Indonesia's legal system is a mix of some of the legal system. Indonesia's legal system is a mix of religious law, customary law, and the law of the European countries, especially the Netherlands as a nation never colonized Indonesia. The Netherlands are in Indonesia about 3.5 centuries. So do not be surprised if many of their civilization inherited including the legal system. Previous Indonesian nation is also a nation that has had or indigenous culture is very rich. Evidence heritage or historical facts say that in Indonesia the first widely established kingdoms Hindu-Buddhist as Sriwijaya, Kutai, Majapahit, and others. Age kingdom left cultural heritage that is still felt. One is the traditional rules that live and survive until now. The values of the customary law is one of the sources of law in Indonesia. Indonesia has the largest Muslim population it is no wonder if the Indonesian people also use mainly Islamic religious law as a guide in life and also be a source of law in Indonesia.
History of Law in Indonesia
• Period of Colonialism
Colonial period can be divided into three eras, namely: VOC era, the Dutch Liberal Political and ethical until the Japanese occupation.
a. VOC era
In the colonial era of the VOC, the legal system is used aims to:
1. Purposes of economic exploitation to assist the economic crisis in the country the Netherlands;
2. Disciplinary indigenous people of Indonesia with an authoritarian system
3. Protection for people VOC, and family, and European immigrants.
Dutch law is applied against the Netherlands or Europe. As for the indigenous people, which is applicable laws made by each community independently. Tata politics and government at that time had ruled out the basic rights of the people in the archipelago and make the painful sufferings of the indigenous peoples in the future.
b. Dutch Liberal Era
1854 in the Dutch East Indies issued Regeringsreglement (then called RR 1854) or Regulation on Governance (in the Dutch East Indies) whose purpose is to protect the interests of private enterprises in the colonies and for the first time include legal protection for indigenous people from government arbitrary colony. This can be seen in (Regeringsreglement) RR 1854 which regulates the limitation of the executive (the main Resident) and the police, and also guarantees about the judicial process that is free.
Otokratisme colonial administration still occur in this era, although no longer cruel advance. Legal reform based on the politics of economic liberalization was not able to improve the welfare of the indigenous people, because the exploitation is still happening.
c. The era of Japanese Colonialism Until Ethical Policy
Ethical Policy is applied at the beginning of the 20th century. Policies beginning ethical politics directly related to law reform, among others:
1. Education for the indigenous people, as well as advanced education law;
2. Establishment of the People's Council, the representative body for the natives;
3. Management of governmental organizations, the main terms of efficiency;
4. Management of the judiciary, which is a major in terms of professionalism;
5. Establishment of legislation that oriented legal certainty.
Until the dissolution of Dutch colonialism, law reform in the Dutch East Indies to leave a legacy: i) Pluralism / private legal dualism and pluralism / dualism justice agencies; ii) grouping of people to be three groups; Europe and were equated, Foreign Orientals, Chinese and non-Chinese, and Natives.
During the Japanese occupation was not much going on legal reform in all legislation that is not contrary to the Japanese military rule, remains in force while removing the privileges of the Dutch and other Europeans. Little change in legislation made: i) Code of Civil Law, which initially only applies to Europe and the equivalent class, applied also to the Chinese; ii) Some military regulations inserted in the criminal legislation in force. In the field of justice, renewal happens is: i) Elimination of pluralism / dualism judicial system; ii) Unification of the prosecutor; iii) Elimination of discrimination city police & courts / rural; iv) Establishment of legal education institutions; v) Charging massive positions of public administration and law with the indigenous people.
• Physical Revolutionary Era Until Liberal Democracy
a. Physical Revolutionary Era
i) Continuing unfikasi justice agencies to implement simplification;
ii) reducing and limiting the role of customary courts bodies and self-government, with the exception of bodies that religious courts even strengthened with the establishment of the Islamic Court of Appeal.
b. Era of Liberal Democracy
While the Basic Law in 1950 which already recognizes human rights. But in this era of legal reform and judicial system is not much going on, what happens is the dilemma for maintaining law and customary justice or codify and mengunifikasinya into national law that is sensitive to the economic development and governance of international relations. Following that happened was unification of justice by eliminating entire bodies and mechanisms of dispute resolution in court or out of court state, established by Law No. 9/1950 on the Supreme Court and Law No. 1/1951 concerning the composition and powers of the Court.
• Guided Democracy Era Until New Order
a. Guided Democracy Era
The development and dynamics of law in this era
i) Eliminating the doctrine of separation of powers and seats the Supreme Court and judicial bodies under the executive branch;
ii) Changing the legal symbol "goddess of justice" to "banyan tree" which means aegis;
iii) Provide an opportunity for the executive to intervene directly on the judicial process in accordance with Law 19/1964 and Law No.13 / 1965;
iv) To declare that the rules of civil law at the time of the occupation does not apply except only as a reference, and therefore the judge must develop decisions more situational and contextual.
b. New Order era
Legal reforms in the New Order begins from the removal of the law in the process of government and politics, the freezing of the Basic Agrarian Law, establish laws that facilitate foreign capital entering the Foreign Capital Investment Law, Law on Mining, and Forestry Law. In addition, the new order also launched: i) A weak legal institutions under the executive power; ii) Control system of education and critical thinking restrictions, including in legal thought; In conclusion, the New Order era did not happen the positive development of the National law.
• Post-New Order period (1998 - Present)
Since the executive power switch to President Habibie until now, has done four times amendment to the Constitution RI 1945. Some formal updates that occur among others: 1) Updates & ketetanegaraan political system; 2) Update the legal system and human rights; and 3) update the economic system.
The characteristics of the Legal System
• There are do's and don'ts
• There are strict sanctions for noncompliance
• commands and prohibitions must be adhered to for the whole community
Each person must do so to maintain order in society. Therefore, the law covers a wide range of regulations that define and regulate the relationship between people with other people who may be called the legal norms of social regulations.
Legal Methods
Sources into legal norms or social rules:
1. Norma Religion is the rule of life that contains the commands and prohibitions are sourced from the Almighty. Example: do not kill, respect parents, praying, etc.
2. Norma Decency is a regulation that comes from the heartstrings. for example: see people struggling then we should help.
3. Norma Modesty is a rule that live in a particular community. example: say hello to older people with higher language or better.
4. Legal Norms are rules made by the authorities that contains the commands and prohibitions binding: for example: ttiap the act is a punishable crime.
Elements of Law
In a legal system are the elements that make up the system are:
1. Regulations governing human behavior in social life
2. Regulations established by official agencies
3. Regulation of coercive
4. Regulations which have strict sanctions.
Legal nature
In order for the rules of social life in order to be strictly adhered to and adhered to become laws, regulations kemasyarakata life it must have the properties set and force. Coercive that the discipline in masyarakaty and provide strict sanctions (in the form of punishment) against anyone who does not want to obey obey.
Purpose of Law
Law aims to ensure legal certainty in the community and the law must also bersendikan on justice, namely the principles of justice of the community. Meanwhile, the lawyers providing legal purposes according to their own views.
1. Prof. Subekti, S.H. the law serve the purpose of the State which in principle is to bring prosperity and happiness to the people.
2. Prof. MR. dr. L.J. Van Apeldoorn, the purpose of law is to regulate human social life in peace.
3. Geny, the law aims solely to achieve justice, and as an element rather than justice mentions "the interests of efficiency and expediency".
4. Jeremy Betham (utility theory), the law aims to realize solely what is beneficial for the people.
5. Prof. Mr. J. Van Kan, the law aims to safeguard the interests of every human being so that those interests can not be bothered.
Based on some legal purposes suggested by experts in the above, it can be concluded that the purpose of the law was to have two things, namely:
1. to bring about justice
2. solely to seek benefits or benefits.
In addition to legal purposes, there is also the task of the law, namely:
1. ensure legal certainty.
2. Ensuring justice, truth, peace and peace.
3. Maintain not to happen acts of vigilantism in the association community.
Sources of Law
Source of law is all what raises the rules that have the power-kekutatan coercive, ie rules which if violated result in sanctions affirmative. Sources of law can be reviewed in terms of:
1. The source material law, legal sources can be viewed from various perspectives, such as economics, history, sociology, and philosophy. A sociologist (sociologist) would state that is the source of law is the events that occur in society. Similarly, another point of view too so will depend on the view of each when we explore further.
2. Sources of formal law, divide the source of law becomes:
• Act (statue), which is a state regulation that have binding legal force be established and maintained by the State authorities.
a) In a material sense is any regulations issued by the government of its contents in general binding as set forth in the People's Consultative Assembly Decree No. XX / MPRS / 1966.
b) In a formal sense is a decision issued by the government because of its shape and be involved in the making called the law
• Habit (custom / custom), human actions that remain to be repeated in the same way then accepted and recognized by the community. If there is any act or acts contrary to the habit, it is perceived as a violation.
• The judge's decision (jurisprudence); is a former judge's decision relied upon the decision by the other judges in the same judge.
• Treaty (treaty); or a binding agreement nationals of the State concerned. Treaty is also a formal agreement between two or more countries. This agreement is specific to the field of economics and politics.
• Opinion Bachelor of Law (doctrine); an opinion of the scientists or the leading legal scholars who have influence or power in decision making.
Banjarmasin
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