SUMBER HUKUM DI INDONESIA, BAGIAN 2 [BELAJAR HUKUM SERI 003]

Summary

The lecture delves into the formal sources of Indonesian law, exploring the definitions and distinctions between broad and narrow interpretations of laws, including regulations, government decrees, and ministerial regulations. It discusses the historical evolution of legislative power in Indonesia, the process of law enactment, and the impact of ratification on international treaties. Additionally, it touches on the role of jurisprudence, customary law, and legal doctrines as formal sources of law, providing a comprehensive introduction to the study of Indonesian legal foundations.

Takeaways

• 📜 The lecture is an introduction to Indonesian law, continuing the discussion on the sources of Indonesian law from a formal perspective.
• 🏛 The lecture differentiates between 'formal' and 'material' definitions of law, explaining that in a broad sense, any binding regulation is considered law.
• 📖 It is clarified that 'narrow' or formal laws are regulations made by state institutions with legislative power, such as the People's Representative Council (DPR) and the President.
• 🔄 The authority to formulate laws has shifted over time, influenced by historical practices and amendments to the 1945 Constitution of Indonesia.
• 📝 The process of a law coming into effect involves promulgation, which can be in the form of placement in the State Gazette or regional news outlets, depending on the level of governance.
• 📅 Laws are generally effective from the moment they are promulgated, but there can be exceptions where a law specifies a later effective date.
• 👨‍⚖️ Jurisprudence, or legal precedents set by court decisions, is another formal source of law, especially in cases where there is no clear legal regulation.
• 🤝 Customary law, or 'adat', is recognized when certain practices become traditional norms within a community, binding its members after being practiced over generations.
• 🌐 International treaties are formal sources of law that must be ratified or approved to become part of the national legal system in Indonesia.
• 📜 Ratification can occur through legislation or presidential regulation, depending on the nature of the treaty and its implications for national sovereignty or human rights.
• 🧙‍♂️ Legal doctrine, or the opinions of legal scholars on certain legal matters, can also serve as a formal source of law, influencing legal interpretations and practices.

Q & A

What is the main topic of the lecture?

The main topic of the lecture is an introduction to Indonesian law, specifically discussing the formal sources of law in Indonesia.

What are the two approaches to defining 'law' in the script?

The two approaches to defining 'law' are the broad or material approach, which includes any binding regulation, and the narrow or formal approach, which specifically refers to regulations made by state authorities with legislative power.

What is the difference between 'undang-undang' in a broad sense and in a narrow sense according to the script?

In a broad sense, 'undang-undang' refers to any regulation that binds everyone, including government regulations, regional regulations, presidential regulations, ministerial regulations, etc. In a narrow sense, it refers specifically to laws formed by the legislative body, such as the People's Representative Council (DPR) along with the President, according to the provisions of the Constitution.

How has the power to legislate changed over time in Indonesia as mentioned in the script?

Before the amendment of the 1945 Constitution, the power to legislate was primarily with the President, with the DPR only invited to give consent. After the political and legal reforms in 1999 and subsequent amendments, the power to legislate was shifted to the People's Representative Council (DPR), with the President given the initiative to propose draft laws to the DPR.

What is 'yurisprudensi' and how does it become a source of law?

Yurisprudensi, or jurisprudence, is the body of law formed by court decisions, also known as judicial decisions. It becomes a source of law when there is ambiguity or when new conditions arise that are not yet regulated by existing laws, and the judge must make a legal finding.

What is 'kebiasaan' or 'adat' as a source of law?

'Kebiasaan' or 'adat' refers to customs, traditions, or customary laws that have become a regulated way of life and have binding force on the community that practices them. It must be a consistent practice over generations and be accompanied by a legal belief or necessity.

What is 'perjanjian internasional' or 'international treaty' and how does it become part of Indonesian law?

An 'international treaty' is an agreement between two or more countries. In the context of Indonesian law, it cannot directly apply within the Indonesian legal system without ratification or approval. Ratification is a legal act to bind the country to the international agreement, which may be done through a law or a presidential regulation.

What is 'doktrin' and how does it contribute to the formal source of law?

'Doktrin' refers to the opinions of legal experts on a specific legal matter or phenomenon. These expert opinions can become a formal source of law, influencing legal interpretations and practices.

What are the conditions for a custom to be considered as law according to the script?

For a custom to be considered as law, it must be a consistent action in a certain situation that is repeatedly done by more than one person within a community, accompanied by a legal belief or necessity from the community.

How does the script explain the process of a law coming into effect?

The script explains that a law comes into effect from the moment it is promulgated. There is a process called 'pengundangan,' which involves placing the regulation in the State Gazette or other official publications, marking the law's official implementation.

Can you provide an example of how a law's effectiveness can be delayed as mentioned in the script?

An example given in the script is Law No. 14 of 2008, which was promulgated on April 30, 2008, but its effectiveness was delayed until April 30, 2010, as stated in the law itself.