Introduction to Science of Law

Law exist in society, therefore the term Ubi Societas Ibi ius is used, which mean "if there is society, there will be law that is valid in that society". Science of law or in other word jurisprudence in Indonesian language is translated to be "Ilmu Hukum". The term "Jurisprudence" according to various scholars are as follow:

a.) Fredric M. Goadby: Jurisprudence mean knowledge of law = learning the law.

b.) L.B. Curzon: Juris mean just, right or law and prudence mean foreseeing.

c.) Lili Rasjidi: define Jurisprudence as knowledge of law.

The Development of Jurisprudence according to scholar George W. Keeton:

a.) Jurisprudence as a knowledge of law.

b.) Jurisprudence has a scope of: to analyse, to classify and to discover the general principles underlying a collection of legal rules.

c.) Jurisprudence: as the study of the nature and function of law aiming ultimtely at the explanation of the nature of justice.

SCIENTIFIC SCHEMA OF LAW according to Van apeldoorn:

1.) Art of Law (de rechtskunkst)

a.) Legal drafting (de wetgeving)

b.) Court system (de recthspraak)

c.) Dogma of law (de rechtsleer)

2.) Science of Law (de rechtswetenschap)

a.) Sociology of law (rechtsociology)

b.) History of law (rechtsgeschiedenis)

c.) Comparative of law (de rechtsvergelijking)

3.) Philosophy of law (de rechtsphilosophie)

Legal drafting in Indonesia in procedural method are as follow:

House of representative (DPR), House of regional representative (DPD) as well as President together made and discuss the layout or rough draft of the bill, then it is the responsibility of House of representative (DPR) to give the validity of the given bill, after it is proven by the House of representative (DPR) the given bill then being exam by the scholars and non-governmental institution and if it is feasible the bill become valid in the society.

THE OBJECT OF STUDYING THE LAW:

1.) Legal Norm: Legal norm found in society and have the characteristic of passive and active when it is subjected to an applicable law. Legal norm consists of: principle, norm and regulation. The different between principle and norm: Principle have sanction meanwhile Norm doesn't have any sanction because norm can be imply either written or unwritten.

2.) Legal system: different society must be used different legal system.

3.) Rechtsvinding.

DIVISION OF LAW

1.) Source: material and formal.

2.) Substance: public and private.

3.) Promulgating: ius constituendum (future) and ius constitutum (now).

4.) Sanction: forcing and regulating.

5.) Locus (place): national and international.

6.) Function: material and formal

Division of law according to Hans Kelsen is divided into 4 sphere:

1.) Sphere of time.

2.) Sphere of space.

3.) Personal sphere.

4.) Material gebeid.

THE FUNCTION OF LAW:

a.) Law as a social control: meaning that it is control over the behavior intended as to get an order. In here, norm is consider as a scenario: human life has to conduct as an existing norm. Law as a social control also has a sanction which is determined by an authority body and it has to be maintained by law enforcers.

b.) law as a tool of social engineering (Roscoe Pound): to create an intended behavior of the society.

c.) Law as a tool to integrated social life: could be part of (a) or the continuing of (b).

LEGAL PRINCIPLES:

- Legal principle is the broad reason, which lies at the base of rule (C.W. Paton, 1969).

- Legal principle is a reason why legal norm exist.

PURPOSE OF LAW:

1.) Justice (Philosophy of law)

a.) Corrective Justice: corrective justice mean what law is use in particular society, punishment given would be different between one society to the other, because depend on the law use and exist. Example - If A kill B, the punishment would be given can be in a form of jail or death sentence or even fine. Now if we use the Islamic law A would be punish in a form of death sentence, meanwhile if we use customary law A would be punish in a form of fine.

b.) Distributive Justice: distributive justice mean that burden/risks and benefits are divided and regulated equally within and for the sake of the society.

2.) Legal Certainty (Positivism - law that exist in the society)

a.) certainty because of law.

b.) certainty within from a law - has to be regulated by act.

3.) Utility (sociology of law): answering the question of "does the law have the function in society or not?"

Theory of state (Part 2)

Types of state:

1. Ancient Asia, characteristic: theocracy (base on absolute religion) and absolute.

2. Old-Greek, characteristic: city state and direct democracy.

3. Ancient Rome, characteristic: the existence of kingdom.

4. Middle Ages, characteristic: dualism, feudalism, theocracy/secularism.

5. Modern state, characteristic: democratic state, consitutional state and unitary state.

Legal context of theory of state can be seen upon relationship between government and the people.

a.) Policy state (positive and negative).

b.) Constitutional state (liberal legal state, formal and material legal state).

c.) welfare state.

From of state can be seen into two perspective: sociology thought and legal thought Sociology thought refer to from of state in which it consist of three mainstream: first mainstream (a three party classification), second mainstream (a biparty classification) and third mainstream (point of view from scholars). Meanwhile legal thought refer to the form of government.

Composition of state can be divided into six categories:

1.) Unitary state: centralization, decentralization, deconcentration and medebewind.

2.) Federal state.

3.) Confederal state.

4.) Commonwealth.

5.) Uni.

6.) United Nation.

Differences between Unitary state and Federal state:

- Unitary state is a state whose three organs of state are governed constitutionally as one single unit, with one constitutionally created legislature. The politic power of government in each states may well be transferred to lower levels such as regionally or locally elected assemblies, governors and majors, but the central government retains the principal right to recall such delegated power.

- Federal state is a union comprising a number of partially self-governing states or regions united by a central government. The self-governing status of the component states is typically constitutionally entrenched and may not be altered by a unilateral decision of central government.

Theory of state from Islamic perspective

There are three mainstreams regarding the relationship between Islam and state:

1. Islam is a perfect and complete thought to all human life. Islam also consists of politics, therefore Islam has not imitate the theory from the western. The model of state is the state under the prophet and the 4 khalifas.

2. Islam is a mainstream with no relationship to politics. The prophet was not have the aim to form or to be the head of state.

3. Islam is not a perfect and complete thought, but in Islam there is a relationship to politics.

The Constitution of Medina was the first constitution use in this world, which is consist of 47 articles. It is also consider as a cornerstone of the Islamic state in which the cornerstone would have the basic of pluralistic population in Medina.

Theory of State (Part 1)

The object of theory of state is in abstract, general and universal, which mean is that the object is in the condition of free from place, circumstances and time as well as not yet has a certain adjective, or in another word mean that it is not directly talking about certain state that is concrete and which has had a particular adjective.

State can be seen from sociological side (the people) as well as it can be look from law (citizenship). Element of state (state as a subject of International law) are mention in The Montevideo Conference 1933, which consists of:

a.) A defined territory {land, sea: 3 miles, 12 miles, 200 miles (ZEE) and space}.

b.) Permanent population: nationalism, factors of integration (to integrate people) and status (right and duty of the people).

c.) Government: legislative, executive and judicative.

d.) A capacity to enter relationship with other states: sovereignty (internal and external) and de facto and de jure.

The substances of state are consists of: abstract, social organization, division of population, distribution of power/authority and developed over time. State also have behavior such as: forcing, monopoly and all encompassing/all embracing.

The purpose and function of state

The purpose is consider as ideal - abstract, meanwhile the function of state is consider concrete-real.

The purpose of state are consists of:

a.) gathering power/authority.

b.) equality/prosperity for the people.

The importance of the purpose of state are: to determine the form of state, to determine the state body, to know the justification of authority and to know the characteristic of state.

The functions of state is seen through:

a.) According to their relationship to economic system: anarchism, indivualism, socialism, communism, syndicalism, guild socialism, fascist and empitical collectivism.

b.) According to their relationship to politico administrative system:

i.) legislative, executive and judicative.

ii.) regeling (regulation), bestuur (government), recht spraak (court) and politie (police).

iii.) policy making and policy executing.

Emergence of state

Function: the way of people to govern a state to attain happiness and prosperity by using the state as a tool.

Multi perceptions of state:

1. A. Primary Factor

- Genootshap phase (people gather bases on similarity -> Primus Interpares -> most important element of state is nation).

- Rijk phase (need of land ownership -> feudalism -> most important factor of state is territory).

- Staat phase: 3 elements of state - territory, people and government.

- Democratische Natie (the next phase of staat phase and Dictatur Natie).

B. Secondary Factor

- Recognition (de facto and de jure).

- Recognition (de facto) to the government (van haller).

2. A. Speculative theory: contract theory (F. Isyawara), theocratic theory, powers theory, patriarchal and matriarchal theory, organic theory, expired theory, natural theory and idealistic theory.

B. Historical theory.

Development of state can be seen into:

a. city state -> country state.

b. the cycle of plato: democracy -> anarchy -> monarchy -> tyrant -> aristocracy -> timocracy -> oligarchy -> democracy and so on.

c. the cycle of polybius: monarchy -> tyrant -> aristocracy -> oligarchy -> democracy -> okhlicracy -> monarchy and so on.

Fall of state:

1. function: constructive, destructive.

2. theory: organic, anarchy and marxism.

3. factor: natural and social (war, revolution, treaty and unification.

4. 3 stages of declining state (Ibnu Khaldun): centripetal authority, luxuri life-style and stability.

5. indication of declining state: unavailable job and moral turpitude.

Types, form, composition of state as well as theory of state from Islamic perspective will be continue in the Theory of state (part 2).

Constitutional and Administrative law

Constitutional law and Administrative law is the two most correlated law, it correlate with each other.

Constitutional law is law which govern about the state organization/institution for achieving the society goal. There are several scholars poin of view about concept of state:

- Nicollo Maciavelli: state is orderliness and absolute power.

- Jean Bodin: State is not absolute, sovereignty.

- Thomas Hobbes: have the concept of Homo Homini Lupus, contract theory.

In general, elements of state is categorize into three: people, territory and state goals. Government have division of task in which to run the governmental system within the state. Division of task is divided into two: horizontal and vertical task. Horizontal division mean that the task is consider as in the same level of position with other task such as the task of ministries, where as foreign ministry is in the same level as ministry of home affair and so on. Meanwhile vertical division is not in the same position, but its graded mention in hierarchy, such as president is not in the same level as ministries.

State forms can be seen into two ways:

a.) based on the head of state assignation: Descendant or Election.

b.) based on central government authority: centralization, deconcentration, decentralization.

Administrative law is law which govern the administration perspective, relationship between government and citizen that make state into function. Legal sources of administrative law is consider into two: material and formal.

Basic difference between Administrative law and Constitutional law is refer to two scholars point of view: Prof. Mr. WG Vegting and Van Vollenhoven.

- Prof. Mr. WG Vegting mention that Administrative law is the way to know (what) the state organization and apparatus, while Constitutional law is to know the technical implementation (how) of state management.

- Van Vollenhoven mention that Constitutional law govern the state institution and authority while Administrative law bind those institution govern how to use the authority which already given by Constitutional law.

International law and Private International law in Indonesia

International law is law that govern the conduct of independent nations in their relationship with one another. International law is divided into two categories: Public international law and Private international law.

Public international law is law that regulate the relation that exist between states and states organizations in connection to the peacefulness of life in state. Meanwhile Private international law is law that regulate the effort to maintain private law in refer to the foreign interest inside.

Legal source of International law is regulate in article 38 verse 1 Charter of International Court of Justice, in which it have four formal legal sources:

a.) International conventions: it is a legal binding that occurs under an agreement made between countries as a member of organization of nations, such as The United Nation.

b.) International custom: it is the accepted of a custom as law in general and then become law as an International custom.

c.) The general principles of law: the basic system of law in general which come from the Romawi law principles.

d.) Judicial decisions and the teaching of highly qualified publicist of the various nations: use as evidence to use it or not the rules of International law based on the primary legal source.

Subject of International law consist of four subjects:

a.) State: state as subject of International law mean state that is independent , have sovereignty and is not consider as part of other state.

b.) Vatican organization: vatican is consider have the same position as a state.

c.) Human: the subject of International law is refer to the human action in which if there is an action or activity occurs can get either positive or negative point according to the will of a peaceful world society.

d.) International organization: an organization that is form so that there are relations between one country into another.

Legal source of Private international law in Indonesia is regulated in Algemene Bepalingen van Wetgeving (AB) in which if there is legal phenomenon whether it is connected to personal, family, patrimonial or inheritance law which involves foreign interest in Indonesia, to solve it must refer to AB.

Private Law in Indonesia and in General

Private law is regulation that regulate and limit the behavior of human in refer to fulfillment of their needs. It is in the form of written law and codification (civil code).

Private law in Indonesia consist of three:

1.) Indigenous private law: refer to interrelation between each individual in traditional society in relation to each individual interest and it is generally in the form of unwritten law.

2.) European private law: refer to legal relation involving the interest of european.

3.) Private national law: have the characteristic namely in the field of private law as the result of national product in which it is regulate the personal interest made it applicable to all Indonesian resident such as marriage and agrarian law.

Substance of private law consist of four:

a.) Personal law: regulation about right and obligation in refer to legal position of someone. Personal law exist because of:

i) there is need to satisfy specific interests on the basis of the activities carried out together.

ii) there is the existence of ideal goal that should be achieved without always depend on individual.

b.) Family law: regulation about outer and inner relation between two different gender/sexes in marriage and their legal consequences. In broader scope family law covers:

i) Descendant - regulate legal or not of a child born in this world.

ii) Parents authority - obligation of a parents to take care of their child valid until their child is marriage or can stand alone without the help of their parents anymore.

iii) Truteeship - a child is consider under truteeship if they are not under parental authority.

iv) Maturity - if a person is not yet reach up to the age of 18 years or not have been marriage in certain cases is equal with legal position as the adult.

v) Forgiveness/remission - if someone have mature and loss memory according to constitution have to be place under forgiveness.

vi) Marriage - regulated in Constitution No.1 year 1974. The principle marriage in Indonesia is "monogamy" which mean man can only have one wife and the oppossite is the same, whereas if after marriage both parties change their possition as man change to leader in family and woman to be housewife, in that time emerge the right and obligation of each individual.

c.) Patrimonial law - area of law that regulate ownership on real property and on private property .

d.) Inheritance law - refer to regulation that regulate the wealth of the owner if the owner die.

Private law consist of four books:

1st book: Person - regulate about personal law and family law.

2nd book: Goods - regulate about ownership.

3rd book: Obligation - regulate about contract and agreements.

4th book: Evidence and procedure - regulate about convention.

Customary Law (Adat Law) in Indonesia

Adat law is unique form of law that have been existed in Indonesia for long-time. Adat law developed according to the needs of community in adat society. In Indonesia there are 3 types of adat society that are territorial in structure:

a.) Village Society: groups of natives who live by the same principles, ways of life, and have the same beliefs. The community is fixed, remain at the same location and is governed by a village chief.

b.) District Society: comprises of a number of village societies of the same Adat that live within the same district but with each community retaining its independence.

c.) Village Union Society: formed on the basis of coorperation between the district societies that are located within the same adat territory. Whereas the aim of coorperation is to work together and create a good and prosperous adat society.

Advantages and disadvantages of being a village chief:

- Advantages: make decision on himself.

- Disadvantages: society or community have to follow his decision which sometime he makes innapropriate decision-making.

Major areas of Adat Law:

1.) Marriage Law: Marriage in Adat communities is the means by which organized relationship within the group form to define the autonomous community and personal concerns. The parental responsibility for the decision of property is substantially different from the western cultural perspective on marriage where the marriage contract is executed only between the parties to the marriage and not their respective families.

2.) Inheritance law: the most common system that is used in Adat law with respect to inheritance is the bilateral system.

3.) Land law: prior to basic Agrarian law there were two legal systems used as to determine and distinguish right to land: right based on Adat law which refer to Indigenous Indonesian and Right based on civil code.

4.) The law of Delict: Adat law also recognizes delict which mean a disturbance to the equilibrium of an individual or the community that is deemed unacceptable by the community.

Distinct Adat characteristic:

- Patriarchal form of family relationship which is inheret by son (s) given by the father.

- Amatriarchal form which is inheret by daughter (s) given by mother.

- Bilateral system: both parents.