Positive Law and Its Existence

Positive Law is a set of laws in force in a country, and every country in the world has its own positive law, including the Republic of Indonesia. Positive law that applies in Indonesia is a combination of interrelated provisions and regulations that are determined based on legal principles that are also interrelated to one another and designed to form a legal system. The legal system created for the implementation of positive law becomes valid and binding on the community if it is designed and determined by the legally authorized authorities.

A. Definition of Positive Law

Positive law, also called ius constitutum, is a collection of written legal principles currently applicable and binding either in general or specifically, which are enforced by or through the government or courts in a country. Positive law are classified into various types of groupings based on the source, form, content of the material and so on.

B. Source of Positive Law

The sources from which positive Law derives are classified into two forms i.e., formal sources of law and material sources of law. Formal sources of law are sources of law that determine the form and cause of a regulation (legal rule), which is already in force and known to the public. Meanwhile, material sources of law are sources of law that come from the substance of the law itself. The following are examples of sources of formal law and sources of material law.

Sources of formal law are:
- Laws
  Laws are regulations that have binding legal force that is maintained by the state authorities. For example, Laws, Government Regulations, Legislation and so on.
- Customs and habits
  The book of Mengenal Hukum explains the differences between customs and habits as quoted by Sudikno:
  “Habit is a pattern of behavior that is steady, permanent, normal or customary in a particular society or association. This life association is a narrow environment like a village, but it can also be broad, which includes the people of a sovereign state. Behavior that is permanent or steady means it is human behavior that is repeated. Repeated behavior has normative power; has binding power. Because it is repeated by many people, it binds others to do the same thing, thereby creating a belief or awareness that it is indeed appropriate to be carried out, and that it is customary.”Meanwhile, customs are social rules that have long existed in society with the intention of regulating a sacred order (something sacred).
- Treaty
  A treaty is an agreement entered into by two or more countries that usually contains legal regulations.
- Jurisprudence
  In terms of judicial practice, jurisprudence is a judge’s decision that is always used as a guide for other judges in resolving similar cases.
- Doctrine
  Doctrine is the opinion of well-known jurists.

Sources of material law are:
- One’s legal feelings or general opinion
- Religion
- Habit
- Legal politics of government

C. Elements or Traits of Positive Law

Positive law covers several elements:

Regulations regarding human behavior in social interaction;
Regulations that are made by the official bodies in charge;
Regulations that are coercive; and
Strict sanctions for violations.

D. Functions and Purposes of Positive Law

The functions of positive law in the development of society are as follows:

As a means to regulate the public order in a way that shows which humans are good and which are bad;
As a means to realize physical and spiritual social justice;
As a means to drive the development of society;
As a means to determine the detailed division of authorized authorities to carry out law enforcement
As a means to resolve disputes.

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Disclaimer: This article has been prepared for scientific reading and marketing purposes only from ADCO Law. Accordingly, all the writings contained herein do not constitute the formal legal opinion of ADCO Law. Therefore, ADCO Law should be held harmless of and/or cannot be held responsible for anything performed by entities who use this writing outside the purposes of ADCO Law.