• Sat. Feb 27th, 2021

Dynamics Of The Development Of Legal Research Methods

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Dec 5, 2020
Dynamics Of The Development Of Legal Research Methods

In legal research methods from normative legal research and sociological or empirical legal research. Meanwhile, sociological or empirical legal research is a study of legal identification and legal effectiveness in social dynamics. For this reason, the law is often connected with social dynamics

sociological legal research is not legal research. According to him, sociological legal research and legal research only have the same object, namely law. Sociological legal research only places law as a social phenomenon, and law is only seen from the outside, and the topics are often the effectiveness of law, obedience to law, implementation of law, law and social problems or vice versa. For this reason, law is always placed as the dependent variable and non-legal factors affecting the law are seen as independent variables. In sociological legal research to analyze hypotheses, data is needed, so that the results obtained are to accept or reject the proposed hypothesis.

In contrast to legal research, which is not looking for answers to legal effectiveness, he therefore stated that in legal research there are no known terms hypotheses, independent variables, data, samples or qualitative and quantitative analysis, all that is needed is an understanding of the law which reviewed. Legal research is carried out to solve legal issues raised so that the results provide a prescription of what should be.

In my opinion, I don’t need to blame each other. But what is certain is that the debate about Pure Legal Theory and Sociological Jurisprudance (sociological law) is not only happening recently and only in Indonesia. What is certain is that the flow of law above is 2 (two) major views which have different perspectives from each other. That then has an impact on the debate on legal research issues as explained by leading legal experts in Indonesia who have different views on the methods of legal research.

The flow of positive law is also known as the flow of legism. This flow always identifies law with law, there is no law outside the law, the only source of law is law. These positive legal views were defended by Paul Laband, Jellineck, Rudolf von Jherings, Hans Nawiasky, Hans Kelsen and others. The flow of positive law began to develop in Germany in the middle ages and has had a lot of influence in various countries, including Indonesia.

John Austin provides understanding and limitations regarding the scope of legal science. First, law is an order of the ruler, second, law is a logical system that is fixed and closed, third, positive law consists of elements of orders, sanctions, obligations and sovereignty, beyond that is only positive morality.

Another opinion came from Hans Kelsen who stated “the law must be cleaned of non-legal factors, such as ethics, sociology, politics and so on”. Kelsen also explained that law is a namely law as a necessity not as (a category), namely as a fact, that is, people obey the law because it has been ordered by the state, for that negligence will be subject to sanctions.

From the explanation above, it can be concluded that in principle the flow of positive law is the flow of legal thought that affirms the form of law (Law), the contents of the law (orders of the authorities), the characteristics of the law (sanctions, orders, obligations, and sovereignty) and systematization. legal norms (Kelsen’s hierarchy of legal norms). Implicitly this flow also emphasizes several things:

First, that the lawmaker is the ruler

Second, that the legal form is a law; and

The three laws are applied to those in control.

It is very different from sociological jurisprudence which is a school of legal philosophy that pays equal attention to society and law, as the two main elements of law in the creation and enforcement of law. That is what causes a sharp difference between normative legal thinkers and sociological legal thinkers. Because sociological legal thinkers base law on the theory of the relationship between the rules of law and the reality of society.

The founders of this school can be mentioned, for example Roscoe Pound, Eugen Ehrlich, Benjamin Cardozo, Kantorowics, Gaurvitch and others. This school refers more to the reality than the position and function of law in society. The core principle of the thought of this school of thought is that good law is law that is in accordance with the laws that live in society. Law was born and developed along with the progress of the times, so that law cannot be separated from people’s life. Like the symptoms of other civilizations, law can also be viewed sociologically, it can be investigated what economic and social relations are, what flow of the psychological field has given rise to certain legal institutions.

In principle, sociological jurisprudence emphasizes problems of legal evaluation (good legal qualifications), the position of written and unwritten laws, the function of law as a means of social engineering, by forming good laws (which are in accordance with the laws that live in society), and how the law is enforced.

From the difference between the two major views between the positive law paradigm and sociological law, there is no need to blame each other by blaming one theory against another, considering that both have advantages and disadvantages. The positive legal paradigm can be used to learn about the form of law (Law), the content of the law (orders of the authorities), the characteristics of law (sanctions, orders, obligations, and sovereignty) and the systematization of legal norms (hierarchy of legal norms) while the sociological legal paradigm can used to evaluate the law (good legal qualifications), the position of written and unwritten laws, as a means of social engineering, a way of forming good laws (which are in accordance with the laws that live in society), and ways of implementing the law effectively.