Lille place juridique

A. UNDERSTANDING SYSTEM AND LEGAL SYSTEM

The system comes from the Greek “systema” which can be interpreted as a whole consisting of various kinds. According to Prof. Subekti, SH system is a regular arrangement or arrangement, a whole consisting of parts related to each other, arranged according to a plan or pattern, the result of a writing to achieve a goal “.

In a good system there can be no conflict or collision between the parts. There should also be no duplication or overlap between the parts. A system contains several principles that guide the formation. It can be said that a system can not be separated from the principles that support it. For that reason, the law is a system which means a regular arrangement of rules of life, all of which consist of parts which are related to each other.

B. LEGAL TYPES

1. Laws Based on Its Form
   Based on the form of law is divided into 2 namely the written law and the unwritten law:
   a. Written law is a law written in legislation. For example: the criminal law that is imprinted on the criminal code and the  first law listed in the Civil Code. b. Unwritten law is a law that is not written in legislation or also called customary law that is still upheld on the beliefs and beliefs of society, it’s just not listed but still valid and adhered to. For example: customary law of a region.
2. Laws Based on the Source
   Based on the source of the law is divided into 5 kinds of laws of law, customs or customs, tracts, doctrines, jurisprudence:
   a. The law of the law is a law listed in the laws and regulations.
   b. Customary law is a law that lies in customary regulations.
   c. The treaty law is a law created because of an agreement between the countries involved.
   d. The law of doctrine is a law created from the opinions of various jurists famous for their ability and knowledge.
   e.  The law of jurisprudence is the law established by the judge’s decision.
3. Law Based on Time
   Based on the time the law is divided into 3 namely: Ius constitutum, Ius constituendum and Basic Law:
   a. Ius constitutum is a positive law that applies today to a society within a particular area.
   b. Ius constituendum is the applicable law in the future.
   c. The Basic Law is a natural law applicable everywhere.
4. Law by Place of View
   Based on the place of validity of the law is divided into 2 namely: national law, international law and foreign law:
   a. National law is a law that runs in a country.
   b. International law is the law governing relationships between various countries in the world.
   c. Foreign law is a law that runs in a foreign country.
5. Laws Based on Its Nature
   Based on the nature of the law is divided into 2 namely: the law that forces and regulates:
   a. The law of coercion is the law that has absolute coercion even under any circumstances.
   b. The regulating law is a negligible law when the parties have their own rules.
6. Law Based on How to Maintain it
   Based on how to maintain it is divided into 2, namely material and formal law:
   a.  Material law is a law that contains all rules governing the interests and relationships of a command and a prohibition.
   b. Formal law is a law that contains rules on how to carry out the law of the material.
7. Law by Its Being
   Based on the form of law is divided into 2, namely objective and subjective law:
   a. Objective law is the law within a State where it applies in general.
   b.  Subjective law is a law that arises from objective law and applies to certain people or more. This law is also called right.
8. Law Based Contents
   Based on the contents of the law is divided into 2, namely private law and public law:
   a. Private law is a law that regulates the relationship between individual one with another individual by relying on individual interests. This law is also called civil law. Examples are civil and commercial law.
   b.  Public law is the law governing the relationship of the State with its citizens or the State with the fittings. It is also called State law. Where the law is divided into three namely criminal law, State Administration, and State administration.

The role of law in everyday human life is of course also very important. Where with the law can control and guarantee the behavior and human actions, so as to create peace and tranquility in the life of society and state. On the other hand the role of law also serves to guarantee every human being to get justice and defense before the law. Where in Indonesia there are two types of law, namely civil law and also criminal law.

Understanding of Criminal Law

Before discussing more about the details of criminal law, it is necessary to understand first about what is a criminal law. Of course, some jurists do not have a definite similarity to the definition of criminal law. Criminal law is all the rule of law that determines what action should be imposed and what kind of criminal sanction that corresponds.. While DR. WIRJONO PRODJODIKORO, S. H. also believes that criminal law is a criminal law.

Unlike the case with SATCHID KARTANEGARA: Criminal law is a number of regulations that are part of positive law containing the prohibitions and obligations determined by the state or other powers authorized to determine which criminal, prohibition or imperative rules are accompanied by threats Criminal sanction and when this is breached the state’s right to prosecute, criminalize, and criminalize.

Understanding of criminal law is a rule that regulates various actions done by man, where for those who violate will get sanction or punishment. On the other hand, criminal law is a part of the whole law applicable in a country as a basis for determining which action is prohibited by being accompanied by sanctions for violating it, determining when and in what way to those who violate can be subject to criminal as well as determine how the penalty is done.

The purpose of the Criminal Law

Of course with enacted Criminal Law of course there is a purpose. Where the purpose is to protect the interests of individuals (individuals) or human and community human rights, and the state. In Indonesia (experienced by foreign nations many times) after independence, it is appropriate that Indonesian criminal law (not a criminal law in Indonesia) be drafted and formulated in such a way that all the interests of the state, society and individual as citizens can be safeguarded in equilibrium Which harmonizes on the basis of Pancasila. Thus the objective of Indonesian criminal law is to harmonize all interests in a harmonious manner.

On the other hand based on Prof. Moeljatno, S.H. There are two purposes of Criminal Law namely:
a. Maintain Civil Morality (moral standards of society) based on mistakes.
b. Maintain “Standard Social Utility” in the sense of expediency Criminal law  for  society. This is evident in the development of Criminal Law where subjects of criminal law / perpetrators other than humans, including corporations / legal entities

Meanwhile, according to Prof. Dr. Wirjono projodikoro S. H. Criminal law purposes enacted are:
a. To frighten people into not committing crimes, either scaring the crowds or scaring certain people who have committed crimes, so that they will not commit crimes anymore.
b. To educate or improve people who have marked a crime to be a good person.

Function of Criminal Law

• In general
  The function of criminal law in general is the function of criminal law is the same with other functions of law in general because to organize life in the community or organize a system in society.
• Specifically
  Its special legal function is to protect a legal interest against infringing acts with a sanction or punishment in the form of a criminal that has been established a law that has been established and whose nature is more sharp than other laws or to provide rules Order to protect the injured party .

Example of Criminal Law:

• Who committed the act of murder
  b. Who commits the act of rape
  c. Who do the steal / rob
  d. Those who commit acts of corruption
  e. Who commits acts of penganiyaan
  f. Who commits the act of fraud

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In Indonesia has laws to regulate the behavior of citizens in Indonesia, including criminal law, civil law, state law, and religious law. Here will explain the civil law. Here all must have heard or seen about civil law, because some cases in Indonesia are categorized into civil law.
The term civil law was first introduced by prof. Djojodiguno during the Japanese occupation. Besides the term, the synonyms of civil law are civielrecht and privatrecht.

Understanding of Civil Law

Civil law is a law or provision that regulates obligations, rights, and interests between individuals in a society that is private (closed). Civil law is commonly referred to as private law. Its civil law functions to handle cases that are private or private. Such as inheritance law, divorce law, defamation law and law of engagement. Civil law has a purpose to resolve conflicts or problems between both parties. Civil law occurs when a person obtains a private case (closed in. Civil law occurs when a party reports a related party to the authorities in a case involving only the two individuals

Legal Resources

Basically the source of law can be divided into 2 kinds:
1. The material legal source
The source of material law is the place from which the legal material was taken. For example social relations, political power, scientific research results, international developments, and Geographical state.
2. Formal law sources
The source of formal law is a place of obtaining legal power. This relates to the form or manner in which the formal law rules apply.

Volamar divides the source of civil law into 4 kinds . That is civil Civil Code, tractate, yaurisprudence, and customs. Of the four sources are subdivided into two kinds, namely the source of civil law written and unwritten. What is meant by the source of civil law written that is where the discovery of the rules of civil law derived from written sources. Generally written rules of civil law are contained in legislation, treaties and jurisprudence. The source of unwritten civil law is where the discovery of civil law rules derived from unwritten sources. As is found in customary law.

Examples of civil law

Examples of Civil Law Inheritance
2. Example of Civil Law Divorce
3. Examples of Defamation Cases

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The current condition of Indonesian law enforcement in the eyes of the people is facing pessimism or no more confidence. This further encourages apathy toward law enforcement. On the one hand, Indonesia is a country based on the law, but on the other hand impressed the existing law with the money paid.

Law enforcement is actually an attempt to run the norms of law can be made a real solution in the life of society, nation and state.

The most important factor in law enforcement efforts is the enforcement of law enforcement officials in carrying out their trust fund duties. Of course because law enforcement officers are subject and object of law. Apart from being an apparatus that serves to provide and peace and sense of justice in society he is also as ordinary people who can not be separated from the reach of law. Therefore, the good and bad law enforcement that occurs in the midst of society depends on the honesty and dignity of the law enforcement officers in carrying out their duties

Today’s law enforcement that we can say is still far from a sense of justice. In its efforts, law enforcement should have a conscience and a commitment to fair action. But what is happening in the real world, the judges who are experts on the articles of the Criminal Code or Criminal Procedure know the right article which is ready to be used to win the bribing party. Just choose to win which party between the parties to the conflict. Nowadays there are many examples that some politicians are more obedient to party orders; Lawyers are more obedient to the orders of clients who pay for them; The prosecutor, the judge is superior to the bribe’s orders.

On the other hand, law enforcement should indeed involve the role of the community. However, is it true that the government can with drinking water and society does not have to raise public awareness of the law? Public awareness of the law is very important, even I am experiencing its development from year to year. At least, people now understand what is right and what is wrong with an event that is happening.

Events after the events in Indonesia today, a little more have opened our insight as ordinary people and later can give their own assessment of the incident. Example remember the case of grandmother asyani woodcutters in East Java situbondo area, he only cut down some trees only with the existing considerations, during the end of the trial 15 months, Article 12 reads every person who likes to load, unload, remove, transport, master, And / or have logging results in a forest area without a license. The violation of the article is at least 1 year criminal or 500 million penalty as stated in Article 83 paragraph 1a of the Law of 2013 on the prevention of eradication of forest destruction. Like this in the endless review by the lawyer, the case of people who like a religious grandmother in peeled out, congratulations grandma cried hysterically crying or forgiveness in court when he was in verdict. How miserable so people in the lower circles who violate the law in Indonesia.
After that, we moved to a forest fire case in Sumatra, a law-free Sumatran judge for PT.  Sriwijaya of the same deed, the judge summons saying “it’s okay, because it can be re-planted” it’s the words that do not come in. The reason why in article 12d is not written the word “burn”, so the judge of PT. Sriwijaya free-cell, obviously it is about the prevention of eradication of forest destruction, burned is clearly damaged.

Is it true that law enforcement officers are honest, authoritative and responsible in carrying out their duties? During this time there are still many attitudes of law enforcement officers who are not honest who are trapped in practices that are against the law, even easily can be known by the public.

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Taking note of the development of Indonesia’s legal system, we will see the existence of specific and interesting traits to be studied. Prior to the legal influence of Dutch colonialism in Indonesia there were different customary laws and Islamic laws from different indigenous peoples in Indonesia from each different kingdom and ethnicity. After entering the Dutch colonists brought their own laws that are largely a concordance with the laws in force in the Netherlands that is written law and legislation are positive. Nevertheless the Dutch adhered to the customary law politics, which let the customary law apply to the indigenous Indonesian people and European law Applies to the European class who live in Indonesia (Dutch East Indies). Thus in the Dutch East Indies law pluralism prevailed. The development of law in Indonesia shows the strong influence of colonial law and abandoned customary law.

Therefore, in looking at the legal issues in Indonesia should be viewed from the historical reality and the development of Indonesian law. At the present time there are differences in the way of view of the law among Indonesian society. Dissatisfaction with law enforcement and the handling of various legal issues stems from unequal views of what is meant by law and what is the source of the law.

• The Role of Structure and Political Infrastructure

According to Daniel S. Lev, the most decisive in the legal process is the conception and structure of political power. That is that the law is in many ways always a political tool, and that the place of law within the state, depends on the balance of politics, the definition of power, the evolution of political, economic, social, and so on
Although then the legal process referred to above is not identified with the intention of forming the law, but in practice often the process and dynamics of the formation of the law experiencing the same thing, namely the conception and structure of political power that prevail in the community that determines the establishment of a legal product. So to understand the relationship between politics and law in any country, it is necessary to study the cultural, economic, political power in society, state institutions, and social structures, in addition to their own legal institutions.

Sufficient legal understanding should not only see the law as a set of rules and principles governing human life in society, but it must also include the institutions and processes necessary to bring about the law in reality.

From this reality is realized, the existence of a valid space for the entry of a political process through the container of political institutions for the formation of a legal product. Accordingly, there are two key words that will be examined further about the influence of power in the law that includes the word “process” and the word “institutions,” in realizing a legislation as a political product. The influence will be more visible on the product of legislation by a political institution that is strongly perceived by large political forces in political institutions. In connection with this issue, Miriam Budiarjo argues that political power is defined as the ability to influence the general policy (government) of both its formation and its consequences, in accordance with the holder of power.
In the process of formulating the rule of law by political institutions the role of political forces that sit in political institutions is very decisive.
In the process of formulating the rule of law by political institutions the role of political forces that sit in political institutions is very decisive.

 Political institutions formally given the authority to form the law are merely an institution that stops without being filled by them given the authority for it. Therefore political institutions are only a mere tool of a group of political power holders. Political forces can be seen from two sides: the power side possessed by formal political forces (political institutions) in this case which is reflected in the power structure of state institutions, such as the President, the People’s Legislative Assembly and other state institutions and the political power side of Political infrastructure is like: political parties, public figures, civic organizations, non-governmental organizations, professional organizations and others.Thus it can be concluded that the formation of a legal product is born of the influence of political power through a political process within the state institution given authority for it.

As described in the previous section, legal theories that have a strong influence on the concepts and implementation of legal life in Indonesia are the legal theory of positivism. The influence of this theory can be seen from the dominance of the concept of codification of law in various types of law applicable in Indonesia has even propagated to the international and traditional law system. Similarly, in the practice of law in society, …

As a universal and holistic religion that not only regulates the ritual worship, but also has the rules and foundations of faith for Muslims, from small to large affairs, such as love, zakat, prayer, inheritance, marriage and many again. For this reason, the main function of the 5 pillars of Islam and the six pillars of faith always practiced by Muslims is vital. Basically the Shari’a of Islam according to the Koran regulates the human relationship with God and human relationships with humans and other living beings.

Understanding Islamic Law

Understanding Islamic law or Islamic Shari’a is a system of rules based on the revelation of Allah SWT and hadist about the behavior of people who can already be burdened with recognized and believed obligations, which is binding for all adherents. And this refers to what the Apostle has done to execute it totally. Shari’a according to the term means the laws commanded by Allah for His people brought by a Prophet, whether related to belie

Islamic according to language means the path through which mankind goes to Allah SWT. And Islam is not just a religion that teaches about how to worship to God alone. The existence of a rule or system of provisions of Allah SWT to regulate human relationship with Allah SWT. and human relationship with each other. The rule comes from all Islamic teachings, especially the Qur’an and Hadist.

Understanding the source of Islamic law

The definition of Islamic law is the Shari’a which means the rule of God for His people brought by a Prophet , both the law relating to belief aqidah as well as the laws relating to the deeds  committed by Muslims altogether.

Sources of Islamic Laws
Islamic law is not just a theory but is a rule to be applied in the joints of human life. Because of the many problems encountered, generally in the field of religion that often makes Muslims think that tends to the difference. That is why the source of Islamic law as a solution, which is as follows:

1. Al-Quran
   The first source of Islamic law is the Qur’an, a Muslim holy book that was revealed to the last prophet, the Prophet Muhammad through the Angel Gabriel. The Qur’an contains contents containing orders, prohibitions, suggestions, stories of Islam, provisions, wisdom and so on. The Qur’an explains in detail how man should live his life in order to create a society of noble character. Thus, the verses of the Qur’an became the main basis for establishing a Shari’a.
2. Al-Hadith
   The second source of Islamic law is Al-Hadist, ie everything that is based on the Prophet Muhammad. Be it words, behavior, silence. In Al-Hadist  there are rules that detail all the rules that are still global in the Qur’an. The word hadist which experienced the expansion of meaning so that it is synonymous with the hadist  it can mean any word (word), deeds, decrees and approval of Rasulullah SAW which is used as a decree or Islamic law.
3. Ijma ‘
   The agreement of all mujtahid scholars at one time after the Prophet’s time on a matter in religion. “And ijma ‘accountable is what happened in the days of Companions, Tabiin (after Companions), and Tabi’ut Tabiin (after Tabiin). Because after their time the scholars have dispersed and the numbers are many, and more and more disagreements, so it is not certain that all scholars have agreed.
4. Qiyas
   The fourth source of Islamic law after the Al-Quran, Al-Hadith and Ijma ‘is Qiyas. Qiyas means to explain something that there is no argument nashnya in Al quran or hadith  by comparing something similar to something that want to know the law.

This means that if a texts have already demonstrated the law of a case in Islam and it has been known through one method of knowing the legal matter, then there is another case similar to the case of the texts in such a case, then the case law is likened to Existing case law.

Kinds of Islamic Law

Each of the joints of human life, there are rules of rules that must be obeyed. If it is in society then the law of society must be upheld. Similarly, embracing Islam, the religion that has rules. And the first rule we must understand is the rule of God. All Divine rules in all forms of the laws of human life are contained in the Qur’an, which has been explained in the hadist  of the Prophet . The following are various Islamic laws,

1. Obligatory
   Compulsory is something deeds that if done will get a reward and if left behind will be tortured. Examples of deeds that have compulsory laws are five-time prayers, wearing hijab for women, fasting, performing Hajj for the able, respecting non-Muslims and more.
2. Sunnah
   The Sunnah is something that

The consequence of international relations is the emergence of international law. International relations that have been practiced by countries in the world have given birth rights and obligations between legal subjects (state). Therefore, international law is absolutely necessary in order to guarantee the smoothness of international association

• Understanding of International Law Prof. Dr. Mochtar Kusumaatmaja said that International Law is the whole rules and principles governing relations or issues that cross the borders of the state between the state and the state, the countries with other international legal subjects.
  International law is divided into two parts:
  a. International Civil Law, is an international law that regulates legal relations between citizens in a country and citizens of other countries (law between nations)
  b. International public law, is an international law that governs one country with another in international relations (Intercultural Law)
• Principles of International Law

The principles applicable in international law are:
1. Territorial Principle, According to this principle, the state implements the law for all persons and all goods within its territory.
2. The principle of Nationality, according to this principle settled citizens wherever he is, still get legal treatment from his country. This principle has extraterritorial powers, meaning that state law remains in force for a citizen even if he is in another country.
3. General Interest, according to this principle, the state may adapt to all circumstances and events pertaining to the public interest. Thus, the law is not bound to the boundaries of a country’s territory.

• Subject of International Law

International law subjects consist of:
a. Country
b. Individual
c. Holy See
d. The International Red Cross
e. International Organization
Some Experts say that the rebels are part of the subject of international law.

• International Legal Resources

Sources of law can be divided into two parts, namely:
a. Sources of legal Material namely everything that discusses the basis of law enforcement of a country.
b. The source of formal law, the source from which we obtain or find the provisions of international law.

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