Under Article 1 paragraph 3 of the 1945 Constitution, it states that Indonesia is the State of Law. This is a form of affirmation that means that all aspects of life in society, state and government of the State of Indonesia must always be based on applicable law. Understanding Applied Justice and Laws in Indonesia
The concept of the rule of law leads to the goal of creating a democratic life and protecting human rights and equitable prosperity.
It was explained in the national principle which says “Social Justice for All Indonesian People” means that every Indonesian is entitled to receive fair treatment in the fields of law, politics, social, economy and culture.
This statement is directly related to legal norms which are one of the important factors in our national and state life.
What is the law?
According to its definition, Law is a regulation or rule that is officially considered binding, which is confirmed by the authorities or the government.
Laws, regulations, and other applicable rules are created to regulate the association of people’s lives. Benchmarks (rules) regarding certain events (nature and so on), decisions (considerations) determined by the judge (in court).
Meanwhile, according to Aristotle, the law is a collection of regulations that do not only bind the community but also the judge. The law is something different from the form and content of the constitution.
Because of that position, the law oversees judges in carrying out their positions in punishing those who are guilty.
Indonesia is a country of law that all citizens are required to comply with applicable law. Obedience to regulations and laws is a concept that must be realized in every citizen. The more a person obeys the law, then it can be concluded that the level of legal awareness is also high.
Legal norms are norms based on local government regulations. Sanctions that can result from violations of these norms are strict, binding and coercive.
It can be concluded that the law is a collection of norms and sanctions to maintain order and security for all people. We can imagine that if Indonesia does not have a law that binds its citizens, this country will be destroyed.
Violation of the Laws in Indonesia
Often you see on TV, there are cases of murder, kidnapping, robbery, and others. That behavior includes things that violate the law in Indonesia. We often refer to these activities as law violations.
The law is something that must be obeyed. But nowadays, almost every day we get news about this violation or even we see this violation directly.
Violation of the law is the action of a person or group that violates the rules and does not comply with applicable laws. Violation of the law is a form of defiance of applicable law.
Violations of the law can occur because of two things, namely violations which the violator has regarded as habits and even needs. Laws are made to regulate society, not to be violated by society.
Legal sanctions for violators
Sanctions arising from legal norms are firm and real. Decisively a law is that there have been sanctions from violated rules made in statutory regulation.
According to article 10 of the Criminal Code, there are 2 penalties called the basic and additional penalties.
The main sentence is a sentence that has been decided in the trial starting from the death penalty, life imprisonment.
Real law is a rule that has been set for the offender to determine the amount. In article 338 of the Criminal Code, it is stated that anyone who deliberately took another person’s life. They will sentenced with a maximum imprisonment of 15 years because of murder.
Legal sanctions are given by authorized judicial institutions, while social sanctions are given by the community around the perpetrators.
Types of Laws in Indonesia
1. Public law
Public Law is a legal regulation governing the legal relationship between citizens and the State which concerns the public interest. It is a law that regulates the community of legal regulations or regulates the relationship between the State and its equipment and its citizens such as criminal law.
Criminal Law is the whole rules that determine what is prohibited and included in a criminal act. It determines what penalties can be imposed on those who do it. The function of criminal law is generally to regulate social life, hold the throne in society.
2. Private Law
Private law is a type of law that regulates the relationship between human beings. It is between one person to another by focusing on individual interests. It is a law that regulates the relationship between individuals in meeting their needs.
Civil law is a provision that regulates rights and interests between individuals in society. In this law, the basic principle of the autonomy of citizens is their property so they have the right to defend their own will.
The Definition of Advocate
The term advocate had actually been known since Roman times whose position was called officium nobile advocate (a noble profession). It devotes itself to the interests of society, as well as its obligation to uphold human rights. Moving in the dadu online moral field in helping people without expecting honorariums.
Another translation states that advocate is meant as advice. An advocate can be called a legal advisor because of his work in the court as an advisor. The term legal counsel / legal aid and advocate/lawyer is an appropriate term with its function as a companion to the suspect/defendant or plaintiff.
By the definition, the advocate is divided into two terms, they are a lawyer and a legal consultant. A lawyer is a person who helps both the plaintiff and the defendant and is appointed by certain High Court and the boundaries of their duties are only allowed within the jurisdiction of the High Court.
Whereas a legal consultant is someone who does not need to have a license to practice as an advocate or lawyer. But he must have sufficient knowledge about dispute resolution in the legal field. However, both legal consultants and lawyers basically have the same functions, roles, and responsibilities.
The Duties and Roles of an Advocate
The implementation of law in society is very dependent on the legal awareness of a society because it is the subject of law. In addition to depending on the legal awareness of the community. It also depends and is very much determined by the implementation of law enforcement by the authorities.
Therefore, many legal regulations cannot be implemented properly because law enforcement officers do not have enough understanding in carrying out their duties and responsibilities.
The duties and responsibilities of an advocate and must be considered in handling a case such as:
- Uphold the professional code of ethics
- Guiding and protecting his clients from worldly disasters in order to find truth and justice that satisfy all parties, in accordance with legal, moral and religious values
- Assist in creating a simple, fast and low-cost court process, as well as a final case settlement
- Respect judicial institutions and judicial processes in accordance with legal, religious and moral norms
- Protect his client from the wrongdoing of other parties and protect him from doing wrong to other parties
- Upholding the mandate given by his client with full responsibility both to his client, self, law, and morals, and to God Almighty
- Provide periodic reports and explanations to his clients regarding the tasks entrusted to him
- Avoiding various forms of covert extortion of clients
- Be sympathetic and share the feelings of the client, even prioritizing the interests of his clients over his personal interests
- Between legal counsel or advocates with their clients must be established a relationship of mutual trust and trustworthy so as not to harm each other
- Carry out professional duties as a legal service provider acting honestly, fairly and responsibly based on law and justice
- Advocates are also obliged to provide free legal assistance to poor clients
The Analysis of the Role of Advocates in Law Enforcement
Law enforcement in the broadest sense includes activities to implement and apply the law. And also take legal action in order to give justice to any legal cases both through arbitration and judicial procedures and much more.
In fact, in a broader sense, law enforcement activities include all activities that are intended. So that the law as a normative tool that regulates and binds the legal subjects in all aspects of community. It makes state life is truly obeyed and actually carried out properly.
Shortly, law enforcement aims to enforce justice for any cases, deviations, and violations. Particularly through the process of the criminal justice process which also involves prosecutors, police officers, attorneys, and judicial department.
Basically, law enforcement can be carried out correctly and fairly if there is a support from the community. And Also the related elements which are mutually sustainable to uphold the goal and objectives of the law itself.
From law enforcement, they must meet formal and material requirements. The formal terms determine whether a legal representative is valid. While the material conditions describe what the attorney does is really the will of his client. If there is a difference between a formal party and a material party, then the material party win which is the client, as an interested party.
Judges in actualizing the idea of justice require a conducive situation, both derived from external and internal factors from within a Judge. If traced, the factor that influences the Judge in transforming the idea of justice is the Independence of Judiciary.
The freedom of justice has become a necessity for the rule of law). Judges will be independent and impartial in deciding disputes, and in such a conducive situation, Judges will be free to transform ideas in the consideration of decisions.
Judicial power is an independent power, meaning that apart from the influence of governmental power, in connection with that, a guarantee must be made in the Law on the Position of Judges.
Independent judicial power has two objectives. The first is to carry out the functions and authority of the judiciary honestly and fairly. Secondly, so that the judicial authority can play a role in supervising all actions of the authorities
The Roles of Judges
1. Upholding Truth and Justice
Upholding truth and justice is not enforcing legislation in the narrow sense, that is, judges do not act as the mouth of the law and judges must not play a role in identifying truth and justice in the same way as a formulation of legislation.
2. Judges must be able to interpret the Act actually
To apply the law based on the development of conditions, time and place, the applied law must be under the public interest and problems of the present society.
However, the judge still needs to interpret and determine the law despite it departs from the common basic idea contained in the philosophy of the nation and the purpose of the relevant laws.
3. Judges must dare to play a role in creating new laws or as law-makers
In the case that the provisions of the law do not regulate a problem regarding a concrete case. The judge must play a role in creating a new law adapted to the awareness of the development and needs of the community.
This can be realized by the judge by delving into people’s life awareness. And from that experience, the judge tries to find the basis or principles of the new law. Even when it must move from the common basic ideology of the nation’s philosophy and the purpose of the relevant laws.
4. Judges must dare to play the role of contra legem
In this case, the judge must dare to get rid of the provisions of certain articles of the law. Carried out after the judge examines and reviews that the provisions of the article are contrary to public order, interests and problems, then judges may create new laws or maintain jurisprudence.
5. Judges must be able to play a role in judging casuistically
In principle, each case contains a particular reason, so in reality, there are no cases that are exactly the same. Therefore the judge must be able to play a case by case trial.
It is not justified to just blindly follow an existing ruling without assessing the specific circumstances (particular reason) that contained in the judi online case concerned and apply it casually under the concrete conditions of the case being examined.
The Responsibility of Judges
Basically, three non-essential things must exist in the implementation of functions in any field.
Firstly, the duty is an obligation that must be carried out, and then further specified on how to carry out them.
Secondly, the Apparatus, which includes the task executor consisting of executors and supporters.
Thirdly, Institutions, which is an organization related to facilities and infrastructure where officials carry out their duties.
Meanwhile the officer is getting a task means that they must be responsible for relating to three things, they are:
- Getting the trust to be able to carry out the duty
- It becomes an honor as a duty bearer and is a mandate that must be maintained and carried out.
Moral Responsibility of Judges
Based on its philoshophy, the main purpose of the judicial profession is to uphold justice. The ideals of justice that are contained in das sollen or known as normative reality must be done in das sein or also known as the natural reality. One This professional ethic also depends on the trusted guideline which has been used since many years ago. It include several points, they are hearing courteously, deciding impartially, considering soberly, and answering wisely.
According to Aristotle, the law is a collection of regulations that does not only bind the community but also the judge. The law is something different from the form and content of the constitution. Because of this position, the law oversees judges in carrying out their positions in punishing those who are guilty. Speaking of law, there are several types of laws in the world that you might need to know about.
In ancient times the law already existed in the world but not like the existing law in modern times like today, as for the various types of law, namely:
In a number of regions in Africa, Australia, Brazil, and other places still used illiterate law, in general, the form is not primitive, but because it has undergone a long evolution, eventually it still adheres to primitive principles.
Traditional law based on religion or philosophical ethics
The legal system can still be found at this time and has fundamental elements obtained from religious or philosophical sources. The basis of this traditional legal system is influenced by modern legal systems originating from Europe. It is caused by the existence of colonization. these are:
- Hindu law, is the religious law of the Hindu community that embraces the flow of Brahmanism or Hinduism with the Vedic scriptures. In India, Hindu law still applies even though it was previously ruled by Muslims or during the British Colonization. Since India became independent in 1947, then the law was adapted to European law, in particular, the English common law.
- Traditional Chinese law, which is a law that relies on the unification of justice as the boundary of obedience in society called li, then the tougher law used for lower class society is called fa.
- Islamic law, which is religious law, consists of rules derived from the Holy Qur’an, the law of God which binds every individual to all Muslims.
Modern legal system
The modern legal system is a legal system that comes out of European cultural traditions. It is the continental legal system, the Romanistic-Germanistic legal system and the Byzantine legal tradition and the Anglo American legal system, called Common law.
Continental European legal system
The European continental legal system, Romanistic-Germanistic is a mixture of elements of Roman and Germanic law. The influence of Germania originated in Rome and Germany. Until modern science, the British was familiar with the name of Civil law. Because it had the influence of Roman law, Corpus Juris Civilis which was introduced by Justinian. It is different from their own law, known as the Common law.
European countries, which are federations of the Republic of Germany. Including Poland, Hungary, the Czech Republic, Slovakia, Slovenia, Croatia in 1990 joined the German Republic. They embrace the socialist legal system, but after the fall of the communist regime, they returned to the Romanistic-Gemanistis legal system.
Romanistic-Germanistic had previously spread through colonization. Such as Spain and Portuguese laws in Latin America, French Law in Belgium, Portugal, Africa, the United States, Canada, Dutch Law in Indonesia, Suriname. Then, the Byzantine legal tradition was found in southern Europe, southern Slavia, Romania, Bulgaria, and Greece.
Common law system
It is a law developed in England since the end of the Middle Ages. Namely the XIII – XVI centuries of justice in this case court judgments. Common law is known as Judge made law. Meaning is a legal system that does not rely on the rule of law made by the makers of the Act, but to the judge when examining a case or legal case.
The history of the common law system is Roman law, Germania law, and customary law in the middle ages. The spread of the common law system is generally used in the former British colonization region. These countries including Ireland, the United States, Canada, Australia, New Zealand, Myanmar, and others.
Ancient Greek law was the most important historical source of modern legal order in Europe. Although the Greeks were not great jurists, they did not have the Laws and did not leave law books and legal teachings. They paid great attention to what known as political science.
Greek philosophers such as Plato and Aristotle built the ideal state order. Their writing is still the starting point of today’s Political Science. And its existence is increasingly important. In some city-states such as Athens, the first democratic institutions have been formed in the world.
Basically, the law is not divided into criminal law and civil law only. However, because these two laws are most related to society, they are more widely known. What is the difference between the civil law vs criminal law?
The difference between the two is quite a lot. You are required to understand both laws. Read this article to the bottom so that you can better understand it.
Understanding of Criminal Law and Civil Law
Basically, the majority of countries in the world adhere more to the European legal system. For example, Indonesia which adheres to the law of the Netherlands. This is because of the effects of colonialism carried out by the Dutch before Indonesia’s independence for hundreds of years.
Criminal law is a series of written legal rules governing acts which must not be done or prohibited, in the presence of certain sanctions.
Criminal law contains the rights and interests of individuals in society. Criminal law can be interpreted with various interpretations of civil law. Criminal law imposed after a lawsuit.
In criminal law, there are two types of acts, they are:
Violation is an act that is only prohibited by laws and regulations. But it does not provide effects that do not affect directly to others. For instance, using a seat belt when driving a car and not using a helmet when riding a motorcycle, many other examples.
Crime in an action or bad behaviour which is forbidden by the rules because it is far from religious value, moral values, and even a sense of justice in the society.
Perpetrators who commit crimes will receive punishment or sanction in the form of punishment such as theft, rape, murder, and so forth.
Civil law is a set of laws governing the relationship between one individual and another individual. Civil law contains rules that govern inter-community relations that emphasize the interests of individuals.
Civil law is interpreted authentically, meaning that this law can only be interpreted with one meaning according to the words contained in the law. Civil law imposed by the court without a lawsuit.
Civil law is divided into 5 groups of law, they are:
· Family Law
Family law is the entire law that governs the provisions and rules regarding the legal relationship concerned with blood relatives and marriages.
· Wealth Law
Property law is a law that regulates human rights and obligations that are worth money.
· Inheritance law
Inheritance law is a law that regulates the inheritance of someone who has died given to the heirs or those entitled, such as family. Those inheritance can be play at http://184.108.40.206, should the family wish.
· Law of Obligations
The law of engagement is the legal relationship between two or more people in the distribution of assets where one party has rights and the second party has obligations and intelligence.
Difference between Criminal Law and Civil Law
Based on the definition, both criminal law and civil law are different from one another. Criminal law is a series of written legal rules governing acts which must not be done or prohibited, in the presence of certain sanctions. Meanwhile, Civil law is a set of laws governing the relationship between one individual and another individual.
Based on the contents, Criminal law can be interpreted with various interpretations of civil law. Civil law is interpreted authentically, meaning that this law can only be interpreted with one meaning according to the words contained in the law.
Based on the implementation, This law is imposed after a lawsuit while Civil law is imposed by the court without a lawsuit.
Some of the examples are such as land disputes, defamation, divorce, struggles for child custody, and patents, as well as many other examples. Meanwhile, Civil law examples include theft, rape, murder, corruption, misappropriation of tax funds, and drugs, and much more.
In conclusion, Criminal law aims to protect the public interest which has direct implications on society at large (general). Where a crime is committed, adversely affects security, peace, welfare and public order in the community. Whereas Civil law is private that focuses on regulating the relationship between individuals. Therefore, the provisions in civil law only have a direct impact on the parties involved.
The relationship between law and justice, although its basic nature is abstract. It seems to only be the scope of philosophical study. However, sustainability as a relationship between law and justice is always maintained. The historical trajectory of all schools of thought in jurisprudence always strives for justice from any point of view. Either it is viewed as an object or is seen as part of the subject inherent in the personal self.
It must be admitted that all analyses, demolition, deconstruction, and critique of the law at an implementation level are all bound by the will to realize the law in its goal of achieving justice. also read https://forsheylaw.net/dark-history-of-the-law/
Division of Justice
That is why the division of justice that has been put forward by Aristotle until now remains relevant to touch on all actions to defend the law on all sides. The law in terms of forming laws is the official binding of distributive justice (absolute; principa prima).
Whereas the work of judges whose function is to maintain the basis of justice in legislation. It is demanded to be a court that upholds the law in its form as cumutative justice (relative; principa secundaria).
Both law and justice are abstract. Therefore it is reasonable if there is a multiple perceptions of the law in its definition. Even the legal experts like van Apeldoorn came to the conclusion that they gave nothing about the legal definition. Apeldoorn only stated that the legal definition is very difficult to make because it is not possible to make it in accordance with reality.
Notion of Law
In a similar opinion, Immanuel Kant argued that “Noch suchen die juristen eine definition zu ihrem begriffe von recht”. It means there is no Jurist who can define the law correctly. Nevertheless, it is still important to put forward the notion of law.
At least as a basis to provide initial understanding in order to identify the nature of the difference with other social sciences such as sociology, anthropology, psychology, economics, politics, and so on.
On the basis of research, at least there are ten legal meanings as follows:
- Law as science which is the knowledge that is systematically arranged on the basis of the power of thought.
- Law as a discipline that is a system of teaching about the reality of the symptoms encountered
- Law as a rule, namely as a guideline or benchmark for appropriate and expected behavior
- Law as a legal system, namely the structure of the process of legal principles that applies at a particular time and place, and in written form;
- Law as officers, individuals who are closely related to law enforcement
- Law as a ruling decision for the result of the process of discretion
- Law as a process of government, which is known as the process of mutual relations between the main elements of the state system
- Law as a steady or regular behavior
- Law as an art
In outlining the legal notions in this paper, it is also important to state the legal definition described by other experts like Kusumaatmadja.
The basis of its philosophy is so important to describe these opinions. Because Kusumaatmadja succeeded in combining or in other words reconciling all schools of thought in jurisprudence. So that the legal theory that had been defended by each of their schools. They met in one unity of understanding as Kusumaatmadja called it “the legal system”.
Completely, the law is defined as “Law and Development” which is a set of rules, principles, legal institutions and any processes that bind its validity.
The scope of the “rules, principles and institutions” in defining the law is a defining channel that summarizes the natural law school as well as the positivistic school of law. Whereas “the processes that bind their enforceability” are none other than the non-legal factors. Which are the center of the study of the flow of legal history and the flow of legal realism.
Between Law and Justice are interrelated as two sides of a coin. Law without justice is like a body without a soul. Whereas justice without the law will be carried out in accordance with the wishes or intuition that in making decisions has a broad scope of discretion and there is no connection with the set of rules .
A country must have a legal system to bring justice to the community. But, many laws have turned out to create social jealousy for some minorities. Dark history of the law occurs because of the making of rules that are impartial and unjust.
Now, we want to talk about the USA laws that turned out to harm many people. Although it looks safe and secure, America apparently has a dark history of the law. At least many innocent victims actually get prison sentences to the death penalty. The following are some of the frightening laws that have ever run in the US.
1. Alien and Sedition Act
The Alien and Sedition Act was a law that immigrants fear most. This law was applied during the leadership of John Adam. He was quite popular because he was the Founding Father of the US country. Also, he was also the leader who was fighting to get freedom from the Britain.
The Alien and Sedition Act was first promulgated and signed in 1798 as a country law. According to history from trusted expert poker uang asli , this law contained the detention as well as deportation of immigrants who were considered and known as a ‘threat’ to the government of the United States.
Not only for immigrants, but several states such as Virginia and Kentucky have also officially protested due to this regulation. It was not a good luck because the governments did not even listen to them.
2. Public Law 503 and Executive Order 9066
This regulation was sparked when World War II began. This regulation was spread throughout America through the Franklin D. Roosevelt order in 1942. It contained a command to arrest all Japaneses in the USA.
The problem was still the same, the person would become a threat to the local government. After this rule spread, more than 120,000 Japanese on the west coast were imprisoned. This amount was not only adult men but also women and children. Whereas those who refused this order would also be punished and lose all their possessions.
3. Espionage Act 1917
The country would give a reward to anybody who had brilliant ideas or opinions about the USA country in the future. Somehow, the reality that existed during World War 1 where the US government made a regulation which was knows as the Espionage Act 1917 that aimed to arrest the country’s socialist thinkers.
This law was created for fear of massive military interference and recruitment. Also, many of them committed many violations and issued a slightly conspicuous opinion. In fact, to develop a country, their thinking is needed. Fortunately, this law has been revoked.
4. Sedition Act 1918
This rule was replacing the Espionage Act 1917 law which received strong protests from the citizens and community. But, after this regulation went on, things became even worse.
Most of the thinkers felt limited and restricted to express their opinions that they wanted to point out to the congress. But, the government does not consider them to exist.
All forms of opinion relating to the government would be rejected outright. Not only that, when saying about the government, the flag and also the military in harsh words would also get punishment from the government. No half-hearted, the government could torture and imprison up to 20 years in jail.
5. Transfer of Indigenous People
This law was known as ‘Indian Removal which was made and passed by President Andrew Jackson. Firstly, this rule had a specific goal so that indigenous people could learn how to grow crops in Europe countries. The president created the rule to exchange indigenous land for European goods.
Because of the rules for exchanging, Andrew moved the indigenous people from west of the Mississippi River to the north of the river.
But, instead of getting welfare, the displaced indigenous people suffered and starved so that many people died due to this regulation.
In conclusion, we know that the US is a powerful country in the world, but it does not mean that the US country has a good history, especially in terms of the law.
However, today’s law is even better because the US really wants to give real justice to the community. Perhaps, the former cruel law can be a lesson for the current government.