DISCOVERY LAW PRINCIPLES IN INDONESIA
The principle of the law is not a law of concrete, but the basic thought is general and abstract, or a background regulation concrete contained in and behind every legal system is revealed in the legislation and the judge's decision is a positive law and can be expressed by looking for properties -sifat or characteristics that are common in the concrete regulations. It means showing the similarities of concrete with a concrete legal regulation lays into the general rules for being a general nature can not be applied directly to concrete events. Legal principles found in the positive law. The function of law is to seek legal principle in positive law.
Function principle of law in the law is ratified and has influence normative and binding on the parties. Characteristically certify for basing its existence on the formulation by legislators and judges. But in addition the function of the legal principle in the law is the complementary legal system, create a flexible legal system. In principle we are studying law makes it legal to give an overview. Legal principle in the science of law can only be set up and eksplikatif.
Legal principle affects not only positive law, but in many cases also create a system that would not exist without that principle. Because of its abstract, the legal principle that the umum¬nya not set forth in the rules or concrete article. If the concrete legal regulations that can be directly applied to concrete events, then the law of karma is abstract principle can not be applied directly to concrete events.
The principle is the foundation or something that made the footstool of thought, speech and action. The principles of the legislation forming the basic means or something that made a footstool in drafting the legislation. PRINCIPLE synonym principle is meaningful truths into basic staples in thought, speech and action.
In drawing up the legislation many experts express their opinions. Although different editors, basically diverse opinions that lead to the same substance.
Then there are some principles of the legislation include:
1. The principle of lex superior derogat lege inferiori;
2. The principle of lex specialis derogat lege generali;
3. The principle of lex posterior derogat legi priori;
4. The principle of res judicata Pro Veritate Habetur (Preasumtio Iustae Causa);
5. The principle of Dura Sed Tamen Scripta;
6. Principle Normatieven Die Kraft December Faktischen;
7. The principle of the law should not be retroactive (non-retroactivity) / Principle of Legality;
explanation:
1. The principle of lex superior derogat lege inferiori
The principle of lex superior derogat legi inferior which means higher laws override Low (principle of hierarchy), in a framework of thinking about the types and hierarchy of legislation, would not be separated in our minds menganai Theory Stuffen Bow works of Hans Kelsen (hereinafter referred to as " theory quo "). Hans Kelsen in Theoretical mambahas quo regarding the level of the rule of law, in which he argues that the legal norms it step-by-step and multi-layered arrangements in a hierarchy. That is used when there is a conflict, in this case to consider is the hierarchy of legislation, such as when there is a contradiction between the Government Regulation (PP) with the Act, then used the Act because the legislation highest rank. The theory of punctuated quo in the positive law in Indonesia in the form of a law on the establishment of legislation.
Now is the hierarchy of legislation in Indonesia in accordance with the provisions of Law No.12 of 2011 are; "The type and hierarchy of legislation" consists of:
1. The Constitution of the Republic of Indonesia Year 1945;
2. People's Consultative Assembly Decree;
3. Law / Government Regulation in Lieu of Law;
4. Government Regulation;
5. Presidential Regulation;
6. Provincial Regulation; and
7. Regulation of District / City
2. The principle of lex specialis derogat lege generali
Lex specialis is a legal principle which states that a special legal (lex) override the general law (lex generalis). For example, in Article 18 UUD 1945, governors, regents and mayors should be elected democratically. These are general rules (lex generalis). The same article also honor special regional administration (lex), so that the privilege area of governors not elected democratically as Yogyakarta Special Region is maintained.
3. The principle of lex posterior derogat legi priori
The principle of Lex posterior derogat legi Priori is the equivalent rules, regulations most recently crippling the old regulation. So the rules have been replaced with the new rules, automatically with this principle the old rules no longer apply. Normally in legislation and regulations to explicitly affirmed that reflect these principles. Examples relating to the principle of Lex posterior derogat legi Priori: Article 76 of Law No. 20/2003 on the provision cover Sisidiknas mentioned that the time of entry into force of this Law, Law No. 48 / Prp. / 1960 on Education and Foreign Control (State Gazette Year 1960 Number 155, Supplement to State Gazette No. 2103) and Law No. 2 of 1989 on National Education System (State Gazette Year 1989 Number 6, State Gazette No. 3390) shall not apply.
4. The principle of res judicata Pro Veritate Habetur (Preasumtio Iustae Causa)
There is a legal principle called Res judicata Pro Veritate Habetur meaning "judge's decision must be right" where the decision is handed down, the "Demi Justice Based on God". This principle puts the judge is very important in the process of law enforcement in this country. Therefore the quality of justice in every decision handed the judge is very dependent on the quality of the good or ketaqwaannya relationship with God Almighty.
Similar to the above explanation, the article Personality Test 'final and binding' with Progressive Law, among others, said that there are universal principles applicable law, the court decision must be assumed to be true (res judicata pro veritate habetur). The court's ruling can not be canceled by a court decision. As well as the nature of the final and binding decision of the Constitutional Court ( "the Court") is absolute. Even if there are indications of judicial corruption, power apply final and binding nature was not reduced.
Sourced from the explanations above, we can draw the conclusion that Res judicata Pro Veritate Habetur have relevance to the actions of judges in examining and deciding a case, where the decision is djatuhkannya it must be true, regardless of the verdict.
For additional information, within the Constitution Magazine No. 63 Edition April 2012 said that broadly, res judicata prohibits review of matters already settled court. Meanwhile, in a certain sense as there is a court decision on the lawsuit or petition, the next judge prohibited prosecute. According Sudikno Mertokusumo (1988), a court ruling that establish, abolish or change the legal relationship is a source of substantive law although it could be an error in judgment (the theory of substantive law). This ruling is also a source of authority prosesuil (the legal theory of the event) and this decision is a testament to what is stipulated in the decision so as to have binding force (the legal theory of evidence). The binding of the decision also has a positive meaning, in the sense that what has been decided by a judge should be considered correct (res judicata pro veritate habetur).
5. The principle of Dura Sed Tamen Scripta
Dura Lex Sed Tamen Scripta just a legal term from the Latin, which says no more than five words. However, the term is significant enough to be studied in-depth. No one knows exactly when and where this term appears and popularized. But experts argue that this term already existed in Roman times, do not know for sure in the days of empire roma, roma republic, or imperial Rome. Only if we see the emergence of this term in Roman times does the term appear around 700an BC - 1453 AD In many references also no mention of who the originator of the term, as another adage "Ubi Societas Ibi ius" is not always written originators. Nevertheless, this expression seems simple this may not be raised by the visionaries or philosophers reliable. Not important for us to find out when and where the term appears, but more importantly we need to browse through what is contained in the phrase. Important or not important we can see the reality. If all this is just a regular expression, it is unlikely that many legal experts and legal scholars regard this expression in their writings and remained unknown until now. Inevitably, they do not assume that the simple expression of this did not affect the "Law Progress" is happening right now.
In general, this principle means "The law is rigid, yet that is what is written laws that must be understood" .Terkesan this expression is stern, with the word "must" comprehend and understand.
There must inevitably us to follow the orders of expression, there is no other choice. Here we do not need to refer to these details, although the word "must" contain a cue coercion which forbids us to not understand and do not understand. It should be noted that the phrase applies to the written law, not a habit. Briefly written law is the rule of law which in legislated be it that the codification or not codified. That is, the law is not written into the legislation are not included in this principle.
All sense principle that is common meaning contained therein. However, that does not mean merely flowing and everyone agrees with the meaning contained in those principles. Arising two debates on the meaning of the written law is harsh even more than it is cruel. It is certain groups of people are pro with this meaning, and that is counter to the laws that are harsh or cruel.
In this theoretical debate, raised doubts as to whether it is true that the law (written) it was hard even cruel? Pro said that the law (written) hard even cruel when their necessity or obligation to do or not do something. Law seems to impose the will so that people will be obedient to what he wrote. There is no other way but to follow the rules so that they are not punished for acts against, especially when they do not comply with the rules that it will get the appropriate punishment with it. While it may rule that was written not in accordance with the size of the happiness they get, but inevitably they must obey the law. The counter said that the law (written) is not cruel. But the rules had to be coercive because we do need rules to live a life. So also on penalties, that a person who violates deserved to be punished because it is the consequence of what they do.
First, the doubts that arise in this case because the law is supposed to make people feel comfortable going to rule it. The rule has the allure of satisfaction, comfort if they obeyed. If the rules will be observed that according to the satisfaction of the people then the people will obey without being forced. In theory, a jurist Jeremy Bentham in England found "a measure of justice in the existing Act on satisfaction / happiness to the people" (The Greates Happines Principle). But here we will encounter a new problem, as how much and how barometer / size of the public satisfaction against the rules? which is certainly within society there are individuals who are different.
Second, the general scope of the rule of law is made to regulate the behavior (what should be) the individual / community with the purpose of the creation of peace. Then it certainly should be an element of force in the rules of law, but that does not mean the rules are cruel. But the substance is for the common good for the sake of achieving peace.
Thus, Dura Lex Sed Tamen Scripta we can conclude that the law is rigid or hard, but that does not mean it's a cruel law. Basically, the law must have binding power and forced a strong power so that people will obey. Commands legislation requires us to do something or not to do something should be done for the sake of peace together, there is the nature of force (hard) because it avoids "indifferent nature" against the law for the common good. No law is perfect, the confusion and the need for new laws that are in line with globalization will inevitably arise. Because no one is master and know the law as a whole.
6. Principle Normatieven Die Kraft December Faktischen
This principle is actually derived from the teachings of Georg Jellinek, called "Die Lehre von der Normativität des Faktischen." On the basis of this teaching, Gustav Radbruch in his book 'Rechtsphilosophie' (cet. 8, 1973, among others, p. 25), mentions the existence of the principle of 'normativen der Kraft des Faktischen' is. In harifiah this principle means of normative force arising from the facts. That is, if a fact is repeated, it will be born sociologically normative provisions binding. In Dutch, L.J. van Apeldoorn (1985: 42, translation Oetarid Sadino) never reveals also the same with the words, "die normatieve kracht van het feitelijk gebeuren" (translated as: what is the usual, often appointed as the rules).
Already a fact that human love making certain patterns in everyday behavior. People tend to sit or parking in the same place every time he visited in one place. This trend will be respected by those around him, so that at the family dinner table, for example, seating father, mother, and children will normally be distributed consistently in a certain period. Distribution change will occur when the material context of spatial change. For example, the table was shifted facing a different direction with the arrangement of seats changed.
Laws adopted a similar trend. Law is thus moved from the patterns of behavior (nomos), which then dinormakan. The new pattern will be formed if there is consistency of certain behaviors on an ongoing basis (continuing) in the long term (longa et inveterata consuetudo). The consistency raises awareness (conscientie) to the people that this pattern needs to be maintained. This awareness is considered by Apeldoorn as an essential force in law. He refused to accept the notion that political power as an essential element in the law. Political power is just an additional element (accessoir) because the main thing is decency. Therefore, power always lies in those who are governed, not the people who rule. He pointed to the historical facts about the length of Roman rule can survive because it relies on the strength of the moral authority that was. Once this moral strength fades, then the law will lose its social legitimacy.
Thus, the principle of "normativen der Kraft des Faktischen" is a legal principle which emphasizes the importance of custom as a source of law. Recognition of the importance of the source of law is recognized in the laws and regulations in Indonesia. For example, the judge was ordered by law to explore the values that live in the community (Article 5 of Law No. 48 of 2009). Agreement is also considered binding not only on what the explicit agreement, but also on what has become a habit (Article 1339 Civil Code).
In the event that there are traditions that are contrary to law, it does appear problematic whether the principle "normativen der Kraft des Faktischen" should be used as a benchmark. Commonly accepted a common view, that this principle will take precedence if the legal norms that are set. Conversely, if the norms of the law is coercive, then this principle must give way to the principle of 'lex dura sed scripta Tamen' (the law is hard, so is he tertuis).
Of course, in practice is not always easy to sort out the legal regulative and force. Benchmark that is often used is sanctioned. If there are sanctions, then the norms was considered forced, if no sanction considered set. In fact, not always explicitly present sanctions meyertai primary norm in the formulations in the legislation. Here is seen that the attraction between the sources of law, including the habit of reflecting consciousness (conscientie) people and the law as the law is written, it became legal discourses area which was never completed. It will be increasingly felt significant when habit patterns that began sweeping the subjects increasingly polarized, is no longer marked by the same space and time. The interaction of the users of social media, for example, is no longer in the corridors of the country's territory, so the behavior patterns they create will create a new version within the meaning of the source of this common law.
7. The principle of the law should not be retroactive (non-retroactivity) / Principle of Legality
Namely the principle of non-retroactivity prohibiting retroactively enforceability of a law. This principle is in accordance with article 2 Algemene Bepalingen Wetgeving van voor Indonesie ( "AB"). In criminal law, this principle included again in article 1, paragraph (1) Criminal Code:
"No one may be punished only act, but on the power of the criminal provisions in the legislation, which is earlier than the act"
Prof Dr. Wirjono prodjodikoro SH in his book "Principles of Criminal Law in Indonesia" states that the repetition of the inclusion of this principle in the Criminal Code indicates that the prohibition of enforceability is receding by the legislators emphasized for criminal provisions. Enforceability prohibition retroactively to enforce the rule of law for the people, who should he have to know what conduct constitutes a criminal act or not.
Moreover, the principle of non-retroactivity is also mentioned in Article 28 of the Constitution of the Republic of Indonesia Year 1945:
"The right to life, freedom from torture, freedom of thought and conscience, freedom of religion, freedom from enslavement, recognition as a person before the law, and the right not to be prosecuted based on retroactive law is a human right can not be reduced under any circumstances "
Deviations from the principle of non-retroactivity in the Criminal Code in article 1, paragraph (2) Criminal Code, namely that a newer law can be applied retroactively, as long as the new law is more favorable to the accused than the old law. This Article applies where a lawbreaker criminal case is not decided by the judge in the final decision.
In addition to article 1, paragraph (2) Criminal Code, the retroactive nature also adopted in Article 43 paragraph (1) of Law No. 26 Year 2000 on Human Rights Court ( "Court Law"):
"Human rights violations are severe that occurred before the enactment of this law, examined and decided upon by the ad hoc Human Rights Court"
Basic retroactive applicability of the Human Rights Court against the human rights violations which the weight is the explanation of Article 4 of Law No. 39 of 1999 on Human Rights, which stipulates that:
"The right not to be prosecuted based on retroactive law can be excluded in the case of grave violations of human rights are classified into crimes against humanity."
So, in general a law is non-retroactive, they must not be applied retroactively. However, for certain things it is possible to be applied retroactively, for example, the provisions of Article 1 (2) Penal Code and article 43 paragraph (1) of the Human Rights Court.
The principle of the law is not a law of concrete, but the basic thought is general and abstract, or a background regulation concrete contained in and behind every legal system is revealed in the legislation and the judge's decision is a positive law and can be expressed by looking for properties -sifat or characteristics that are common in the concrete regulations. It means showing the similarities of concrete with a concrete legal regulation lays into the general rules for being a general nature can not be applied directly to concrete events. Legal principles found in the positive law. The function of law is to seek legal principle in positive law.
Function principle of law in the law is ratified and has influence normative and binding on the parties. Characteristically certify for basing its existence on the formulation by legislators and judges. But in addition the function of the legal principle in the law is the complementary legal system, create a flexible legal system. In principle we are studying law makes it legal to give an overview. Legal principle in the science of law can only be set up and eksplikatif.
Legal principle affects not only positive law, but in many cases also create a system that would not exist without that principle. Because of its abstract, the legal principle that the umum¬nya not set forth in the rules or concrete article. If the concrete legal regulations that can be directly applied to concrete events, then the law of karma is abstract principle can not be applied directly to concrete events.
The principle is the foundation or something that made the footstool of thought, speech and action. The principles of the legislation forming the basic means or something that made a footstool in drafting the legislation. PRINCIPLE synonym principle is meaningful truths into basic staples in thought, speech and action.
In drawing up the legislation many experts express their opinions. Although different editors, basically diverse opinions that lead to the same substance.
Then there are some principles of the legislation include:
1. The principle of lex superior derogat lege inferiori;
2. The principle of lex specialis derogat lege generali;
3. The principle of lex posterior derogat legi priori;
4. The principle of res judicata Pro Veritate Habetur (Preasumtio Iustae Causa);
5. The principle of Dura Sed Tamen Scripta;
6. Principle Normatieven Die Kraft December Faktischen;
7. The principle of the law should not be retroactive (non-retroactivity) / Principle of Legality;
explanation:
1. The principle of lex superior derogat lege inferiori
The principle of lex superior derogat legi inferior which means higher laws override Low (principle of hierarchy), in a framework of thinking about the types and hierarchy of legislation, would not be separated in our minds menganai Theory Stuffen Bow works of Hans Kelsen (hereinafter referred to as " theory quo "). Hans Kelsen in Theoretical mambahas quo regarding the level of the rule of law, in which he argues that the legal norms it step-by-step and multi-layered arrangements in a hierarchy. That is used when there is a conflict, in this case to consider is the hierarchy of legislation, such as when there is a contradiction between the Government Regulation (PP) with the Act, then used the Act because the legislation highest rank. The theory of punctuated quo in the positive law in Indonesia in the form of a law on the establishment of legislation.
Now is the hierarchy of legislation in Indonesia in accordance with the provisions of Law No.12 of 2011 are; "The type and hierarchy of legislation" consists of:
1. The Constitution of the Republic of Indonesia Year 1945;
2. People's Consultative Assembly Decree;
3. Law / Government Regulation in Lieu of Law;
4. Government Regulation;
5. Presidential Regulation;
6. Provincial Regulation; and
7. Regulation of District / City
2. The principle of lex specialis derogat lege generali
Lex specialis is a legal principle which states that a special legal (lex) override the general law (lex generalis). For example, in Article 18 UUD 1945, governors, regents and mayors should be elected democratically. These are general rules (lex generalis). The same article also honor special regional administration (lex), so that the privilege area of governors not elected democratically as Yogyakarta Special Region is maintained.
3. The principle of lex posterior derogat legi priori
The principle of Lex posterior derogat legi Priori is the equivalent rules, regulations most recently crippling the old regulation. So the rules have been replaced with the new rules, automatically with this principle the old rules no longer apply. Normally in legislation and regulations to explicitly affirmed that reflect these principles. Examples relating to the principle of Lex posterior derogat legi Priori: Article 76 of Law No. 20/2003 on the provision cover Sisidiknas mentioned that the time of entry into force of this Law, Law No. 48 / Prp. / 1960 on Education and Foreign Control (State Gazette Year 1960 Number 155, Supplement to State Gazette No. 2103) and Law No. 2 of 1989 on National Education System (State Gazette Year 1989 Number 6, State Gazette No. 3390) shall not apply.
4. The principle of res judicata Pro Veritate Habetur (Preasumtio Iustae Causa)
There is a legal principle called Res judicata Pro Veritate Habetur meaning "judge's decision must be right" where the decision is handed down, the "Demi Justice Based on God". This principle puts the judge is very important in the process of law enforcement in this country. Therefore the quality of justice in every decision handed the judge is very dependent on the quality of the good or ketaqwaannya relationship with God Almighty.
Similar to the above explanation, the article Personality Test 'final and binding' with Progressive Law, among others, said that there are universal principles applicable law, the court decision must be assumed to be true (res judicata pro veritate habetur). The court's ruling can not be canceled by a court decision. As well as the nature of the final and binding decision of the Constitutional Court ( "the Court") is absolute. Even if there are indications of judicial corruption, power apply final and binding nature was not reduced.
Sourced from the explanations above, we can draw the conclusion that Res judicata Pro Veritate Habetur have relevance to the actions of judges in examining and deciding a case, where the decision is djatuhkannya it must be true, regardless of the verdict.
For additional information, within the Constitution Magazine No. 63 Edition April 2012 said that broadly, res judicata prohibits review of matters already settled court. Meanwhile, in a certain sense as there is a court decision on the lawsuit or petition, the next judge prohibited prosecute. According Sudikno Mertokusumo (1988), a court ruling that establish, abolish or change the legal relationship is a source of substantive law although it could be an error in judgment (the theory of substantive law). This ruling is also a source of authority prosesuil (the legal theory of the event) and this decision is a testament to what is stipulated in the decision so as to have binding force (the legal theory of evidence). The binding of the decision also has a positive meaning, in the sense that what has been decided by a judge should be considered correct (res judicata pro veritate habetur).
5. The principle of Dura Sed Tamen Scripta
Dura Lex Sed Tamen Scripta just a legal term from the Latin, which says no more than five words. However, the term is significant enough to be studied in-depth. No one knows exactly when and where this term appears and popularized. But experts argue that this term already existed in Roman times, do not know for sure in the days of empire roma, roma republic, or imperial Rome. Only if we see the emergence of this term in Roman times does the term appear around 700an BC - 1453 AD In many references also no mention of who the originator of the term, as another adage "Ubi Societas Ibi ius" is not always written originators. Nevertheless, this expression seems simple this may not be raised by the visionaries or philosophers reliable. Not important for us to find out when and where the term appears, but more importantly we need to browse through what is contained in the phrase. Important or not important we can see the reality. If all this is just a regular expression, it is unlikely that many legal experts and legal scholars regard this expression in their writings and remained unknown until now. Inevitably, they do not assume that the simple expression of this did not affect the "Law Progress" is happening right now.
In general, this principle means "The law is rigid, yet that is what is written laws that must be understood" .Terkesan this expression is stern, with the word "must" comprehend and understand.
There must inevitably us to follow the orders of expression, there is no other choice. Here we do not need to refer to these details, although the word "must" contain a cue coercion which forbids us to not understand and do not understand. It should be noted that the phrase applies to the written law, not a habit. Briefly written law is the rule of law which in legislated be it that the codification or not codified. That is, the law is not written into the legislation are not included in this principle.
All sense principle that is common meaning contained therein. However, that does not mean merely flowing and everyone agrees with the meaning contained in those principles. Arising two debates on the meaning of the written law is harsh even more than it is cruel. It is certain groups of people are pro with this meaning, and that is counter to the laws that are harsh or cruel.
In this theoretical debate, raised doubts as to whether it is true that the law (written) it was hard even cruel? Pro said that the law (written) hard even cruel when their necessity or obligation to do or not do something. Law seems to impose the will so that people will be obedient to what he wrote. There is no other way but to follow the rules so that they are not punished for acts against, especially when they do not comply with the rules that it will get the appropriate punishment with it. While it may rule that was written not in accordance with the size of the happiness they get, but inevitably they must obey the law. The counter said that the law (written) is not cruel. But the rules had to be coercive because we do need rules to live a life. So also on penalties, that a person who violates deserved to be punished because it is the consequence of what they do.
First, the doubts that arise in this case because the law is supposed to make people feel comfortable going to rule it. The rule has the allure of satisfaction, comfort if they obeyed. If the rules will be observed that according to the satisfaction of the people then the people will obey without being forced. In theory, a jurist Jeremy Bentham in England found "a measure of justice in the existing Act on satisfaction / happiness to the people" (The Greates Happines Principle). But here we will encounter a new problem, as how much and how barometer / size of the public satisfaction against the rules? which is certainly within society there are individuals who are different.
Second, the general scope of the rule of law is made to regulate the behavior (what should be) the individual / community with the purpose of the creation of peace. Then it certainly should be an element of force in the rules of law, but that does not mean the rules are cruel. But the substance is for the common good for the sake of achieving peace.
Thus, Dura Lex Sed Tamen Scripta we can conclude that the law is rigid or hard, but that does not mean it's a cruel law. Basically, the law must have binding power and forced a strong power so that people will obey. Commands legislation requires us to do something or not to do something should be done for the sake of peace together, there is the nature of force (hard) because it avoids "indifferent nature" against the law for the common good. No law is perfect, the confusion and the need for new laws that are in line with globalization will inevitably arise. Because no one is master and know the law as a whole.
6. Principle Normatieven Die Kraft December Faktischen
This principle is actually derived from the teachings of Georg Jellinek, called "Die Lehre von der Normativität des Faktischen." On the basis of this teaching, Gustav Radbruch in his book 'Rechtsphilosophie' (cet. 8, 1973, among others, p. 25), mentions the existence of the principle of 'normativen der Kraft des Faktischen' is. In harifiah this principle means of normative force arising from the facts. That is, if a fact is repeated, it will be born sociologically normative provisions binding. In Dutch, L.J. van Apeldoorn (1985: 42, translation Oetarid Sadino) never reveals also the same with the words, "die normatieve kracht van het feitelijk gebeuren" (translated as: what is the usual, often appointed as the rules).
Already a fact that human love making certain patterns in everyday behavior. People tend to sit or parking in the same place every time he visited in one place. This trend will be respected by those around him, so that at the family dinner table, for example, seating father, mother, and children will normally be distributed consistently in a certain period. Distribution change will occur when the material context of spatial change. For example, the table was shifted facing a different direction with the arrangement of seats changed.
Laws adopted a similar trend. Law is thus moved from the patterns of behavior (nomos), which then dinormakan. The new pattern will be formed if there is consistency of certain behaviors on an ongoing basis (continuing) in the long term (longa et inveterata consuetudo). The consistency raises awareness (conscientie) to the people that this pattern needs to be maintained. This awareness is considered by Apeldoorn as an essential force in law. He refused to accept the notion that political power as an essential element in the law. Political power is just an additional element (accessoir) because the main thing is decency. Therefore, power always lies in those who are governed, not the people who rule. He pointed to the historical facts about the length of Roman rule can survive because it relies on the strength of the moral authority that was. Once this moral strength fades, then the law will lose its social legitimacy.
Thus, the principle of "normativen der Kraft des Faktischen" is a legal principle which emphasizes the importance of custom as a source of law. Recognition of the importance of the source of law is recognized in the laws and regulations in Indonesia. For example, the judge was ordered by law to explore the values that live in the community (Article 5 of Law No. 48 of 2009). Agreement is also considered binding not only on what the explicit agreement, but also on what has become a habit (Article 1339 Civil Code).
In the event that there are traditions that are contrary to law, it does appear problematic whether the principle "normativen der Kraft des Faktischen" should be used as a benchmark. Commonly accepted a common view, that this principle will take precedence if the legal norms that are set. Conversely, if the norms of the law is coercive, then this principle must give way to the principle of 'lex dura sed scripta Tamen' (the law is hard, so is he tertuis).
Of course, in practice is not always easy to sort out the legal regulative and force. Benchmark that is often used is sanctioned. If there are sanctions, then the norms was considered forced, if no sanction considered set. In fact, not always explicitly present sanctions meyertai primary norm in the formulations in the legislation. Here is seen that the attraction between the sources of law, including the habit of reflecting consciousness (conscientie) people and the law as the law is written, it became legal discourses area which was never completed. It will be increasingly felt significant when habit patterns that began sweeping the subjects increasingly polarized, is no longer marked by the same space and time. The interaction of the users of social media, for example, is no longer in the corridors of the country's territory, so the behavior patterns they create will create a new version within the meaning of the source of this common law.
7. The principle of the law should not be retroactive (non-retroactivity) / Principle of Legality
Namely the principle of non-retroactivity prohibiting retroactively enforceability of a law. This principle is in accordance with article 2 Algemene Bepalingen Wetgeving van voor Indonesie ( "AB"). In criminal law, this principle included again in article 1, paragraph (1) Criminal Code:
"No one may be punished only act, but on the power of the criminal provisions in the legislation, which is earlier than the act"
Prof Dr. Wirjono prodjodikoro SH in his book "Principles of Criminal Law in Indonesia" states that the repetition of the inclusion of this principle in the Criminal Code indicates that the prohibition of enforceability is receding by the legislators emphasized for criminal provisions. Enforceability prohibition retroactively to enforce the rule of law for the people, who should he have to know what conduct constitutes a criminal act or not.
Moreover, the principle of non-retroactivity is also mentioned in Article 28 of the Constitution of the Republic of Indonesia Year 1945:
"The right to life, freedom from torture, freedom of thought and conscience, freedom of religion, freedom from enslavement, recognition as a person before the law, and the right not to be prosecuted based on retroactive law is a human right can not be reduced under any circumstances "
Deviations from the principle of non-retroactivity in the Criminal Code in article 1, paragraph (2) Criminal Code, namely that a newer law can be applied retroactively, as long as the new law is more favorable to the accused than the old law. This Article applies where a lawbreaker criminal case is not decided by the judge in the final decision.
In addition to article 1, paragraph (2) Criminal Code, the retroactive nature also adopted in Article 43 paragraph (1) of Law No. 26 Year 2000 on Human Rights Court ( "Court Law"):
"Human rights violations are severe that occurred before the enactment of this law, examined and decided upon by the ad hoc Human Rights Court"
Basic retroactive applicability of the Human Rights Court against the human rights violations which the weight is the explanation of Article 4 of Law No. 39 of 1999 on Human Rights, which stipulates that:
"The right not to be prosecuted based on retroactive law can be excluded in the case of grave violations of human rights are classified into crimes against humanity."
So, in general a law is non-retroactive, they must not be applied retroactively. However, for certain things it is possible to be applied retroactively, for example, the provisions of Article 1 (2) Penal Code and article 43 paragraph (1) of the Human Rights Court.
