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All Journal JUDGE: Jurnal Hukum Mitsaq : Islamic Family Law Journal
Demitha selvira amellia
Universitas Muhammadiyah Kalimantan Timur
Religion Law, Crime, Criminology & Criminal Justice

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THE DIALECTIC OF POSITIVISM AND SUBSTANTIVE JUSTICE: THE PANCASILA RULE OF LAW PARADIGM Elviandri; Muhammad Amin; Demitha selvira amellia; Ricky Indrawan safutra; Andi Wibowo
Judge : Jurnal Hukum Vol. 6 No. 04 (2025): Judge : Jurnal Hukum
Publisher : Cattleya Darmaya Fortuna

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.54209/judge.v6i04.1777

Abstract

This study examines the dialectic between legal positivism and substantive justice within the framework of the Pancasila legal state paradigm as an effort to find a balance between legal certainty and substantive justice. The background of this study stems from the hegemony of legal positivism in Indonesia, which emphasizes formal and procedural legality, often neglecting the aspect of substantive justice that is at the core of the Pancasila legal ideal. In practice, law tends to stop at normative certainty (law in books), without touching on the values of humanity and justice that exist in society (law in action). The urgency of this study lies in the need to reposition Pancasila as a grundnorm and ethical foundation to return the orientation of Indonesian law to substantive justice, not merely formal justice. The research method used is juridical-normative with a legal philosophy and conceptual hermeneutics approach, which interprets law as das sollen (what should be). The results of the study show that rigid legal positivism has created a gap between legal certainty and substantive justice. The Pancasila legal paradigm presents itself as an integrative model that unites legal certainty and moral justice, positioning law not merely as an instrument of power, but as an ethical and spiritual means to uphold civilized justice. Thus, the Pancasila legal state offers a philosophical foundation for harmonizing positive norms and substantive values of justice in the national legal system.
EROSI KEDAULATAN DATA INDONESIA DALAM KAPITALISME DIGITAL GLOBAL: REKONSTRUKSI HUKUM TELEMATIKA Dion Ario; Swandi Aliverchan Situngkir; Ricky Indawan Safutra; Demitha Selvira Amellia; Rahmatullah Ayu Hasmiati
Mitsaq: Islamic Family Law Journal Vol. 4 No. 2 (2026): MITSAQ VOLUME 4, NOMOR 2, 2026
Publisher : Fasya UIN Sultan Aji Muhammad Idris Samarinda

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.21093/80zcd374

Abstract

This study examines the erosion of Indonesia’s data sovereignty within the structure of global digital capitalism and its implications for the reconstruction of telematics law. The issue is significant because the rapid expansion of transnational digital platforms has generated a structural imbalance between the State’s formal regulatory authority and its substantive control over data governance, thereby challenging Indonesia’s digital sovereignty and legal capacity in governing cyberspace. This study aims to analyze the structural factors contributing to the erosion of Indonesia’s data sovereignty and to formulate an adaptive reconstruction model of telematics law capable of responding to the dynamics of global digital capitalism. This research employs doctrinal legal research using statutory and conceptual approaches. The findings reveal a structural paradox: although Indonesia has strengthened its legal framework through data protection and digital governance regulations, substantive control over data flows, digital infrastructure, and algorithmic governance remains largely concentrated in transnational digital platforms. This paradox constitutes the principal finding and scientific contribution of the study, demonstrating that data sovereignty should be understood not merely as territorial legal authority but as a relational form of power within the architecture of platform capitalism. The novelty of this research lies in the formulation of an adaptive telematics law reconstruction model founded upon three interconnected principles: the expansion of digital jurisdiction, the strengthening of national digital infrastructure sovereignty, and enhanced platform accountability. Accordingly, this study concludes that strengthening Indonesia’s data sovereignty requires a shift from a regulatory-oriented approach toward a governance model capable of addressing structural asymmetries in the global digital ecosystem. Future research is encouraged to examine the operational effectiveness of this reconstruction model through comparative and empirical studies across different jurisdictions.
Co-Authors Andi Wibowo Dion Ario Elviandri, Elviandri Muhammad Amin Rahmatullah Ayu Hasmiati Ricky Indawan Safutra Ricky Indrawan safutra Swandi Aliverchan Situngkir