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All Journal LEGAL BRIEF Jurnal Hukum dan Pembangunan
Asnawi, Natsir
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Law, Crime, Criminology & Criminal Justice

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ASPEK HUKUM JANJI PRAKONTRAK DALAM PRANATA HUKUM KONTRAK INDONESIA Asnawi, Natsir
Jurnal Hukum & Pembangunan
Publisher : UI Scholars Hub

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Abstract

The precontractual issues in Indonesia had been raised due to the existing gap between the codification of contract law and the practical needs in contract law. As an umbrella act of civil law, The Indonesian Civil Code (Burgerlijke Wetboek) has yet regulate precontractual issue. Likewise, the judicial practice remains to establish law certainty (formalitiy of a contract), instead of giving justice to the parties who get injured on account of breaking the precontractual promises. Due to effort of updating the contract law, its substance should attach precontractual as a crucial term. Precontractual promissory should be stated as legally bound to the parties. Hence, act of lawlessness toward precontractual promise is about to punished by either of these legal instrument: 1) tort (onrechtmatige daad), by condemning the violator to redeem the other party’s interest (reliance interest); 2) breach of contract, by condemning the violator to redeem, not merely toward reliance interest, but also toward expectation interest of injured party; or 3) consumer protection, by condemning the violator either redeem some reliance interest or to continue or not of performing a specific act which had been declared in precontractual phase.
The Dialectics of Legal Positivism and the Sociological Jurisprudence School in the Regulation of Human Rights under the 1945 Constitution: A Critical Legal Philosophy Analysis Junior, Putra Alexander; Topan, Ali; Bandjar, Isomudin; Asnawi, Natsir
LEGAL BRIEF Vol. 14 No. 6 (2026): February: Law Science and Field
Publisher : IHSA Institute

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.35335/legal.v14i6.1599

Abstract

The regulation of human rights in the 1945 Constitution of the Republic of Indonesia, particularly Chapter XA, reflects complex dynamics in legal philosophical thought. This study aims to critically analyze the dialectic between legal positivism and sociological jurisprudence in the normative construction of human rights and its implications for constitutional interpretation by the Constitutional Court. The research employs a normative juridical legal method with a critical legal philosophy approach, conducted through a literature review of constitutional norms, relevant statutory regulations, and Constitutional Court decisions related to human rights. The findings indicate that the regulation of human rights in the 1945 Constitution does not represent a single school of legal philosophy, but rather constitutes a paradigmatic synthesis between the normative certainty characteristic of legal positivism and the social responsiveness emphasized by sociological jurisprudence. This philosophical tension is reflected in the variation of interpretive methods adopted by the Constitutional Court, ranging from formalistic to progressive approaches. The study concludes that a constitutional interpretation model based on contextual positivism or responsive formalism is relevant for bridging legal certainty and substantive justice in the protection of human rights in Indonesia
Co-Authors Bandjar, Isomudin Junior, Putra Alexander Topan, Ali