Objective of-law-(eng)
- 1. OBJECTIVE OF LAW, LEGAL RINCIPLES, CLASSIFICATION OF LAW Oleh : Lily Mulyati, SH., MH.
- 2. 2 OBJECTIVE OF LAW Based on a point of view of L.J. Van Apeldoorn, the objective of law is to govern live association peacefully. Thus, law requires peace in the society. Peaceful condition in the society can be realized if the balance of interest of each society member is truly guaranteed by the law. The term “fairness” does not mean each member of society receives the same share, but it means that the interests protected by the law must be in balance. Lily Mulyati, SH., MH. 2
- 3. 3 1. Based on Aristoteles in his theory “Rhetorica”, there are two definitions of fairness: a. Distributive fairness. It means fairness giving each person a share based on his/her service. b. Commutative fairness. It means fairness giving each person the same share without regarding to each service done. 2. Prof. Soebekti, SH suggests that the objective of law is serving the objective of state, which is generating prosperity and happiness to the people. 3. Based on Bentham, the objective of law is ensuring happiness as much as possible existing in as much as people. Certainty is the main objective of law. 4. Prof. Van Kan suggests that the objective of law maintaining each interest of people to avoid disturbance. Meanwhile, Dr. Soedjono Dirdjosisworo, SH specifies that the subjective of law is to protect individual in relation to society, so that the realization of security, orderliness and fairness can be expected. Roscoe Pound argues that law aims to engineer people. Lily Mulyati, SH., MH. 3
- 4. 4 From varied points of view described above, it can be concluded that the objective of law is expecting the balance in interests, orderliness, fairness, tranquility, happiness of each people. Therefore, it is clear that the aim of law is to avoid disturbance toward the interest of each person individually or jointly by another person or group who always prioritizes personal interest or his/her group interest. Lily Mulyati, SH., MH. 4
- 5. 5 LEGAL PRINCIPLES The following are the opinions of Satjipto Rahardjo. The principle of law is an important and basic element of the rule of law. The principle of rule of law is the heart of law because in the broadest sense it is the basis for the birth of a particular law or it is the ratio legis of the law. Satjipto Rahardjo goes on to say that ultimately legal rules must be restored to these principles. If we observe the definition of legal principles as expressed by Satjipto Rahardjo above, then presumably we can draw the conclusion that basically what is referred to as a “the principles of law are the basic foundations of the law that contain their ethical values”. Lily Mulyati, SH., MH. 5
- 6. 6 Rule of law is the concrete provisions on how to behave in society, which is a concrete personification of the legal principle. Satjipto Rahardjo said that a legal principle is not a concrete legal norm because legal principle is the soul of the legal norm. A Legal principle is referred to as the soul of legal norm or rule of law because it is the basis for the birth of the rule of law, (it is the ratio legis of the rule of law). Exactly Satjipto Rahardjo statement that in the end all laws must be restored to its legal principles. As a concrete example that the principle of law is the soul of the rule of law, Satjipto Rahardjo given as follows: the principle of law that if a person who has done harm to others must compensate for the loss. Legal norm to be any act that is against the law and cause harm to other parties, must pay damages (see Article 1365 BW) Lily Mulyati, SH., MH. 6
- 7. Another example we can take for example in principle the law is not retroactive. Legal rules to be “no one can be punished, except for the power law that had existed before the act was done” (see Article 1 paragraph of the Criminal Code). From the example above can be seen that the principle of law is the soul of legal norms, legal norms are a concrete manifestation of the prinsiple of law. 7
- 8. 8 There are many principles of other laws such as: - The principle of presumption oj innocence (presumption of innocence) is that a person be presumed innocent before the judge’s decision stating that he was guilty and the decision will already have permanent legal force. - The principle of in dubio pro reo is in doubt apply the most favorable conditions for the defendant. - The principle of similia similibus is that the same case (a) must be disconnected the same (similar). - The principle of pacta sunt servanda is that the agreed contract applies as law for the parties concerned. - The principle of no punishment without guilt (zonder straft geen schuld) Lily Mulyati, SH., MH. 8
- 9. - Lex posteriori derogat lex priori : UU yang baru mengyampingkan UU yang lama. - The binding force of precedent stare decises : putusan yang terdahulu mengikat hakim-hakim lain untuk kasus yang sama - Lex superior derogat lex inferior : hukum yang lebih tinggi mengenyampingkan hukum yang lebih rendah. Misalnya : UU terhadap Perpu. With many examples and descriptions above, it is asserted that the background of concrete rules, because he is the general rationale underlying the abstract and the birth of any rule of law. A legal principle directions for the law makers and decision makers 9
- 10. 10 CLASSIFICATION OF LAW LAW A. Based On Its Formal Source 1. legislated law 2. customary and traditional law 3. legal jurisprudence 4. treaty law 5. contract law 6. legal science B. Based On Its Content Governed Interest 1. private law 2. public law C. Based On Its Power/Character 1. imperative law/coercive law 2. facultative law
- 11. 11 D. Based On Its Scope 1. general law 2. special law E. Based On Its Form 1. written a) written law codified b) written law not codified 2. unwritten law F. Based On Its Location 1. national law 2. international law 3. foreign law G. Based On Its Time (Duration) 1. positive law 2. expected law