Chapter 1 DEFINITIONS,

DEFINITIONS AND
CHARACTERISTICS OF
LEGAL SOCIOLOGY

1. Competency Standard
Students are able to know the
position of legal sociology, the
historical background of the birth of
legal sociology and distinguish
empirical legal sociology and
evaluative legal sociology.

2. Basic Competencies
1. Students are able to understand
and explain the position of legal
sociology and its parts.
2. Students explain the historical
background of the birth of legal
sociology and its development.
3. Students can understand and
empirical
law and evaluative legal sociology.

3. Indicators
1. Students are able to express the
sociology of law and its parts.
2. Students are able to express the
historical background of the birth of
legal sociology.
3. Students are able to argue about
the differences between empirical
legal sociology and evaluative legal
sociology.

4. Subject matter
1. Definition of Sociology of Law.
2. Scope, Method, Study, Object of
Legal Sociology.
3. The influence of Legal History
and Legal Philosophy.
5. Learning Experience
Initial Activity:
- Lecturer explains the learning
contract, class rules, class
attendance, assignments, reading
materials and others.
- Students pay attention, ask
questions and provide input.
- Media/tools: white board and
infocus

Core Activities:
- Lecturers explain about the
meaning of legal sociology, about
the scope, methods of study and
objects of legal sociology as well as
about the influence of history and
philosophy of law.

Final Activity:
- Lecturers repeat important points
according to the topic, asking
students about some lecture points.
- Students ask things that are not
clear and answer the lecturer's
questions
spontaneously.
- Media/tools: white board and
infocus

A. Definition of Sociology of Law

From a historical point of view,
the sociology of law was first
introduced by an Italian named
Anzilotti, in 1882. The sociology of
law was essentially born from the
results of the thoughts of experts,
both in the fields of legal philosophy,
science and sociology (Yesmil
Anwar and Adang, 2008, 109). The
sociology of law is currently growing
rapidly. This science is directed to
explain the positive law in force,
meaning that its content and form
change according to time and place,
with the help of societal factors.
According to C.J.M Schuyt, one
of the tasks of Sociology of Law is
to reveal the cause or background
of the emergence of imbalances
between the order of society
and the law. which is aspired to with
the state of society that exists in
reality.
According to Ronni Hanitijo
Soemitro, legal science can be
divided into 2 (two) branches of
specialization, namely the Study of
Law in Books and the Study of Law
in Actions. Law in books is referred
to the study of the law as stated in
the book of laws or as in the
legislation, in other words, the study
of law as a norm or method. Law as
a norm or method is autonomous,
meaning that the law stands alone
and is free from all influences. While
Law in Actions is mentioned for the
study of law as a social
symptom/process. Law as a social
symptom/process is heteronomous,
meaning that the law has an
influence and relationship with
others.
reciprocal with other social
symptoms such as economic,
political, social, cultural, religious
and others. Law as an
empirical social symptom, can be
studied as an independent variable
or as a dependent variable. Law
studied as a dependent variable is a
resultante (result) of various forces
in the social process and the study
is known as the Sociology of Law.
On the other hand, the law studied
as an independent variable causes
an impact on various aspects of
social life and such studies are
known as Community Law Studies.
The study of Law in Books and
Law in Actions put forward by Ronni
Hanitijo Soemitro is not much
different from Soerjono Soekanto's
thinking which presents the scope
of legal science which includes:

1. Normwissenschaften or
Sollenwinssenschaften, namely the
study of law as norms / rules, which
consists of:
a. The science of legal
understanding.
b. Science of legal rules.

2. Tatsachenwissenschaften or
Seinwissenschaften, namely the
science of law that studies law as a
social phenomenon, which consists
of :
a. Sociology of Law.
b. Legal Anthropology.
c. Legal Psychology
d. Legal History and
e. Comparative Law

Some scholars' opinions related to

the meaning/definition of sociology
law among others:
1. Soerjono Soekanto
Sociology of Law is a branch of
science that analytically and
empirically analyzes or studies the
mutual relationship between law
and other symptoms.
2. Satjipto Raharjo
Sociology of Law (sociology of
law) is legal knowledge of patterns
of community behavior in a social
context.
3. R. Otje Salman
Sociology of Law is a science
that studies the mutual relationship
between law and other social
symptoms empirically analytically.
4. H.L.A. Hart
H.L.A. Hart did not put forward a
definition of the sociology of law.
However, the definition he put
forward has aspects of legal
sociology. Hart revealed that a
concept of law contains elements of
power that are centered on certain
obligations in the visible legal
symptoms of social life. According
to Hart, the core of a legal system
lies in the unity between the main
rules / primary rules and additional
rules / secondary rules (Zanudin Ali,
2006,1). The primary rules are
informal provisions on the
obligations of citizens of society that
aim to meet the needs of social life
while the additional rules consist of:
a. Rules of recognition, which are
rules that explain the main rules
needed based on the hierarchical
order.
b. Rules of change, which are rules
that legalize the existence of new
main rules.
c. Rules of adjudication, which are
rules that give individuals the right
to determine the legal sanctions of a
particular event if a main rule is
violated by citizens.

B. Scope; Methods, Studies,

Objects and Functions of Legal
Sociology
 In law and sociology as an
intellectual discipline and a form of
professional practice have a similar
scope. However, it is completely
different in its goals and
methods. Law as a discipline
focuses on the scientific study of
social phenomena. Its main concern
is prescriptive issues and technical.
Whereas sociology focuses on the
scientific study of social phenomena
(Roger Cotterrel, 2012, 6).
Nonetheless, both disciplines focus
on the full range of significant forms
of social relationships. And in
practice the criteria that determine
which relationships are significant
are often the same, derived from
the same cultural assumptions or
conceptions of policy relevance.
Sociology of law, has an object
of study of legal phenomena, as
Curzon has written, that Roscou
Pound shows the study of legal
sociology as a study based on the
concept of law as a means of social
control. While Llyod, views the
sociology of law as a descriptive
science, which utilizes empirical
techniques. He views law as a
product of the social system and a
tool to control the fiber of changing
the system.
We can distinguish legal
sociology from normative science,
which lies in its activities. Normative
legal science is more directed to the
study of law in books, while legal
sociology is more concerned with
law in action (Yesmil Anwar and
Adang, 2008, 128). Legal sociology
uses a more descriptive empirical
approach, while normative legal
science is more prescriptive. In the
jurisprudentie model, legal studies
focus more on policy products or
regulatory products, while in the
sociological model it is more
directed to social structures.
Sociology of law is a branch of
special sociology, which uses study
methods commonly developed in
sociological sciences. While the
object of legal sociology is:
1. Sociology of law examines the
law in its
form or Government Social Control.
In this case, sociology examines a
set of specific rules that apply and
needed, in order to uphold order in
social life.
2. Sociology of law examines a
process that seeks to form citizens
as social beings. Sociology of law
realizes its existence as a social
rule that exists in society. In the
study of law there are at least three
factors that parameterize a legal
product can function properly,
namely:

a. Functioning Philosophically
Every society always has
Rechtsidee, namely what society
expects from the law, for example,
the law is expected to ensure
justice, benefit and order and
welfare. The legal mind or
rechtsidee grows in the community's
value system about good and bad,
their views on individuals and
society and so on, including views
on the
supernatural world. All of this is
philosophical in nature, meaning
that it involves a view of the core or
essence of something. Law is
expected to reflect the value system
both as a means of protecting
values and as a means of realizing
them. in the behavior of society.
According to Rudolf Stammler,
the legal mind is a construction of
the mind that is a necessity to direct
the law to the ideals desired by
society. Furthermore, Gustav
Radburg, an expert in legal
philosophy, stated that the legal
mind functions as a benchmark that
is regulative and constructive.
Without legal ideals, the law will
lose its meaning. (Bagir Manan,
1992, 17)
In the formation of laws and
regulations, the process of realizing
the values contained in legal ideals
into legal norms depends on the
level of awareness
and appreciation of these values by
lawmakers. The absence of
awareness of these values can be a
gap between legal ideals and legal
norms made.
Therefore, in the Unitary State
of the Republic of Indonesia, which
has the legal ideals of Pancasila as
well as the fundamental norms of
the State, every law that will be
made should be colored and flowed
with the values contained in the
legal ideals. Pancasila in the
reform era has received a lot of
criticism and blasphemy from
various circles, because Pancasila
during the reign of the previous new
order regime has been used as an
instrument of legitimacy for the
interests of power. Interpretation of
Pancasila by the "outside" of the
new order power is considered a
wrong interpretation and must be
rejected. Behind the blasphemy and
criticism of Pancasila, in terms of
value Pancasila remains a set of
noble values that must be
maintained, because Pancasila is a
meeting point (kalimatun sawa) of
various differences that exist in this
country. In this case the author is
interested in the opinion that
Pancasila is a great supporter,
because from the beginning it
reflects the determination to meet in
a common point between the
various groups in our country.
(Nurcholis Madjid, 2000, xciii).

b. Sociological/Empirical
Functioning
The basis of functioning
sociologically/empirically means if
the citizens obey the law where it is
enforced. Empirical validity can be
seen through the means of
empirical research on the behavior
of citizens. If in the research it
appears that the community
behaves with reference to the
overall rule of law, then there is
empirical validity of the rule of law.
Thus legal norms reflect the reality
that lives in society. (Soerjono
Soekanto and Purnadi
Purbacaraka, 1993, 88-89)
With a sociological basis, a
legal product is made and accepted
by the community naturally and
even spontaneously. Soerjono
Soekanto and Purnadi Purbacaraka
added that there are two theoretical
foundations as a sociological basis
for the functioning of a rule of law,
namely:
1. Power Theory, sociologically the
rule of law applies because of the
coercion of the authorities, whether
accepted or not by the community.
2. Recognition Theory, the rule of
law applies based on the
acceptance of the community where
the law applies. (Soerjono Soekanto
and Purnadi Purbacaraka, 1993,
91-92)
 Regarding the empirical validity
of legal rules in society, Lawrence
M. Friedman states that The legal
system is not a machine, it is run by
human beings. Functional
interdependence will always appear
in the process of law enforcement.
Furthermore, Friedman also
mentioned that at least there are
also quite dominant components
that affect the law enforcement
process, namely, first is the
structural component. The structural
component in this case is the part
that remains, the part that gives
some kind of shape and limit to the
whole. In Indonesia, for example, if
we talk about the structure of the
Indonesian legal system, it includes
the structure of law enforcement
institutions such as the police,
prosecutors, and courts. It also
includes elements of the structure of
the number and types of courts,
their jurisdiction
(types of cases and authority to be
examined, as well as how and why).
Clearly, structure is like a silent
phyto that stops motion. In another
explanation, the structural
component is actually a component
that has the authority to produce a
legal product, such as the DPR as a
legislative body for example.
The second is the legal
substance component. The
substance here is intended as rules,
norms, patterns of real human
behavior in the system (structural
component), including the decisions
they issue, the new rules they
compile. The quality of the
substance component is strongly
influenced by the quality of the
structural component. If the
structural component is good then
the substance component must be
good. A good structural component
in this case can mean whoever the
people are in the
structure of the system which has
the authority to produce a legal
product, must be those who have
integrity and capability or say those
who are professional and moral.
The third is the cultural
component or legal culture, in this
case human attitudes and the legal
system, beliefs, thought values and
expectations. In other words, legal
culture is the social atmosphere of
mind that determines how the law is
used, avoided and abused. Without
a legal culture or legal culture, the
law is powerless, like a dead fish
lying in a basket and not like a live
fish swimming in the sea. The
author can emphasize once again
that legal culture is basically a value
order adopted in society that
determines whether the substance
component has been running or not.
In brief, another way to
describe the
three components/elements in the
legal system is as follows: 1) the
structure is likened to a machine; 2)
substance is what is done and what
is produced by the machine; and 3)
culture or legal culture is whatever
or whoever decides to turn the
machine on or off, and decides how
the machine is used. Whether or not
the legal culture in society is very
much determined by legal
awareness in society. If legal
awareness in society is good, then it
is certain that the existing legal
culture must be good.

c. Juridically Functioning
The juridical or normative
functioning of a regulation or rule if
the rule is part of a certain legal rule
in which the legal rules point to
each other. Such a system of legal
rules consists of a whole hierarchy
of specific legal rules that rest on
general
legal rules. In it, lower specific legal
rules are derived from higher legal
rules.
higher law rules. As stated by Hans
Kelsen that the juridical functioning
of a legal rule cannot be separated
from pure legal theory (Reine
Rechtlehre). The juridical
functioning of the rule of law is
detailed with conditions: first, the
necessity of the authority of the law
maker. Every legal product must be
made by an authorized body or
official. If not then what happens is
null and void. Considered never
existed and all consequences are
legally void. For example, formal
legislation in Indonesia must be
made jointly between the president
and the DPR. If not, the law is null
and void. Second, there must be a
conformity of form or type or law
with the material being regulated.
The incompatibility of this form can
be a reason to cancel the legal
product. For
example, if the 1945 Constitution or
previous laws state that something
must be regulated by law, then it is
in the form of a law that the matter
is regulated. If it is later regulated in
another form, for example in a
Presidential Decree, then the
decision can be canceled. Third, the
requirement to follow certain
methods. If these methods are not
followed, the legal product is null
and void or does not yet have
binding legal force. Fourth, the
necessity of not contradicting higher
legal products (laws and
regulations). So that a law must not
contain rules that conflict with the
Constitution. In relation to the basis
of the juridical function of the
legislation
There are several opinions:
1. Hans Kelsen argues that every
legal rule must be based on a
higher level legal rule.
2. W. Zevenbergen states that every
rule of
law must fulfill the conditions of its
formation.
3. Logemann argues that legal rules
are binding if they show a
relationship of necessity (coercive
relationship) between one condition
and its consequences. (Soerjono
Soekanto and Purnadi
Purbacaraka, 1993, 88-89)

It is very unlikely that the law

only sees from its philosophical
function alone without uniting it with
sociological functions and juridical
functions. If the law only sees the
importance of the philosophical
function, then the location of the law
only reaches the level of recht idee
alone. And conversely, if the law
only sees the juridical function
without considering the sociological
function, then what happens is
arbitrariness.
C. Influences from Legal History
and Legal Philosophy.
Legal philosophy and legal
science are two major influences on
the sociology of law. However, it is
natural law that is the intellectual
basis of legal sociology. A leading
figure of the historical school, Carl
Von Savigny (1779-1861) argued
that the law is a manifestation of the
legal consciousness of society
(Volgeist). He argued that all laws
come from customs and beliefs, not
from lawmakers (Zainudin Ali, 2006,
122). He challenged the codification
of German law. The decisions of the
legislature, according to him,
endangered society because they
were not in accordance with the
legal consciousness of the
community.
 In the eighteenth century,
rational analysis of the law emerged
very strongly, as did the binding of
principles in law. The
combination of the two gave birth to
a deductive way of thinking that
ignored the historical reality with the
specificities of nations. Such legal
analysis ignores the social
environment of law (Satjipto
Rahardjo, 2010, 15). Some
principles that reflect the
relationship between law and its
social base are as follows:
• The law is not made, but
discovered. The growth of law is
essentially an unconscious and
organic process. Law cannot be
seen as an institution that stands
alone, but merely a process and
behavior of society itself. It is only
we who see the law as a separate
institution with all its attributes and
concepts of autonomy. What is now
called law is an arbitrary decision
made by a legislative body.
• The law grew from simple legal
relationships in primitive societies to
large
and complex laws in modern
civilization. However, legislation and
jurists only formulate law technically
and remain a tool of public
consciousness.
• Law does not have universal
applicability. Every nation has its
legal habitat, just as they have their
customary language. Volksgeist (the
soul of the people) will manifest
itself in the law of a nation.
The historical school has a
weakness that lies in its concept of
legal consciousness which is very
abstract. Studies that refuse to see
law based on rules, but rather see it
based on society as embraced by
the historical school, remain
submerged under the strong
normative-positivistic currents of the
19th century. Another case with the
philosophy of law which has its own
understanding for the birth of legal
sociology. Philosophical thought
always tries to penetrate close
things and constantly seeks
answers to questions that are
complete (ultimate). Theo Huijbers
explains that philosophy is a
methodical and systematic
intellectual activity, reflecting on the
essential meaning (true) of all
existing facts. The objective of
philosophy is universal, covering
everything that humans experience.
Thinking philosophically is looking
for the true meaning of everything
that exists through the broadest
horizon of views. The method of
philosophical thinking is reflection
on the experience and
understanding of things within a
universal horizon. The processing of
thoughts is methodical and
systematic.
However, according to E.
Sumaryono, philosophy is an
interpretation of human life, has the
task of researching and finding all
concrete facts to their deep
foundations. Related to normative
legal
rules (law) which are provisions or
guidelines on what should be done.
In essence, the rule of law is a
formulation of opinion or view of
behavior. As guidelines, the rule of
law is general and passive. Legal
rules that have normative reality can
be called what should be done or
das sollen. Das Sollen is a
normative reality and does not state
something that happens in reality,
but what should happen.
Conversely, empirical juridical rules
are legal rules that contain natural
reality or concrete events commonly
called das sain.
The rule of law has a passive
nature as has been stated. In order
for the rule of law not to function
passively, it requires stimulation
from certain events (das sein), so
that the rule of law can be active,
which can then be applied to the
concrete event. Therefore, as long
as there is no certain
concrete event, the rule of law is
only a passive guideline. So the rule
of law requires the occurrence of
concrete events: Das Sollen
requires Das Sein. If a concrete
event becomes a legal event, then
the concrete event that is relevant
to the law, the event that the law is
associated with legal
consequences. Therefore, a
concrete event does not
automatically become a legal event.
A legal event is not possible without
a legal event. Legal events are
created by legal rules. Conversely,
the rule of law in the process of
occurrence is influenced by
concrete events.
The main problems of
philosophy have a characteristic,
namely in solving problems always
raises questions. For example,
when someone can find the
difference between right and wrong,
the question will arise again why
and on what
basis the distinction is made, and
why should there be a distinction?
Thus, the philosophical discussion
includes research or investigation
that has such a broad and
comprehensive scope.
Therefore, legal philosophy is
far ahead of legal sociology when it
questions the validity of positive law.
Philosophical thoughts pave the
way for the birth of legal sociology,
because scara thoroughly and
critically, as is usually the nature of
philosophy, sues the legal system of
legislation. Philosophical thought
can also start from a distant point
that does not directly challenge
positive law (Satjipto Rahardjo,
2010, 17). As done by Gutav
Radbruch with the thesis of "three
basic values of law" namely justice,
usefulness and legal certainty.
The distinctive influence of legal
philosophy is clearly seen in
activities to
neutralize or relativize legal
dogmatics, the pressure is more
placed on the reaction or process of
law (law in action) (Yesmil Anwar
and Adang, 2008, 126). Roscou
Pound argues that law is a process
that gets its form in the formation of
laws and regulations and decisions
of judges or courts. He put forward
his idea of law as a means to direct
and foster society. To fulfill this
function, too much attention to the
static aspects of the law must be
abandoned. In addition to Pound,
Cardozo argues that the law is not a
pure application of legislation. The
law also influences the social
interests that live in society.
Philosophically, the function of the
sociology of law is to test whether it
is true that laws and regulations are
made and function in society.