Achmad Shiva’ul Haq
Asjach
Scholar ID, Sinta ID, Scopus ID, WoSID
The development of Indonesian law
cannot be separated from the dynamics of history, power, and social change that
have shaped the character of the national legal system to the present day.
Since the colonial period, the Old Order, the New Order, until the Reform Era,
law in Indonesia has undergone a paradigm shift that demonstrates a close
relationship between law and the state’s political configuration. In many of
these historical periods, law was often used as an instrument of power
legitimation, resulting in a legal character that was repressive and elitist.
Therefore, future national legal development requires a legal paradigm that not
only ensures legal certainty but also delivers social justice, public
participation, and the protection of human rights.
In the study of legal sociology,
there are several major paradigms that influence the development of modern law,
namely law as a system of values, law as ideology, and law as social
engineering. The paradigm of law as a system of values is developed from the
thought of Philip Selznick, who emphasizes that law must be responsive to
social needs and the values of justice within society. In contrast, Donald
Black views law more as an instrument of social control influenced by social
structure and the distribution of power (Nonet & Selznick, 1978). The
paradigm of law as ideology is influenced by the thought of Karl Marx, who
regards law as a tool of the dominant class to maintain socio-economic and
political power. Meanwhile, the paradigm of law as social engineering is
developed through the thoughts of Roscoe Pound and Adam Podgorecki, who
position law as a means of social change (tool of social engineering) (Pound,
1954).
In my view, the most appropriate
paradigm to serve as the foundation for Indonesia’s future national legal
development is the responsive legal paradigm, which is rooted in the idea of
law as a system of values and law as a democratic tool of social engineering.
This paradigm is more relevant to the needs of contemporary Indonesian society
because it is capable of integrating legal certainty, social justice, public
participation, and respect for the social values that live within society.
Historically, Indonesia’s experience
shows that legal paradigms that are overly ideological and repressive tend to
result in the abuse of law by those in power. During the colonial period, law
was used as an instrument of political and economic domination by the Dutch
East Indies government over the indigenous population. The colonial legal
system was discriminatory and distinguished society based on racial groups and
social status. Law was not designed for the benefit of the Indonesian people,
but rather to maintain colonial stability and protect the economic interests of
the colonizers.
During the Old Order era, law was
also strongly influenced by the state’s political ideology. Law was frequently
used to support the concept of Guided Democracy, which placed political
authority above the rule of law. This condition became even more pronounced
during the New Order era, when law functioned as an instrument of political
stability and highly centralized economic development. In this period, law
tended to be repressive because it was used to control political opposition,
restrict civil liberties, and protect the interests of state power. Satjipto
Rahardjo described this condition as a form of law that had lost its
humanitarian orientation due to its excessive submission to formal state power
(Rahardjo, 2009).
This historical experience
demonstrates the relevance of Karl Marx’s critique that law can transform into
an instrument of ideological power when it is not democratically controlled.
However, the paradigm of law as ideology is not sufficient to serve as the
foundation of national legal development because it tends to position law as an
instrument of political and economic domination. In practice, this paradigm
risks producing repressive law that neglects the interests of society.
In contrast, the responsive legal
paradigm developed by Nonet and Selznick offers a more democratic and
humanistic approach. Responsive law positions law as an institution that is
open to public aspirations and oriented toward substantive justice, rather than
mere formal legality (Nonet & Selznick, 1978). In this paradigm, law is not
only a tool of state control but also a means of protecting public rights and a
mechanism for the fair resolution of social conflicts.
The responsive legal paradigm is also
relevant to the condition of Indonesian society, which is pluralistic,
democratic, and continuously undergoing social change due to globalization and
technological development. Indonesian society can no longer be governed through
authoritarian and centralized legal approaches. Law must be able to adapt to
the needs of a society that is increasingly critical of issues such as human
rights, social justice, environmental protection, governmental transparency,
and public participation.
From a sociological perspective, the
responsive legal paradigm is more aligned with the pluralistic character of
Indonesian society. Eugen Ehrlich emphasized that effective law is law that
corresponds to living law, or the law that exists and functions within
society (Ehrlich, 1936). Therefore, national legal development must take into
account cultural values, customary law, and the social needs of the community
so that law gains strong social legitimacy.
In addition, the responsive legal
paradigm is capable of accommodating the function of law as an instrument of
social change, as proposed by Roscoe Pound. Law can be used to promote social
reform, protect vulnerable groups, and support equitable development. However,
legal social engineering must be conducted in a participatory and democratic
manner so that it does not turn into an instrument of coercive power, as
occurred during the New Order era.
In my view, the implementation of the
responsive legal paradigm in national legal development has several important
practical implications. First, the law-making process must become more
participatory and transparent. The public, academics, civil society
organizations, and vulnerable groups must be meaningfully involved in the
legislative process so that law truly reflects the social needs of society.
Second, law enforcement must be more
oriented toward substantive justice rather than merely formal procedural
compliance. Law enforcement officials should not function solely as
“mouthpieces of legislation,” but must also consider justice values, human rights,
and the social conditions of society in the implementation of the law.
Third, the national legal system must
be more responsive to legal pluralism and the evolving social dynamics of
society. The state needs to recognize the existence of customary law and local
social values as long as they do not conflict with the Constitution and human
rights principles.
Fourth, institutional legal reform
must be directed toward strengthening integrity, transparency, and
accountability of law enforcement institutions. The responsive legal paradigm
requires legal institutions that are not subordinated to particular political
or economic interests.
Fifth, legal education in Indonesia
needs to be transformed from a legalistic-dogmatic approach toward a more
sociological, critical, and humanistic orientation. Law students should not
only be trained to understand legal texts, but also to comprehend social
realities and the impact of law on society.
Thus, future national legal
development in Indonesia should be based on a responsive legal paradigm that
integrates values of justice, democracy, public participation, and social
sensitivity. Historical experience shows that legal paradigms that are overly
ideological and repressive merely turn law into an instrument of power that
drifts away from the interests of the people. Therefore, Indonesian law must
move toward a paradigm that is more humanistic, democratic, and responsive to
social dynamics in order to realize a just and civilized rule-of-law state.
References
Ehrlich, E. (1936). Fundamental
principles of the sociology of law. Cambridge: Harvard University Press.
Nonet, P., & Selznick, P. (1978).
Law and society in transition: Toward responsive law. New York: Harper
& Row.
Pound, R. (1954). An introduction
to the philosophy of law. New Haven: Yale University Press.
Rahardjo, S. (2009). Hukum
progresif: Sebuah sintesa hukum Indonesia. Yogyakarta: Genta Publishing.
Soekanto, S. (2014). Pokok-pokok
sosiologi hukum. Jakarta: Rajawali Pers.
Wignjosoebroto, S. (2013). Hukum
dalam masyarakat: Perkembangan dan masalah. Malang: Setara Press.
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