Ipso Jure
Vol. 3 No. 8 (2026): Ipso Jure - September

Balancing Legal Certainty and Substantive Justice in Indonesia: Rethinking the Role of Judicial Interpretation

Asman (Universitas Sultan Muhammad Syafiuddin Sambas)



Article Info

Publish Date
24 Sep 2026

Abstract

Indonesian judges are constitutionally required to secure both fair legal certainty and substantive justice, yet the legal order gives them little guidance on how to proceed when the two values collide. This article examines how the mandate of judicial interpretation is structured in Indonesian law, how courts have exercised it in practice, and how the balance between certainty and justice can be made more principled. It employs normative juridical research that combines statutory, conceptual and case approaches, drawing on the 1945 Constitution, Law No 48 of 2009, the new Criminal Code, and a purposive body of court decisions and scholarship published between 2021 and 2026. The analysis proceeds through Radbruch’s triad of justice, legal certainty and expediency. The findings show, first, that Indonesian law imposes a dual mandate on judges but supplies only one ordering rule, Article 53(2) of the Criminal Code, which instructs judges to prioritise justice without stating a threshold for doing so. Second, judicial practice falls into three patterns: certainty-protective interpretation, justice-driven interpretation that remains anchored in the text, and unstructured judicial creativity that relies on the language of justice without demonstrating it. Third, the article proposes a four-stage framework of principled balancing consisting of a textual boundary, a threshold of intolerable injustice, proportionality with least departure from predictability, and reasoned institutional consistency. The article concludes that legal certainty and substantive justice are best reconciled not by ranking one above the other, but by disciplining the way judge reason when they depart from the text.

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Journal Info

Abbrev

IJJ

Publisher

Subject

Law, Crime, Criminology & Criminal Justice

Description

Ipso Jure is an international, peer-reviewed, open access journal dedicated to advancing scholarly research and discourse in the field of law, with a particular emphasis on the principles of the rule of law. The journal aims to provide a platform for academics, legal practitioners, policymakers, and ...