Normative Analysis of Freedom of Speech in Indonesia According to Positivism Theory Reviewed from the Perspective of Legal Philosophy

Abstract

This study analyzes the implementation of freedom of speech in Indonesia within the framework of legal positivism theory, especially Hans Kelsen's perspective. Freedom of speech, which is guaranteed by the 1945 Constitution, is often limited by laws such as the Electronic Information and Transactions Law (UU ITE) and the Criminal Code (KUHP) which function to maintain public order and protect the rights of other individuals. This research method uses a normative legal approach with an analysis of laws and regulations, legal literature, and official documents. The results of the study show that the application of the positivism theory, which separates law from morality and emphasizes strict application of rules, often ignores the legal hierarchy that places the 1945 Constitution as the highest law. This results in law enforcement that tends to be rigid and less adaptive to dynamic social and political contexts, and can reduce the effectiveness of human rights protection, especially in the context of freedom of speech. This approach provides legal certainty but creates a mismatch between legal practice and constitutional principles and international standards.