Analysis of the

application of
positivism
philosophy in minah
case
Faculty of law Universitas Brawijaya
Introduction

In this case, group 2 took the theme of legal positivism/positive law which was associated with the case of Minah's
grandmother. Positivism is a trend in legal philosophy which assumes that legal theory is conceptualized as ius which has
undergone positivization as lege or lex, in order to guarantee certainty between what is considered law or not. Cronology of
Minah case, 3 Mina was a farmer and she took 3 cocoa beans belonging to PT Rumpun Sari Antan (RSA), while she was
harvesting soybeans on her farm. Minah actions were discovered by the plantation foreman, and at that time Minah’s
grandmother returned the cocoa beans she had taken and apologized. However, the company still reported it to the police.
Finally, in case file No. 247/PID.B/2009/PN.Pwt, Minah’s grandmother had to undergo trial at the Purwokerto District Court
(PN). There is a clash between the values of justice in this case. The research question in this case is how the law views the
case from the perspective of legal certainty or legal positivism and humanitarian principles.
Legal material &
methods
This research is a normative legal research.
By uses a statute approach and a conceptual approach.
The Law approach is used by the author to review or review all
regulations related to the review of the theory of legal positivism in
the
Indonesian criminal justice system. The conceptual approach
carried out in this study is to examine doctrines, principles, and
concepts in legal science associated with
legal issues that are the subject matter studied, namely a review of
the theory of legal
positivism in the Indonesian criminal justice
system.

1. Legal posivitsm
• Views and influences on the Legal System
• On Justice and Legal Certainty
2. Legal theories in Indonesia
• The concept of Development Law Theory
• Pancasila Legal Theory
RESULT & DISCUSSION
Analysis
In the case of Grandma Minah, in the process of transferring the case file to During the trial process, the principles of
legal certainty take precedence, it is clear that criminal acts are not compromise to the perpetrator or suspect. So that
law enforcement precisely Assign this case through a judicial approach rather than through an approach humanity and
people's sense of justice In the context of Development Law Theory, the principle of social justice becomes a crucial
element. In the case of Grandma Minah, it can be seen that her act of theft was actually triggered by poverty. In this
case, considerations related to social justice become relevant. The question that arises is whether this action was taken
as an effort to improve her standard of living or merely as a common legal violation.
On the other hand, the Chairman of the Panel of Judges, Muslih Bambang Luqmono SH. Show humanity by granting leniency to
sanctions that was dropped. This the judge demonstrated his capacity to comply with chapter 5 Paragraph (1) of the Law on Judicial
Power, that the Judge must dig, follow, and Understand the legal values and sense of justice that live in society.
The judge's decision in the case of Grandma Minah who sentenced her to prison for 1 (one) month 15 (fifteen)
days with the criminal provision is not necessary lived, has reflected the principles of humanity.
RESULT & DISCUSSION
Analysis
Development Law Theory encourages law to play a role in societal development. In this case, it's essential to consider
whether the legal action against Grandma Minah only involves penal aspects (criminal sanctions) or if it also includes
rehabilitation and development efforts to assist Grandma Minah in becoming more economically and socially
productive. Is there an effort to understand the background of this action and help Grandma Minah improve her
sustainability?
Development Law Theory also emphasizes the protection and fulfillment of human rights. In the case
of Grandma Minah, it should be considered whether the legal actions. taken ensure that Grandma Minah’s human
rights remain protected, including the right to justice, the right to a decent life, and the right to rehabilitation if
needed.

Based on the Pancasila Legal Theory, a theft case involving Grandma Minah would be evaluated within the
framework of its underlying Pancasila values. One of the values of Pancasila is Belief in the One and Only God. In
this context, the act of theft should be assessed in its relation to the religious and moral values that underlie Pancasila.
Grandma Minah's behavior should be analyzed to determine if it contradicts the religious and moral values held in the
community.
RESULT & DISCUSSION
Analysis
With the Pancasila Legal Theory approach, the assessment of Grandma Minah's theft case will take into account the
underlying Pancasila values and the impact of legal actions on justice, human dignity, unity, and morality in society.
This analysis seeks a balance between law enforcement and a deep understanding of the values believed in by the
Indonesian people. Therefore, the primary goal of the Pancasila Legal Theory is to provide protection and care for
humans. As explained by Mochtar Kusumaatmadja, the concept of providing care means protecting humans and
promoting their welfare, while simultaneously emphasizing the values and principles inherent in Pancasila. to prevent
arbitrary actions, with the hope of creating a society that can fully develop its potential in its entirety.
Ideally, the development of society should be followed by development law. From the case of Minah's grandmother,
the use of legal institutions that are not in accordance with development of society and does not reflect the values of
justice in the middle Society only brings injustice in the midst of society. Plus With law enforcement officers who still
have a conservative mindset in enforcing law. Law is the creation of society, but at the same time it also creates
community. So that the concept of law should be in line with the development of its society
 CONCLUSION &
SUGGESTION
CONCLUSION
In the context of Nenek Minah's legal case, when analyzed through the lens of Positivism Paradigm, its ontology pertains to
a legal reality. The epistemology in this paradigm is dualistic and objective, where independent parties do not influence
each other, specifically referring to the detachment between the judge and the legal case under scrutiny. Values are not a
factor in this paradigm, as the law or its reality exists external to the judge's personal beliefs. The methodology employed is
rooted in verification and empirical examination. The judge conducts this by presenting witnesses and cross- referencing
evidence with Nenek Minah's statements as the defendant. When all the elements of Article 362 are met, Nenek Minah is
found guilty and subject to legal penalties. In summary, the Positivism Paradigm consistently underscores objectivety.
Viewed from a positivist perspective, Nenek Minah could be subject to legal sanctions; however, when
examined through the lens of progressive law, ideally, Nenek Minah's case should not even reach the judicial arena. In fact,
the law enforcement process serves as compelling evidence that the legal system in Indonesia currently remains tethered to
the written text rather than the broader context. This means that law enforcement still primarily aims to establish legal
certainty without adequately balancing it with the pursuit of legal justice. Nenek Minah's case is also a reflection of law
enforcement that lacks a sense of justice, relying solely on written provisions (legalistic positivism) without considering the
sociological dimension. Ironically, the sociological aspect holds a more genuine form of justice compared to written law.
 CONCLUSION &
SUGGESTION
SUGGESTION
When viewed from a positivistic perspective, Grandma Minah can be punished, but when viewed from a progressive legal
perspective, then Grandma Minah's case is ideally irrelevant to the court. In fact, the law
enforcement process has become valid evidence that legal work in Indonesia today is still subject to text not context. This
means that law enforcement is still devoted to the direction of realizing legal certainty alone, without balancing it on
projections to realize legal justice. Grandma Minah's case is also a portrait of law enforcement that is far from a sense of
justice, a pattern of law enforcement that only relies on written provisions (legalistic positivistic) without paying attention
to the soisological dimension. In fact, the written law. In the midst of the decline in juridical-sociological law enforcement
practices in Indonesia, it is hoped that in addition to restoring the law from its slump, it is also more real, the juridical-
sociological approach is believed to be able to present a more substantive face of legal justice and society. When
judges are faced with cases that require humanity, judges’ consideration based on humanitarian principles is also needed,
even though legal certainty is allowed. Because the most important decision of the judge must give the spirit of justice to
the seeker of justiceociological aspect actually has an essential fair power compared to the .
References

BOOKS
● Nitibaskara, Ronny Rahman. 2006. Tegakkan Hukum Gunakan Hukum. Kompas Media Nusantara. Jakarta.
● MD, Mahfud. 2009. Pancasila Dalam Berbagai Perspektif. Sekjen dan Kepaniteraan Mahkamah Konstitusi. Jakarta.
● Mertokusumo, Sudikno. 1993. Bab-bab tentang Peneman Hukum. PT. Citra Aditya Bakti. Bandung.
● Rahardjo, Satjipto. 2009. Hukum dan Perilaku: Hidup Baik Adalah Dasar Hukum yang Baik. Kompas Gramedia. Jakarta.
● Shidarta, Arief. 2011. Posisi Pemikiran Hukum Progresif dalam Konfiguras Aliran-aliran Filsafat Hukum: Sebuah
Diagnosis Awal, dalam buku Satjipto Raharjo dan Hukum Progresif Urgensi dan Kritik. Epistema Institute. Jakarta.
● Sudirman, Antonius. 2007. Hati Nurani Hakim dan Putusannya: Suatu Pendekatan dari Perspektif Ilmu Hukum Perilaku
(Behavioural Jurispudence) Kasus Hakim Bisma Siregar. PT. Citra Aditya Bakti. Bandung.
● Susanto, Anton F. 2010. Dekonstruksi Hukum: Eksplorasi Teks dan Model Bacaan. Genta Publishing. Yogyakarta.
● Teguh Prasetyo dan Abdul Halim Barkatullah, Imlu Hukum dan Filsafat Hukum,Cet.2 (Yogyakarta: Pustaka Pelajar Offset; 2007
THANKS!
Do you have any questions?

Brigitte Julia Maria Rumokoy, S.H.

Deka Fajar Pranowo, S.H.
Zulfikar Ar Rizki Akbar, S.H.
Ivan Chandra Wijaya, S.H.

CREDITS: This presentation template was

created by Slidesgo, including icons by
Flaticon, infographics & images by
Freepik

Please keep this slide for attribution