Fadhira Mediana

FH KKI 2017

INTRODUCTION TO JURISPRUDENCE

The difference between Introduction to Jurisprudence and Introduction to Indonesian

Legal System

PIH PHI
Scope General, fundamental Specific, Indonesian law
Object Law as a general concept Positive law in Indonesia: such as
(definitions, disciplines, state law, customary law, Islamic
principles, purposes, norms) law
Characteristic Universal (not bound by time, Bound by time and space; only
space, or location), unaffected relevant in Indonesia
by time and space,
understanding about law in
general

Discipline can be put into two categories; analytical and prescriptive.

Analytical : analyze the phenomena we're currently facing today
Prescriptive : values that we aim to achieve

Legal Discipline
Legal Philosophy : Reflection and formulation of values, discusses
harmony betwen order and peace
Legal Politics : Covers activities and applications of values
Legal Science : Divided into science of norms, concepts, and reality.
Science of norms: Analyzes law as a system of norms and
dogmatic aspects
Science of concepts: Regarding basic concepts in law, such as
the legal subject, object, rights and obligations
Science of reality: law as behaviour, divided into five further
categories;
a) Legal Sociology : studies the reciprocal
relationship of law as a social phenomena
b) Legal Anthropology : studies the pattern of disputes and
resolutions in communities
c) Legal Psychology : studies the development of
human spirit
d) Legal Comparative Study : compares the legal systems in
different countries
e) History of Law : studies the development and
origin of law in society

Definition of law:
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According to Soerjono Soekanto and Purnadi Purbacaraka, there are nine definitions
of law:
1. Law as knowledge
2. Law as discipline
3. Law as legal norms
4. Law as a legal system
5. Law as a decision of a ruler
6. Law as law enforcement officers
7. Law as a governance system
8. Law as code of conducts of behaviours
9. Law as values about what is right and wrong

In general, there are two aspects of life:

Intra-Personal Aspects
- Religious Norms
- Moral Norms
Inter-Personal Aspects
- Customary Norms
- Legal Norms

Beliefs/Religious Moral Customary Legal Norms

Norms Norms Norms
Purpose To make human being not evil To achieve public order/safety
(ketertiban masyarakat
Content Exist inside one's mind Exist in the 'outside' world
Origin God Self 'Outside' force
For example, when there is a
violation, the enforcement will
come from the head of tribe
(customary)/state (legal)
Sanction God Self/Private Public Public
Method Give obligation Give Give Give rights
obligation obligations and
obligations

Hans Kelsen Theories

Reine Rechtslehre/Teori Hukum Murni/Pure Theory of Law
According to Kelsen, law must be separated and be free from other
influences of studies such as politics, etc. Analysis of law must be
'clean' and not mixed up with other factors.
Although, Kelsen in the end contradicts himself because he later said that
law cannot exist without social reality (incl. politics).
Stufenbau Theory
A hierarchy system, with grundnorm as the basis of all laws.
From a vertical order, it goes from Constitutional Norm (UUD 45) -
Abstract Norm (UU) - Concrete Norm (Keputusan Pengadilan).

The substance and content of legal norms:

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- Orders (gebod) : Commands to do or not doing something.

Example: Criminal Code; one shall not kill.
- Prohibitions (verbod) : Restrictions
Example: Marriage between those who share a vertical or horizontal bloodline is
prohibited (Article 8 of Law No. 1 of Year 1974)
- Permissions (mogen): The law allows you to do or not do something
Example: Under Article 9 of Law No. 1 of Year 1974, you are allowed to write a
written agreement (prenup) before marriage.

The characteristics of legal norms are either imperative or facultative:

- Imperative norms : It consists of obligations and orders, if there is a
violation, there will be sanctions; for example through fines or arrest.
- Facultative norms : It lets the subject of law to choose which law they
want to obey. It is voluntary. Once you choose the law, you have to obey them. For
example, if you make a contract, you can choose which law to apply or which forum
you'd want to use to settle your dispute.

Formulation of legal norms:

- Rules of Law : Descriptions of legal knowledge that stems from hypothetical and
categorical judgment.
A legal norm is formulated from hypothetical judgment if there is a relationship
between condition and consequence (for example, through the Criminal Code).
Categorical judgment is formed when there is no relationship between condition and
consequence. Such as, Article 10 of the Criminal Code that explains types of criminal
sanctions.
- Legal Norms : Created by law enforcers, must be obeyed by subjects of law.

Essence of Legal Norms

Legal norms is said to be coercive, and the coercion could come from within oneself
(stems from the need of humans to live together) and other parties such as law
enforcers.
Essence of legal norm itself is to limit (membatasi).

Enforcement of legal norms

Judicial
a) Hans Kelsen : related to stufentheorie
b) Zevenbergen : if the legal norms are established through
predetermined ways by the law
c) Logemann : if there is a relationship between the cause and
effect

Sociological
a) Power Theory : enforcement can be made obligatory by rulers
b) Recognition Theory : enforced because they are recognized
Philosophical : Legal norms have to be appropriated with the ideals of law as
positive values

Violations of legal norms

Exceptions or dispensation, through:
1. Justification
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noodtoestand : two people floating in the sea, holding a

single piece of wood
wettelijkvoorschrift : a person doing an action to
fulfill legal regulation (e.g executioner)
2. Release from guilt
- Overmacht, the person commits the action under self
defense or pressure. For example, a person commits
assault in defense when he is threatened by robbers.
- Underage
- Mental illness

Objectives of law
In general, the purpose of law itself is to achieve certainty, welfare and happiness of
the people, and equality.
Ethical Theory
According to Algra, law has the purpose of differentiating what's ethical and
what's not; and Geny claims that its purpose is to achieve justice. Justice, as defined
by Aristotle, is divided into two kinds:
a) Justitia commutativa : Everyone gets everything equally.
b) Justitia distributiva : Given according to their own capability, such
as wealth, education, etc. What's given is proportional and according to
equity.
Utilitarian Theory
"The greatest good of the greatest number."
The objective law is to achieve prosperity and happiness for the people to
the greatest extent (Jeremy Bentham).
Mixed Theory
a) Mochtar Kusumaatmadja: keeping orderliness
b) Purnadi, Soerjono Soekanto: achieve peace and harmony whether
through intrapersonal or interpersonal relations
c) Soebekti: the objective of law is in line with the objective of state, also
to ensure prosperity and happiness for its citizens
Indonesia's objective of law according to the state's positive law is available
on the fourth paragraph of the Preamble of the 1945 Constitution; as in (a)
to form a government of the state of Indonesia which shall protect all of
Indonesia, (b) to improve public welfare, (c) to educate the life of the people,
(d) to participate toward establishment of world peace.

Tasks of Law
Certainty of Law
Comparison of Law
The task of legal norm is duumvirate or dwitunggal, because abstract legal norm has
to be able to do both tasks of certainty and comparison simultaneously. For example,
"Whoever violates law will be sanctioned (certainty) with a detainment for a
maximum of twenty years (comparison)."

The relation between law and power

Rulers could give sanctions upon people who violate the law. Enforcement of law in
the event of violation is the monopoly of the ruler.
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In order to function, laws need to have a legitimate power and basis. But, power itself
is not law. Power without law is arbitrary. Law and power need to work together
simultaneously to function.

Principles of Law
Presumption of innocence
Nullum delictum nulla poena sine praevia lege poenalli
Lex superior derogat lex inferiori
Lex posteriori derogat lex priori
Lex specialis derogat lex generalis
Lex dura, sed temen scripta
In dubio pro reo
Similia similibus
Pacta sunt servanda
Fictie
No punishment without guilt

Das Sollen : Something that ought to happen, the ideal. It focuses on normative
reality. For example: in Indonesian Penal Code, any adult who commits underage sex
shall be punished by a maximum sentence of five years.
Das Sein : The concrete event or reality (fact). For example, an adult who
committed underage sex.
Das sollen and das sein must show causality and they must also work
simultaneously.
In an ideal scenario, there will be a coherence between Das Sein and Das
Sollen. Without das sollen, das sein is passive guidance. (Mengenal Hukum
pg. 21)
In a non-ideal scenario, there can be two options:
- One, when Das Sein is there but Das Sollen isn't there yet. For example:
corruption when corruption laws hasn't been written yet (this is also
retroactive).
- Second, the reality (das sein) violates the law (das sollen), this is when the
law needs to be enforced. For example: the act of stealing and the Indonesian
Penal Code.
- Third, the act can be left unpunished (principle of legality), as an act
cannot be punished if there hasn't been a law managing the act yet.

Principles of Legality (Lawrence Friedman)

1. Must contain concrete laws, no ad hoc decisions
2. The laws must be announced and known to public
3. The law isn't retroactive
4. Structured in an understandable way
5. Cannot contain excessive sanctions or demands
6. No contradictory rules
7. No constant changes
8. A compatibility between rules and daily implementation
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Components of law system according to Lawrence Friedman

1. Substance : Composed about the substantive laws and how institutions
should behave. Also covers written and unwritten code of rules such as
material and formal law.
2. Structure : A hierarchy or composition between law, law enforcers, law
instutions, and lawmakers.
3. Legal Culture : Parts of culture in general, such as attitude and behaviour
toward law and the factors that determine how a system of law is accepted by
the people.

Different types of legal systems:

a) Civil Law : Indonesia uses this system. This system originated
from Continental Europe, such as from the Dutch and the French. The system
is based on civil code and laws made by state organs such as the legislative
body.
b) Common Law : Based on the Anglo-Saxon system used in Commonwealth
states, USA, and UK. The system uses judge verdicts as the basis, and there is
no clear cut between public and private law (in contrast of Civil Law's
codified system).
c) Customary Law : Based on the local law and norms, mainly used in
private law with the foundation from local customs.
d) Sharia Law : Used in Islamic countries, follow the contents of Al-
Quran and Al-Hadist.
e) Canonic Law : Based on the Bible and decisions made by the Pope,
used in the Holy See.

The reason on why legal norms exist:

Why social norms exist
Because humans have their own interest and they live in society
Legal norms give them rights, not only obligations
To reach peace and harmony

Ius Constitutum and Ius Constituendum

Ius Constitutum : positive laws (Undang-Undang, act). For example,
Law on Information and Electronic Transaction (UU ITE).
Ius Constituendum : laws that are expected in the future. For exmple, RUU
Penghapusan Kekerasan Seksual.
Ius constituendum can be passed into becoming ius constitutum when it is
enacted formally to the state gazette. (Mengenal Hukum pg. 115)