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All Journal Media Hukum Indonesia (MHI)
Khoirotun Hisan Prameswari Dwi Amoro
Program Studi Hukum, Fakultas Hukum, Universitas Pembangunan Nasional “Veteran” Jakarta
Law, Crime, Criminology & Criminal Justice

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Positivisme dan Hukum Kodrat dalam Bingkai Pancasila: Genealogi Filsafat Hukum dalam Putusan Mahkamah Konstitusi Pascareformasi Khoirotun Hisan Prameswari Dwi Amoro
Media Hukum Indonesia (MHI) Vol 4, No 3 (2026): September 2026
Publisher : Penerbit Yayasan Daarul Huda Kruengmane

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.5281/zenodo.23059243

Abstract

The tension between legal positivism and natural law is often claimed to have been resolved in Indonesia through Pancasila, which is positioned as the nation's legal ideal (rechtsidee) that the Constitutional Court must safeguard alongside its role as guardian of the constitution. Previous studies have examined this tension in a fragmented manner, focusing on isolated decisions without tracing how it emerges, breaks off, and is renegotiated across the Court's post-reform decisions. This article employs Foucault's concept of genealogy to read three Constitutional Court decisions, namely the decision on children born out of wedlock, the judicial review of the Blasphemy Prevention Law, and the formal review of the Job Creation Law, through a qualitative-interpretive analysis of their legal reasoning in two layers of reading, doctrinal and genealogical. The findings reveal an inconsistent pattern. The decision that most boldly moves beyond the text for the sake of substantive justice makes no use of Pancasila at all, while the most extensive discussion of Pancasila appears only in a losing dissenting opinion. These findings show that the claim of Pancasila as a final synthesis does not hold, and that the tension instead keeps resurfacing and being renegotiated contingently from one decision to another.
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