Faculty of Law-University of Indonesia

International Class

CHAPTER VIII
FIELDS OF LAW
A discussion on the principle of laws shall be based on the classification of public
law, civil law, as well as substance law and formal law. Each field will be elaborated
further with an outline description of each and the discussion shall be confined on the
substance of each law. The base systems are as follows:
State Law (Hukum Tantra) which covers:
i.

ii.

iii.

State Law (Hukum Tata Tantra):

a.

Material and

b.

Formal.

State Administrative Law (Hukum Administrasi Tantra)

a.

Material and

b.

Formal

Criminal Law
a. Material and
b. Formal

iv.

Civil Law
-

Material in Civil Law includes:

a. Private Law.
b. Property Law which covers:

i.

Property Law:

ii.

Contract Law:

iii.

Intellectual Property Right Law.

c.

Family Law.

d.

Inheritance Law.

Formal Civil Law.

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CHAPTER IX

SOURCES OF LAW
a.

Sources of Material Law

Sources of material law are factors which determine law content. Examining
sources of law is a very complex matter. To learn about them, branches of law
and other field of studies such as Sociology of Law, History, Religious Studies,
Psychology and Public Administration need to be consulted.
Factors to be considered in making Law are ideal factors and social factors.
Ideal factors are fixed norms concerning justice, which must be obeyed by
lawmakers in exercising their duties.
Social factors refer to values and norms practiced in a society and act as a
living guidance for the respective society.

b.

Sources of Formal Law

Sources of formal law are sources with certain forms which become bases for
implementing law formally. They are the bases of power to legally bind society
and law enforcements.
They are:
1. Law.
2. Jurisprudence.
3. Agreement/ Tractat.
4. Custom.
5. Doctrine
Definition of State Gazette
(Media to announce Government Regulations)
To come into force laws need to be passed and stated in state gazette. This means it is
a medium to announce laws and regulations and make them legally binding. The legal
ground for this is Act No 2 year 1950. The announcement of laws must be with their
explanations which will also be stated in the appendix of the respective state gazette.

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State gazette for private commercial laws is a medium to state other important
announcements related to state regulation and government, as well as private and
commercial documents such as memorandum of association for limited company, firm,
cooperative and names which have been naturalized.

SOURCES OF FORMAL LAW (SUMBER HUKUM FORMIL)

1.

ACT/ (undang-undang ) act is states rules and established by legislative that

binds people. It is divided into two meanings:
(1)

Act in material, is any legislation contents directly binding to people in

general.

(2)

Act in formal: are essentially the decisions of state was formed by

president as executive and is agreed by DPR.

(Peoples Representative Council, art 5 (1) UUD45)

To come into force laws need to be announced into the state gazette by Minister
of State Secretary (Men Sek Neg).
After the requirements of announcement have been fulfilled, anyone will be
deemed to recognize and be bound and anyone cannot against the legal
principles. For example is the legal fictie theory.
Principles of the validity of act:
a.

Retroactive principles (azas tidak berlaku surut)

b.

Lex posteriori derogat lex priori (the law issued later waives the law issued
before)

c.

A higher law beats lower law, so that when there are two acts in different
level govern the same object but in contradiction. So the judges have to
apply the higher act and state that the lower act is not binding (lex superior
derogat legi inferiori).

d.

A law governing a specific subject matter (lex specialis) overrides a law,

which governs general matters (lex generalis). Therefore, when there are
found two similar-level acts, which one govern more special subject then

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the other, so the judges must stipulate the law which govern the specific
subject. (Lex specialis derogat lex generalis).
According to Indonesian Regulation (UU) No. 10/2004, the hierarchy of the
Indonesiaon regulation, such as:

2.

(1)

UUD45

(2)

UU / Peraturan Pengganti UU

(3)

PP

(4)

Peraturan Presiden

(5)

Perda

Custom/Kebiasaan
Custom is a human activity in relation to a specific thing done repeatedly. A
custom accepted by a certain community is always done by people in a such
manner, so that people think that they indeed need to do that. When it is not
applied, they think that they act contradictory with the custom and feel that it is a
law violation. People believe that customs they do contain law, if a member of the
society does not follow them, he or she will feel that he/she has done a violation
of law living in the society. Such custom can occur in a narrow society, example
rural community. However, it can also practicable in the broader community
covering certain area such as in district level, regional level, up to national level.
A custom is not a law when an act does not show it (article 15 AB). In addition to
custom, there are also rules governing people association order called mores.
Mores are a unit of social principle that has existed for a long time and is a
tradition, most of which are considered sacred and rule certain society life order.
Mores live and develop in a certain society and can be custom laws when law
sanction support is obtained.

3.

Jurisprudence/Yurisprudensi
Jurisprudence is a decision of a court or a decision of the previous judge. The
issue here is why is jurisprudence taken to be a source of formal law? Based on
the provision of article 22 AB in junction with article 14 UU No. 14/1970, a judge
cannot refuse when asked to make a decision of a case with a ground of the
absence of the law provision. Otherwise, the judge is precisely asked to find out

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the law through a trial. If a judge refuse such request, he or she will be liable to a
criminal sanction. Although basically a judge is not binding with jurisprudence, in
this case, however, a judge will use jurisprudence as a base of decision
consideration and it is not impossible if the judge follows the decision of the
previous judge whenever the decision is deemed to be right and fair with the
same or almost similar case in question.
From the reality of judicial practice said, it can be understood that judges are
makers of law. Laws made by judges apply to concrete cases. The difference of
law made by legislation institution (act) is that act is applicable in general and not
limited to certain concrete issues. In other words, judge's result in laws applicable
limited to cases from certain parties. Meanwhile, law makers yield an abstract
regulation (legal norm) that is applicable in general.
4.

Treaty (Interstate Agreement)

Treaty or agreement implemented by two stated or more. Interstate agreement
as a source of formal law must satisfy certain formal requirements. Interstate
agreement can be done by the government of Indonesia, in this case the
president, with a legal basis of article 11 UUD 1945. In article 11 UUD 1945, it is
stipulated that president, with the agreement of DPR (People's Representative
Council) may declare a war, make a peace and enter into an agreement with
other countries.
Interstate agreement ratified is applicable and binding the participating countries,
including the citizens of each. Therefore, a treaty or an interstate agreement
before ratified by president must get an approval from DPR first (pursuant to the
provision in article 11 UUD 1945). In other words, a treaty, to be a source of
formal law, must be approved by DPR first then is ratified by president and finally
applicable and binding the participating countries and their citizens.
Treaty requiring DPR approval is a treaty including materials as follows :
a. Issues on politic or issues tat can influence foreign political direction, for
examples: agreement of partnership, agreement on territorial change.
b. Bounds that can influence foreign political direction, such as agreement on
economic cooperation, money borrowing.

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c. Issues that are pursuant to UUD and legislation system must be arranged
in acts, such as issues on citizenship, issues on judiciary.
5.

Doctrine
Doctrine is a view of leading scholars of law who have great influence to judges
in taking their decision. There often happens that judges decide a case under
investigation by mentioning views of certain scholars of law in the doctrine. Such
doctrine is a source of law that is a source of formal law.
Doctrine that has not been used by judges in considering their provisions has not
a source of formal law. Thus, a doctrine, to be a source of formal law, must fulfill
a certain requirement :
(1) in this case the doctrine has been manifested into judges decision.
(2) Doctrine used as a source of formal law can be clearly viewed in
international law since in the provision of article 38 verse 1 of International
Tribunal that states that a doctrine or a view of leading scholars of law is
used as one of sources of formal law.