KEDUDUKAN “LEX NE SCRIPTA” DALAM SISTEM HUKUM INDONESIA

A. Widiada Gunakaya

Abstract


The values of Pancasila in our country does not become an ideal principle in every activity of lives. It is not used as a main basis of national law even as the source of all sources of law. The implication is that; in the level of application there are always stagnancy and resistance in the implementation and law enforcement. This is because of there is no “lex scripta” as a norm of positive law which regulates and can become juridical principle to ensnare an unlawful act. Whereas, “lex scripta” norm of law is acknowledged as the norm of law in Indonesia which derives from values of Pancasila as “rechsidee”, “grundnorm”, both in Pancasila and 1945 Constitution, and also judicial authority which merely gives authority to law enforcement apparatus to investigate, sue, punish, and decide an unlawful acts. In the system of law in Indonesia, the position “lex ne scripta” is equal to “lex scripta”. The consequence of law is that; “lex ne scripta” can replace the position of “lex scripta” if in the norm of positive law does not
regulate unlawful acts. Related to the compilation of national law system in Indonesia, “lex ne scripta” plays an important role in developing law, especially in the context of determination of legal substance, implementation and law enforcement, and also law behavior.

Keywords: Pancasila ­ National Law System ­ Implementation and Law Enforcement


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DOI: http://dx.doi.org/10.25072/jwy.v22i1.1

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