THE EXISTENCE AND DYNAMICS OF INTEGRATING PRIMARY LEGAL SOURCES WITHIN INDONESIA'S POSITIVE LEGAL SYSTEM

 Oleh WARSITO, SH., M.Kn.

                                              Perumus Tata Naskah DPD RI

        Peringkat  1 Analis UU di Badan Keahlian DPR RI Tahun 2016

                                    Dosen Fakultas Hukum Universitas Jayabaya, Jakarta

                                    Dosen Fakultas Hukum  Universitas Ibnu Chaldun, Jakarta
 

Abstract

The legal system in Indonesia possesses highly distinct (unique) characteristics, as it integrates various legal elements, including Western law (civil law), customary law (adat law), and Islamic law. This article aims to analyze in-depth the primary legal sources that are applicable and binding in Indonesia, as well as how the dynamic interaction among these sources shapes the national legal order. Utilizing a normative-juridical method with conceptual and statutory approaches, this study examines the hierarchy of laws and regulations, the role of customary/adat law, the contribution of Islamic law, and the significance of jurisprudence (case law) and legal doctrines. The discussion reveals that although Pancasila and the 1945 Constitution serve as the source of all legal sources and the supreme written fundamental law, legal pluralism remains vibrant through constitutional recognition of customary and religious legal systems. The proposed solutions to overcome disharmony between legal sources include the strict application of the lex superior principle, an adaptive codification of national law, and strengthening a holistic understanding among legal practitioners.

Keywords: Sources of Law, Hierarchy of Regulations, Legal Pluralism, Introduction to Indonesian Law.

1. Introduction

Fundamentally understanding the Introduction to Indonesian Law (Pengantar Hukum Indonesia / PHI) requires a deep examination of the origins of norms that bind society. As a sovereign state, Indonesia adopts a complex and characteristically pluralistic legal system (Asshiddiqie, 2006). This complexity is a historical legacy of cultural immigration, colonialism, and the genuine noble values of the nation scattered across the archipelago.

In national legal discourse, determining the source of law is crucial because it is where the legality and validity of a norm are tested. Sources of law are fundamentally distinguished into material sources of law (the beliefs and consciousness of society that determine the substance of law) and formal sources of law (the concrete forms that make the law legally binding and applicable) (Rahardjo, 2000). This article focuses on analyzing formal sources of law as the main pillars of contemporary law enforcement in Indonesia, aiming to provide a clear juridical navigation map for law students, academics, and practitioners alike.

2. Literature Review

The concept of legal sources in the Civil Law tradition, which heavily influences the Indonesian legal system, places written regulation as the primary commander (Marzuki, 2005). However, within the Indonesian context, Van Vollenhoven's Rechtskreise (legal circles) theory reminds us that local customary law holds a strong binding power within the sociological structure of society (Soekanto, 2012).

Furthermore, in viewing the integration of Islamic law into positive law, the Receptio in Complexu theory—which was later corrected by Hazairin with the Receptie A Contrario theory—demonstrates that Islamic law applies to its adherents not because it is adopted by customary law, but due to a consciousness of faith that is constitutionally recognized (Manan, 2006). Structurally, the hierarchy of legal norms in Indonesia adopts a modification of Hans Kelsen’s norm hierarchy theory (Stufenbau theory), in which the 1945 Constitution is placed as the Grundnorm or the highest fundamental norm.

3. Discussion: Primary Sources of Law in Indonesia

A. Laws and Regulations (Statute Law)

Laws and regulations constitute the primary formal source of law in Indonesia. Based on Law Number 12 of 2011 as last amended by Law Number 13 of 2022, the hierarchy of laws and regulations in Indonesia is rigidly structured as follows:

1. The 1945 Constitution of the Republic of Indonesia (UUD 1945): The supreme written fundamental law that serves as an umbrella for all regulations beneath it.
2. Decrees of the People's Consultative Assembly (Tap MPR): Decrees that remain applicable based on material review.
3. Laws (UU) / Government Regulations in Lieu of Laws (Perppu): Legal instruments to execute the mandate of the Constitution or to respond to compelling emergencies.
4. Government Regulations (PP): Regulations to implement Laws as properly required.
5. Presidential Regulations (Perpres): Regulations enacted by the President to execute mandates from higher regulations or to administer governmental power.
6. Provincial Regional Regulations (Perda Provinsi): Legal products enacted at the provincial regional level.
7. Regency/Regency-Level City Regional Regulations (Perda Kabupaten/Kota): Legal products enacted at the local/second-tier regional level.

Every legal norm at a lower level must not contradict the legal norm above it, in accordance with the principle of Lex Superior Derogat Legi Inferiori (Mertokusumo, 2007).

B. Customary Law and Usage (Customary Law)

Although Indonesia prioritizes written law, customary law (adat law) remains constitutionally recognized under Article 18B paragraph (2) of the 1945 Constitution, provided that it is still alive, accords with societal development, and aligns with the principles of the Unitary State of the Republic of Indonesia. A custom can become a source of law if it is practiced repeatedly, accepted by society as something just, and its sanctions are sociologically felt as real (Wignjodipoero, 1995).

C. Islamic Law

Islamic law enters the positive legal order of Indonesia through written legislation and compilation. Concrete examples of the formalization of Islamic law include the Marriage Law (Law No. 1 of 1974), the Sharia Banking Law, and the Compilation of Islamic Law (KHI) which serves as a guideline within the Religious Courts system (Ali, 2011).

D. Jurisprudence (Case Law)

Unlike the Common Law system which adheres to the principle of Stare Decisis (where prior judicial decisions are absolutely binding), Indonesia treats jurisprudence as a secondary yet vital source of law. Jurisprudence refers to decisions of Supreme Court Justices that have obtained permanent legal force (inkracht) and are followed by other judges when deciding similar cases (Lotulung, 1997). This functions to fill legal vacuums (rechtshasvacuüm).

E. Doctrine (Legal Opinion)

Doctrine represents the views or opinions of prominent legal scholars with recognized reputations. Doctrine does not possess formal binding force like statutes do, but it holds high moral and intellectual authority, making it frequently used by judges as a foundational consideration when drafting the dictum of a judgment (Sudikno, 2009).

4. Conclusion

The primary sources of law in Indonesia are pluralistic and integrative. The national legal system places written laws and regulations within a hierarchical structure as the pillar of legal certainty. On the other hand, the principle of sociological justice is accommodated through the recognition of customary law and religious (Islamic) law. The existence of jurisprudence and doctrine complements this ecosystem by providing flexibility for judges to engage in judicial activism or legal discovery (rechtsvinding) when encountering ambiguities in statutory texts.

5. Recommendations and Juridical Solutions

For readers, particularly students and practitioners who frequently encounter conflicts of norms (legal disharmony) between written law, customary law, and religious customs, the following systematic solutions can be applied:

• Strictly Apply Legal Conflict Resolution Principles: If a conflict between written norms occurs, utilize the principle of Lex Superior (higher regulation overrides lower regulation) or Lex Specialis Derogat Legi Generali (special law overrides general law) to determine the most valid law (Mertokusumo, 2007).
• Conduct Constitution-Based Harmonization: When adopting or applying customary/religious law, ensure that no fundamental human rights are violated, strictly within the boundaries of tolerance established by the 1945 Constitution.
• Optimize Legal Discovery by Judges: For law enforcement officials, when statutory law is rigid or has not yet regulated an issue in modern society, do not hesitate to extract the living law using the instruments of valid jurisprudence and sound doctrine.

References

• Ali, M. (2011). Hukum Islam: Pengantar Ilmu Hukum dan Tata Hukum Islam di Indonesia. Jakarta: Sinar Grafika.
• Asshiddiqie, J. (2006). Pengantar Ilmu Hukum Tata Negara. Jakarta: Sekretariat Jenderal dan Kepaniteraan Mahkamah Konstitusi.
• Indrati, M. F. (2007). Ilmu Perundang-Undangan: Jenis, Fungsi, dan Materi Muatan. Yogyakarta: Kanisius.
• Lotulung, P. E. (1997). Peranan Yurisprudensi sebagai Sumber Hukum. Jakarta: Badan Pembinaan Hukum Nasional.
• Manan, A. (2006). Aneka Masalah Hukum Perdata Islam di Indonesia. Jakarta: Kencana.
• Marzuki, P. M. (2005). Penelitian Hukum. Jakarta: Kencana Prenada Media Group.
• Mertokusumo, S. (2007). Mengenal Hukum: Suatu Pengantar. Yogyakarta: Liberty.
• Rahardjo, S. (2000). Ilmu Hukum. Bandung: Citra Aditya Bakti.
• Soekanto, S. (2012). Pengantar Penelitian Hukum. Jakarta: UI Press.
• Wignjodipoero, S. (1995). Pengantar dan Asas-Asas Hukum Adat. Jakarta: Gunung Agung.

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