Prison of Legal Positivism Paradigm and Corruption Eradication in Indonesia

Abstract

The never-terminated corruption is believed to be caused by incomprehensively legal enforcement. A sentence verdict for corruptor that is never frightening them is one of the examples. Consequently, blame is put to a judge who plays important role in the sentence decision. However, what is actually lying behind legal enforcement by judges causing never-terminated corruption? Undeniably, the answer is rooted in legal positivism paradigm that is prisoning the judges. Act or entire ordinance is thought as a body containing complete laws, so that a judge is responsible only for application the acts mechanically and linearly in settling problems of society including corruption case according to what is said by the law. In this case, the legal positivism paradigm puts a judge as ‘prisoner’ of acts, and there is no room for court to be an institution encouraging development of society. Verdicts of judges are not considered having great contribution to the change of Indonesian people yet, even the reformation era at present. Moreover, the judges who are still implementing positivistic way of thought views that legal problems of society can still be settled as in stable normal condition. Consequently, legal paradigm experiences stagnation and put legal positivism as a paradigm that is never experiencing what Kuhn says as ‘anomaly’. In other words, the paradigm of legal positivism still stands in a normal science from one generation to the next in legal practices. Incorrectness of way of thought about naïve reality is tried to dismantle by using progressive legal approach. Judges are encouraged to transform themselves to do a rule breaking bravely that needed prophetic intelligence (PI). The prophetic intelligence guides and provides holistic braveness to perform progressively breaking the prison of positivism paradigm.

Keywords: paradigm prison, legal positivism, corruption