Prof. Dr. Wicipto Setiadi, S.H., M.H. - SUMBER HUKUM (1)

Summary

This video lecture provides an in-depth explanation of formal sources of law (sumber hukum formil) in Indonesia. The speaker outlines the distinction between formal and material sources of law, focusing on laws made by government institutions like the DPR, the President, and the DPD. The presentation also covers the hierarchy of laws, including the Constitution, legislative decrees, government regulations, and local regulations. The process of law-making, the legal validity, and retroactive effects of laws are discussed, emphasizing how laws are published and enforced. This lecture aims to clarify the Indonesian legal structure and its legislative processes.

Takeaways

• 😀 The sources of law can be divided into formal and material categories.
• 😀 Formal sources of law include six key elements: laws (undang-undang), customs (kebiasaan), treaties (traktat), jurisprudence (yurisprudensi), and doctrines (doktrin).
• 😀 Laws can be classified as either formal or material. Formal laws are created by state organs, while material laws bind the public and can include various types of regulations.
• 😀 Organic laws are directly mandated by the constitution, such as laws about elections, while non-organic laws address issues not explicitly specified by the constitution.
• 😀 Umbrella laws serve as the foundation for the creation of specific laws by instructing the creation of implementation laws.
• 😀 For a law to be binding, it must be promulgated in the state gazette, with legal fiction assuming that everyone is aware of the law once it is published.
• 😀 Laws must be numbered and include the year of their formation for proper identification and reference.
• 😀 A law takes effect from the date specified in the law or from another date as determined by the law itself.
• 😀 Laws may no longer be applicable if their designated time period expires, or if circumstances for which they were created no longer exist. They may be repealed or replaced by new laws.
• 😀 The hierarchy of laws in Indonesia is defined in the Constitution (UUD 45) and includes the following: Constitution, MPR Decrees, laws (undang-undang), government regulations (Perpu), presidential regulations (Perpres), and regional regulations (Perda).
• 😀 According to the Indonesian legal system, higher-level laws (such as the Constitution) take precedence over lower-level laws (such as regional regulations).

Q & A

What are the two main categories of sources of law discussed in the script?

The two main categories of sources of law discussed are 'formal' sources and 'material' sources of law.

What is the distinction between formal and material law?

Formal law refers to laws enacted by state authorities, such as the legislature, the president, or regional councils. Material law, on the other hand, consists of regulations that are binding to the public, which can include laws, government regulations, presidential regulations, and regional regulations.

What is the role of the Indonesian government institutions in enacting laws?

In Indonesia, laws are enacted by state institutions, specifically the DPR (People's Representative Council), the president, and the DPD (Regional Representative Council).

What does 'fiksi hukum' (fiction of law) mean?

'Fiksi hukum' refers to the presumption that everyone knows the law once it has been published in the official state gazette, and no one can claim ignorance of the law.

What is the difference between organic and non-organic laws?

Organic laws are those that are directly mandated by the constitution, such as regulations on elections, while non-organic laws address issues not explicitly required by the constitution.

What is an 'umbrella law'?

An umbrella law is a law that serves as the foundation for creating other detailed, implementation laws.

How are laws made legally binding in Indonesia?

Laws in Indonesia become legally binding once they are published in the official state gazette (Lembaran Negara), and they are considered to be in effect immediately upon publication.

What happens to a law if its designated time period expires or the situation it addressed no longer exists?

A law may no longer apply if its designated time period expires, or if the circumstances that necessitated the law are no longer relevant. In such cases, the law may be repealed or replaced.

What is the principle of non-retroactivity in law?

The principle of non-retroactivity means that laws generally cannot be applied to events that occurred before the law was enacted, except when such laws benefit individuals.

How is the hierarchy of laws structured in Indonesia?

The hierarchy of laws in Indonesia is structured with the Constitution (UUD 1945) at the top, followed by MPR Decisions (TAP MPR), and then laws and regulations such as government regulations, presidential regulations, and regional regulations.