and (4) create tolerance on humanity and civilization basis in religion. 31 Ideally, Pancasila value must color every legal product dominantly at the process of formation, implementation or enforcement. 32 The purpose of Pancasila is to uphold justice in Article five namely social justice for all Indonesian. 33 Related to elaboration on social justice, Soekarno state that pragmatically, there are three meaning of social justice which has material and spiritual dimensions, namely : a) social prosperity as a condition without poverty in Indonesia; b) justice as people condition marked by justice and prosperity, happy for all; c) marhaenism means that poor people has traditional production tools. Prosperity and social justice must be considered and constructed from people in common. 34 I agree with Soekarno statement that social justice is about create justice, prosperity and happiness. In Indonesian context, happiness can be understood as harmony in life. It means that Social justice in Indonesia has been understood in broad meaning not only in economical aspect but also in politic, social and cultural perspective. Based on that argument, in this article I refer to definition of social justice delivered by Frans Magniz Suseno that social justice is justice which depend on economic, politic, law, social, cultural and ideology. It means that to create social justice is to change or destroy economic, politic, social, culture and ideology which obstacle a person or a group of person to get their right. 35 One of the people right is to live and implement their cultural value include local law. Basically, social justice as one of Pancasila article depict Indonesian legal culture. Social justice emphasize balance between individual and social 31 Moh, Mahfud MD, 2012, Membangun Politik Hukum Menegakkan Konstitusi, Jakarta, Rajawali Press, page Syahrul Kirom, 2015, Mempraksiskan Pancasila Dalam Penegakan Hukum Di Indonesia, Jurnal Ilmiah Civis, Voulume V, No. 1, Januari, page Ibid. Page As ad Said Ali, 2010, Negara Pancasila: Jalan Kemaslahatan Berbangsa, Jakarta, Pustaka LP3ES, page Franz Magnis-Suseno. Op. Cit. Page

14 interest. Justice which acknowledge individual right but limited by its social aspect. This elaboration clearly depict that social justice is according to Indonesian legal culture which seem in people morality, values, responds and knowledge related to law. So that, law made will depict society legal culture. To analyze the process of law making based on legal culture deeply, I will use mirror thesis delivered by Brian Z. Tamanaha. Tamanaha in his mirror thesis state that law consist of two elements namely custom/consent and morality/rationality. Custom is agreement of the people continuously done. Morality factor is always related to ratio or human mind. Through mirror thesis, Tamanaha state that positive law must mirror custom/consent and morality/rationality of the people. 36 If positive law is low in mirroring custom/consent and morality/ratio of society, the law will be ineffective or rejected by people. 37 Even, Ehrlich state that positive law which not mirror social norm and maintain people order is not law. 38 However, if positive law is high in mirroring of custom/consent and morality/ratio of society, that law will be effective. 39 The mirroring of law is important and influential in enforcing justice because each country has ideological character which differs one another and such characteristic will color the law making and law making. This explanation shows that law can not be separated from its social structure. 40 In another word, good law is law which evolve from society development. The ideological character of Indonesia is Pancasila which derives from Indonesian legal culture. The thesis of Tamanaha consider law as reinstitution of values or legal culture. Problem of moral and ethical value as basis for law making which must be mainly considered because it is the first process to create social justice. This 36 Brian Z. Tamanaha, 2001,.A General Jurisprudence of Law and Society Theory, New York, Oxford University Press, Page 3 37 Ibid, Page Eugen Ehrlich, 1975, The Fundamental Principles of The Sociology of Law. New York : Arno Press, page Brian Z. Tamanaha. Loc. Cit, page, Suteki, Kebijakan Penegakan Hukum (Non Enforcement of Law) Demi Pemuliaan Keadilan Substantif, Delivered in Professorship Ceremony in Diponegoro University in Semarang, August 4 th 2010, page

15 moral and ethical value must not be seek in another place but gotten in society as guidance in determining behavior to be regulated. 41 Mirror thesis stated by Tamanaha is absolutely relevant in showing legal positivism weakness in Indonesian context. Legal positivism used in Indonesia recently is not according to custom/consent and morality/rationality of Indonesian. From custom perspective, in settling dispute Indonesian put ahead traditional way namely discussion to achieve the similarity of opinion and in contrast, legal positivism has a very complex procedure and debate to show the mistake and weakness of the opposite party. From morality/rationality perspective, Indonesian people consider law as a tool to create harmony and return the destroyed balance in society and in contrast, legal positivism is based on win-lose spirit. This explanation shows that legal positivism is very low in mirroring people custom/consent and morality/rationality. In such circumstance, legal positivism will be rejected because it is not according to their custom and morality. Rejection on legal positivism happens at Orang Sabu (local people in East Nusa Tenggara of Indonesia). This rejection is explained in Bernard L. Tanya s dissertation. Legal positivism mechanism can not solve the entire law problem in Indonesia especially for local people in this case is Sabu people. Sabu people do not want to use state law based on legal positivism because they want to create peace for returning the disturbed balance and not to maintain conflict through win-lose principle in legal positivism. Right-wrong and win-lose in state law version is considered as dangerous for local people because it can be conflict source. For Sabu people conflict can be settled through discussion to return both parties in harmony. 42 Harmony or peace is purpose of local people law and it can be attained through observance to local law. Peace or harmony as 41 Esmi, Op. Cit, page Bernard L, 2000, Tanya Beban Budaya Lokal Menghadapi Hukum Negara :Analisis Budaya Atas Kesulitan Sosio-Kultural Orang Sabu Menghadapi Hukum Negara, Dissertation In Doctoral Program of Law Science Diponegoro University, page

16 orientation of dispute settlement is also implemented in Osing people. 43 More over, state law based on legal positivism put ahead individual interest in contrast the Sabu people put ahead society interest. Another rejection is law officer has no qualification as immamat or tribe leader in dispute settlement which is chosen by Sabu people. Sabu people in settling the dispute is based on the rule of sabu derive from God almighty. 44 Actually, this explanation shows that the legal culture of Indonesian in this case Sabu people influence law enforcement. Orientation to peace as legal purpose is precise in Indonesian people because this state is based on communalistic spirit which put ahead peace or harmony. It is different from legal positivism which put ahead individual interest than communalistic interest. Based on that reality, the government must realize that legal positivism is not according to Indonesian morality/rationality and custom/consent that has been crystallized in Pancasila. In such circumstance, Indonesian law must return to Pancasila. In the future, to make better Indonesian law, we must leave legal positivism which is very state centered. The new law must be configuration of three aspects, namely: first, religion/ethic/morality (Pancasila), second; state as law; and third, society. 45 State law that will be created must be according to Pancasila as validity standard of state law and also must figure out namely desire, need and want of society because it is important in creating social justice. 46 Those elements interact and influence one another and that interaction will create a perfect justice. 47 In my opinion, such configuration must be also implemented in law enforcement not only in law making. Through such concept of law making and law enforcement, new 43 Dominikus Rato, 2004, Hukum Yang Berkenaan Dengan Tanah Dalam Kosmologi Masyarakat Osing (Suatu Studi Kasus tentang Proses Pencapaian Harmoni dalam Perubahan di Desa Kemiren, Banyuwangi), Dissertation In Doctoral Program of Law Science Diponegoro University, page Bernard L. Tanya. Loc. Cit 45 Suteki, Kebijakan Penegakan Hukum (Non Enforcement of Law) Demi Pemuliaan Keadilan Substanti, Op. CitI, page 19-20, 46 Wojciech Sadurski, 1950, Giving Desert Its Due : Sosial Justice And Legal Theory, Holland : D Reidel Publishing Company, page Sukirno, 2014, Rekonstruksi Politik Hukum Pengakuan Negara Terhadap Hak Ulayat (Studi Pengakuan Dan Perlindungan Eksistensi Hak Ulayat Masyarakat Hukum Adat Baduy Dari Hegemoni Negara). Dissertation In Doctoral Program of Law Science Diponegoro University, page

17 rule or policy will be based on Pancasila. In such circumstance, it is unavoidable for government to make reorientation and reformation of egal development which is plural (legal pluralism paradigm) by putting ahead state regulation which explicitly give genuine recognition and protection to local law and religion law.. The implication is values, legal principles, legal institution and people tradition must be responded, accommodated and integrated to national legal system and make regulation about protection of multicultural people life. 48 It is also according to Pancasila which aware on Indonesian cultural diversity and give space to that diversity to be developed as long as it is according to Pancasila value. Legal pluralism theory stated by Menski has surpassed legal positivism because not consider state law as the only law but also consider cultural and natural law as its aspect. It means that, natural law to be achieved by Indonesia is social justice. The attainment of social justice also based on Indonesian legal culture built under spirit of brotherhood. Then, this social justice is accommodated in state law by making regulation which characterize it. Social justice is a justice that protect all Indonesian and implemented in every aspect of life. 49 The previous concept is according to progressive law theory stated by Satjipto Rahardjo. Law is not only construction of regulation but also construction of idea, culture and dreams. The purpose of law is to the people happiness. It is different from legal positivism which orient to create legal certainty and rule bound. In legal positivism, law has been reduced to be linier, simple, mechanistic and deterministic. 50 There are two assumption of progressive law namely (1) law for human not in contrast. So that, law is not for itself but for wider and bigger thing. That s why when problem in law happen, the law must be reviewed and not forced to be put in legal scheme. 2) law is not an absolute institution and final because law as process, law in 48 Ibid. 49 Andreas Doweng Bolo et,al, 2012, Pancasila Kekuatan Pembebas, Yogyakarta, P,T, Kanisius, Page Catur Yunianto (ed), 2009, Evolusi Pemikiran Hukum Baru :dari Kera ke Manusia, dari Positivistik ke Progresif, Yogyakarta :Genta Press, page 9 150

18 the making. 51 Basically, the purpose of progressive law or other theories based on legal culture is to create a responsive law or law to make a substantive justice. The attainment of substantive justice based on pancasila namely justice based on divinity, justice based on humanism, nationalistic justice and social justice. Pancasila justice orient to social need or civil politics in Nonet and Selznick theory. 52 Legal positivism in Indonesia has created many problems and be an obstacle in creating justice. So that, there must be solution on this problem. In this paper, I suggest that the first thing to be figured out in making solution related to the weakness of legal positivism is understanding about the meaning of justice in Indonesia. Justice for Indonesian is not only in economic but also socio and cultural meaning. It means that calmness, harmony and brotherhood are standards and also purpose of justice. In term of creating justice in Indonesia, the government must orient to harmony as one of its purpose. For creating harmony, the government must : (1) give space to local law; and (2) orient the dispute settlement to create harmony (return the balance in society). Actually, to create justice in Indonesia the understanding of legal culture is much important because through this way we can understand about people desire, need and prefer mechanism to be taken in settling the dispute. Related to this, the creation of social justice can be described as follow: 1. Rule and Policy Making a. Government must base its rule and policy to Pancasila as main source of law in Indonesia in which the main spirit is unity (harmony). It means that government must change its rule and policy which is mostly based on legal positivism (not contextual and legal certainty purpose) to Pancasila (contextual, justice, prosperity and harmony as its orientation). In Kaelan perspective, Pancasila is crystallization of Indonesian culture because Pancasila derives from Indonesian 51 Ibid. Page Philippe Nonet dan Philip Selznick, 1978, Law and Society in Transition : Toward Responsive Law, New York: Harper and Row Publishers, page

19 cultural and religious value. 53 It means that law making and enforcement process in Indonesia must be based on Indonesian culture. The legal system that must be chosen is legal system which is based on Pancasila legal system. Ironically, Indonesia legal system right now tend to be based on legal positivism which is contrast with Pancasila value. In such circumstance, Indonesia must change its legal system from legal positivism to Pancasila legal system. b. Government must involve local people to understand their desire and need in law making and law enforcement process because the effectiveness of law is mainly influenced by the accordance of law and legal culture. c. Government must create regulation to protect and accommodate local law as mechanism in settling dispute as long as according to Pancasila value. Government must understand that its position is not the only authority in settling dispute but local law also exist in playing the same role. 2. Law Enforcement In term of law enforcement, the government must understand about the value and desire of society when dealing with general people but when dealing with local people and their local law, the government must be facilitator and not the main player. The role of government as facilitator can be divided into two, namely: a. At the internal conflict of local people : the government only as facilitator of dispute settlement through local law. For example providing discussion place and etc. b. The conflict between local people and outsider : the government must be facilitator and try to harmonize the difference perspective and system between both parties. 53 Kaelan, Op. Cit, page

20 CONCLUSION First : the weakness of legal positivism in creating social justice is caused by dualism and objectivity as characteristic of legal positivism. Legal dualism has separated law from justice make law can not embody substantive justice. For positivism, justice is meta juridical and in das solen sphere that must be separated from law. Besides, objectivism in legal positivism has separated law from its society. It makes legal positivism has been fail in considering justice values include social justice for Indonesian. The impact is legal positivism only create procedural justice. In positivism perspective, positivism has been legal base to uphold justice even procedure is much more important than justice itself. Secondly, legal culture approach is very relevant in making social justice. It is caused legal culture approach not only consider law as legal text but also figure out people legal culture in its implementation. Moreover, social justice in Pancasila as the purpose of Indonesian law is based on Indonesian legal culture. SUGGESTION First : the government must end the use of legal positivism approach in law enforcement because it can not create social justice. Secondly, the government must increase discussion and analysis related to legal culture approach. It is caused legal culture will be able to create substantive justice in Indonesia References Achmad Ali, 2002, Keterpurukan hukum di Indonesia :penyebab dan solusinya, Jakarta: Ghalia. Adji Samekto, 2012, Ilmu Hukum dalam Perkembangan Pemikiran Menuju Postmodernisme. Bandar Lampung : Indepth Publishing. Andreas Doweng Bolo et,al, 2012, Pancasila Kekuatan Pembebas, Yogyakarta: P.T. Kanisius As ad Said Ali, 2010, Negara Pancasila: Jalan Kemaslahatan Berbangsa, Jakarta: Pustaka LP3ES 153

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