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Friday, July 20, 2007

Theory Rule of Law

By: Firdaus Arifin
Writer: Lecturer Constitutional Law Section and Secretary of Constitutional Studies Center Faculty of Law, University of Pasundan, Bandung, West Java, Indonesian.
Published by: Indonesian Constitutional Law 2007.

THE DEVELOPMENT of the concept of law is a product of history, for the formulation or understanding of the law states that continue to grow following the historical development of mankind. Therefore, in order to correctly understand and correctly state the concept of law, needs to first known picture of the historical development of political and legal thinking, which encourages the development of conceptions of birth and state law [1]. Also thinking about the State Law is very old, much older than the age of Sciences of the State or State's own Science [2] and thinking about the State Law is a modern idea of a multi-perspective and always current [3]. Viewed from the perspective of historical development of philosophical ideas and state laws regarding the State law has developed since 1800 BC [4]. Farthest roots of the early development of the State Law is thinking at the time of ancient Greece. According Jimly Asshiddiqie popular sovereignty idea grew and developed from the Roman tradition, whereas the ancient Greek tradition is the source of the idea of rule of law [5].

At the time of the ancient Greek concept of the State Law developed by the great Ancient Greek filusuf like Plato [6] (429-347 BC) and Aristotle [7] (384-322 BC). In his book Politikos produced in the end of his life, Plato (429-347 BC) describes the forms of government that may be executed. Basically, there are two kinds of government that can be held; government that was formed through the legal way, and the government is not formed through the law [8].

The concept of State Law by Aristotle (384-322 BC) is a country that stands above the law that guarantees justice to its citizens. Justice is a prerequisite for achieving happiness in life for its citizens, and as the basis of the justice that needs to be taught a sense of decency to every man so that he menjadsi good citizens. And for Aristotle (384-322 BC) who ruled in the state was not the real man, but a fair mind, while the ruling is only the legal holder and balance it [9].

During the medieval concept of the State Law was born as a struggle against the absolute power of kings. According to Paul Scholten in his book Verzamel Geschriften, deel I, 1949, pp. 383, in a conversation Over den Rechtsstaat, the term State law comes from the nineteenth century, but the idea of state law is growing in Europe have lived in the seventeenth century. The idea was growing in the UK and is the background of the Glorious Revolution in 1688 AD The idea had emerged as a reaction against the absolute monarchy, and formulated in the charter which was known as the Bill of Rights in 1689 (Great Britain), which contains the rights and freedoms than the subjects of the state and the regulations in the UK replacement king [10].

In Indonesia the term State Law, is often translated rechtstaats or the rule of law. Understand rechtstaats basically relies on the Continental European legal systems. The idea of starting to catch on rechtstaats to the XVII century as a result of socio-political situation of Europe dominated by the absolutism of the king [11]. Understand rechtstaats developed by legal experts such as the Continental Western Europe Immanuel Kant (1724-1804) and Friedrich Julius Stahl [12]. While understanding the rule of law began to be known as Albert Venn Dicey in 1885 published his book Introduction to the Study of The Law of the Constitution. Understand the rule of law based on Anglo-Saxon legal system or the Common law system [13]. Conceptions of State Law by Immanuel Kant in his book Methaphysiche Ansfangsgrunde der Rechtslehre, conveying the concept of a liberal constitutional state. Immanuel Kant expressed understanding of the law in the strict sense, which put the function in staat recht, only as a means of protection of individual rights and state power is defined as passive, who served as keepers of public order and public safety. Immanuel Kant understood this nachtwachkerstaats known as or nachtwachterstaats [14].

Friedrich Julius Stahl (German scholar) in his work; Staat and Rechtslehre II, 1878 pp. 137, State Law mengkalimatkan understanding as follows:

State must be the State Law, motto and that's actually than the development of locomotion in this new era. State must determine as a thorough-cermatnya the streets and the boundaries of how environmental activities (atmosphere) that freedom without being able to penetrate. The state must create or impose moral ideas in terms of countries, also directly, no further than the law should be according to the atmosphere. This understanding of state law, rather than for example, that the country's only maintain the rule of law without government goals, or simply to protect the rights of the individual. State law generally does not mean that the purpose and content than the State, but the only way and to make it happen [15].

Furthermore Friedrich Julius Stahl rechtstaats suggested four elements in the classical sense, namely [16]:
1. Rights-human rights;
2. The separation or division of power to ensure that rights (in the Continental European countries are usually called trias politica);
3. Government based on the rules (wetmatigheid van bestuur);
4. Administration of justice in the dispute.

Paul Scholten, one of the Jurist (legal expert) is the greatest in the twentieth century in the Netherlands, writing an essay on the State Law (Over den Rechtsstaats, 1935, see Verzamelde Gessriften deel I, hlm.382-394). Paul Scholten said the two traits rather than state law, which was described extensively and critically. The main characteristics than the State Law is: "er den tegenover is recht staat", meaning that subjects of that country has the right of the state, individuals have rights against the community. This principle is actually covered two aspects:
1. Man has its own atmosphere, which in principle is beyond the authority of the state;
2. Restricted human atmosphere that can only be done with the provisions of the law, with the general rules.

The second trait rather than state law by Paul Scholten says; er is scheiding van machten, meaning in the law states there is separation of powers [17]. Von Munch further argues that elements such as state law is based on the [18]:
1. Rights-human rights;
2. The division of power;
3. Attachment to all the organs of state in constitutional and judicial attachment to the law and the law;
4. The basic rule of peroporsionalitas (Verhaltnismassingkeit);
5. Judicial oversight of decisions (arrangements) public power;
6. Guarantee justice and basic rights in the judicial process;
7. Restrictions on the applicable law reflux.

In his book Introduction to the Study of The Law of The Constitution, Albert Venn Dicey forth three meanings (meaning three) of the rule of law: first, the absolute supremacy of regular or predominasi law to oppose the influence of arbitrary power and eliminate arbitrariness, preogratif or the broad discretionary authority of government; two equations before the law or the subjugation of the same from all classes to the ordinary law of the land is held by the ordinary court; this means that no one is above the law, both officials and ordinary citizens are obliged to obey the same laws, no state court administration; third, the constitution is the result of the ordinary law of the land, that constitutional law is not the source but the consequence of individual rights which are formulated and confirmed by the judiciary; in short, the principle - principle of private law through the judiciary and Parliament act in such a position was extended to limit the Crown and its officials [19].

[1] S.F. Marbun, the State Law and Judicial Power, Law Journal Quia Iustum Jus, No. 9 Vol 4-1997, pp. 9.
[2] Sobirin Malian, Ideas Need New Constitution 1945 Substitute, FH UII Press, Yogyakarta, 2001, hlm.25.
[3] A. Ahsin Thohari, the Judicial Commission and Judicial Reform, Elsam, 2004, pp. 48.
[4] See J.J. von Schmid, Thinking About the State and Law, Development, Jakarta, 1988, pp. 7.
[5] Jimly Asshiddiqie, Cheap Advertising Ideas in the Constitution and its Implementation in Indonesia, New Ichtiar van Hoeve, Jakarta, 1994, hlm.11.
[6] Plato (429-347 BC) was a pupil of Socrates (469-399 BC), he was born on 29 May 429 BC in Athens. Many produce works of Plato in Philosophy, Politics and Law. Delivered the famous work is Politea (the state), Politicos (about Expert State) and Nomoi (the Act).
[7] Aristotle (384-322 BC) comes from Stageira. He was a pupil of Plato (429-347 s.M). Many produce works of Aristotle in Philosophy, Logic, Polik, and Law. Termasur his work in Philosophy and Law is Ethica Politica.
[8] Budiono Kusumohamidjojo, Philosophy of Law; Problemtika Order, the Fair, Grasindo, Jakarta, 2004, hlm.36-37.
[9] Moh. Kusnardi and Harmaily Ibrahim, Introduction to Constitutional Law Indonesia, FH PSHTN UI and Sinar Bakti, 1988, pp. 153.
[10] Terpetik in O. Notohamidjojo, meaning the State Law for State Reform and Legal authority for Renewal Communities In Indonesia, Badan Penerbit Kristen, 1970, pp. 21.
[11] Padmo Wahjono, Legal Development in Indonesia, Ind.-Hill Co., Jakarta, 1989, pp. 30. compare with Philip M. Hadjon, Legal Protection For People in Indonesia; A Study About The principles, application by the Court of Public Justice in Environmental Justice and the Formation of the State Administration, Bina Ilmu, Surabaya, 1972.
[12] Miriam Budiardjo, The Basics of Political Science, Gramedia Pustaka Utama, Jakarta, 1998, pp. 57.
[13] Philip M. Hadjon, Legal Protection For People in Indonesia; A Study About The principles, application by the Court of Public Justice in Environmental Justice and the Formation of the State Administration, Bina Ilmu, Surabaya, 1972, pp. 72.
[14] M. Tahir Azhary, State Law, Jakarta, Bulan Bintang, 1992, pp. 73-74.
[15] O. Notohamidjojo, meaning the State Law for State Reform and Renewal authority for Public Law in Indonesia, Badan Penerbit Kristen, Jakarta, 1970, pp. 24.
[16] Miriam Budiarjo, Op, cit., Pp. 57-58.
[17] O. Notohamidjojo, op.cit., Pp. 25.
[18] A. Hamid S. Attamimi, Role of Presidential Decree Providing Government of Indonesia in the State; An Analysis Study of Presidential Decree Concerning the Functions settings over a period of Pelita I - Pelita IV, PhD dissertation, University of Indonesia Faculty of Graduate Studies, 1990, hlm.312.
[19] A.V. Dicey, Introduction to the Study of The Law of the Constitution, Ninth Edition, Macmillan And Co., Limited ST. Martin's Street, London, 1952, pp. 202-203.









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