III

LEGAL POSITIVISM

Positivism is one of the flows in the philosophy (theory) of law which assume, that the theory
of law is only related to positive law alone. Legal science does not discuss whether positive
law is good or bad, nor does it deal with the effectiveness of law in society. [1] Influenced by
the paradigm of thinking Galileo-Gallilae (Galilean), Isaac Newton (Newtonian) and August
Comte (Comtian). Where the meaning of Positivism itself is the Concept of truth - which
rejects the finality of life, where Galilean views the universe as a random situation of an
infinite number of causational relations.
Positivism Law taken from the Latin ponere-posui-positus which means put. Or in other
words a wrong or just deal-unfair depends entirely on the law that has been laid. Where in
essence Law is the command of the ruler (command of lawgivers). Thus, All that is called
law must go through the bureaucratic process of power, so the approach of the law is
approached with a very formal glasses. The law eventually becomes formalistic. Adherents of
legal positivism are often also seen as formalism.
In legalitarianism positivistis legal, law is only considered as a complex regulatory institution
has been reduced to something simple, linear, mechanistic, and deterministic, especially for
the benefit of the profession. In the context of Indonesian law, such doctrines and legal
teachings are still dominant, including the category of "legism" of Schuyt. This is because
"legism" sees the legal world from a mere legal telescope to then judge the events that occur.
The emergence of the positivist movement influenced many thoughts in various fields of
human life. [2] Positivism as a philosophical school which declares natural science as the
only true source of knowledge and rejects metaphysical activity. Not knowing any
speculation, all based on empirical data. In fact, it rejects theoretical speculation as a means
of acquiring knowledge (as advocated by idealists, especially Classic German ideals)
According to the language "positive" derived from the Latin: ponere-posui-positus which
means put. The further point of the word is that a matter of justice or justice-unfair depends
entirely on the law that has been laid. Positivism not only arises in the field of society, but
also in the field of law. This flow is given the name of juridical positivism to distinguish it
from sociological positivism. [3] The essence of legal positivism is that law is command.
There is no need to relate law to morals, laws as enacted, fixed, positum, must always be
separated from the law that should be created, which is desirable. The analysis or study of the
meaning of legal concepts is an important study, the analysis or the study must be
distinguished from historical studies, sociological studies and critical judgments in moral
meanings, social objectives and social functions. Legal Pasitivism sees the legal system as a
logical closed system, which is the right decisions that can be logically deduced from pre-
existing rules. And legal positivism sees that moral punishment can no longer be enforced,
but must be by means of a rational argument or by evidentiary evidence.
The leading legal positivism thinker is John Austin (1790-1859) who maintains that law is the
command of the ruler. The very nature of the law according to Austin lies in the "command"
element. Law is viewed as a system that is fixed, logical, and closed. Austin states "a law is a
command of a person who obliges a person or persons ... Laws and other commands are said
to proceed from superior, and to bind or oblige inferiors". [4] The thought of Austin is then
much criticized-or the latter being the focus of criticism of legal positivism-that is, in relation
to Austin's view of law, where law is seen as the command of the sovereign ruler.
The analytical legal positivism pioneered by John Austin was around the nineteenth century
and in the first part of the 20th century controlled legal thought in the West, where in its
implementation it is clear that the role of positivism, especially the analytical flow, is that the
application of its laws is done by the authorities. It is not surprising, then, that criticism of
legal positivism emerges when the law is transformed into or becomes a ruler as a tool of
power to achieve the goal of power and not the purpose of law. But this is not synonymous
with legal positivism as the cause of failure of legal life, especially failure in law
enforcement.
With the identification of a law whose application is applied by law will ensure that every
individual can know with certainty what his actions may be done and what his actions should
not be done. Even the state will then act decisively and consequently in accordance with what
has been determined and decided, in carrying out justice according to state provisions.
Similarly, the application of the law through its provisions and existing rules that have been
made must be implemented in accordance with everything that has been established.
In the current legal perspective, the legal positivism of its approach is no longer entirely with
a very formal glimpse, even more advanced than it was when it was initiated by Austin, so
that law enforcement views are only a mouthpiece of the law, or even some conclude that
legal positivism rests only on formulas or words in the law are not always the case. The
current legal positivism is far ahead of what the anti-positivism lawyers often ask.
As well as in Indonesia, the criticism of Indonesian law is also inspired by the view that
judicial law is always associated with legislation, whereas the moral values and norms
outside the law can only be recognized when permitted by law. This is due to the influence of
positivism theory, meaning that the implementation of legal life in Indonesia is based on the
theory of legal positivism, but the theory of legal positivism also has shortcomings, ie
ignoring the existence of moral values in society.
In Indonesia some time later, visible direction of thinking on legal positivism that has been
placed as the cause of failure of legal life away from the sense of community justice. In
essence, the criticism is that the failure of the law to play a genuine role is due to the
application of the theory of legal positivism in the development of law. Where in the
understanding of the theory of legal positivism, that law is nothing other than that contained
in the law, and not what should, and ignore social aspects in society.

[1] Achmad Roestandi, Responsi Filsafat Hukum. Armico-Bandung, 1992. hlm. 79

[2] Khudzaifah Dimyati, Teorisasi Hukum: Studi tentang Perkembangan Pemikiran Hukum
di Indonesia 1945-1990, Cetakan keempat (Surakarta: MuhammadiyahUniversity Press,
2005), p. 60-1
[3] Positivisme yuridis memandang hukum sebagai suatu gejala sendiri sedangkan
positivisme sosiologis hukum diselidiki sebagai suatu gejala sosial melulu, Theo Huijbers,
Filsafat Hukum Dalam Lintasan Sejarah, Cetakan ketujuh (Yogyakarta, Kanisius, 1993), p.
122-8
[4] John Austin, The Province Of Jurisprudence, dalam Darji Darmodiharjo, Pokok-pokok
Filsafat Hukum, Gramedia, Jakarta, 2004, hal 114