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Approaches In Normative Legal Research


Dec 6, 2020
Approaches In Normative Legal Research

Apart from the above debates, this paper will explain the approaches used in the normative legal writing method, namely a method of writing that is based on an analysis of several legal principles and legal theories as well as laws and regulations that are appropriate and related to problems in writing. legal research. This normative legal research is a procedure and method of scientific research to find the truth based on the scientific logic of law from a normative perspective.

In general, the problem approach used in writing normative legal research consists of 5 (five) approaches, namely the statute approach, the conceptual approach, the historical approach, the case approach and the case approach. comparative approach. The statutory approach is a research that prioritizes legal materials in the form of statutory regulations as a basic reference for conducting research. The statutory approach (statute approach) is usually used to examine statutory regulations which in normalization still lacks or even foster deviant practices both at the technical level or in their implementation in the field. This approach is carried out by examining all laws and regulations related to the problem (legal issue) being faced. This statutory approach, for example, is carried out by studying the consistency / suitability between the Basic Law and the Law, or between one Law and another.

A conceptual approach is a type of approach in legal research that provides an analysis point of view of problem solving in legal research seen from the aspects of legal concepts behind it, or can even be seen from the values ​​contained in normalizing a regulation in relation to the concepts the concept used. Most of these types of approaches are used to understand the concepts related to normalization in legislation, whether they are in accordance with the spirit contained in the underlying legal concepts. This approach departs from the views and doctrines developed in the science of law. This approach is important because an understanding of the views / doctrines that develop in legal science can be a basis for building legal arguments when solving legal issues at hand. Views / doctrines will clarify ideas by providing legal definitions, legal concepts, and legal principles relevant to the problem.

The historical approach (historical approach) is the approach used to find out the historical values ​​that become the background and which influence the values ​​contained in a statutory regulation. The historical approach (historical approach) is widely used to research and examine the history of its relation to the discussion which is the topic of discussion in legal research. Usually researchers want truth not only based on dogmatic truth, but also want historical truth contained in statutory regulations. This approach is carried out in the framework of understanding the philosophy of the rule of law from time to time, as well as understanding changes and developments in the philosophy underlying these legal rules. This approach is carried out by examining the background and regulatory developments regarding the legal issues at hand.

The case approach is a type of approach in normative legal research where researchers try to build legal arguments in the perspective of concrete cases that occur in the field, of course, these cases are closely related to legal cases or events that occur in the field. For this reason, this type of approach usually aims to find the value of truth and the best way out of legal events that occur in accordance with the principles of justice. This approach is carried out by examining cases related to the legal issues at hand. The cases that are reviewed are cases that have obtained a final court decision. The main thing that is studied in each decision is the judge’s consideration to arrive at a decision so that it can be used as an argument in solving the legal issue at hand.

The comparative approach is a type of approach that researchers try to compare both with other countries and with events that have occurred in one country. For this reason, this study is known as 2 comparative approaches, namely the macro comparative approach and the microcomparative approach. The macro comparative approach is used to compare legal events or events that occur in various countries, while the micro-comparative approach only compares in a particular country within a certain time period.

Use of a statutory approach in legal research

In accordance with the assignment given to our group, we are assigned to examine the legal research approach from the point of view of a statutory approach. There are several things that will be the focus of using the statute approach in legal research, including:

1. Harmonization and Synchronization of Laws and Regulations

Harmonization of statutory regulations is the harmony between statutory regulations between one another, both vertical (statutory hierarchy) or horizontal (equivalent legislation). This harmony, that is, there is no conflict between the rules with one another, but the rules for each other strengthen or reinforce and clarify. Thus the making of statutory regulations must pay attention to the harmonization of statutory regulations, inseparable from the three foundations or bases for making statutory regulations, namely; philosophical foundation, juridical foundation, and sociological foundation.

• Horizontal

This research aims to see whether a statutory regulation that applies to a particular field of life does not contradict one another when viewed from a vertical or hierarchical point of view of existing laws and regulations.

In this research, what is examined is the laws and regulations of a particular field, within its hierarchical perspective. Of course, this study must also be based on the function of each of these laws, so that the level of harmony will be clearly seen. For example, a Government Regulation which is one level lower than a law is a regulation created to carry out or administer a law.

Thus we can also review the causes of the cases encountered as long as the hierarchy of laws and regulations is concerned, from the highest to the lowest levels.

• Vertical

This type of research as quoted from Prof. Soerjono Soekanto aims to reveal the reality of the extent to which certain laws are horizontally compatible, that is, to have harmony between equal laws regarding the same field. In this research on the horizontal level of synchronization, first the field to be studied must be selected. After the field has been determined, for example the area of ​​regional government, then an equal law and regulation that regulates all aspects of regional governance is sought. These aspects constitute a framework for compiling the classification of the legislation that has been selected, for later analysis. The analysis results will reveal the extent to which the level of horizontal synchronization of the various laws and regulations that govern this area of ​​regional government.

In addition to obtaining comprehensive and complete data on laws and regulations for certain fields, research with this approach can also find weaknesses in the laws and regulations that regulate certain fields. Thus the researcher can make recommendations to complement the shortcomings, remove the overlapping advantages, correct existing deviations, and so on. The results of this research are not only useful for law enforcers, but also for scientists and legal education.