Legal Review

Civil Law System

ALSA Field Trip
Nov 15, 2013

Each state has their own way to rule and to apply their law and other legal activities. The
way to rule and to maintain the states is depend on their chosen legal system. Legal system in the
world can be divided into two major systems. There are civil law system and common law
system. The civil law is commonly widespread in Europe, while the common law is the basis of
the legal system of most English-speaking nations. Countries that adopt common law are for
instance Australia, U.S., Canada, New Zealand, and Singapore. On the other hand, civil law
system is adopted in Indonesia, Japan, Germany, Norway, Dutch and so on.
According to Lawrence M. Friedman, legal system is combination of legal structure,
legal substance, and the legal culture, in which one relates to another in order to achieve certain
target. In accordance with this idea, it can be concluded that legal system comprises of three
components such as legal structure, legal substance, and legal culture.
Due to having definitely different cultural characteristic in each state, legal culture is
literally the most influential of all. According to Lawrence M. Friedman, legal culture can be
defined as peoples attitudes toward Law and legal system? Their believe, values, ideas, and
expectations, the legal culture, in other word, is the climate of social though and social force
which determines how Law is used, avoided, or abused. Without legal culture, the legal system is
inert? A dead fish laying in the bustard not a living fish swimming in its sea. Furthermore, as
cited in Journals Annual Review 2007 by University of Wisconsin, other scholars have had their
own definitions. Think of the law as a kind of machine. The machine has a structure. It also has
a program of outputs. And it has directions: how to turn it on and off, how to make it run
smoothly, and so on. But the decision, whether to turn it on or off, how to use it, whether to x it
or smash it with a hammer, depends on the decisions of actual peoplethe workers and bosses
in the factory. And their attitudes, values, and opinions are what make them decide what to do. It
would be hard to deny that culture in this sense is a crucial element in any legal system. Every
person has his or her own legal culture, and perhaps no two are the same. But there are
undoubtedly measurable patterns as well. Therefore, there is no doubt that culture is the strong
basis to adopt which legal system a country has. Cultural aspect itself can be divided into five
points such as history, tradition, legitimacy, morality, and legal thinking.
Historically, civil law system is on the basis of Roman law, whose central place was on
Constantinople. Roman law came from Codex Justitianus which was derived from habitual law.
Besides Roman law, there is also Canon law which comes from the rule of the church, for
instance BW (Burgelijk Wetboek) about monogamy. Other historical aspects of civil law are law
of sovereign and customary law.

The second point is about legal tradition. Some scholars have tried to show that legal
tradition has had a lasting effect on behavior and thought in, say, France, Germany, and the
United States (Whitman 2000, 2003). Law is consciously enacted and enforced by sovereign.
Moreover, the typical law is statute which is the product of legislature or codification. Function
of the judge is to interpret the law and apply the norm but he should not create a norm by
himself. Judge applies the law concretely or known as rechtsvinding. On the one hand,
legitimacy is also part of cultural aspect since it is authoritative and hierarchical. Morality can be
separated into two aspect, internal and external, while legal thinking must be deductive.
The other aspect of legal system is the structure of law. In addition, the structure of law
gives the procedural system towards the legal framework. There are law, legislature, and court. If
there is one who wants to appeal a case, the procedural way is to let the court to interpret the law
that comes from the legislature. The legislature comprises of legislative-made (e.g. the Acts) and
executive-made (e.g. Regional Regulation). Since the state adopts civil law system, the main
source of law is legislation or statute or codification. Judge is given broad discretion to interpret
laws, because the judge is not bound toward the precedent. It denotes that the big difference
between civil law and common law is that the civil law does not adopt the doctrine of stare
decisis. Besides, this civil law adopts inquisitorial system. Judge has a big role to direct and to
decide tha case. Rather, judge tries a fact and values accurately to the material evidence. The
judge attempts to get the complete process of occurrence since the very beginning.
The last aspect is substance of law which consists of primary rules and secondary rules.
Primary rules contain law of procedures and substantive law. The substance of law contains law,
procedures, regulation, and decision. Hence, it deals with the rules to regulate the law.
Furthermore, the characteristic of legislation made by the legislative is more general and abstract
while the executive-made is more about technical. The legislation made by the executive is used
to explain further about some matters.
Therefore, there are the slight comparisons to common law system.

The system applies the doctrine of stare decisis (precedent doctrine). The subsequent
judge is compulsory to apply the previous judicial decision on the similar case.
Hence, judge may eliminate or deny the case.
The judge has a narrow discretion
The previous decisions may be distinguished if only the subsequent judge for the
similar case asserts that there be some new factor should be taken into account.
It adopts adversary system. It signifies that the Court has to comply with the case
law.
In this law system there are public prosecutor, counselor represents defendant, jury
that consists of 12 jurors, and judge who plays his or her role as a referee of the
conflicting parties. The judge possibly gives a command to the jury to take the
decision. All the jurors must vote unanimously whether someone is guilty. Thus, the
final decision is always made if they are finally in one voice. The final verdict
somehow must be then dealt by the judge.

Since Indonesia was a Dutch colony, the legal system is influenced by civil law.
Acceptability and recognition of materials as legal rules by all member of society are the key

elements of formal sources of law in the form of legislatures and other government agencies
products, custom, and treaties. The Indonesian Law comes into being since the Proclamation of
Independence, August 17, 1945. The 1945 Constitution is a basic law adopted on August 18,
1945 (Marzuki, 2011). The hierarchy of Indonesian laws and regulation according to article 7
paragraph 1 of Act no. 12 of 2011 on the Making of Laws and Regulations is:
a.
b.
c.
d.
e.
f.
g.

The 1945 Constitution;

Peoples Consultative Assembly Decree;
Law/Government Regulation in Lieu-of-Law;
Government Regulation;
Presidential Regulation;
Regional Regulation; and
Regency/Municipality Regulation.

References
Friedman LM. 1987. Popular Legal Culture: Law, Lawyers, and Popular Culture. Yale Law J.
98:1579
Friedman LM. 2005. Coming of Age: Law and Society Enters An Exclusive Club on Annual
Review of Law and Social Science. Madison: University of Wisconsin.
Marzuki PM. 2011. An Introduction to Indonesian Law. Malang: Setara Press. 1:292
Whitman JQ. 2003. Harsh Justice: Criminal Punishment and the Widening Divide Between
America and Europe. New York: Oxford Univ. Press