Jurnal IUS Kajian Hukum dan Keadilan

Volume 11, Issue 3, December 2023, E-ISSN 2477-815X, P-ISSN 2303-3827

Nationally Accredited Journal, Decree No. 158/E/KPT/2021
open access at : http://jurnalius.ac.id/

The Legal Certainty for Resolving Consumer and

Business Actor Disputes from the Perspective of
Social Engineering Justice from Roscoe Pound
Sri Lestari
Universitas Muslim Indonesia, Indonesia, Email: sri.lestari@umi.ac.id
Received: 2023-10-06; Reviewed: 2023-11-12; Accepted: 2023-12-27; Published: 2023-12-27

Abstract
Legal certainty in resolving disputes between consumers and business actors is
important so that fair disputes and harmonious relations remain for business actors
and consumers. Even so, there are juridical problems related to legal certainty in
resolving consumer disputes, namely the lack of clarity regarding the orientation of
litigation and non-litigation settlements. Facing these problems, this research aims to
analyze the reconstruction of consumer dispute resolution referring to Roscoe Pound’s
social engineering theory. This research is normative legal research by prioritizing
conceptual and statutory approaches. The research results confirm that to ensure
legal certainty, changes or revisions to laws and regulations related to consumer
protection need to be made to ensure justice in consumer disputes. Reconstruction of
consumer dispute resolution refers to the social engineering theory of Roscoe Pound,
so it is necessary to emphasize that consumer disputes must be optimized non-
litigationally first through BPSK and if not satisfied, can file a simple lawsuit in
court as an effort to minimize the costs and time associated with consumer disputes.
Keywords: Legal Certainty; Legal Disputes; Social Engineering.

1. INTRODUCTION

Consumer disputes are actually something that is common in the business

world. Consumer disputes are a form of disagreement between consumers and
business actors regarding certain matters which have implications for the rights
and obligations of both consumers and business actors.1 With this understanding,
consumer disputes that inevitably occur must be handled wisely and based on
the provisions of statutory regulations. Procedures and mechanisms regarding
consumer disputes have actually been regulated in positive law to provide
protection and guarantee legal certainty for consumers and business actors in
dispute.2 The procedures and mechanisms regarding consumer disputes in the
Indonesian constitution, namely the 1945 NRI Constitution, are actually an
effort to guarantee protection, certainty and optimization of legal procedures
to provide protection for parties in dispute in accordance with the provisions of
Article 28D paragraph (1) of the 1945 NRI Constitution. Furthermore, consumer
1
Neelam Chawla and Basanta Kumar, “E-Commerce and Consumer Protection in India: The Emerging
Trend,” Journal of Business Ethics 180, no. 2 (2021): 581–604, https://doi.org/10.1007/s10551-021-04884-
3.
2
Wetria Fauzi Nedi Pernando, Busyra Azheri, “Perlindungan Hukum Terhadap Konsumen Atas Ker-
usakan Barang Pengguna Jasa Pengiriman Angkutan Online,” Soumatera Law Review 4, no. 1 (2021): 6.

DOI: http://dx.doi.org/10.29303/ius.v11i3.1309
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disputes in Indonesia are specifically regulated in Law no. 8 of 1999 concerning

Consumer Protection (hereinafter referred to as PK Law). Article 4 e of the PK Law
actually confirms that effective dispute resolution and guaranteeing legal certainty and
protection are part of consumer rights.
This means that regulations regarding consumer disputes must be comprehensive to
ensure the fulfillment of consumers’ rights to obtain legal certainty and protection in
relation to consumer disputes. Article 45 of the PK Law also emphasizes procedures for
resolving consumer disputes. Article 45 paragraph (1) of the PK Law actually confirms
that consumer disputes are resolved through local court institutions. However, consumer
dispute resolution can also be carried out through out-of-court dispute resolution (non-
litigation) depending on the choice and voluntary will of the disputing parties.3 Apart
from that, the PK Law also specifically facilitates the establishment of a Consumer
Dispute Resolution Agency (BPSK) which has the main task of resolving disputes
that occur between consumers and business actors. Article 52 letter a of the PK Law
emphasizes that BPSK has the task of facilitating consumer settlements that focus on
conciliation, mediation and arbitration. If you understand the substance of Article 52
letter a of the PK Law above, BPSK actually focuses on resolving consumer disputes that
are non-litigation or outside of court.
This is reinforced by the provisions in Law no. 30 of 1999 concerning Arbitration
and Alternative Dispute Resolution (ADR Law) which confirms that several methods
of resolving disputes outside the court include conciliation, mediation and arbitration.
The practice of resolving consumer disputes at BPSK refers to data from the Directorate
of Consumer Protection and Orderly Commerce that in 2020, of the 4,468 consumer
disputes handled by BPSK, 2,597 disputes were resolved through mediation, 1,492 were
resolved through arbitration, and 380 disputes were resolved through conciliation.4
Even so, from this data, 578 cases failed to be resolved and 151 cases were objected
to. From this description, there are juridical problems related to resolving consumer
disputes in Indonesia. Legal uncertainty regarding the resolution of consumer disputes
in Indonesia is increasingly visible in the formulation of Article 45 paragraph (2) of the
PK Law which confirms that consumer disputes can be conducted through litigation or
non-litigation.
The word “can” as formulated in Article 45 paragraph (2) of the PK Law creates
legal uncertainty because in legislative science, the word “can” means ability or choice.
The above means, referring to the lexical provisions in Article 45 paragraph (2) of
the PK Law that consumer dispute resolution can be carried out through litigation or
non-litigation as well as other efforts. This has the potential to lead to unsystematic
consumer dispute resolution so that there are many disputes that are not handled and
are not resolved optimally. Based on the description above, this research focuses on the
analysis of legal certainty regarding consumer dispute resolution based on statutory
3
Caroline Cauffman and Catalina Goanta, “A New Order: The Digital Services Act and Consumer Protection,”
European Journal of Risk Regulation 12, no. 4 (2021): 758–74, https://doi.org/10.1017/err.2021.8.
4
Ahmad Wahidi, Mustaklima Mustaklima, and Nur Jannani, “The Authority of Badan Penyelesaian Sengketa
Konsumen (BPSK) and Tribunal Tuntutan Pengguna Malaysia (TTPM) in Consumer Dispute Resolution,” Jurnal
Penelitian Hukum De Jure 23, no. 1 (2023): 87, https://doi.org/10.30641/dejure.2023.v23.87-100.

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regulations and how the reconstruction of consumer dispute resolution refers to Roscoe
Pound’s social engineering theory.
Research that discusses consumer disputes has actually been analyzed by three
previous researchers, including: (1) research conducted by Sitepu and Muhamad (2021)
which discusses the effectiveness of consumer disputes by BPSK.5 The novelty of Sitepu
and Muhamad’s (2021) research is that it confirms that additional BPSK authority is
needed to make BPSK’s authority more effective. Further research by (2) Suhardin, et al.
(2022) which discusses efforts to resolve consumer disputes through conciliation. The
novelty of research conducted by Suhardin, et al. (2022), namely that the commitment
of the parties to resolve disputes by conciliation at BPSK is needed so that BPSK obtains
a comprehensive report regarding the dispute that occurred.6 Further research by (3)
Sukirman, et al. (2023) which discusses e-commerce dispute resolution. The novelty
of research conducted by Sukirman, et al. (2023) is that e-commerce consumer dispute
resolution can be done post- and pre-purchase to ensure justice for the parties.7
The three previous studies above further emphasize that the author’s research
discussing consumer dispute resolution referring to Roscoe Pound’s social engineering
theory is original and has not been discussed comprehensively by the three previous
researchers. This research which focuses on consumer disputes is actually normative
legal research. In normative legal research, legal theory and statutory regulations are
the main focus of analysis.8 The primary legal materials in this research are the PK Law
and the ADR Law. Secondary legal materials consist of literature results such as journal
articles, books, and research results discussing consumer disputes and Roscoe Pound’s
social engineering theory. Non-legal materials are language dictionaries. Data analysis
was carried out qualitatively by collecting and categorizing existing legal materials
and adapting them to the research objectives. The approach used is a conceptual and
statutory approach.

2. ANALYSIS AND DISCUSSION

2.1. The Legal certainty for Resolving Consumer Disputes

Consumer disputes are actually a common thing that occurs in legal relationships
between business actors and consumers. Linguistically, “dispute” means a difference in
views, opinions or perceptions regarding something.9 Referring to this view, a consumer
dispute is a difference in views, opinions or perceptions regarding the legal relationship
between business actors and consumers. In the PK Law itself, there is actually no

5
Rida Ista Sitepu and Hana Muhamad, “Efektifitas Badan Penyelesaian Sengketa Konsumen (Bpsk) Sebagai
Lembaga Penyelesaian Sengketa Konsumen Di Indonesia,” Jurnal Rechten : Riset Hukum Dan Hak Asasi Manusia 3,
no. 2 (2022): 7–14, https://doi.org/10.52005/rechten.v3i2.79.
6
dan Yohanes Suhardin Cindy Octabriel Sirait, Janus Sidabalok, “Upaya Mempertahankan Hak Konsumen
Melalui Penyelesaian Sengketa Dengan Cara Konsiliasi Di Badan Penyelesaian Sengketa Konsumen Kota Medan,”
Fiat Iustitia: Jurnal Hukum 3, no. 1 (2022): 93–113.
7
Rizky Amelia et al., “Penyelesaian Sengketa Konsumen Dalam E-Commerce Di Indonesia,” Fundamental: Jur-
nal Ilmiah Hukum 12, no. 1 (2023): 199–210, https://doi.org/10.34304/jf.v12i1.92.
8
Zainudin Ali, Metode Penelitian Hukum (Jakarta: Sinar Grafika, 2009).
9
Pusat Bahasa Departemen Pendidikan Nasional, Kamus Bahasa Indonesia (Jakarta: Departemen Pendidikan
Nasional, 2008).

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definition that expressively explains consumer disputes.10 However, by referring to

the term consumer dispute in the linguistic meaning above, it can be concluded that
consumer dispute generally means differences in views, opinions or perceptions
regarding claims for something related to consumer protection law. Consumer disputes
are something that inevitably occurs in the legal relationship between consumers and
business actors, so the law needs to provide regulations that explain the mechanisms
and procedures for resolving consumer disputes. The importance of legal regulations
regarding the resolution of consumer-related disputes is actually agreed by Ahmad Miru
that legal regulations that discuss the resolution of consumer-related disputes have two
aspects, namely the integrative aspect and the restitutive aspect.11
In the integrative aspect, legal regulations relating to the resolution of consumer-
related disputes are intended to bring together and reconcile business actors and
consumers regarding the subject matter of the dispute.12 Efforts to bring together and
reconcile business actors and consumers are carried out through certain procedures
and mechanisms so that it is hoped that a fair for the parties. Second, in the restitutive
aspect of regulation regarding consumer disputes, it is hoped that it can provide a sense
of justice for parties in dispute, especially for parties whose rights have been violated so
that they can receive appropriate restitution or compensation. In this restitutive aspect,
consumer dispute resolution must be based on the provisions and procedures regulated
by the state.13 In Indonesia, regulations regarding consumer disputes are specifically
regulated in Article 45 of the PK Law. In Article 45 paragraph (1) of the PK Law, it
is emphasized that in general consumer disputes can be resolved through the scope of
courts in the area of competence of courts within the scope of the General Court. Even
so, if you read systematically between Article 45 paragraph (1) of the PK Law and Article
45 paragraph (2) of the PK Law, then in fact there are alternative or optional options for
resolving consumer disputes either through litigation (in this case through mechanisms
and procedures in court) or through non-litigation channels (through processes and
channels outside the court).
Referring to the provisions of Article 45 paragraphs (1) and (2) of the PK Law above,
there are actually two legal problems related to the regulation of consumer dispute
resolution, namely: first, if you read systematically the provisions in Article 45 paragraphs
(1) and (2) The PK Law above means there is actually a dualism in resolving consumer
disputes, both through litigation and non-litigation.14 Problems occur when the PK Law
only provides optional or alternative space regarding the resolution of consumer disputes,
whether resolved through litigation or non-litigation. In practice, this can happen when
a consumer dispute is resolved non-litigationally and one of the parties does not accept
10
Rusmiyah, “Upaya Hukum Perlindungan Konsumen Terhadap Pengguna Jasa Angkutan Kereta Api Di Indo-
nesia,” Jurnal Legisia 14, no. 2 (2022): 152–64.
11
Abdul Halim Barkatullah, Hak-Hak Konsumen, 1st ed. (Bandung: Hikam Media Utama, 2019).
12
Tomáš Peráček, “E-Commerce and Its Limits in the Context of the Consumer Protection: The Case of the Slo-
vak Republic,” Juridical Tribune 12, no. 1 (2022): 35–50, https://doi.org/10.24818/TBJ/2022/12/1.03.
13
Afif Noor et al., “Regulation and Consumer Protection of Fintech in Indonesia,” Linguistics and Culture Review
6, no. August 2021 (2021): 49–63, https://doi.org/10.21744/lingcure.v6ns3.1938.
14
K Hidayag and A Witasari, “Tinjauan Yuridis Perlindungan Hukum Terhadap Konsumen Dalam Transaksi
Jual-Beli Secara Online (E-Commerce),” in Prosiding Konstelasi Ilmiah Mahasiswa UNISSULA, 2022, 275–91, http://
jurnal.unissula.ac.id/index.php/kimuh/article/download/20466/6606.

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the results, so they can submit a further process through litigation. This process tends
to be long and protracted even though the legal relationship between consumers and
business actors can be seen in the realm of economics and business which prioritizes
profit or economic aspects.15 This means, with this optional formulation, it actually has
the potential to make the consumer dispute process take longer with the potential for
the practice that when non-litigation dispute resolution is not satisfactory, it is resorted
to in litigation so that it will take a lot of time and costs so it is not efficient.
Second, the formulation of the provisions of Article 45 paragraph (2) of the PK Law
is also problematic because it emphasizes that consumer disputes “can” be resolved
through litigation and non-litigation. The word can here creates legal ambiguity and
has implications for the lack of legal certainty in resolving consumer disputes. The
word can in the formulation of statutory regulations means alternative.16 By referring
to the formulation of Article 45 paragraph (2) of the PK Law, the words can mean that
consumer disputes can be resolved through litigation, non-litigation, or other channels.
This happened because of the incorrect formulation of the word can in Article 45
paragraph (2) of the PK Law. Based on the two legal problems related to consumer dispute
resolution above, the problem is efforts to resolve consumer disputes proportionally,
both through litigation and non-litigation.
Disproportionate regulations as regulated in Article 45 paragraph (2) of the PK
Law above, actually have implications for resolving consumer disputes, for example
in 2016-2020 there were 578 consumer dispute cases that failed to be resolved out of
a total of 4,468 consumer dispute cases.17 This actually shows that there are around
more than 10% of all consumer dispute cases that fail to achieve the results that the
parties expected. The existence of this phenomenon actually shows that there has been
legal uncertainty regarding the provisions of consumer disputes. The legal uncertainty
regarding consumer disputes as regulated in Article 45 paragraph (2) of the PK Law
above must also be understood in relation to the birth of the PK Law which emphasizes
consumer protection including providing freedom to resolve disputes through litigation
and non-litigation. Even though they have good intentions, the problems related to legal
uncertainty through the formulation of Article 45 paragraph (2) of the PK Law must
also be criticized because the legal uncertainty regarding the regulation of consumer
disputes actually has implications for disputes that last for a long time and appear to not
achieve the desired results. the parties.
The importance of legal certainty in the formulation of statutory regulations is
important so that the good intentions of the legislators can be implemented properly
through the preparation of good statutory regulations.18 Legal certainty in the formulation
of statutory regulations also has relevance, especially in relation to two aspects, namely:
15
Nurul Fibrianti, “Konsumen Indonesia: Dilindungi Dan Melindungi,” Jurnal Hukum Progresif 11, no. 1 (2023):
71–81, https://doi.org/10.14710/jhp.11.1.71-81.
16
Maria Farida Indrati, Ilmu Perundang-Undangan(1) (Jenis, Fungsi, Materi Muatan) (Yogyakarta: Kanisius,
2007).
17
Misnar Syam et al., “Consumer Protection Enforcement Law Characteristics on Civil Law Aspects in Indone-
sia,” Linguistics and Culture Review 5, no. S2 (2021): 1471–81, https://doi.org/10.21744/lingcure.v5ns2.1976.
18
Paola IAMICELI Fabrizio CAFAGGI, “Uncertainty, Administrative Decision-Making and Judicial Review: The
Courts’ Perspectives,” European Journal of Risk Regulation 14, no. 2 (2021): 3.

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first, viewed theoretically, legal certainty is one of the basic values of law as formulated
by Gustav Radbruch. In Gustav Radbruch’s view, the three basic legal values include
justice, benefit and certainty.19 The value of certainty as one of the basic values of law is
important considering that in an effort to protect the community and individual rights.
Patricia Popelier emphasizes the importance of aspects of legal certainty which include
three things, namely:20: Firstly, in relation to statutory regulations, legal certainty is very
important, especially how certain legal regulations are implemented. Patricia Popelier
even emphasized that legal certainty should be as rigid (complex) as possible, especially
with regard to individual rights.21
Second, legal certainty relates to whether a legal rule is applicable or not. This means
that the more certain legal rules are, the easier they are to be implemented in society.
Third, legal certainty is related to how easy it is for the public to find out whether a
legal regulation is still valid or not.22 By formulating laws that guarantee legal certainty,
the validity of the law can be easily understood and known by the public. In connection
with Patricia Popelier’s views above, Jaap Hage emphasizes that the function of legal
certainty finds its relevance when it comes to a Continental European-based state system
(civil law) which prioritizes the role of rules as the heart of law.23 Referring to the views
of Patricia Popelier and Jaap Hage above, in relation to consumer dispute resolution
as regulated in Article 45 paragraph (2) of the PK Law, it actually creates confusion
when providing options regarding consumer dispute resolution, both litigation and non-
litigation. This confusion occurs due to an error in formulating the word “can” which
means alternative so that the understanding is that consumer dispute resolution is the
consumer’s choice, whether through litigation, non-litigation or other resolution.
In fact, in order to better guarantee legal certainty, the regulations should not contain
the word “can” but simply formulate that consumer dispute resolution is carried out
through litigation and non-litigation. Apart from that, further provisions must also
explain each consequence of consumer dispute resolution options so that consumer
dispute resolution carried out via litigation and non-litigation does not overlap and
slow down the time for resolving consumer disputes and create dispute resolution
inefficiencies. Based on the results of the analysis above, it can be concluded that the
resolution of consumer disputes as regulated in statutory regulations does not actually
guarantee legal certainty due to the legal ambiguity of the word “can” which is alternative
and optional in nature so that it is possible for there to be overlap in dispute resolution
between litigation and non-litigation channels. litigation. To ensure legal certainty,
changes or revisions to statutory regulations related to consumer protection need to be
made to ensure that aspects of legal certainty can be implemented in consumer disputes..
19
E. Fernando M. Manullang, “Misinterpretasi Ide Gustav Radbruch Mengenai Doktrin Filosofis Tentang Validi-
tas Dalam Pembentukan Undang-Undang,” Undang: Jurnal Hukum 5, no. 2 (2022): 453–80, https://doi.org/10.22437/
ujh.5.2.453-480.
20
A’an Efendi Dyah Ochtorina Susanti, Ilmu Hukum, 1st ed. (Jakarta: Prenadamedia Group, 2021).
21
A’an Efendi.
22
Avelia Rahmah Y. Mantali Sardjana Orba Manullang, Mawarni Fatma, Rai Iqsandri, “Legal Certainty Aspects
in Regulation of the Attorney General Number 15 of 2020 Concerning Termination of Prosecution Based on Restor-
ative,” Legal Brief 11, no. 5 (2022): 3291–98, https://doi.org/10.35335/legal.
23
Itok Dwi Kurniawan, “Correlation between Justice, Legal Certainty, and Benefit in Law Enforcement in Indo-
nesia,” JIMPS: Jurnal Ilmiah Mahasiswa Pendidikan Sejarah 8, no. 4 (2023): 3970–77.

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2.2. The Reconstruction of Consumer Dispute Resolution Referring to Roscoe

Pound’s Social Engineering Theory
Legal uncertainty regarding consumer disputes as formulated in Article 45 paragraph
(2) of the PK Law is based on the inaccurate formulation of the word “can” as well as
a lack of understanding regarding the essence of litigation and non-litigation dispute
resolution. Regarding the inaccuracy in the formulation of the word “can”, it can be
understood that this is simply a technical problem in the preparation of statutory
regulations. It should also be noted that when the PK Law was drafted, legal science
in Indonesia was not yet advanced and comprehensive after 2011. This is because in
2011 guidelines for the formation of statutory regulations were formulated referring to
Law no. 12 of 2011.24 The drafters of the PK Law are of the view that the word “can” in
Article 45 paragraph (2) of the PK Law is intended to provide a choice whether consumer
disputes are carried out in litigation or not. Even so, the problem with the word “can”
in Article 45 paragraph (2) of the PK Law actually has significant implications in the
form of consumer disputes that can be carried out through litigation, non-litigation and
other efforts.
Another problem related to inaccurate wording in Article 45 paragraph (2) of the
PK Law also has the potential to cause dualism and disharmony in consumer disputes.25
This is because it is possible for non-litigation disputes to occur and dissatisfaction is
then followed by a litigation process which tends to take a long time so that justice in
consumer disputes is very difficult to achieve. In this context, the drafters of Article
45 paragraph (2) of the PK Law actually failed to understand the essence of dispute
resolution, both through litigation and non-litigation. Litigation dispute resolution is
actually interpreted as resolving disputes by referring to the applicable legal system
where the peak of dispute resolution is usually in court institutions.26 The orientation
of the litigation dispute resolution process is oriented towards the validity of evidence
and special procedures which are commonly referred to as procedural law. Because
it emphasizes the validity of evidence and special procedures, it is natural that the
court process sometimes takes a long time and costs a lot of money. It is this efficiency
problem that apart from litigation settlement, there is room for non-litigation settlement.
Referring to Article 6 of the ADR Law, it is actually emphasized that non-litigation
dispute resolution is actually an effort to resolve disputes and conflicts without relying
on court procedures.27
In fact, Article 6 of the ADR Law also emphasizes that if it is tied to non-litigation
settlement then its provisions can also exclude procedures in the process of disputes
in court institutions. Referring to the ADR Law and the basis for the formulation of
the PK Law, it can be understood that the substance of the PK Law which provides
24
Ahmad Redi, Hukum Pembentukan Peraturan Perundang-Undangan, 1st ed. (Jakarta: Sinar Grafika, 2018).
25
Riyadus Solikhin, “Perkembangan Dan Urgensi Penerapan Online Dispute Resolution (ODR) Dalam Penyele-
saian Sengketa Perdagangan Elektronik Di Indonesia,” Padjadjaran Law Review 11, no. 1 (July 2023): 66–80, https://
doi.org/10.56895/plr.v11i1.1235.
26
Zil Aidi, “E-Litigation Sebagai Sarana Mewujudkan Asas Contante Justitie Pada Peradilan Perdata Di Indone-
sia,” Cendekia Hukum 6, no. 2 (2021): 208.
27
I Made Wahyu Chandra SatrianaNi Made Liana Dewi, “Non Litigation Dispute Resolution in Settlement of
Civil Disputes,” LEGAL BRIEF 10, no. 2 (2021): 215.

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space for the implementation of non-litigation dispute resolution can be understood as

an effort to make the process of resolving consumer disputes more certain and faster.
This is actually in line with the orientation of non-litigation dispute resolution, apart
from prioritizing the parties meeting to make joint decisions, it is also oriented so that
dispute resolution takes place more quickly and in a more focused manner. Referring
to non-litigation consumer dispute resolution as confirmed in the PK Law, referring to
the principle of lex specialis derogate legi generalis, what is referred to as non-litigation
dispute resolution is as confirmed in the ADR Law which includes: conciliation,
mediation and arbitration.
Further provisions regarding consumer disputes state that further resolution of
consumer disputes is the authority of BPSK. Article 52 letter a of the PK Law confirms
that BPSK has the authority to handle consumer disputes through conciliation, mediation
and arbitration. The unique characteristic of BPSK is that the BPSK Decision to show
its binding force must be registered at the local District Court as stipulated in Article 57
of the PK Law. If analyzed, the provisions for non-litigation dispute resolution in the
provisions of the PK Law actually have two weaknesses, namely: first, non-litigation
dispute resolution in the provisions of the PK Law does not explain, as emphasized
by the ADR Law, that non-litigation processes can exclude litigation processes. This
has implications for the possibility of BPSK decisions that have been registered in the
District Court and then being submitted to another lawsuit process which takes quite
a long time and process.28 Second, the PK Law also does not state that if non-litigation
measures are taken, they can be formulated in litigation if the parties in particular want
a more valid and evidence-based judicial process. The absence of these provisions has
implications for legal uncertainty in resolving consumer disputes.
Efforts to improve or reformulate the PK Law are actually needed to ensure legal
certainty in resolving consumer disputes. To realize reconstruction or improvements
related to the provisions of the PK Law to ensure legal certainty in resolving consumer
disputes, it can be formulated by referring to the concept of social engineering as put
forward by Roscoe Pound. The concept of law as social engineering initiated by Roscoe
Pound emphasizes the creativity (legal creativity) of law makers so that the law can be
in accordance with the needs and developments of the times.29 Roscoe Pound’s rationale
actually emphasizes that the main characteristics of law are definite, rigid and text-based,
so it will be difficult for law to adapt to developments in society if it is not specifically
formulated. The specific formulation of law in Roscoe Pound’s perspective is intended
so that the law provides space for the needs and development of society so that the law
can guide society to a certain better attitude or behavior.30

28
Anna Maria Tri Anggraini et al., “Consumer Protection in the Retail and Financial Services Sectors against
the Practice of Exoneration Clauses,” Journal of Consumer Sciences 7, no. 2 (2022): 83–96, https://doi.org/10.29244/
jcs.7.2.83-96.
29
A.O. Okesola, “Law as a Means of Social Engineering: Some Perspective on Nigeria,” NAU.JCPL 9, no. 2
(2022): 105–18.
30
Xingzhong Yu William P. Alford, “Pound For Pound? Roscoe Pound’s Adventures In China And Questions
They Pose For Scholars Of Contemporary China,” Asian Law Review 18, no. 1 (2022): 1–32.

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Although basically Roscoe Pound’s ideas are identified with the orientation of
common law countries with the role of court decisions, Roscoe Pound’s ideas are also
suitable to be applied in civil law countries like Indonesia which prioritize the important
role of statutory regulations. There is an important orientation of Roscoe Pound’s ideas
to be implemented in Indonesia which is based on statutory regulations, namely31: First,
the idea of social engineering initiated by Roscoe Pound prioritizes legal responsiveness,
which means that the law must facilitate and provide space for social development in
society. This is relevant when in the preparation and formulation of statutory regulations,
social development in society can be facilitated. Second, the idea of social engineering
initiated by Roscoe Pound also emphasized that the law must regulate certain behavior
for society so that society can be regulated to behave in accordance with the purpose of
formulating a law.32 This view is relevant to the function of a law with an imperative
formula to regulate society so that it can behave in a certain way.
Referring to Roscoe Pound’s ideas about social engineering relating to legal uncertainty
in resolving consumer disputes actually emphasizes efforts to revise the PK Law by
referring to Roscoe Pound’s ideas about social engineering. In this case, revisions to the
provisions regarding consumer dispute resolution in the PK Law must pay attention to
legal certainty, effectiveness and efficiency, as well as the value of justice. Thus, consumer
dispute resolution as regulated in the PK Law must be revised with several orientations,
such as: (i) removing the provision for the word “can” in Article 45 paragraph (2) of
the PK Law so that it emphasizes that consumer dispute resolution is resolved non-
litigationally and can be submitted. in the litigation process, (ii) confirmation that
consumer dispute resolution must be emphasized on a non-litigation basis first through
BPSK and if not satisfied, can file a simple lawsuit in court as an effort to minimize the
costs and time associated with consumer disputes.

3. CONCLUSION

Consumer dispute resolution as regulated in statutory regulations does not actually

guarantee legal certainty due to the legal ambiguity of the word “can” which is
alternative and optional in nature so that it is possible for there to be overlap in dispute
resolution between litigation and non-litigation channels. To guarantee legal certainty,
changes or revisions to statutory regulations related to consumer protection need to
be made to ensure that aspects of legal certainty can be implemented in consumer
disputes. Reconstruction of consumer dispute resolution refers to Roscoe Pound’s social
engineering theory, so it is necessary to revise consumer protection laws. Revisions
to the consumer protection law were carried out by improving the formulation of
statutory regulations and emphasizing that consumer disputes must be optimized in a
non-litigation manner first through BPSK and if not satisfied, can file a simple lawsuit
in court as an effort to minimize the costs and time associated with consumer disputes.
31
Harwis Alimuddin M. Yusuf Yahya, “Roscou Pound: Hukum Sebagai Alat Rekayasa Sosial (Keterhubungannya
Dengan Kaidah La Yunkaru Tagayyur Al- Ahkam Bi Tagayyuri Azzaman),” Indonesian Journal of Shariah and Justice
2, no. 2 (2022): 148.
32
M. Yusuf Yahya.

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