URGENCY CRITICAL LEGAL STUDIES PARADIGM FOR THE PROTECTION OF WOMEN VICTIMS OF DOMESTIC VIOLENCE IN THE

This research describes the protection of women victims of domestic violence in divorce cases. Domestic violence victims are hidden in divorce cases in the Religious Courts. The positivistic paradigm adopted by the Judges gives less protection to victims of domestic violence. The method used in this study is a qualitative method, a type of doctrinal legal research with a socio-legal approach. Domestic violence victims in the Religious Courts need a new paradigm to provide protection for victims of domestic violence. Religious Court Judges who have a positivistic paradigm see the law as a book (act). The judge in examining the domestic violence in divorce only adheres to the law relating to marriage, namely Law No. 1 of 1974 and Compilation of Islamic Law. Paradigm of Critical Legal Studies. build critical awareness in law enforcement by improving the legal system and carrying out a reformation in the institutions responsible for the protection of victims of domestic violence, one of which is the Religious Courts. 168 SYARIAH: Jurnal Hukum dan Pemikiran Volume 18, Nomor 2, Desember 2018, hlm. 167-191 Also consider the PKDRT Law No. 23 of 2004 concerning the elimination of domestic violence even covering legal culture of family, community , health and psychological .


Introduction
Ultimately legal postivism produces objectivism and formalism.
In the construction of the paradigm of postivism, then the set of legal  In another event for various divorce claim cases, after a holistic analysis was conducted, in terms of psychology, a case was found that actually there was a divorced woman who did not want to divorce.but instead stated that he wanted to return to her husband to defend his marriage, the divorce claim actually only wanted to make her husband aware of not doing domestic violence.
This data must also be read that a wife who filed a divorce to court did not all want a divorce.These data can also be a sociological basis as well Moreover, it turns out that the perpetrator's wife of violence actually did not want to divorce (read: separate) from her husband despite having committed domestic violence.
However, because the religious court is passive 18 , the verdict that punishes the husband for counseling must be based on the lawsuit filed by 18 Yahya M Harahap , Kedudukan kewenangan dan acara Peradilan Agama, Jakarta: Pustaka karsuni, 1990), p.122 the wife.In other words, a wife in a divorce suit who argued that there was a domestic violence, also filed a petitum so that the husband was sentenced to counseling, because if the court decided by amar to determine the husband followed the counseling, while in the petitum his wife did not submit the matter, the violating judge of the ultra petita principle.
Therefore, divorce claims on the grounds that domestic violence is declared proven, therefore the lawsuit is granted in accordance with the petitum.This means that the divorce lawsuit granted by amar is usually dropped the Talak bain sughra (husband).And if the wife also proposes petitum so that the husband follows the counseling, then with the same evidence, the judge has no reason to refuse to punish the husband for counseling.In the tradition of legalpositivism thinking, which is widely  (Anonim, 2018).

Efforts made by the Religious
According to Gerhard Robbers The most important task of a judge is to impose a verdict on the case he received and examined.
Judges' decisions will be felt so

14Domestic
Grafik dimuat dalam Catatan Tahunan CATAHU Komnas Perempuan (https://www.komnasperempuan.go.id, downloaded August 18, 2018) violence in 21 percent, and violence against girls, at 18 percent.The rest is violence by ex-husbands and exgirlfriends, violence against domestic workers and other personal domain violence.The high number of domestic violence cases against wives is linear with data in the Religious Courts, that more than half of divorce cases handled by the MA (Supreme Court) victims who are wrapped up in the cycle of violence, the cycle of isolation and confined to the power of the perpetrator, is very useful for judges in exercising their authority to resolve this family case.In general, women victims of domestic violence come to the Religious Courts to settle the domestic crisis is the final choice after taking various solutions.This is evident in almost all cases in the Religious Courts which have always stated that there has been a peace effort (mediation) for both parties, but failed.Judges have the authority to seek settlement of kinship before deciding to terminate the marriage.With such a situation, when interpreting matters in the Religious Courts it is important to be able to examine the issues in more depth and empathize with the victims.Judges in the Judge's Code of Conduct established by the Chair of the Indonesian Supreme Court are required to be fair.This means that the judge must place the parties equally before the law.However, judges are also required to be wise and prudent in the sense that judges must pay attention to gender fair norms that live in society, whether it is legal norms, religion, morality, and pay attention to the situation and conditions that exist and are able to take into account the consequences of their decisions.A holistic view is needed by Judges in the Religious Courts, it requires a new paradigm of thinking in the field of law such as the Critical Legal Studies paradigm, a new paradigm of thinking about the operation of law.Critical Legal Studies was born to fight for justice for the oppressed, the law in this paradigm not only applies the principle of certainty but more broadly is the principle of justice.How to achieve this common goal is an effort and steps that have been tested for decades in the world.Based on this background, it is very important to analyze the protection of women victims of domestic violence in divorce cases in the Religious Courts with the paradigm of Critical Legal Studies, which encourages judges to be more sensitive to domestic violence issues that are often hidden in divorce cases in the Religious Courts.This research is a doctrinal legal research with a socio-legal approach.The data obtained from the research library with the method used is qualitative 4 Strauss and J Corbin, Busir, Qualitative Research, Grounded Theory Procedure and Techniques, London: Sage Publication, 1990.p.34 See also J.L.K Valerine, Metode Penelitian Hukum: Kumpulan Bahan Bacaan untuk Program S2 dan S3 (Jakarta: Program Pascasarjana FHUI, 2014 .p.82

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fight for justice for oppressed people / society by using various aspects of human life and society.This is different from the current legal studies in the world, in legal positivism, legal certainty will only be realized if the law is considered a closed and autonomous system of various moral, religious, philosophical, political, historical and similar problems.For the adherents of legal positivism, legal certainty will be achieved not only because the law is formed by an authorized institution by following the system of legislation in force, but also if the law can work together -in a scientific framework - legal theory has been initiated as a reaction to the phenomenon of injustice that occurs in society.One theory that highlights injustice in the implementation of law in society, questions legal neutrality.These legal theories emerged along with the development of the critical legal studies movement in the United States.The movement which later developed into a new paradigm in looking at the law.Critical Legal Studies is a paradigm that seeks to 15 Syamsudin.M. Rekonstruksi Pola Pikir Hakim Dalam Memutus Perkara Korupsi Berbasis Hukum Progresif, Jurnal Dinamika Hukum.Vol.11No.1.Januari.2011 .UNSOED Purwokerto.2011.p.11-13 make a breakthrough towards the enactment of the law which has given rise to discrimination against the weak (one of them is women).Women in various domestic violence cases often have to face a dilemma.Domestic violence victims must choose between reporting violence perpetrators who are none other than their own husband who has been providing a living for the family or not reporting, which means women must forgive the perpetrator or allow violence to occur 16 .Legal conditions that do not provide this option, make women prefer to be silent, and allow themselves to be ensnared in conditions that are considered to have the least risk, namely allowing violence to continue and their rights neglected, or divorced.Domestic violence should indeed be part of the general court.However, in the event of a divorce, in the end it becomes the authority of the Religious Court.While in reality, the domestic violence problem can be considered a new item for Religious Judges.The judges need to be armed with knowledge about domestic violence to be able to resolve the case so that it is in tune with the sense of justice desired by the community.Mastery of Law No. 23 was made by Religious Court judges in the divorce case, the judge not only referred to the law directly related to the case, but also explored other relevant regulations.That is to include the Domestic Violence Law as its legal reasoning, in fact, Blaming by Institutional Stakeholders in Cambodia, Journal Of InterpersonaViolence .Publish by Sage.May 2017.32(9).p.1359 .be seen in the conditions that occur at that time Judges in the Religious Courts are time to shift from the paradigm of legal positivism to critical legal studies.The positivism paradigm is indeed unable and unable to interpret unequal power relations in a case that occurs in society, it is time for Religious Court judges to pay attention to the critical legal studies paradigm, that victim-centered policy considerations provide guidance for organizing legal materials, for evaluate and make changes to the law, and the application of law, together with other policy considerations, all of which are recognized as sources of law.Politically, the basic values in question are underlying vision and priorities, and thus strategies to advance the interests of victims of domestic violence (most of whom are women).Applying legal provisions in divorce cases in which there is domestic violence in the paradigm of Critical Legal Studies is to apply a legal perspective holistically, namely by examining the legal provisions while remembering the experiences and interests of victims of domestic violence (usually women).The purpose of examining legal provisions holistically is to understand them in total.Understanding the legal provisions that cause and cause women to experience injustice and discrimination requires a thorough study of the law and women's experience.This means that we must find and identify relationships in the prevailing legal system, in the prevailing social system, in various fields such as historical background, economics, religion, politics, culture, psychology, and biology and so on.Mastery and holistic analytical skills Religion Court Judges are urgently needed to deepen sociopolitical and economic analysis in every divorce case so that its strategic role in eradicating domestic violence at the Religious Court level is maximized.In the paradigm of critical legal studies, the Judge can see divorce claim cases on the grounds that domestic violence is more holistic, it can be with economic and social reviews, for that the Judge can ex officio determine in his ruling that the husband is still charged with mut'ah living which must be paid to his wife, and The judge can look for juridical references, namely Article 147 of the Compilation of Islamic Law.In practice so far, generally the wife who filed for divorce for various reasons including the reason for the occurrence of domestic violence, only included petitum requesting the religious court to divorce the marriage between the wife and her husband.Starting from the petitium and based on valid evidences, the religious court granted the divorce claim with amar dropping the divorce of one bain sughra without the other amor.However, behind this, after the religious court judges participated in various trainings related to gender justice, there were several legal breakthroughs which included amber which sentenced husbands to commit domestic violence in the form of financial charges packaged in mut'ah terms, as compensation for the suffering suffered by wife. .The actual use of the term mut'ah is not appropriate, but using the legal term "compensation" is also far less irrelevant, because "compensation" is outside the scope of authority religious court.The term "compensation" in practice is a compensation for acts against the law that are the jurisdiction of the general court.Presumably the legal ijtihad of the first level judges is in line with the Supreme Court, as seen in jurisprudence number 137 K / AG / 2007 dated February 6, 2008.Legal considerations in the Supreme Court ruling reads that the wife who sues for divorce is not always punished by nusyuz so that the husband is the defendant was convicted of paying a living to his wife, because his wife underwent a term which involved the interests of her husband.Despite the different cases, the Supreme Court found a ratio decidendi which could be used as a basis for punishing a husband who committed domestic violence against his wife.

Court
Judge to provide protection to the victims of domestic violence by divorcing marriages and providing financial compensation or counseling for the husband of perpetrators of domestic violence are the efforts made by the Judge to achieve justice.The Judge's decision ideally based on the principle of independence and independence which is reflected in every decision of the Court, is substantially a decision that can be accounted for both vertically and horizontally.Vertically it can be accounted for to God Almighty, according to the principle that is a bond that is "For the sake of justice based on the Almighty God".This decree must be pronounced when deciding the case, because if you don't or forget to read it, the decision is null and void.These images describe a sense of kebatinan that before a judge taps a hammer, it means he has communicated intensely with his Lord .Decisions must also be accounted for horizontally, namely the decisions produced must be morally accountable to humans, in accordance with the objectives of the law itself.Pancasila in the context of systematic systematization in the main points of the 1945 Constitution.These main points include the mystical atmosphere of the 1945 Constitution and the realization of legal ideals (Rechtidee) which master the basic laws of the state both written and unwritten laws, so affect the torso, namely the articles contained in the 1945 Constitution and all legal products that are under it.In carrying out its duties and functions, every element of the law enforcement apparatus has been equipped with a set of rules and professional codes of ethics as guidelines that must be followed.achieving a simple, fast, and lowcost trial (Article 4 paragraph 2) c.Constitutional judges and judges must dig, follow, and understand the legal values and sense of justice that lives in society (Article 5 paragraph 1) d.The court is prohibited from refusing to examine, hear, and decide on a case that is filed on the pretext that the law does not exist or is unclear, but is obliged to examine and try it (Bringing together the rule of law with social changes so that the actual legal rules are able to meet the needs in accordance with changes in society.The use of interpretation as the influence of community development basically opens up opportunities for judges to progress lawfully.The judge not only explores the values that live in the community but also follows the development of the appreciation of these values in the community.This is where the meeting point between legal discovery and progressive law provides convenience and possibilities for judges to produce new breakthroughs in deciding cases .In this case the judge carries out his role as a judicial institution by doing legal interpretation of the existing rules to produce a rule of law as a basis for adjudicating.With the freedom to interpret, the judge can also find the law in every interpretation.From the word "legal discovery" implicitly shows the existence of a law that has been applied in the community, but it is not clearly known so that it takes effort to get it. a case is a 20 Anonim.Pedoman Perilaku Hakim (Code of Conduct) Mahkamah Agung Republik Indonesia.2018 crown for the judge and must be guarded and respected by all parties who can intervene in the judge in carrying out their duties.Judges in making decisions, must consider many things, both those relating to the case being examined, the level of actions and errors committed by the perpetrator, to the interests of the victim and his family and also consider the sense of justice of the community.Judges have free discretion, their feelings about what is right and what is wrong are the real direction for achieving justice.With an independent judicial power, this will support the judge's performance in deciding the case that confronted him in deciding the case he faced.Judges in the trial must pay attention to the principles of the judiciary with the aim of making the decision objectively without being tainted by personal interests or other parties by upholding the principle.In addition, judges are also not justified in showing impartiality or sympathy for parties who are litigants, both in speech and behavior.
appreciated and have authority values, if the decision reflects the sense of legal justice of the community and is also a means for justice seekers to get truth and justice.So, in its decision the judge must consider all aspects of institutions responsible for the protection of victims of domestic violence, one of which is the Religious Court.In connection with this, the planting of critical awareness is necessary as an effort to improve the thinking paradigm of law enforcers, in this case the Religious Court Judge does not see the law positivistically as a law related to marriage, namely Law No. 1 of 1974 and Compilation of Islamic Law, but more holistic, taking into account the PKDRT Law No. 23 of 2004 concerning the elimination of domestic violence even covering legal culture of family, community , health and psychological .