Beruflich Dokumente
Kultur Dokumente
FH KKI 2017
INTRODUCTION TO JURISPRUDENCE
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
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:
Fadhira Mediana
FH KKI 2017
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
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
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)."
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.