Anotasi Putusan Mahkamah Konstitusi Republik Indonesia Nomor 46/PUU-XIV/2016 dalam Perspektif Hermeneutika Hukum

Abstract

Parliament in making laws or regulations as positive legislators. The purpose of this study is to find out and analyze whether the Constitutional Court Decision reflects the sense of justice that lives in the community or not when analyzed in the perspective of legal hermeneutics. The research method used is legal research. The results showed that the Constitutional Court's Decision, did not reflect a sense of justice that lives in the community when analyzed in the perspective of legal hermeneutics. The Constitutional Court's decision emphasizes the aspect of legal certainty at the expense of justice and expediency. The needs of positive legislators are not partial but comprehensive needs. Positive legislators see that judges must have an idea of substantive justice that changes with the development of society, not merely procedural justice. Positive legislators by expanding the scope of a criminal act (strafbaar feit) can be done, when the norms of the law actually reduce and even conflict with religious values and the divine light which is basically 'given' for the order and welfare of human life.