PAPER

BAHASA INGGRIS
THE CASE OF “NENEK MINA” IN PHILOSOPHY OF LAW

Lecturer
SINTA PRATIWI, M.Pd

ARRANGED BY :
MUHAMMAD JULIRIANSYAH (221323041)
MUHAMMAD FAKHRI RAFIF (221323040)
GUSTIANSYAH (221323043)
SEPTIA ANANDA (221323037)

RAHMANIYAH HIGHER SCHOOL OF LAW

SEKAYU
2022/2023
 FOREWORD

Praise and gratitude to God Almighty for His blessings, mercy and gifts We could
completed this Moral Philosophy course assignment well. Paper entitled "THE CASE OF
“NENEK MINA” IN PHILOSOPHY OF LAW". This paper was prepared with the aim of
completing the final project of Moral Philosophy course .

We would like to thank the lecturer who teaches bahasa inggris, SINTA PRATIWI, M.Pd
who is willing to guide and direct in the preparation of this paper.

We hope that this paper that has been compiled can provide inspiration for readers and
writers and also hope that this paper will be a good reference for readers.
 CHAPTER I
INTRODUCTION

A. BACKGROUND
Basically human life cannot be separated from law. Throughout the history of human
civilization, the central role of law in efforts to create an atmosphere that allows humans to
feel protected, coexist peacefully and maintain their existence in the world has been
recognized. Article 1 paragraph (3) of the 1945 Constitution of the Republic of Indonesia,
amendment III (three), confirms that the State of Indonesia is a state based on law. This
means that Indonesia must uphold the law and its actions must be based on laws or
regulations created to regulate an order within the government, including its citizens.

The science of law has a classification regarding law with various points of view, one of
which is criminal law. This criminal law aims to prevent or inhibit community actions that are
not in accordance with the applicable legal rules, because the form of criminal law is part of
the overall law that applies in a country. Perpetrators of criminal acts against him will be
subject to action through the criminal case trial examination process. In the trial examination
process, evidence is needed to find out that a crime has occurred and the defendant is the
perpetrator. The legal basis for proving in criminal procedural law refers to Articles 183-189
of the Criminal Procedure Code (the Criminal Procedure Code). The judge in criminal
procedural law is active, meaning that the judge is obliged to obtain sufficient evidence to
prove the accusation against the accused.

The judge's decision is often seen as not fulfilling a sense of justice for the community,
which in this case is the case of Grandma Minah who was found guilty of committing theft as
defined in Article 362 of the Criminal Code. The case of Grandma Minah can serve as an
example, which many people liken to the phenomenon of law enforcement in Indonesia,
which is like a knife, that is, sharp downwards but blunt upwards. Because they compared
the theft of 3 cocoa pods by Grandma Minah with big cases such as the Century Bank Case,
where the judge only sentenced her to 4 years in prison and a fine of IDR 50
billion/subsidiary (as instead) 5 months in prison to the former shareholder of PT Bank
Century Tbk, Robert Tantular. The sentence was far lighter than the prosecutor's demands.
People who embezzle money of up to Rp. 2.8 trillion and cause state institutions to disburse
Rp. 6.7 trillion in funds are only sentenced to 4 years in prison. This is of course very unfair
when compared to the old grandmother who stole 3 cocoa pods just to be used as seeds
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because she could not afford to buy them, instead she was brought to court and sentenced
to 1.5 months. Not a few courts have imposed almost the maximum sentence for
perpetrators of "low-grade" thieves, namely from 6 months to 7 years, but why is a 2.8
trillion robber only sentenced to 4 years.

However, we are aware that the judges who decided the case are different judges. If we
look deeper, they are guided by their own paradigm. So we cannot blaspheme the judge
who decided that Granny Minah had no sense of humanity and was unfair just because we
compared it to other cases where once again, the judge who decided the case was not the
same judge as the Century Bank case or other legal cases. We forget that every human being
has their own paradigm which, given this, guides us in every action. It is this paradigm that
guides judges in deciding cases submitted to them. For someone who embraces the
Positivism Paradigm with the flow of Legal Positivism, then truth is measured on the logic of
reason alone, not on conscience and the justice that is achieved is justice according to the
size of the law.

Positivism seeks to explain scientific knowledge in terms of three components, namely

theoretical language, observational language and the correspondence rules that link the two.
The positivistic pressure underlines his assertion that only observational language states
factual information, while statements in theoretical language have no factual meaning until
they are translated into observational language with correspondence rules. The most
famous figure of positivism is Auguste Comte. Positivists believe that society is a part of
nature where empirical research methods can be used to discover social laws. This flow is of
course influenced by empiricists and they are very optimistic about the progress of the
French revolution. Comte put his positivist ideas in his book The Course of Positive Philosoph,
which is an encyclopedia on the philosophical evolution of all sciences and is a systematic
statement that all of them were realized in the final stages of development.

Positivism is a school of philosophy that proclaims natural science as the only true
source of knowledge and rejects activities related to metaphysics. Recognizes no speculation,
all based on empirical data. In fact, this school rejects theoretical speculation as a means of
obtaining knowledge (as promoted by idealism, especially classical German idealism).
Positivism is empiricism, which in certain respects reaches the extreme logical conclusion
that because any knowledge is empirical knowledge in one form or another, there can be no
speculation that it can become knowledge. The flow of Legal Positivism under the umbrella

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of the Paradigm of Positivism has a legal concept, namely what is written in laws and
regulations, it separates law and morals strictly. Law is characterized as rationalistic,
technocentric, and universal, there is no law except the orders of the authorities. Legal
justice is formal and procedural.

In short, this flow identifies law as law. Therefore, the Positivism Paradigm places the
spiritual dimension with all its perspectives such as religion, ethics and morality as a
separate part.

B. PROBLEMS
1. How does the Positivism Paradigm explain in terms of the conviction of Minah's
grandmother for being proven guilty of stealing 3 (three) cocoa pods (complete with
basic set of belief ontology, epistemology and methodology)?
2. How to measure justice when faced with upholding legal certainty in a case of theft
committed by Grandma Minah?

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 CHAPTER II
DISCUSSIONS

A. The Positivism Paradigm with a Set of Basic Beliefs (Ontology, Epistemology and
Methodology) Explains the Case of Grandma Minah
A 55-year-old grandmother named Minah was sentenced to 1 month and 15 days in
prison because she suspected that she was picking 3 cocoa pods on a plantation owned by
PT. Rumpun Sari Antan (RSA) is an ordinary thing. At that time, Minah was harvesting
soybeans on her land in Sidoarjo Hamlet, Darmakradenan Village, Ajibarang District,
Banyumas, Central Java, on August 2 2009. Minah's land was also managed by PT RSA to
grow cocoa. While harvesting soybeans, old Minah's eyes were fixed on 3 ripe cocoa pods.
Instead of just looking, Minah then picks them to sow as seeds on her cultivated land. After
being picked, the 3 cocoa pods were not hidden but just thrown under the cocoa tree. And
not long ago, through a cacao plantation foreman PT RSA. The foreman asked who picked
the cocoa pods. Plainly, Minah admitted that it was her doing. Minah was also lectured that
this action should not be done because it is tantamount to stealing. Realizing that what she
did was wrong, Minah apologized to the foreman and promised not to do it again. He
handed over the 3 cocoa pods he picked to the foreman. Minah thought everything was fine
and she went back to work. But his suspicions missed. The little incident turned out to be
long tail. Because a week later he received a summons from the police for examination. The
legal process continued until finally he had to sit as a defendant in the thief case at the
Purwokerto District Court. The panel of judges led by Muslih Bambang Luqmono SH
sentenced him to 1 month and 15 days with a probation period of 3 months. Minah is
considered legally and convincingly proven to have violated Article 362 of the Criminal Code
on theft.

The author believes for now to embrace the Positivism Paradigm which guides every
mindset that is believed that Positivism is the best paradigm in solving a problem. The
Positivism Paradigm has a set of basic beliefs, namely Ontology, Epistemology and
Methodology. Regarding the Ontology of the Positivism Paradigm, in the case of Granny
Minah the reality is law. The law is outside the judge or as a reality that is outside himself.
The law presented is Article 362 of the Criminal Code which reads "Whoever takes
something, which is wholly or partly owned by another

4
 another, with the intention to unlawfully own it, is threatened with theft with a
maximum imprisonment of five years or a maximum fine of sixty rupiahs”. Whether or not
the theft has occurred, whether the theft has been proven or not, regardless of the
circumstances surrounding it (grandmother Minah's ignorance and the poverty that
ensnares her).

The defendant was charged by the Public Prosecutor with committing a crime violating
Article 362 of the Criminal Code which contained the following elements:

1. Whoever

The meaning of whoever is a person who commits an unlawful act, as a supporter of

rights and obligations whose identity is clear, is brought to trial because he has been
charged with committing a crime and his actions can be accounted for to him. After
hearing the testimony of the witnesses and the statement of the defendant at trial, the
fact was found that there was no mistake in person who was suspected of having
committed the crime, it was actually Grandma Minah. So based on the legal
considerations mentioned above, this first element is fulfilled.

2. Takes something

The purpose of taking something is to move things from one place to another. Based on
the facts revealed at the trial of Granny Minah on Sunday 2 August 2009 at around
13.00 WIB, she had taken 3 (three) cacao/chocolate pods by picking from trees on PT
RSA IV Darmakradenan's plantation in block A.9 in Darmakradeden Village, subdistrict
Ajibarang, Banyumas district and was caught red-handed by witnesses Tarno Bin
Sumanto and Rajiwan alias Diwan and as a result of the actions of the defendant PT RSA
IV Darmakradenan suffered a loss of around Rp. 30,000.00 (thirty thousand rupiah).
Based on the legal considerations above, this second element has been fulfilled.

3. which completely or partly belongs to another person

Based on the testimony of the witnesses connected with the instructions which were
strengthened by the testimony of the defendant before the trial, the corresponding
facts were obtained that it was true that the defendant had taken 3 (three) cocoa pods
or chocolate entirely belonging to PT RSA IV Darmakradeden not belonging to the
defendant. So based on these legal considerations above, this third element has been
proven.

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4. with the intention of owning goods unlawfully

Based on the testimony of the witnesses connected with the instructions which were
reinforced by the testimony of the defendant before the trial, the corresponding facts
were obtained that it was true that the defendant had taken 3 (three) cocoa/chocolate
weighing approximately 3 kg which all belonged to PT RSA IV Darmakradeden and the
defendant took the goods mentioned above without the permission and knowledge of
the owner, namely PT RSA IV Darmakradeden with the intention of being owned for
plant seeds and the actions of the defendant resulted in PT RSA IV Darmakradeden
suffering a loss of Rp. 30,000.00 (thirty thousand rupiah). Therefore, based on the legal
considerations mentioned above, this fourth element is fulfilled.

The elements above show the mistakes of the perpetrators of criminal acts. The
mistake made by Grandma Minah was deliberate with a purpose, namely that the
perpetrator could be accounted for and really wanted to achieve the result which was the
main reason for the threat of criminal punishment (constitutief gevol). Because all the
elements contained in Article 362 of the Criminal Code have been fulfilled , then the
defendant Gran Minah was declared legally and convincingly proven guilty of not committing
the crime of theft as stated in the indictment, violating Article 362 of the Criminal Code,
therefore the defendant must be punished according to his actions.

With the legal reality described above, a causal relationship can be drawn as follows.
Minah's grandmother was proven guilty because her actions fulfilled the elements of Article
362 of the Criminal Code, so as a result she had to be punished. What determines or is
deterministic in this case that Minah's grandmother must be punished is the existence of a
law (KUHP), which is a written regulation that is decisive in nature, ensuring that the law
contains certainty.

Epistemology in this case is the relationship between the judge and the theft case being
examined. Its nature is dualistic-objective, the researcher and the object under study are
considered as separate entities, that is, there are two parties who are equally independent
and do not influence each other (judges and legal cases are allowed to separate, value-free
and bias-free). The Criminal Code is perfect so that it does not need to influence outside
realities, which means that in this case the judge is the "mouthpiece" of the law, so he does
not involve values (both human and moral) in the case because the reality or law is certain.
As for the Methodology, it is experimental or manipulative. Empirical tests and verification
6
must always be carried out, namely to prove that Grandma Minah is really guilty. When
there is indictment from the Public Prosecutor, the judge must verify the statements of
witnesses and submit evidence which will later be matched with the defendant's statement.
This is what is called the process of proving in cases of criminal acts of theft that violate the
legal provisions of Article 362 of the Criminal Code. What needs to be emphasized here is,
the Positivism Paradigm always emphasizes objectivity in viewing a reality.

B. Measuring Justice Faced with Legal Certainty

The case of Minah's grandmother according to the Positivism Paradigm is an act that
must be punished, regardless of the size of the loss due to the theft she committed. Law
enforcement against Minah's grandmother must be separated from social elements and
morality, because according to the Positivism Paradigm perspective, the purpose of law is
legal certainty, without legal certainty the purpose of law will not be achieved even though it
has to set aside a sense of justice. According to Austin, law is detached from matters of
justice and apart from matters of good and evil. Therefore, the task of law science is only to
analyze the elements that actually exist in the modern legal system. The science of law only
deals with positive law, namely law that is accepted regardless of its goodness or badness.
Law is an order from the sovereign political power in a country. A positivism, Hart, put
forward John Austin's view of the legal obligation to obey orders is coercion, it is one of the
various meanings of positivism according to Hart, as follows:

1. The law is an order

2. Analysis of legal concepts is different from sociological, historical and critical assessment
studies.

3. decisions are logically deduced from pre-existing regulations, without the need to refer
to social goals, wisdom and morality.

4. The law as promulgated, stipulated, positum, must always be separated from the law
that should have been created, as desired.

The Positivism Paradigm that underlies Legal Positivism, explains that there is no law
outside of the law, the law is the only source of law. Law is synonymous with law. From the
sound of Article 1 paragraph (1) of the Criminal Code, it determines whether or not an act
can be punished depending on the law that regulates it. So, as long as a criminal act is not
regulated in positive law, then the act is not a criminal act and cannot be held accountable.

7
according to the law criminal. When Minah's grandmother was caught taking 3 cocoa pods,
which economically had little value, Minah's grandmother had to deal with the law, because
Minah's grandmother's actions according to criminal law included criminal acts, namely the
crime of theft. According to the Positivism Paradigm, however, the law must be upheld
whose justice is justice according to the law. Law must be separated from social elements,
because the purpose of this flow is legal certainty. According to the author, the judge's
consideration in each of the cases handled does provide high legal certainty. Because legal
certainty comes from the authorities or the state which can be in the form of articles in the
law.

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 CHAPTER III
CONCLUSIONS

A. CONCLUSIONS
From this writing, several conclusions can be drawn based on the discussion of the
problem accompanied by a description of the explanation, namely:

1. First, the legal case that ensnare Minah's grandmother is examined using the Positivism
Paradigm, the ontology of which is a reality (law). The law presented is Article 362 of the
Criminal Code. Epistemology that is objective-dual, independent parties, does not
influence each other (between judges and the legal cases they examine). There is
nothing involving values there because the law or reality is outside the judge. The
methodology, there is always verification or empirical testing. The judge did this by
presenting witnesses and having evidence that matched the statement of Grandma
Minah as the accused. When all the elements of Article 362 are fulfilled, Grandma
Minah is found guilty and must be punished. In short, the Positivism Paradigm always
emphasizes objectivity.

2. Second, the Positivism Paradigm which underlies the Legal Positivism school, explains
that there is no law outside the law, law is synonymous with law. However the law must
be upheld whose justice is justice according to the law. Law must be separated from
human and moral values for the sake of legal certainty. That is why Granny Minah must
still be punished regardless of how much loss PT Rumpun Sari Antan has suffered,
because it was legally proven to have committed theft as defined in Article 362 of the
Criminal Code.

B. SUGGESTIONS
For the sake of certainty and enforcement of Indonesian law in the present and in the
future, it is appropriate to maintain the consistency of a judge's decision between the
decisions of one judge and the decisions of other judges in similar cases that have been
decided, if for similar cases there are differences

large difference between one court decision and another, within a period that is not too
different but one has permanent legal force, it will cause legal uncertainty. This is what must
be avoided in an effort to maintain legal certainty.

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 BIBLIOGRAPHY

Fanani, Ahmad Zaenal. 2008. Teori Keadilan dalam Perspektif Filsafat Hukum dan Islam.
Program Doktor Ilmu Hukum, UII Yogyakarta.
Friedrich, Carl Joachim. 2004. Filsafat Hukum Perspektif Historis. Bandung: Nuansa dan
Nusamedia.
Kelsen, Hans. 2011. General Theory of Law and State, diterjemahkan oleh Rasisul Muttaqien,
Bandung: Nusa Media.
Rawls, John. 2011. Teori Keadilan. Yogyakarta: Pustaka Pelajar.
http://news.detik.com/read/2009/11/19/152435/1244955/10/mencuri-3-buah-kakao-
Nenek-minah-dihukum-1-bulan-15-hari diakses tanggal 2 April 2013 pukul 09.35
http://hukum.kompasiana.com/2012/01/08/kasus-sandal-jepit-dan-buahkakao-
ketidakadilan-bagi-masyarakat-kecil-425813.html diakses tanggal 3 April 2013 pukul
14.33

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