JURISPRUDENCE IN THE INDONESIAN COURT LEGAL

SYSTEM
Journal Article

Compiled to fulfill the duties of English courses

Composed by:
Nadia Azizah Putri
8111421390

Fakultas Hukum
Universitas Negeri Semarang
2021
Abstract
Civil law is a constitutional-oriented legal system or law where all matters regulated in law are in
its constitution, in contrast to common law whose legal system is case-oriented or case law. But
on traditional Rechtstaats or legislation as a basis for legal legality, there are shortcomings or
limitations. Of all the legal events, the constitution cannot derail all of the codified laws and
regulations. Then a legal source called jurisprudence is made. Where jurisprudence complements
the existing vacuum of a law. In the civil law tradition, jurisprudence holds an important role in
the existence of legal completeness by filling in the gap. In the civil law tradition, it is also stated
that the civil law tradition besides having laws, also has a legal source from a judge (judge-made
law) named jurisprudence (jurisprudentierecht)
Introduction
Among the various definitions of jurisprudence, one of the commonly understood definitions of
the notion of jurisprudence is the understanding used by Soebekti which mentions the notion of
jurisprudence as a permanent judge or court decision and is justified by the Supreme Court (in
Indonesian Called Mahkamah Agung) as a court of cassation, or the decision- the Supreme Court
itself is fixed. In other words, as long as this is generally the notion of jurisprudence is a
Supreme Court ruling that is loaded with legal breakthroughs so that it is constantly followed by
courts under the Supreme Court hierarchy, even normatively provisions are governed that the
collection of jurisprudence is the exclusive authority of the Supreme Court. But in recent
developments, it turns out that the term jurisprudence is also used to refer to the attachment of
decisions of the Constitutional Court (in Indonesian called Mahkamah Konstitusi) in certain legal
issues. For example, recently Oly Viana Agustine stated in her article that jurisprudence is one of
the sources of law in testing laws in the Constitutional Court. Jurisprudence applies when the
panel of judges believes that the previous ruling is still relevant to the current constitutional
issue.
In the common law system, judicial decisions become the main source of law (primary) as well
as laws in the civil law system. The usual difference between the two systems is that the common
law system tends to be centered on the case and centered on the judge (judge made-law)
therefore, wider space for discretion, ad hoc, more pragmatic in nature of certain matters
examined in court, whereas civil law legal systems tend to codify general abstract principles to
narrow the discretion of judges. Both of these views are extreme, taking into account the
discretionary tendencies in the common law and the extent of the judges' discretionary space in
civil law. In this sense, the point of view of jurists in the civil law tradition sees jurisprudence as
a concrete form of legal discovery which is then followed by the decision of another judge as a
legal form of general rules as befitting the contents of a law (statute, wet).
Therefore the Constitutional Court is not a law enforcer but a constitutional enforcer (the
guardian of the constitution), opportunities and momentum of breakthrough laws (rules
breaking) that are of very wide-open jurisprudence are carried out by the Constitutional Court,
compared to conventional justice which is largely bound by various laws and regulations.
Attention about jurisprudence is associated with the position of the Constitutional Court is
increasingly interesting and important given the view that the consistency of legal norms in the
civil law legal system, as is generally adopted in Indonesia, will be more awake with the
existence of a special institution such as the Constitutional Court that we know today
Literature Review
1. Some Definition of Jurisprudence
In the field of state law science, in general, Jimly Asshiddiqie formulated that there are
seven kinds of state law sources namely:
a) Unwritten constitutional values;
b) Basic law, both the opening and the articles;
c) Written statutory regulations;
d) Judicial jurisprudence;
e) State or constitutional conventions;
f) The doctrine of law science which has become the opinionist ius commissionist;
g) International law that has been ratified or has become applicable as customary
international law
Legal sources refer to the notion of the place of origin of a particular value or norm
originating, while the legal basis or legal basis, is the legal norm underlying a particular
legal action or deed so that it can be considered valid, or can be justified legally. Legal
sources can be distinguished into two senses in the formal sense or formele zin (sources
of law in its formal sense) or materialele zin (source of law in its material sense). The
source of law in the formal sense can be defined as a formal place in the written form
from which a legal tongue is taken, while the source of law in the material sense is the
place from which the norm originated, both from written and unwritten meaning.
Whereas according to J.A. Prontier, first of all, it is important to know what legal sources
the judge is using. In doctrine, as a source of formal and independent law only
recognized: treaties and laws (sources of written law), and jurisprudence and customs (as
sources of unwritten law). In law practice also the notion of "broader" law is used. Also
seen as a source of law: legal principles (rechtsbeginselen), community prudential
demands (eisen van maatschappelijke zorgvuldigheid), morals and politeness (fatsoen),
fairness or intoxication (redelijkheid) and eligibility (billijkheid, fairness), and good faith
(goede trouw)
According to Surojo Wignjodipuro, Apeldoorn does not justify calling jurisprudence a
source of law. Usually, the Arrest-Arrest Hoge Raad is used as a guideline by subordinate
judges because this is the best way to avoid cassation. The length of time of Arrest Hoge
Raad is an objective law. So light here based on habit is considered a general legal belief.
So it is clearly not a source of law in itself. In contrast, Bellefroid cannot justify
Apeldoorn's opinion. Bellefroid says it is not a habit of not arising out of habit but is
urged or pressed (fear of cassation) from above. A judge is not bound by another judge's
decision. If it occurs that a judge's decision is always used as a guideline for the decision
of other judges on the same particular legal event, then a generally accepted law called
the Jurisprudence Law is born.
Made Darma Weda stated in the common law system, jurisprudence is unknown, on the
basis that all ius non scripta (unwritten law) are interwoven through court decisions,
namely through judge-made law. Jurisprudence is not known in the common law
tradition, but essentially, what is meant by jurisprudence in the civil law tradition has an
identification of common intentions with the doktrin stare decisis in the common law
tradition. As a guideline, the term jurisprudence in Indonesia must be distinguished by
the term Jurisprudence in English which means law science14. The term jurisprudence in
the legal sense in Indonesia can be equated with jurisprudentie in the Netherlands or a
similar term in French, namely jurisprudence. In one legal study on increasing
jurisprudence as a source of law conducted by the National Law Coaching Agency (in
Indonesia called BPHN) in 1991/1992, several definitions of jurisprudence have been
collected, including:
a. Jurisprudence, namely permanent justice or judicial law (Purnadi Purbacaraka and
Soerjono Soekanto);
b. Jurisprudence is the teaching of law that is formed and maintained by the court
(Dictionary of Pockema Andrea);
c. Jurisprudence is a systematic collection of Supreme Court decisions and High Court
decisions followed by other judges in making decisions in the same matter
(Dictionary of Pockema Andrea)16;
d. Jurisprudence is interpreted as the teaching of law formed and maintained by the
Judiciary (Dictionary of Koenen endepols);
e. Jurisprudence is interpreted as a systematic collection of Supreme Court decisions
and (registered) High Court decisions followed by judges in giving their decisions in
similar matters (Van Dale Dictionary);
f. R. Subekti's opinion, Jurisprudence is a permanent judge or court decision and is
justified by the Supreme Court as a court of cassation, or a permanent (constant)
Supreme Court decision
Mahadi outlines the meaning of jurisprudence, not the decisions of judges, not as
"splings" of decisions, but rather the laws formed by the decisions of judges. Mahadi
stated that jurisprudence was generally intended as a series of judges' decisions that were
equally silent on similar matters. He further equated jurisprudence with the term "ijma" in
Islamic law. As Juynboll (1930) points out, "ijma" is "de overeenstemmende meening van
alle in zaker tijdperk levende moslimssche geleerden", which means concurrent opinions
among experts who existed at one time. Surojo Wignjodipuro states if a judge's decision
on a particular legal issue becomes the basis of the decision of other judges so that this
decision becomes a permanent judge's decision on the issue of certain legal events, then
the law contained in such a decision is called the law of jurisprudence.
Jurisprudence even has an important function but does not have a clear legal position in
Indonesia, both in the gaze of theory and practice. Bismar Siregar argues that historically
Indonesia has a family closeness to the civil law legal system through the Dutch colonial
era, but there is no raw understanding of whether what is meant by jurisprudence.
According to Jimly Asshiddiqie, the position of jurisprudence is so important but the role
of jurisprudence has not received enough attention, both in teaching law and in practicing
law, because it is caused by several factors:
First, the legal teaching system uses fewer judges or jurisprudence decisions as subject
matter, which is caused by:
1. the teaching of law emphasizes the mastery of the general notion of law, abstract in
the form of mere theoretical generalization;
2. the applicable legal system places the principle and the legal tongue sourced from the
laws and regulations as the main joints of applicable law and pays little attention to
 new understandings or interpretations of the provisions of the laws and regulations
through jurisprudence;
3. Jurisprudence publications are so limited that it is not easy to obtain and
study/discuss;
4. legal research policies that provide to the field facilities for research of judges'
decisions or jurisprudence.
Second, in terms of legal practice, the decision of judges or legally non-binding
jurisprudence, because the Indonesian legal system does not run a precedent system.
However, Sebastian Pompe distinguishes the meaning of precedent from jurisprudence,
for him, jurisprudence is the decision of the judiciary while the precedent of the decision
that binds the next judge. He cited in the Netherlands provisions were requiring the
precedent to be followed. Thus the precedent doctrine is not only known in the common
law tradition but also in the civil law tradition. This is further strengthened by the
tendency of European Union members who are despite adhering to the civil law tradition
but increasingly opening up the space for applying precedent principles. This can be seen
from the tendency of the European Court, the European Court of Justice (ECJ), both in
the theory and practice of civil law, to increasingly recognize the benefits of establishing
legal peddlers from jurisprudential law (case-law)
On the other hand, empirically, precedent teachings were applied in France about 150
years ago, but because they were often misused by lawyers to encourage codification.
Now, in the legal system in France, jurisprudence is not in itself binding. Nevertheless as
stated by Blanc-Jouvan and Boulouis: "despite not having de jure binding authority, but
judicial decisions have at least de facto authority. This authority varies depending on the
circumstances ".
As a form of legal discovery, the basis commonly used as a reference for the birth of
jurisprudence is Article 5 paragraph (1) of Law No. 48/2009 concerning Judicial Power
which states: "Judges and constitutional judges must explore, follow and understand the
values of law and a sense of justice that lives in society."The purpose contained in the
article is that the judge's decision is by the law and the sense of justice of the community.
This provision relates to the principle of iura curia novit.
M. Yahya Harahap as quoted by Edward Simarmata outlines some functions of
jurisprudence, namely:
a. creating legal standards (to settle law standard);
b. creating the same legal basis (unified legal framework) and the same legal perception
unity (unified legal opinion);
c. creating legal certainty;
d. prevent the disparity of court decisions.
At the same time as M. Yahya Harahap's opinion above, Jazim Hamidi and Winahyu
Erwiningsih stated more specifically that jurisprudence other than as a source of law, in
the world of justice had several functions, including:
1. Enforce the same legal standards in the same or similar case/case, where the law does
not regulate it;
 2. Create a sense of legal certainty in society with the same legal standards;
3. Creating legal similarities and the predictable (predictable) nature of legal solutions;
4. Preventing the possibility of disparity of differences in various judges' decisions in
the same case, so that you have a difference in decisions between one judge and
another in the same case, then do not cause disparities but the only pattern as casuistic
variables.
5. Thus it can be stated that jurisprudence is a manifestation of legal discovery

2. Jurisprudence Criteria
From the previous description, it appears that apart from various understandings of
jurisprudence but there is a characteristic of a term of jurisprudence, namely the judge's
attachment to previous decisions. In some cases, this understanding enhances the
relationship between the notion of jurisprudence and the doctrine of stare decidis in the
common law tradition. In the common law system, it can be said that the legal logic of
judges is induction because the legal tongues are developed from concrete cases through
case-law so that the term judge-made law is known. The term case-law itself refers to the
creation and improvement of the law in the course of court decisions.
Jurisprudence law (case-law) refers to the creation and improvement of the law in
formulating court decisions. Because it is oriented towards concrete cases, where among
a series of cases it is then abstracted by a legal tongue which then becomes the norm
applied and followed in various similar cases, the doctrine of precedent or stare decisis
becomes the heart of the British legal system (or common law system in general). The
binding doctrine of precedent (the doctrine of binding precedent), refers to the fact, in the
hierarchical structure of the Judiciary in England, the higher court ruling binds the lower
court hierarchically. In general, this means that when judges try cases, they will check
whether the same problem has been decided by the court before. If a situation or set of
facts arises as before, then the decision will be given by the court can be expected to be
the same as the decision handed down at that time.
H.R. Purwoto Gandasubrata revealed the weaknesses of the stare decisis or precedent
system because attachment to previous decisions made the verdict conservative looking
at past events and decisions (backward-looking) and not adjusting to the development of
community law. Whereas according to Sebastian Pompe there will be no contradiction
between the discovery of the law and jurisprudence and precedent teachings. In this
context, the consistency put forward by the precedent doctrine is deemed not to reduce
the freedom of judges to make legal discoveries or in other words, jurisprudence will not
curb the independence of judges as stated by Utrecht if a judge follows or obeys
according to Utrecht's terms a decision of another judge, does not mean that conditions
like this can be understood as subjecting other judges to the previous judge's decision.
According to Utrecht, there are 3 (three) because a judge follows the decision of another
judge, namely:
1) because the judge's decision has power especially the decisions of the Court of
Appeal and the Supreme Court. A judge's decision is higher sorted because this judge
is the supervisor of the work of the judge under him also because his services are
respected by his subordinate judges;
2) due to practical considerations. A judge who gives a decision that deviates from the
decision of a higher judge who has been handed down on the same case, will not be
justified by his court if the party who does not accept the decision asks for an appeal;
3) because it agrees with what was decided by the previous judge
For judges, even though their independence has been guaranteed by the principle of
freedom of judges, factually there are three reasons for judges to follow the decisions of
other judges / before, namely:
1. because the judge's previous decision had power (gezag), especially decisions made
by the high court or the MA. This also relates to the psychological side of the judge,
where the judge will be according to the decision of the judge whose position is
higher;
2. for practical reasons, that is, if there is a judge's decision that conflicts with a higher
or highest judge's decision, then the justice seeker can submit a legal remedy to
overturn the decision;
3. because of the suitability of the opinion, where a judge approves the decision of the
other judge.
Regarding this, Benny Riyanto criticized the anomaly of judge freedom, namely the
attitude of judges who distorted jurisprudence because each judge was free and not bound
by a higher judge's decision or a previous judge's decision, as were the judges in the
Anglo Saxon legal system. According to Soenaryati Hartono, the unlimited freedom of
judges will cause legal uncertainty and anarchy in Indonesian jurisprudence, because no
one can predict what is the rule of law.
Made Darma Weda stated that there are several requirements to be able to
said to be jurisprudence, namely:
1. Decisions on legal events that are not yet clear the rules;
2. Decisions have been of permanent legal force;
3. Decisions are repeatedly made the legal basis for terminating the same case;
4. The verdict has fulfilled the sense of justice of the community;
5. The verdict has been justified by the Supreme Court.
Whereas according to some justices as quoted by Teguh Satya Bhakti, a decision to arrive
at the stage becomes the jurisprudence of the mechanism adopted or the stages of the
process are as follows:
1. the decision of a judge of permanent legal force;
2. for cases or cases that have been terminated there are no legal rules or the law is
unclear
3. has a content of truth and justice;
4. has repeatedly been followed by the next judge in deciding the same case;
5. has been through an examination or notation test by the Supreme Court justices
jurisprudence team;
6. and has been recommended as a ruling that is qualified for permanent jurisprudence
According to Sudikno Mertokusumo jurisprudence remains, namely: first, that in the
judge's ruling there was a legal prayer that could be considered a landmark of decision
because the law was accepted by the wider community as a real breakthrough in a long
legal conflict; second, the tongue of the law or provisions in a decision is then followed
constantly or permanently by the judges in the decision and can be considered part of a
general legal belief. Whereas, the National Legal Development Agency (BPHN)
formulated that a ruling was said to be permanent jurisprudence if at least it had (five)
basic elements namely:
1. Decisions on an event that is not yet clear about the statutory arrangements ;
2. The decision is permanent;
3. Has been repeatedly terminated with the same decision and in the same case;
4. Have a sense of justice;
5. The decision was justified by the Supreme Court
Paul Effendie Lotulung states: "the measure used to determine whether jurisprudence is
permanent or non-permanent jurisprudence, is not based on a mathematical count ie
how many times have been decided the same regarding the same case, but its size is more
emphasized to its content which is principally different". Whereas, M. Hatta Ali stated
that the criteria for permanent jurisprudence were to have constantly transformed the law
that lived in a society and had been followed by various previous decisions so that the
permanent jurisprudence had created the law (rechtsschepping). According to the author's
frugality, it is very difficult to find a theoretical explanation that reversed the term
permanent and non-permanent jurisprudence. The author believes that this permanent and
non-permanent jurisprudence dichotomy contains problems when associated with the
principle of similia similibus which must be fulfilled from every judicial body's decision
so that the elements of legal certainty, predictability, and legal equality in their principles
are conditionally bound to the relevant previous decisions. The various descriptions
above present questions regarding the position and power of binding to non-permanent
jurisprudence, meaning that if jurisprudence remains binding, whether jurisprudence does
not remain non-binding or in other words becomes not mandatory to follow?
A good judge's decision will be made jurisprudence, that is, positive laws that apply
generally that are born or originate from a judge's decision, where the principal or tongue
becomes general and can be used as a basis for legal consideration for anyone43
Substantially a decision that has a character of jurisprudence, so followed by other
judges, is a decision that contains the value of a legal breakthrough. Court decisions
containing breakthrough values according to M. Yahya Harahap:
1. Can be a deviation from previous Court decisions;
2. The award contains the value of a new interpretation of the formulation of applicable
law;
3. The verdict contains new principles: from the previous principle, for the discovery of
new principles;
4. It could also be a contra legem decision. Whereas what is meant by the decision is
followed constantly:
A. Can be in the form of purely following it;
B. Or be fared and followed by case by case or casuistically,
 C. It is also a dipedomani that is accompanied by modifications. Thus it can be seen,
it is not easy to decide Jurisprudence, a requirement is needed that the decision
does not become a stare decisis in the sense, the decision:
a. Continuously followed;
b. It lasts for a relatively long period;
c. So that the number of such decisions has been numerous.

Conclusion
From all of the above descriptions, it can be concluded that the function of jurisprudence is very
important because in addition to filling the legal vacuum it is also important to realize the same
legal standards / legal certainty. The statutory regulations never regulate in full and detail,
therefore lah jurisprudence will complete them. With the same legal standards, a sense of legal
certainty can be created in society, and prevent disparity of decisions. With the creation of a
sense of legal certainty and legal similarity in the same case, the judge's decision will be
predictable and open. In this connection, in the context of jurisprudence as a source of law for
judges in prosecuting cases, some concrete steps in effectively the role of jurisprudence can be
carried out among others through the first affirmation of jurisprudential qualifications. Today to
maintain legal consistency and fill the legal vacuum, the Supreme Court in addition to issuing
jurisprudence is also increasingly intense in issuing decisions that are landmark decisions and/or
publishing circular letters. Therefore in the interest of developing the practice and theory of legal
science, it is necessary to affirm the limits of each jurisprudential position. In this case, it is
necessary to consider the qualifications of jurisprudence outside the cassation decision or the
Supreme Court Review, given the many types of cases that do not have to reach the Supreme
Court. In addition, the scope of jurisprudence needs to also relate to the decisions of the
Constitutional Court as one of the most important sources of law outside the product of
legislation and regulation.
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