The Paradigm Reconstruction of Indonesian Judge’s Thought of Law in Adjudicating Criminal Cases

Abstract

The Indonesian Criminal Act Code (Kitab Undang-Undang Hukum
Pidana/ KUHP) based on the positivistic paradigm that is directed by
principle of legality, as the expression of deductive syllogisms:
regulations as a major premise should be filled in by the facts which
revealed as the premise minor to conclude the punishment or not. But
the positivistic paradigm could not always be complied with changes
in Indonesian plural society. The KUHP still applies the theory of
monistic. The prove on the entire outline of the criminal element, is
proving the existence unlawfulness and at the same time prove the
fault/ criminal liability, unless there is a reason the criminal removal. But
people demands the new criteria assessment of fairness: 1) liability not
only based on fault, but also the material of justification, 2) the criminal
act was not only base on formal unlawfulness, but also material
unlawfulness, and 3) punishment should fit the balance of people and
individual interests. That demand required the judge thought of law
other than just of positivistic. This article analyzed the change of
Indonesian judges‟ paradigm of thought on criminal law, the causes
influenced, and the efforts that could reconstructed the fairness
paradigm. This paper used double type of research technics, doctrinal
research at once and empirical research, which used data collection
techniques of the study of librarianship, observation and interview.