Law Creation Function – Thoughts about law in recent years has undergone many changes as a result of major changes in society, technology and pressures caused by population growth. Law as a social rule, cannot be separated from the values that apply in a society. It can even be said that the law is a reflection of the values prevailing in society.
Law what is good is a law that conforms to a living law (living law) in society, of course also appropriate or a reflection of the values prevailing in society. Indonesia as a legal state that adheres to the “civil law”, which is a legacy of the Dutch colonial since hundreds of years ago. In this civil law system, the written law is the prima donna as source of law.
So far, both in academic discourse and in legal politics, it is common to find an expression, namely “law as a means or law as a means of community renewal”. The expression is related to the concept of Roscoo Pound which mentions law as a tool of social engineering (law as tools social of engineering).
Sudikno Mertokusumo states, the activities of human life are very broad. Countless number and types. So it is impossible to cover all laws and regulations completely and clearly. Therefore it is natural, if there is no laws and regulations which can cover the whole of human life. Thus, because the law is not clear, it must be sought and found.
Law creation (rechtschepping) which gave birth to a system of generally accepted legal rules carried out or occurred in several ways, namely through: judge’s decision (jurisprudence). Habit which grows as a practice in the life of society or the state, and laws and regulations as a written decision of an authorized official or office environment in general. Indirectly, the law can also be formed through legal teachings (doctrine) received and used in the formation of law.
Legal system Indonesia – as a result of the Dutch East Indies legal system – shows a continental legal system that prioritizes the form of a written legal system (geschrevenrecht, written law).
The politics of national legal development prioritizes the use of laws and regulations as the main instrument. Compare with jurisprudence and customary law. This is partly because the development of national laws that use statutory regulations as an instrument can be prepared in a planned (can be planned) manner.
In the framework of the function of judges to find and create laws, there are several methods of making legal discoveries, namely:
By interpreting the analogy,
By expanding and refining the law, and
By doing a counterario interpretation.
This method is used by taking into account the need in order to find the right meaning so that the purpose of the law or legislation can be reflected appropriately, correctly, fairly and fairly in solving a legal event.
Find and create law must also be constructed as an effort by a judge who must decide on a case before him, the existing legal rules are not available to serve as a basis. Thus, the task of judges in finding and creating laws is needed when there is a legal vacuum. This expansion, at the same time gives the meaning that the notion of law is not merely written law (law), but also jurisprudence and other unwritten laws.
So far, both in academic discourse and in the field of legal practice, little attention has been paid to the role of judges as instruments of law reform. As stated above, the law is considered the most important instrument in law reform. Therefore, instilling understanding in our law enforcement officers, especially judges, in general should not be seen as something that stands alone. It is very important to change the orientation and methods of legal higher education, without changing the orientation and methods of higher education law, legal scholars are not sufficiently equipped about the expected large role.