Title

Penalaran Hakim tentang Isu-Isu Hukum Kontemporer yang Mempengaruhi Pandangan Mahkamah Agung (Judges' Legal Reasoning Behind the Supreme Court's Legal Stance on Contemporary Legal Issues)

Abstract
Judges are at the forefront of translating normative legal texts in the light of the complex facts that emerge fromeach case. The Supreme Court, as the highest authority in overseeing the adjudication of such cases by lower courts, plays a key role in preserving the uniformity of law. In recent years, the Supreme Court has developed a chamber model, which divides the Supreme Court in criminal law, civil law, religious law, military law, and administrative law chambers. In special plenarymeetings of these chambers, the Supreme Court judges discuss contemporary legal issues and attempt to cometo acommon viewon the most pressing issues. These views ofthe Supreme Courtare published in theformofcircular letters, that serve as a guide for judges in future adjudication. Although these circular letters in essence are not a recognized formal legalsource, they forman attractive alternative for judges compared to compilations of selected judicial decisions (buku yurisprudensi). However, there are a number of fundamental issues pertaining to the use ofcircular letters as a legalsource, as these published views of the Supreme Court on pressing legal issues are not accompanied by a thorough legal justification and a sound legal reasoning. Without the presence ofa clear legal reasoning, and without the context ofa concrete case, the views ofthe Supreme Courtare cut offfromspecific legaland factualcontexts. Lawyers, judges, and legalscholars alike, rely on the factualand legalcontexts in determining whether it can be justified to apply the view of the Supreme Court to a specific case. Against this background, the objectives of this study are the following: (1) to assess the position the circular letter of the Supreme Court as a guide for judges in deciding specific legal issues; (2) determining cases that contain a legal justification that shows the legal reasoning behind the Supreme Courts viewon legalissues; (3) with specialattention for gender-related issues. In general, theresearchmethod used is doctrinalresearch, consisting of the analysis of Supreme Court circular letters, and Supreme Court decisions that are selected based on the fact that they contain similar legal issues that appear in Supreme Court Circular Letters of the last three years (2018, 2019, and 2020). Doctrinalanalysis will be carried out using approaches commonly known in legal research, namely a conceptual approach with regard to the applicable legal principles; a case approach regarding the structure ofthe relevant facts; the statutory approach approach is related to the structure of positive norms used for the cases studied; a historicalapproach looksatsimilarcases that have been previously decided;a genderapproach,and / oracomparativeapproach to obtain alegal perspective fromoutside Indonesia (in this case the Netherlands) in observing similar phenomena. The results of this study can be a reference for judges in carrying out legal reasoning when facing related issues and as a recommendation for policy makers in following up the views of the Supreme Courtand be used in legaleducation
Keywords
Supreme court, Judges, Judicial decisions
Source of Fund
International
Funding Institution
BINUS
Fund
Rp.50.000.000,00
Contract Number
017/VR.RTT/III/2021
Author(s)
  • Prof. Dr. Shidarta, S.H., M.Hum.

    Prof. Dr. Shidarta, S.H., M.Hum.

  • Abdul Rasyid, SHI, MCL., Ph.D

    Abdul Rasyid, SHI, MCL., Ph.D

  • Stijn Cornelis van Huis, MA., Ph.D.

    Stijn Cornelis van Huis, MA., Ph.D.