THE DIALECTIC OF POSITIVISM AND SUBSTANTIVE JUSTICE: THE PANCASILA RULE OF LAW PARADIGM
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This study examines the dialectic between legal positivism and substantive justice within the framework of the Pancasila legal state paradigm as an effort to find a balance between legal certainty and substantive justice. The background of this study stems from the hegemony of legal positivism in Indonesia, which emphasizes formal and procedural legality, often neglecting the aspect of substantive justice that is at the core of the Pancasila legal ideal. In practice, law tends to stop at normative certainty (law in books), without touching on the values of humanity and justice that exist in society (law in action). The urgency of this study lies in the need to reposition Pancasila as a grundnorm and ethical foundation to return the orientation of Indonesian law to substantive justice, not merely formal justice. The research method used is juridical-normative with a legal philosophy and conceptual hermeneutics approach, which interprets law as das sollen (what should be). The results of the study show that rigid legal positivism has created a gap between legal certainty and substantive justice. The Pancasila legal paradigm presents itself as an integrative model that unites legal certainty and moral justice, positioning law not merely as an instrument of power, but as an ethical and spiritual means to uphold civilized justice. Thus, the Pancasila legal state offers a philosophical foundation for harmonizing positive norms and substantive values of justice in the national legal system.
References
Elviandri, E. (2016). Revitalization of Pancasila Ideology in Enforcement of Forest Fires: Strengthening the Authenticity of Indonesian Wisdom Based on Local Wisdom. Law Research Review Quarterly, 2(1), 93-108.
Hardiman, FB (2015). The art of understanding, hermeneutics from Schleiermacher to Derrida. PT Kanisius.
Hidayat, A. (2017, October). A state based on the rule of law based on Pancasila. In Seminar Material Presented in the Framework of the Faculty of Law Week (pp. 1-13).
Ibrahim, J. (2006). Normative legal research theory and methodology. Malang: Bayumedia Publishing, 57(11).
Jimly Asshiddiqie, The Aspirations of a Contemporary Legal State, Scientific Oration at the Graduation Ceremony of the Faculty of Law, Sriwijaya University, Palembang, 2004.
M. Tahir Azhary, The Rule of Law: A Study of Its Principles from the Perspective of Islamic Law, Its Implementation in the Medina State Period and the Present (Jakarta: Bulan Bintang, 1992), pp. 83–84.
Marzuki, PM (2019). Legal Research Revised Edition, 11th Edition. Jakarta: Kencana Prenada Media Group.
Nasihuddin, AA, Wibowo, EA, Sulyanati, KWS, Utami, NAT, Alam, K., & Riyamukti, T. (2024). Pancasila Legal Theory. Elvaretta Buana, Tasikmalaya.
Nur, ER (2017). Dialectics of Indonesian Legal Science in the Dominance of Legal Positivism (A Paradigm Shift in Indonesian Legal Science from Text to Just Legal Reality). ASAS, 9(1).
Nurdiansyah, R. (2025). Ethical Dilemmas in Judicial Law: Harmonizing Legal Certainty and Substantive Justice. HARISA: Journal of Law, Sharia, and Social Affairs, 2(1)), 217-230.
Puspawati, R., & Cahyani, SN Law in the Perspective of Pancasila. Indigenous Knowledge, 2022, 1(2), 126-138.
Putri, NR, Dewi, DA, & Adriansyah, MI (2024). Analysis of the Implementation of Pancasila in the Legal Paradigm and National Resilience in Indonesia. PRIMER: Multidisciplinary Scientific Journal, 2(1), 46-52.
Salam, M. (2018). The Crisis of Judicial Legitimacy and the Challenges of Legal Reform. Progressive Law Journal, 10(1), 45–60.
Sarip, S., & Wahid, A. (2018). The Diversity of Visions of the Pancasila Rule of Law in the Legal Mission of the Indonesian State. Legal Reflections: Journal of Legal Studies, 2(2), 109-124.
Teguh, M. et al. (2016). Integration of Morality and Legality in the Concept of Law as Integrity. Journal of Legal Philosophy, 12(2), 85–101.
Wahyudi, AT (2021). Dialectics of Systemic Legal Reasoning Towards Non-Systemic Legal Reasoning: The Value Basis of Non-Systemic Legal Reasoning. Al-Ahkam: Journal of Sharia and Legal Sciences, 6(2), 127-142.
Widiatama, W., Mahmud, H., & Suparwi, S. (2020). Pancasila Ideology as the Basis for Building an Indonesian Legal State. USM Legal Review Journal, 3(2), 310-327.
Wijaya, MH (2015). Characteristics of the concept of the Pancasila legal state. Journal of Advocacy, 5(2).
Wijayanthi, FR (2021). Pancasila as the source of all sources of law. The Juris, 5(1), 133-145.
Yance Arizona, A State of Law Based on Conscience: Satjipto Rahardjo's Ideas on the Indonesian State of Law, Paper presented at the 1st International Indonesian Law Society (IILS) Conference, Senggigi, Lombok, 2010, p. 19.
