Jurnal Hukum dan Peradilan – ISSN: 2303-3274 (p), 2528-1100 (e)

Vol. 8, no. 1 (March), pp. 21-38, doi: 10.25216/JHP.8.1.2019.21-38

IMPLEMENTATION OF JUDICIAL ACTIVISM IN

JUDGE’S DECISION
Indriati Amarini
Universitas Muhammadiyah Purwokerto
indriatiamarini@ump.ac.id

Abstract
The task of the judge in realizing justice is inseparable from the
decisions that are made. A qualified judge's decision is obtained through
the judge's thought process through a choice of judges that reflects
judicial activism. The problem in this research is how judicial activism
is used by judges in issuing decisions and how the implementation of
judicial activism in decision making. Judicial Activism is the choice of
decision making by judges in order to realize justice. Judicial activism in
the Indonesian judicial system is regulated in Article 5 paragraph (1) of
Law Number 48 of 2009 concerning Judicial Power. The law requires
judges to explore the law and sense of justice that lives in society. The
implementation of judicial activism is carried out by judges through
means of legal discovery. Through means of legal discovery, judges play
an active role in realizing justice as a law that lives in a dynamically
developing society.

Tugas hakim dalam mewujudkan keadilan tidak terlepas dari putusan yang
dihasilkan. Putusan hakim yang berkualitas diperoleh melalui proses berpikir
hakim melalui pilihan hakim yang mencerminkan judicial activism. Permasalahan
dalam penelitian ini adalah bagaimanakah judicial activism digunakan oleh hakim
dalam mengeluarkan putusan dan bagaimana implementasi judicial activism dalam
pengambilan putusan. Judicial Activism merupakan pilihan pengambilan putusan
oleh hakim dalam rangka mewujudkan keadilan. Judicial activism dalam sistem
peradilan di Indonesia diatur dalam Pasal 5 ayat (1) Undang-Undang Nomor 48
Tahun 2009 tentang Kekuasaan Kehakiman. Implementasi judicial activism
dilakukan oleh hakim melalui sarana penemuan hukum. Melalui sarana
penemuan hukum, hakim berperan aktif mewujudkan keadilan sebagai hukum
yang hidup dalam masyarakat yang berkembang dinamis.

Keywords: judicial activism, judge's decision, legal discovery.

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Indriati Amarini
Implementation of Judicial Activism in Judge’s Decision

Introduction
Judges, at all levels, occupy a central position in the judicial process.
In this central position, it is hoped that law and justice can be enforced.
The problem that needs to be resolved by judges is how abstract justice
that contains certain values can be used as a guide in its application. The
work to realize ideas and concepts of justice in a concrete form so that
they are accepted by society is the work of law enforcers, especially
judges. Judges are expected to have the ability to translate the values of
justice in matters faced with them through their decisions.1
Just good judges are expected to produce quality decisions. There
are many views about the criteria of good judges, among others: having
legal skills, having adequate experience, having integrity, having good
health, reflecting community representation, having good reasoning,
having a broad vision, having language and writing skills , able to
enforce state law and act independently and impartially and have
administrative and efficient capabilities.2
The decision of a qualified judge is a reflection of the expertise and
ability of the judge in deciding the case. Oemar Senoadji revealed that
the verdict was like a “crown” for a judge. A crown for a king is a
symbol of authority and greatness. Between decisions and judges are
two things that are inseparable because court decisions are the product
of a judge so that a quality decision reflects a qualified judge. 3
Judges' decisions are not dropped in a vacuum, but to give justice.
Law enforcement, in addition to realizing legal protection for the
community so that there is order, must also be able to realize justice.
Therefore a judge's “sensitivity” is needed for justice to bridge between
legal certainty and justice. The sensitivity of judges is done by taking the
concept of judges' decisions that reflect judicial activism.
The provisions of judicial activism in Indonesia are carried out in
the context of realizing justice as contained in Article 5 paragraph (1) of
Law Number 8 of 2009 concerning Judicial Power which requires

1 Esmi Warassih, “Pemberdayaan Masyarakat Dalam Mewujudkan Tujuan

Hukum (Proses Penegakan Hukum dan Persoalan Keadilan)”, Speech for Inauguration of
Associate Professor, Semarang April 14, 2001, p. 18.
2 Mustafa Abdullah, Research Report of Judges’ Decision in 2007. Available on

the http://klubyudisial website. go.id

3 Paulus Efendi Lotulung, Hukum Tata Usaha Negara Dan Kekuasaan (Jakarta:

Salemba Humanika, 2013), p.83.

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judges to explore the sense of justice that lives in society, and Article 10
paragraph (1) Courts are prohibited from refusing to examine, hear, and
decide on a case filed under the pretext that the law does not exist or is
unclear, but is obliged to examine and prosecute it.
The duties of judges in the framework of providing justice can use
extensive power as a judge-made law. If the legislation does not have an
answer and there is no court decision regarding a similar case that will
be decided, then the judge will look for answers to the opinions of legal
scholars. If the opinion of the legal expert is not found to be used as a
guideline by the judge to decide the case, the judge can use the means
of legal discovery.4
Based on the background as described above, there are two
problems discussed in this paper, namely what is the meaning of judicial
activism used by judges in issuing decisions, and what is the
implementation of judicial activism in the justice system in Indonesia?
The research method used is normative juridical research or library
research. This legal research also includes doctrinal research that aims
to find positive legal materials that will be used to develop theories and
answer existing problems. The approach used is the statute approach,
conceptual approach and case approachh. Dogmatic legal research on
dogmatic, theoretical and philosophical levels relies on primary legal
material, namely official regulations and legal decisions.

Judicial Activism in Judges’ Decisions

The term judicial activism is known in the Anglo Saxon common
law doctrine which demands the activeness of judges for the formation
of law in comparison with the legislature. If a judge or court resolves a
dispute must use a new rule or change an old rule, that's where the judge
creates the law “judge-made law” in other words the judge’s decision is
legal.
Judicial Activism is a philosophy of making judicial decisions in
which the judges base judgments on decisions, among others, on the
views of judges on new developments or developing public policies and
so on. These considerations are the direction for judges in deciding
cases because of new developments or contrary to previous decisions

4 Indriati Amarini, Keaktifan Hakim Dan Peradilan Administrasi, (Purwokerto:

Universitas Muhammadiyah Purwokerto Press, 2017), p. 318.

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in the same case. The term Judicial Activism is very popular in countries
with common law traditions, 5 but in its development, it is also adopted
in countries with traditions, not common law. 6
The definition of judicial activism can be seen in the Black's Law
Dictionary, as follows: Judicial activism as a philosophy of judgment
whereby judges allow their personal views about public policy among
other factors ... Judicial activism describes judicial rulings suspected of
being based on personal or political considerations rather than on
existing law. It is sometimes used as an antonym of judicial restraint”
Related to the notion of judicial activism, Richard A. Posner quoted
Oliver Wendell Holmes as saying that judges make laws (not only
finding and applying laws): “to resolve the dispute the court must create
a new rule or modify an old one that is law creation. Judges defending
themselves from accusations of judicial activism sometimes say they do
not make law, they only apply it. It is true that in our system judge are
not supposed to and generally do not make new law with the same
freedom that legislatures can and do; they are, in Oliver Wendell
Holmes’ phrase, confined from molar to molecular motions. The
qualification is important, but the fact remains that judge make, and do
not just find and apply law. 7
Ronald Dworkin calls the term Judicial Activism the philosophy of
decision making as follows: I shall call these two philosophies by the
names they are given in the legal literature-the programs of judicial
activism and judicial restraint-though it will be plain that these names
are in certain ways misleading. 8
In a country with an Anglo Saxon legal system, the term judicial
activism is very popular. This can be seen in judicial activism in India as
a necessity or the oxygen of the rule of law: “Justice is the bread of the
nation-it is always hungry for it. And, it is well known that justice
delayed is justice denied. The role of judicial activism in India has been
to provide a safeguard to the common man and indigent against an
intensive system. This noble task, taken upon itself by the courts, has
5 Bagir Manan, “Judicial Precedent dan Stare Decisis (Sebagai Pengenalan)”,
Varia Peradilan, No. 347 October 2014, p. 2.
6 Gu Peidong, “A Study on Several Issues of Active Justice”, China Legal Science,

vol. 4, 2010, p. 1.
7 Bryan A. Garner (ed.), Black’s Law Dictionary, eighth edition (Toronto: Thomson

West, 2004).
8 Ronald Dworkin, Taking rights seriously (London: A&C Black, 2013) p. 137.

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provided succor, relief and requisite legal remedies to the needy and
deprived, over the past few years of judicial intervention and
cementing”. 9
Likewise with Judicial activism in the United States, it can also be
done in the context of the courts protecting minorities in a country:
“The origins of judicial activism in the protection of minorities. Judicial
activism in support of the rights and interests of Blacks no longer would
rise the special questions it once had.10
Judicial activism is also known in China which does not adhere to
the civil law tradition and also the common law tradition. As Kelik
Wardiono argued that the Chinese legal system developed according to
its own historical flow regardless of the development of Anglo-
American legal systems, as well as European-continental civil law,
although at a certain point there was an intersection between the legal
systems. 11 However, the Chinese legal system is built on the foundation
of sources of law, principles, institutions, and institutions that are
different from other legal systems in the world so that they appear as a
separate legal system.
Likewise, judicial activism also exists in Chinese law, but in its
implementation, it is different from Judicial Activism in the United
States. This was stated by Gu Peidong in, “A Study on Several Issues of
Active Justice”, as follows: “As a judicial notion and practice, the
Chinese style judicial activism has a theoretical link with the Western
style judicial activism and has as well presented some similar features as
a phenomenon. Nevertheless, owing to the different political and
judicial systems in different states, the Chinese style judicial activism and
western style judicial activism is somehow different. In general. The
Chinese style judicial activism should be viewed as a unique from in the
context of the worldwide rule by law milieu. The Western style judicial
activism is coupled with judicial independence, a more eager pursuit for
the explicit rules of social behaviors and a more mature professional

9 Vikrant Pachnanda, “The Judicial Shelter-Activism or Overreach?”, India Law

Journal, vol. 1, issue 1, 2007. Available at http://www.indialawjournal.com
/volume1/issue_1/judicial_hallow_activism.html accessed on Wednesday 10
December 2017.
10 Robert M. Cover, “The Origins of Judicial Activism in the Protection of

Minorities”, The Yale Law Journal, vol. 91, no. 7 (1982), p. 1287.
11 Kelik Wardiono, “Sistem Hukum Cina: Sebuah Tatanan Yang Terkonstruksi

dalam Lintasan Li dan Fa”, Jurnal Ilmu Hukum, vol. 15, no. 1 (2012), p.71.

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judiciary. Therefore, different Chinese circumstances call for a

restrained judicial activism with a different model in practice.
Meanwhile, renovation and development is required and the
corresponding safeguarding mechanism needs to be established: firstly,
a harmoniously interactive relation between judiciary and politics should
be sought; secondly, a mechanism should be set up for the effective
supervision conducted by the highest judicial body over the lower
courts; thirdly, an effective and orderly internal judicial adjudicating
mechanism should be established”.12
Zhang Zhi further stated in his writing that the concept of justice
in China emphasized positive justice, as follows: “Judicial activism is an
exotic phrase and it has the particular context and implication, which is
quite distinct from its use in China. Judicial activism emphasized by
Chinese justice is on the basis of judicial duties fulfillment which is not
the expansion of justice and does not have normal constraint of judicial
restraint. Accordingly, in terms of the general function from of Chinese
justice the more appropriate expression should be positive justice”. 13
The same opinion was expressed by Yang Jianjun as follows:
“Fundamentalist sense of judicial activism refers to the core of the
administration of justice in the process of legislative justice. The term
judicial activism introduced to China was given a lot of new meaning
after then, the Chinese legal circles about the understanding of what is
judicial activism is diverse, very inconsistent, and most people carried
out according to their own understanding of elucidate many of them
accretion, distortions of the definition, or even incorrectly relaying
erroneous theories of the fallacy. Dynamic administration of justice in
China, started there was not only inadequate theoretical foundation for
the defects, are also facing a judicial career and the judicial activism of
the sharp conflict of contradictions. But the transformation of social
reality also demands that China must be accompanied by the two tasks,
i.e. the full practice of judicial professionalism and the Chinese-style
judicial activism. Although there are many inadequacies, the emergence
of judicial activism question is still worthy of serious treatment”. 14

12 Gu Peidong, “A Study on Several...”, p. 1.

13 Zhang Zhi, “The Function From of Chinese Justice: Judicial Activism or
Positive Justice?”, Journal of Renmin University of China, vol. 6, 2009, p. 1.
14 Yang Jianjun, “The Development of Judicial Activism in China”, Journal of

Northwest University of Political Science and Law, vol. 1, 2010, p 8.

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Implementation of Judicial Activism in the Judicial System in

Indonesia
The implementation of judicial activism in Indonesia is carried out
in the context of realizing justice in society as contained in Article 5
paragraph (1) and Article 10 paragraph (1) of Law Number 48 of 2009
concerning Judicial Power. The law requires the judges to explore the
law and the sense of justice that lives in the community 15. Sudikno
Mertokusumo said that the word dig was assumed that the law was
there, but it was hidden so that it would still have to be explored on the
surface. Thus the law exists but must still be extracted, sought and
found. Scholten said that “there is a law in man itself”. Whereas every
time humans in society behave, act or work. 16 The implementation of
this article is also important because it is in line with the Carbonnier's
plea that: “It has always been that thousands of years have been
demanded by judges who think”. 17
This is related to the obligation of judges to explore the law and
justice of society due to the law as a dynamic scheme that continues to
move. This is in line with the thoughts of Eugen Ehrlich that the focus
of legal development does not lie in legislation nor in court decisions or
in the field of law but in society itself. 18 Furthermore, Eugen Ehrlich
revealed that the habits that live in local communities could be present
along with the official law promulgated by the state. For him, the law of
the state law is always related to the issue of disputes and claims that
end with the fall of the verdict in the Court.
Satjipto Rahardjo argues that law is not a final “finite scheme”
scheme but continues to move, change, and follow the dynamics of
human life. 19 Therefore the law must continue to be dissected and

15 The word ‘obligation’ has the meaning of having to (1) do, (2) have to
implement, (3) it should be. See, Kamus Bahasa Indonesia published by Pusat Bahasa
Departemen Pendidikan Nasional 2008.
16 Sudikno Mertokusumo, Penemuan Hukum Sebuah Pengantar (Yogyakarta: Liberty

2007), p. 47.
17 Achmad Ali, Menguak Teori Hukum (Legal Theory) dan Teori Peradilan (Judicial

prudence) Termasuk Interpretasi Undang-undang (Legisprudence) (Jakarta: Kencana, 2013), p.

479.
18 Hadi Suyoto, “Komitmen Hukum Dan Kritik Legalisme Bagi Hakim”, Varia

Peradilan, vol. 25, no. 293 April 2010, p. 65.

19 Satjipto Rahardjo, Penegakan Hukum Progresif (Jakarta: Kompas Media

Nusantara, 2010), p. 1.

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explored through progressive efforts to reach the light of the truth in

reaching justice.
The concept of legal understanding is what is decided by in
concrete judges and systematized as a judge-made law which is thus
influenced by a school of philosophy at the turn of the 19th century,
namely Pragmatic philosophy is a school of philosophy that emphasizes
attention orientation towards reality. Law is not what is written
beautifully in the law, but what is done by law enforcement officials,
police, prosecutors, judges or anyone who performs the function of
implementing the law. The originator of this thought was Oliver
Wendell Holmes (1841-1935) in his prominent essay the path of law.
According to Holmes, a legal expert must face the symptoms of life as
a realistic reality. What determines the fate of perpetrators of crime is
not the formulation of sanctions in the law but questions and decisions
of the judge.
In addition to Holmes, John Chipman Gray in his research
concluded that American judges are not individuals who are non-legal
elements in dropping their decisions. In addition to the element of logic
as the main factor in their decision making, they are also strongly
influenced by their personal subjectivity, prejudice, and other non-logic
elements. Gray's assumptions were strengthened in a variety of
historical reasons by showing the magnitude of the political, economic
and quality influences of individual American and British judges in
deciding the cases he was handling. As Oliver Wendell Holmes revealed
that the law is not a closed logical system but an open logical system.
“The life of the law has not been logic: it has been experience. The felt
necessities of the time, the prevalent moral and political theories,
intuitions of public policy, avowed or unconscious, even the prejudices
which judges share with their fellow-men, have had a good deal more
to do than the syllogism in determining the rules by which men should
be governed. The law embodies the story of a nation’s development
through many centuries, and it cannot be dealt with as if it contained
only the axioms and corollaries of book of mathematics.” 20
Holmes interpreted formalism as a school that emphasized formal
legal thinking and logic-deduction like mathematics. Legal formalism
cannot be separated from Christopher Langdell's teachings at the end

20 Steven J. Burton, Judging in Good Faith (New York: Cambridge University Press,
1992), p. 3.

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of the 19th century. Langdell put the law in the category of exact
sciences that work like physical laws on the basis of causal relationships.
The pattern of causal relationships can be studied in the law library by
analyzing cases like physicists using laboratories.
Furthermore, the affirmation of other realist legal thinkers is
William James, who emphasized the importance of avoiding everything
that seems absolute and original. Attention should be directed at what
is real. Things that were more extreme came from John Dewey and
Jerome Frank. According to Dewey, logic is not a single element in the
creation of law (the realization of the law in reality) but merely a
direction. While Frank's psychoanalytic method asserts that for
psychological reasons actually, every case requires the creation of its
own law.
The law requires its presence to overcome various problems that
occur. The existence of law is very necessary for regulating human life.
The purpose of the law is to protect human interests in defending their
rights and obligations. In order to enforce legal rules, an institution
called judicial power is needed. Judicial power is held by state justice
bodies. The main task of the judiciary is to examine, hear, decide and
settle cases filed by justice seekers. As stated by Bagir Manan, 21 “...that
judges, individually and collectively, must respect and honor the judicial
office as a public trust and strive to enhance and maintain confidence
in our legal system. The judge is an arbiter of facts and law for the
resolution or dispute and a highly visible symbol of government under
the rule of law” ... Judges, both individuals and together, must respect
and uphold the judiciary as an institution of public trust and do their
utmost to raise and maintain trust in accordance with the prevailing legal
system. The judge is an arbitrator, both concerning the facts or the law
to resolve the dispute and appear as the main symbol of the state based
on the law.
The core actors who functionally carry out judicial power are
judges. Soejono Koesoemo Sisworo stated that the task of judges was
formulated as “the most graceful” namely an independent power tool
that held a judiciary to enforce law and justice based on Pancasila for
the implementation of the Republic of Indonesia Law which in every

21 Bagir Manan, “Peranan Pedoman Tingkah Laku Hakim Sebagai Penjaga

Kekuasaan Kehakiman yang Merdeka”, Majalah Varia Peradilan, no. 282, May 2009, p.
8.

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Implementation of Judicial Activism in Judge’s Decision

decision must contain the head sentence “For Justice Based on

Godliness the One”.
In carrying out judicial power, the judge must understand the scope
of duties and obligations as stipulated in the legislation. After
understanding the duties and obligations, the judge must work
professionally in carrying out and completing the work. The
professionalism of a judge is carried out with the active role of the judge
through a choice to make decisions that use judicial activism in the
judicial process. Justice as a process must consist of certain elements,
namely: (1) the existence of general binding abstract legal rules that can
be applied to a problem, (2) The existence of a concrete legal dispute,
(3) There are at least two parties and, (4) The existence of a judicial
apparatus authorized to decide disputes. According to Sjahran Basah,
the elements of the judiciary are more complete including the existence
of formal law in the context of the application of the law rechtoepassing
and finding the law rechtsvinding in concreto. Thus the Judiciary is
everything related to the task of deciding cases based on law, finding
the law in concreto in maintaining and guaranteeing the adherence to
material law by using procedural methods determined by formal law. 22
Law in the form of a judge’s decision only binds certain parties.
This is different from the law made by the legislature in the form of
generally binding laws. In connection with the law in the sense that the
legislative and legal products in the sense of a judge's decision have
advantages and disadvantages. The law guarantees legal certainty, while
its weaknesses are slow and static. Whereas the judge's decision is of
lower certainty compared to the law, but the level of elasticity is far
higher than the law.
The legislative member may make any law based on his authority,
but ultimately in the hands of the interpreting judge who determines the
meaning of each phrase, every word, every sentence in the formulation
of legislation so that the law is alive, developing is not outdated. As
Ronald Dworkin said that every time a judge decides a case, then at that
time he is theorizing about what the law is. 23 Furthermore, through the

22 Nawa Angkasa, “Analisis Kedudukan Dan Fungsi Yudikatif Sebagai

Pemegang Kekuasaan Kehakiman dalam Sistem Negara Hukum Di Indonesia”,

Nizham Journal of Islamic Studies, no. 01, Jan 2017, p. 11.
23 H.M. Fauzan, “Merebut Kepercayaan Publik Terhadap Pengadilan”, Varia

Peradilan, no. 266, Jan 2008, p. 53.

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decisions of qualified and creative judges can make various legal

breakthroughs.
Judges are not legislators because their job is to adjudicate or
examine and try. The task of making the law is in the realm of legislation.
However, it is the judge who determines what the law requires. As
Dworkin’s opinion, quoted by Satjipto Rahardjo, the Judge actually also
“made the law” at a higher level. This is because the judge decides that
the law is not done by reading the text (textual reading) but exploring
moral reading.
It is also seen in the long history that judges only applying the law
or judges are only the mouths of the law. As stated by Mathias Klatt as
follows: Anglo-American Legal philosophy has long struggled with how
to differentiate legislation and adjudication. Traditionally, the judiciary
is supposed to interpret and to apply the law rather than invent and
make new law, the latter task being exclusively reserved for the
legislature. This old ideal of the judges as ‘bouche de la loi’ was rigidly
adhered to in England, for example, during the ‘age of strict literalism’,
that is, between 1830 and 1950. The judiciary was seen as merely the
enforcing agent for decisions already made by the legislature. According
to this view, adjudication did not involve any creativity. Rather, it
consisted of mere retrieval of the ‘fixed’ meaning of a norm. This can
be called the discovery model of judicial interpretation, in which the
accompanying literalist method of legal reasoning exercises near-
absolute predominance. 24
Related to the law in the sense of law as a legislative product
(political product) so that it needs interpretation from the judge. As
stated by Ahmad Rifai that the building of the Indonesian legal system
is a law as in a civil law system, where judges are the implementers of
laws, not lawmakers (law), as do judges who adhere to the common law
system, but the judges in Indonesia it can do legal discovery
(rechtsvinding) through its decisions. 25 This can be done as long as the
judges must not hit the contents and philosophy of legislation.
Interpretation is important because there are many interests in the
lawmaking process, as explained by Antonin Scalia and Bryan A. Garner

24 Mathias Klatt, Making the Law Explicit the Normativity of Legal Argumentation

(London: Hart Publishing, 2008), p. 18.

25 Ahmad Rifai, Penemuan Hukum Oleh Hakim Dalam Perspektif Hukum Progresif

(Jakarta: Sinar Grafika, 2014), p. 129.

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as follows: “…when necessary to achieve favorable consequences for certain targeted

groups of people, such as minorities, women, factory workers, the poor, homeowners,
busnesspeople, tenants, landlords, taxpayers, government workers, children….”. 26
In addition, the assumptions that were built at the time of formulating
the law have also shifted. As stated by Harifin A. Tumpa that a positive
law always has limited time, space and circumstances. 27 Here in lies the
location, function, and role of the judge as law enforcement and justice.
Deviations from an existing legal role can be interpreted flexibly. This
is in line with the function of judges who are obliged to look for values
of justice in the application of progressive and responsive laws.
However, a legal rule that occurs because of the exclusive factors
mentioned above, cannot be interpreted generally, as if replacing the
rules set out in the law because the judge is not a legislator. The rules
that occur in an exclusive manner only apply casually.
Judges have the role of realizing total justice, 28 namely bringing
closer or bridging justice and certainty or legal justice and moral justice
which in practice is not easy. Aharon Barak argues that a good judge is
a judge whose legitimacy is able to create and create law more than just
a law that can bridge the law with its people namely: “A good judge, is
a judge who, within the bounds of the legitimate possibilities at his
dispose, makes the law that, more than other law, he is authorized to
make, best bridges the gap between law and society and best protect the
constitution and its values.” 29
Therefore, it requires wisdom with high instincts and a clear
conscience that can be obtained with sufficient experience, extensive
knowledge, and honesty. As stated by Mackenzie,30 that there are several
theories or approaches that can be used by judges in considering the
decision in a case, namely: First, Balance Theory is the balance between
the conditions determined by the law and the interests of the parties

26 Antonin Scalia and Bryan A. Garner, Reading Law: The Interpretation of Legal Texts

(Toronto: Thomson West, 2012), p. 1.

27 Harifin A. Tumpa, “Problem Hukum Keluarga Antara Realita Dan Kepastian

Hukum”, Varia Peradilan, no. 286 (2009), p. 5.

28 Artidjo Alkostar, “Membangun Pengadilan Berarti Membangun Peradaban

Bangsa”, Varia Peradilan, vol. 20, no. 38 (2005).

29 Jimly Maruli, “Dicari: Putusan Yang Progresif,” Varia Peradilan, vol. 25, no.

293 (2010), p. 78.

30 Bagir Manan, “Hakim dan Pemidanaan”, Varia Peradilan, vol. 19. no. 249

(2006), p. 7.

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relating to the case such as the existence of a balance relating to the

interests of the community, the interests of the plaintiff, the interests of
the defendant. Second, the Art Approach Theory or Intuition, namely the
art approach used by the judge in making a decision is more determined
by instinct or intuition than the judge’s knowledge. Third, the Scientific
Approach Theory. The starting point of this theory is the thought that
the decision-making process must be carried out systematically and
carefully. This scientific approach is a kind of warning that in deciding
a dispute, the judge may not be solely on the basis of intuition or instinct
alone, but must be equipped with the knowledge of the law and also the
scientific insight of the judge in dealing with a matter that he must
decide. Fourth, experience approach. The experience of a judge is
something that can help him in dealing with cases faced daily because
with his experience a judge can find out how the impact of the verdict
was dropped. Fifth, the theory of ratio decadent. This theory is based on
a fundamental philosophical foundation that considers all aspects
related to the disputed subject matter, then seeks legislation that is
relevant to the subject matter of the dispute as the legal basis for the
decision and consideration of the judge must be based on clear
motivation to enforce law and provide justice for the parties to the
dispute. Sixth, Wisdom Theory. This theory can be used by judges so
that the decisions handed down can fulfill the dimensions of justice,
namely formal justice and substantive justice at once.
Judicial activism of a judge can be seen in the behavioral
perspective of jurisprudence.31 One of them is Richard A. Posner in
“How Judge Think” said that there are many factors that influence
judges which are personal, namely: “Ringing changes on the political
might seem to exhaust the possible no legalist factors in adjudication. It
does not begin to. The possible other factors (call them personal)
include personality traits, or temperament (and thus emotionality at one
end of the temperament spectrum and emotional detachment at the
other end) which are more or less innate personal characteristics”. 32
In addition to factors that are personal in nature also from
institutional factors “Institutional factors such as how clear or unclear

31 Antonius Sudirman, Hati Nurani Hakim dan Putusannya Suatu Pendekatan dari

Perspektif Ilmu Hukum Perilaku (Behavioral Jurisprudence) Kasus Hakim Bismar Siregar,
(Bandung: Citra Aditya, 2007), p. 32.
32 Richard A. Posner, How Judges Think..., p. 10.

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Implementation of Judicial Activism in Judge’s Decision

the law is, salary and workload, and the structure of judicial promotion
also influence judicial behavior”. In addition, from the aspect of
mastering science, Richard A. Posner added that judges “are not
professors” with mastery of general knowledge not like professors with
special knowledge (specialists) as follows: “…Realism about judges is
sorely lacking there. Law is taught as if judges were second class
professors, professors manqué-legal analysts lacking the specialized
knowledge of the law professor.” 33 Furthermore, the judge is said to
work like a “computer” (machine) that: “The motivations and
constraints of operating on judges and the judicial mentality of results,
are ignored, as judges were computers rather than limited human
intellects navigating seas of uncertainty ....”
The judge’s mindset as a “machine maid” was also conveyed by
Jerome Frank as follows: “…The law is not a machine and the judges are not
machine servants. There has never been and there will never be a set of rules that
have been determined and established equally for all societies. Human action is not
the same mathematical unit; Individual positions cannot be eliminated as in algebraic
equations because equal equations on both sides can change. Life revolts against all
efforts that oversimplify the law. New cases will continue to provide new aspects ...
the compiled abstract rules must be changed and adjusted, static formulas are turned
on…” 34
Related to this, Satjipto Rahardjo termed a positive-legalistic way
of lawing like an automatic machine. 35 He quoted the opinion of Paul
Scholten who referred to as hanteren van logische figuren Oliver Wendell
Holmes referred to as “a book of mathematics”. Such a legal method is
like drawing a straight line between two points. One point is the law
(article) and the other point is the fact that happened. Everything runs
linearly. Judicial activism is important in order to realize justice as
Satjipto Rahardjo quotes Paul Scholten that justice is (indeed) in the law,
but (still) must be found Het recht is wet, run het moet nog gevonden waeden
(the law is law, it must still be found). The opposite way of thinking is
judicial passivity which is the judge's way of thinking because of the

33 Richard A. Posner, How Judges Think..., p. 377.

34 Jerome Frank, Hukum & Pemikiran Modern (Bandung: Nusa Cendekia, 2013),
p. 179.
35 Satjipto Rahardjo, “Hukum Progresif : Aksi Bukan Teks”, In Memahami Hukum

Dari Konstruksi Sampai Implementasi, ed. by Satya Arinanto and Ninuk Triyanti, (Jakarta:
Raja Grafindo Persada, 2010), p. 3.

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Vol. 8, no. 1 (March), pp. 21-38, doi: 10.25216/JHP.8.1.2019.21-38

working pattern of a judge who is only (accustomed to) receiving a case,

as Richard A. Posner said as follows: …The curious judicial passivity
that result from judges being accustomed simply to decide whatever is
brought to them to decide, rather than to initiate anything...” 36
Likewise, H.L.A. Hart stated that, “…the legal system is fully or even
basically consists of regulations. There is no doubt that the court indeed packs its
trial, there is always a choice with a certain impression that their decisions are a
necessary consequence of certain regulations whose meaning is clear and clear ... In
the most important cases there is always a choice ... the tradition that the judge
“picking up ‘and’ making no law “and they present their decisions as if they were
deductions made smoothly from pre-existing regulations without any interference to
vote on the part of the judge”. 37
The judge is the foremost “guardian” in law enforcement by
examining the extent to which the ability of the law is “testing the limit
of law” as has been done by several judges in Indonesia namely Chief
Justice Bismar Siregar, Chief Justice Adi Andoyo Soetjipto, Hakim
Benyamin Mangkoedilaga. According to Bismar Siregar, laws and laws
are only a means of seeking justice. For the sake of justice for Bismar
Siregar, a judge is a law. The judge is God's representative on the earth
so that he has the right to decide according to his conscience even
though the law itself has not regulated the sentence. Some controversial
decisions, which have added a sentence of up to 10 times the
prosecution's demands for the marijuana trade, changed the sentence
for a teacher who molested his student from a sentence of 7 months to
3 years and requested that the defendant rape family in Bekasi be
sentenced to death even though the positive law applies only imposed
a 12-year prison law because the sentence was not balanced with the
atrocities committed by the defendant.
Judicial activism needs to be done through considerations in
decisions in order to realize justice as a law that lives in a dynamically
developing society. Judges are asked to do what is the essence of judicial
functions. If done correctly, the task of the judge is not easy. Judges
must balance conflicting human interests in order to achieve a good
social situation. If this legal power is not implemented properly, the
people will suffer. 38

36 Richard A. Posner, How Judges Think..., p. 377.

37 H.L.A. Hart, Konsep Hukum (Bandung: Nusamedia, 2013), p. 19.
38 Jerome Frank, Hukum & Pemikiran Modern, p. 180.

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Implementation of Judicial Activism in Judge’s Decision

Conclusion
Judicial activism is the choice of decisions made by the judge in
realizing justice. The duty of judges to realize justice is inseparable from
the verdict produced. The provisions of judicial activism in the justice
system in Indonesia are contained in Law Number 8 of 2009 concerning
Judicial Power, namely Article 5 paragraph (1) which requires judges to
explore the sense of justice that lives in society, and Article 10 paragraph
(1) which states that the Court is prohibited from refusing to examine,
hear, and decide on a case filed under the pretext that the law does not
exist or is unclear, but is obliged to examine and try it. Implementation
of the duties of judges in order to provide justice for the public and
justice seekers, the judge can use broad powers as a judge-made law. If
the legislation does not have an answer and there is also no court ruling
regarding a similar case that will be decided, the judge will look for the
answer to the opinion of the legal scholar. If the opinion of a legal
expert is not found, the judge is justified in using the means of legal
discovery. Through means of legal discovery, judges play an active role
in realizing justice as a law that lives in a dynamic developing society.

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