Name : Marvellano J.

Runtuwene

NIM : 220711010664

LEGAL DISCOVERY METHOD (RECHTSVINDING) BY THE JUDGE

Introduction

Legal discovery is the process of law formation by judges or other legal officials who are given
the task implementing law against concrete legal events Legal discovery made because the law
is not complete or unclear, the judge must seek the law and must find the law (rechtsvinding).
Theories about inventions This law answers the question of interpretation or interpretation of
the law. Basically everyone can discover the law, but the discovery of that law done by the
judge is the law, while the discovery of the law what people do is doctrine, in jurisprudence
doctrine is not a law but a source of law.

In the discovery of the law, it is known that there is a progressive flow and conservative stream.
Progressive flow argues that law and Justice is a tool for social changes. while the conservative
school argues that the law and justice is only to prevent moral decline and other values. The
law, as the rule of law on generally, is to protect human interests, by because it must be
implemented and enforced. In order to To implement it, the law must be made clear. the clarity
of each of these laws is very important. Therefore each law is accompanied by an explanation
contained in supplementary State Gazette. However, not always explanation of the law can
clarify the sound of the article in Constitution.

Interpretation or interpretation is one method of finding the law that provides an explanation
clear on the text of the law so that the scope of the rule can be applied in connection with a
particular event. Interpretation by the judge is an explanation that must lead to
implementation that is acceptable to the community regarding legal regulations for concrete
events. Interpretation method This is one means or tool to know the meaning law.

Unclear legislation, lacking complete, static, and cannot keep up with developments society,
creates an empty space that must be filled by judge by finding his law that is done by means
explaining, interpreting or supplementing the Laws and Regulations invitation. The discovery of
law by judges is not solely concerning the application of laws and regulations against concrete
events, but also creates laws and shapes the law at once Law Discovery Schools The emergence
of schools in legal discovery is influenced by two aspects: namely the historical aspect and the
legal source aspect used. 6 The discovery of the law can not be separated from historical
developments of that time and are closely related to source of law used. The emergence of
internal currents The discovery of law shows that law is something dynamic, open and up to
date exists so that it develops from time to time. Every flow in legal discovery, has advantages
and their respective deficiencies so that they cannot be used separately rigid or stiff. Each
stream of legal discovery must complementary.

Several streams of law are known in the science of law, namely the flow of legism, historical
schools, begrifjurisprudenz, interessenjurisprudenz, sociological rechtschule,
freirechtsbewengun, and open system van hetrecht.

1. The flow of Legism

Long before the codification of laws, law What was in effect at that time was the unwritten law.
Source The main part of the unwritten law is custom. On generally, unwritten law is less
guarantee legal certainty and legal uniformity or occur legal pluralism. Because the law is not
written can not guarantee legal certainty, then there is a thought for making laws in writing,
even in Europe appeared the idea to codify in a book Constitution. The codification movement
emerged in Europe concurrently birth of legism. The view of the legist school fits with natural
law teachings that do not agree with the law custom, even in the 17th century received support
from Montesque and Rousseau with their Trias Politica teachings. According to Rousseau, the
common will of the people is power highest.

While the law is as a statement that will. Act as a statement of will the people are the only
source of law. Whereas customary law does not have the force of law. According to the flow
(madzhab) legism: the only source Law is law, justice is only applying the law, the judge is only a
mouthpiece law (subsumptie automaat), the method used is juridical geometry, customs have
the force of law if appointed by law. Thus, According to the flow of legism, there is no law
outside the constitution act.

2. Historical Flow

This flow was born due to the existence of thoughts, that the law is not complete, the law is
always left behind with the development of the times so it won't can resolve concrete events as
they occur void norm. Under these conditions the judge can make law (judge made law) based
on customary law. The judge's decision then became jurisprudence which is also a source of law
besides Constitution. Customary law and jurisprudence can complements the law and is
considered as an element of the system law.
This flow was driven by Von Saviqny who considered, that law has historically grown and
developed along with the development of society at that time and certain time (das recht wiird
nicht gemacht, is und wir mit dem wolke). The purest legal awareness is found in habit. Legal
regulations and legal practices exist in the life of society is not determined from above, but
from the beliefs and customs of society. The juries before codifying the law must do in-depth
research. This flow regard customary law as a source of law main.

3. Begrifjurisprudenz Flow

According to the flow (madzhab) Begrifjurisprudenz: laws the law is not complete so it needs an
active role from the judge, sources of law are not only laws, however habit. This flow sees the
law as a system or a closed entity that controls behavior man. The basis of a law is the
principles and basic notions that can be used for resolve concrete cases, therefore a judge not
bound by the sound of the law. This flow gives more freedom to judges than on legism. The
judge is not bound by the sound of the law law, but can take their arguments from legal
provisions implied in the law. The judge in deciding a case is more basic on logic, expanding the
meaning of laws rationally. However, the law is not merely formed based on intellect but also
consider things that are irrational. This flow sees law as a system or one closed entity which in
general rules over all human behavior. The meaning of law is not only as means, but as an end
so that the teachings of law be a teaching about understanding (begriffs yurisprudenz) or a
request for understanding that worships reason and logic. Although judges are freed from
statutory bonds, however must work within a closed legal system. Logic and ratios are placed in
a special way complement the deficiencies of the law by using logic laws. Judges in interpreting
the law law must expand with the ratio or legal logic. This flow is more concerned with legal
certainty, and ignore the aspects of justice and expediency. This flow has similarities with the
historical flow, which was driven by Von Saviqny who stated, that law is compiled based on a
system of legal principles and basic understanding to which each event can be applied suitable
rules and laws were not made, but exist and grow with the nation

4. Freirrechtschule flow

This flow is a way of discovering the law give freedom to the judge through the method of
construction law. Judges are given the freedom to find the law, in a sense, judges do not just
apply the law, but also expand and shape the law through the verdict. In this flow, judges are
required to balance between justice and benefit. The judge is given freedom to deviate from
the provisions of the law Some of these thoughts include:

a. Law is the resultant conflict of interest opposite and clash with each other;

b. the rule of law should not be seen by judges as mere formal logic, but must be judged from
its purpose;
c. systematization should not be exaggerated so must lead to a goal that lies behind system and
realize the idea of justice and decency which knows no time;

d. The main purpose of law is to protect, meet the real interests or needs of life;

e. the judge must adjust to the size of the value of interests meant by legislators

5.Soziologische rechtsschule flow

This flow was pioneered by Hmaker and Hymans. According to this flow, to find the law, the
judge must pay attention to the reality of living and legal values develop in society. Judge in
interpretation statutory provisions, always adjust to legal values and legal cult embraced by
society. According to this flow, the judge is not a mouthpiece for the law.

However, the granting of freedom to the judge not approved, for fear of action arbitrary in
interpreting the provisions of the law law, also not given freies ermessen for judges. The judge
has the freedom to state the law, However, this freedom is in order to uphold Constitution. The
judge should base his decision on statutory regulations. However, Judges' decisions must be
accountable to the principles of justice, awareness, and feelings of law who live in society.

6. Freirechtsbewengung flow

This flow is the flow of legal discovery free, in the sense that the judge in finding the law is not
bound rigidly on the law, but based on propriety. In another sense, the judge's decisions are not
like that originate from the law or from legal principles or legal notions, but the element of
judgment which has an important role Some of the thoughts in this stream include:

a. The codification cannot be complete, not all laws contained in the law. Besides the law There
are other sources for finding laws.

b. Every thought that sees the judge as a subsumptie automaat is considered as something that
is not real.

c. The role of the law is subordinate, that is, the law law is not the goal for judges, but only
means. Judges not only create legal certainty, but also must realize justice.

In terms of the law is contrary to justice, the judge can violate the law. Judges are not only
interpreters of laws but also as the creator of the law.

7. Open system van hetrecht

This flow emerged as a reaction to the opinion, that law is a logically closed thing. Genre This
assumes that law is an open system and accept values that exist outside the law. Inside judge
finding law is always based on the criterion of understanding intellectual or rational/logic as
well as judgment with use logical reasoning.

Judge in doing legal discovery, work on the basis of the judgment that results is an expansion or
something new for society. In addition, this flow also assumes that law is an interrelated
system, the rules systematically arranged. This stream was driven by Paul Scholten who argue,
that the legal system is a logical and not closed. The legal system is also not static. because the
legal system requires decisions or determinations that always increase the breadth of the
system law.

This flow also considers that the legal system unrealistic so that it always requires expansion
judge's decision through an assessment carried out in the form interpretation and construction.
Some of these thoughts include:

a. Law is not a written system and is not written that may not be changed before forming the
law changes it. Laws can changed, even though the sound of the text doesn't change, that thing
done to adjust to concrete events.

b. The openness of the legal system is related to problems.

legal vacuum There are two variants of blanks law, namely: the vacuum in the law (recht
vacuum), and vacuum in the law (wet vacuum).

Law Discovery Method

Judges in making legal discoveries, guided by on existing methods. Deep methods legal findings
include the method of interpretation (interpretation method), legal construction methods or
reasoning (redeneerweijzen). Legal interpretation occurs when there are statutory provisions
laws that are directly assignable to events concrete faced, the method is carried out in terms of
the rules already exists, but it is not clear to be applicable to events concrete because there are
blurred norms (vage norms), conflict between legal norms (antinomy norms), and the
uncertainty of a laws and regulations. Legal construction occurs when no provisions are found
laws directly applicable to legal issues at hand, or in regulatory terms not exists, so there is a
legal vacuum (recht vacuum) or legal vacuum (wet vacuum). To fill In the absence of this law,
the judge uses reasoning logically to develop further a text of the law act. The judge no longer
held to the text's reading, however judges do not ignore the principle of law as a system The
legal construction method aims to make the judge's decision in the concrete events it handles
can fulfill a sense of justice society and benefit. In method legal construction, there are four
methods used by judges at the time of the discovery of the law, namely: argumentum per
analogium (analogy), argumentum a contrario, legal narrowing, and fiction law.
1. Method of Interpretation

The interpretation or interpretation of the law is wrong a method of finding laws that provide
explanations clear and clear on the text of the law, in order to space the scope of the rules in
the law can applied in certain legal events. Purpose interpretation is to explain the true intent
of the text of the law so that the provisions in the law law can be applied in solving events
concretely faced by judges.

Legal interpretation methods include interpretation grammatical, historical interpretation of

legislation, interpretation systematic, teleological interpretation, comparative interpretation,
futuristic interpretation, restrictive interpretation, interpretation extensive, authentic
interpretation, interdisciplinary interpretation, and multidisciplinary interpretation.
Grammatical interpretation is interpreting words or terms in the law in accordance with the
rules applicable legal language. This grammatical interpretation trying to understand a text of
legislation applicable invitations, in general grammatical interpretation it is used by judges in
conjunction with logical interpretation, namely giving meaning to a rule of law through legal
reasoning to apply to that text blurry or unclear.

For example, what is meant by third parties in contractual relationships are often unclear,
sometimes a third party refers to another party that is not related to the agreement (petinus
extranei). Sometimes parties the three referred to are concurrent creditors for para parties
bound in an agreement. Therefore in grammatical interpretation, they are usually used
together with a logical interpretation based on legal reasoning.

Systematic interpretation is a method of interpreting laws and regulations by linking them with
other legal regulations or with the whole legal system. This systematic interpretation applies
the principles, that the laws and regulations of one country constitute a complete system. That
is, to interpret one provision Laws must be connected with provisions other laws and
regulations so that in interpreting statutory regulations may not come out or deviate from the
legal system of a country.

For example, if you want to know about the nature of the child's confession born from the
marriage of his parents, the judge did not just enough to look for the provisions that are in Civil
Code only, but must be connected with the provisions contained in the Criminal Code. Historical
interpretation is a method of interpretation of the meaning of the law according to how it
happened examine history, both legal history and history the occurrence of the law, or in other
words, the interpretation history includes the interpretation of the history of the law (wet
historicch), and legal history (recht historiccht).

Interpretation according to the history of the law (wet historicch), that is to find the purpose of
the legislation like what legislators see when the law was formed. Interpretation of legal history
(recths historicch) is a method of interpretation that understands law in the context of its legal
history. For example, to find out about the regulated simultaneous election system in the
Election Law, the judge must know the history of drafting the law along with the ratio the
legislature.

Teleological interpretation is interpretation of law according to the purposes for which it was
created. The judge in using this teleological interpretation must see an adjusted statutory
regulation with the new social situation so that the statutory provisions invitations are not only
seen textually, but seen contextually. Thus, the teleological interpretation is a method of
interpretation of a provision legislation by looking at conditions or situations existing social. In
interpreting the provisions of Article 362 Criminal Code regarding theft, for example, the judge
must expand the meaning of the sentence "goods" in the article with various kinds of objects
that can be owned, both tangible and intangible.

For example electricity, pulses and others. So if someone intentionally without rights take
electricity, or telp pulses to have punished. Comparative interpretation is a method of
interpretation by way of comparisons between various legal systems. By making comparisons of
various types legal system, then the meaning of a provision can be sought legislation. This
method is used by judges when dealing with cases that use positive legal basis arising from
international agreements. This is important to do in an effort to realize uniformity or legal unity
born of the agreement international law as objective law.

For example judges in The question of which method to use judge in dealing with a concrete
case, forming the law does not give priority to either method of legal discovery. This means that
the judge is given freedom to choose what method is most suitable to handle the cases at hand.
Choice regarding the method of finding the law is the authority of the judge. The choice of one
of the methods by the judge is based on what method is most convincing and the results
satisfactory in handling a case

2. Legal Construction

Legal construction is carried out if it is not found direct provisions of the law applied to the case
at hand, or in its regulations does not exist, or there is a legal vacuum (recht vacuum), or
statutory vacuum (wet vacuum). In in the event of a legal vacuum or statutory vacuum this law
the judge uses his logical reasoning to further develop the text of the law. Method this is what
is meant by legal construction.

The judge is bound on the principle that judges are prohibited from refusing a case which
submitted to him with the reasons: the law does not exist, the rules are incomplete, or not
regulated, but he must adjudicate cases throughout the case meet the material requirements
and in accordance with competence absolute and relative competence. Here the judge must
explore and discover the legal values that live on public.

This is in accordance with Article 27 paragraph (1) of the Law law No. 14 of 1970 which ordered
the judge as enforcers of law and justice must explore, follow, and understand, the legal values
that live on society. The legal construction method commonly used by judges include
argumentum per analogium (analogy, kiyas), argumentum a contrario, and
narrowing/concreting law.

First, the method of argumentum per analogium (Analogy) is a method of finding the law by
means of a judge looking for the more general essence of a legal event or good legal actions
that have been regulated by law law or not yet regulated.

By method analogies, similar or similar events regulated in laws are treated the same. Law
discovery method by analogy occurs by seeking the general rule of special regulations, to be
used to explore legal principles what's inside. With the discovery of the law through In this
analogy, a special rule is made which are not written in a law. From these general rules,
concluded the events that special. A statutory regulation is applied against a certain event that
is not regulated in the law, but the event is similar to or similar to events regulated in a law law.

Thus, the analogy gives interpretation to a rule of law by giving allusions to words in these
regulations in accordance with the legal principles so that an actual event can not entered, then
considered in accordance with the rules the. The method of discovering laws by analogy is
common used in civil cases, but in criminal cases the use of analogy is prohibited, because it is
considered contradictory with the principle of legality in the Book of Laws the Criminal Law
(KUHP).

Even though the judge Bismar Siregar once used an analogy in the case of rape which equates
genitals with goods, but deep The Supreme Court's cassation was cancelled. In criminal law, no
act is prohibited and punishable by criminal if not regulated in advance in law (Nullum delictum
nulla poena sine praevia lege poenali).

contrario/mafhum mukhalafah so that a husband who divorce with his wife does not need to
do iddah. Third, the method of narrowing the law / concluding the law (rechtsvervijning). It is
not uncommon for norms to exist in regulations legislation is too broad and too general space
scope, the judge needs to narrow down the meaning of which contained in the provisions of
the law.

Method narrowing of law/consolidation of law, aims to concretize/narrow a rule of law too

abstract, passive, and general, to be applicable to a particular event An example of article 1365
regarding unlawful acts (onrechtmatig daad). The scope is too broad, so judge first should
narrow its scope or should concretized and linked to concrete events that happen. Before 1919
as a result of the adherents of the sect legism, judges always equate law with law, but after the
incident occurred Lindenbaum vs Cohen, the notion of action against the law underwent such
major changes in the Hoog Raad decision of 1919 stating acts against the law (onrechtamatig
daad) are narrowed down to do or not to do something that violates people's rights other,
contrary to legal obligations, as well contrary to propriety Concreting / narrowing the law
(rechtsverfijning) in Justice in Indonesia has never been carried out by the Court Agung in the
Akbar Tanjung case in decision no. 572K/Pid/2003.

Definition of abuse of authority in Article 1 paragraph (1) letter b Law No. 3 years 1971
interpreted by using that authority to purposes other than those intended when authorized
said, or in other languages "de tournament du pouvoir" (abusing authority). Fourth, the method
of legal fiction. In legal theory, Legal fiction is interpreted as a principle of all people considered
to know the law (statute), even though it is deep the fact is not everyone knows the law, even a
legal expert is impossible to knowing all the laws, he only knows law according to their
expertise.

However, method This legal fiction is needed by judges in practice court, because someone who
was charged with doing something criminal offenses can not be excused for acquittal the
reason is not knowing the law governing about crimes committed. The method of discovering
law through this legal fiction sourced from the phase of legal development in the period middle
age, namely after the end of the period of primitive law. The essence of this method is that the
discovery of the law with use new facts so appear a new personification.

The function of legal fiction is to create legal stability, also fills the void in the law. Experts differ
on this legal fiction, Sacipto Raharjo argued, legal fiction is a part of legal constructions. While
Paul Scholten argues, Legal fiction and legal construction are different. The difference seen
from the simplification made for the sake of interest construction, then some of the facts are
omitted. In contrast, in legal fiction, the facts are by the event is not stated it can be added.

Thus, each construction may contain elements fiction, but construction should never be fiction.
Fiction that has been contained in the judge's decision is no longer as legal fiction, but has
become a judge made law, has become a reality, and has become law.

Closing

Discovery of law (rechtsvinding) is a judge's effort in creating and shaping laws to be enforced in
concrete events. Legal discoveries were made by the judge when the rules are not clear,
ambiguous, occur blurring of norms, or no rules governing.
The method of legal discovery by judges in resolving the concrete matters he faced were done
with method of interpretation (interpretation), and legal construction. Interpretation is carried
out by the judge in the event that the regulation exists, will but are unclear, ambiguous, or
there is a blurring of norms (vague norms) to be applied in concrete events. Whereas legal
construction is carried out by judges in terms of regulations not there is or occurs a norm
vacuum (rechts vacuum), or vacuum law (wet vacuum), then the judge use logical reasoning by
way of argumentum a contrario, and argumentum per analogium.