Legal Literacy - Ex Aequo et Bono, a Latin phrase meaning "according to what is just and good", is a legal principle that allows judges to decide cases based on a sense of justice and morality, not solely on written law. This principle provides flexibility in the judicial system and allows judges to achieve fairer outcomes in complex situations.

Definition Ex Aequo et Bono

Ex aequo et bono is a phrase in Latin that means "according to what is considered right and good" or "from justice and conscience." It is a legal term that refers to the authority of a judge to make decisions not only based on written legal rules, but also based on principles of justice and fairness.

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Context of Use:

  • International Arbitration: In international arbitration law, ex aequo et bono can be used if the disputing parties agree to it. The arbitrator (chief mediator) is given the freedom to override the applicable law and consider justice in resolving the dispute.
  • Domestic Courts: Application ex aequo et bono in domestic/national courts varies. Some countries are more open to this concept, using it as a basis for legal consideration, especially if there is a legal vacuum. However, other countries may be more strict in applying this principle.

The Ultra Petita Principle and Ex Aequo et Bono

Usage ex aequo et bono related to the principle of ultra petita, which means that judges should not issue rulings that exceed the demands submitted by the parties. The ruling ex aequo et bono allows judges to override strict legal provisions for the sake of justice, but must still consider the demands and framework presented in the lawsuit.

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Case Example

The following cases in Indonesia could be examples of the use of ex aequo et bono:

  • Disputes among traders at Tanah Abang Market (the right of traders to obtain priority in buying kiosks based on fairness)
  • Termination of employee work rights for the sake of justice
  • Settlement of part of the lawsuit by the National Examination Victim Advocacy Team

History and Application of Ex Aequo et Bono

Ex Aequo et Bono has a long history, rooted in ancient Roman and Greek law. This principle was later adopted by European and American legal systems. In Indonesia, aequo et bono is recognized in Article 28D paragraph (1) of the 1945 Constitution, which states that "the right to obtain justice".

The use of Ex Aequo et Bono must be done carefully to avoid arbitrariness and legal uncertainty. Judges must consider various factors, such as:

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  • The specific facts and circumstances of the case
  • The moral and social values prevailing in society
  • The principles of justice and equality
  • Relevant legal precedents

Examples of Aequo et Bono Application

Here are some examples of how aequo et bono can be applied in practice:

  • Civil cases: In inheritance dispute cases, a judge may decide to divide the inheritance fairly among all heirs, even if the will does not mention an equal division.
  • Criminal cases: In fraud cases, a judge may consider factors such as the perpetrator's motive and the victim's losses when imposing a sentence.
  • International cases: The International Court of Justice may use aequo et bono to resolve disputes between countries, especially when international law does not provide a clear solution.

Advantages and Disadvantages of Aequo et Bono

Advantages:

  • Flexibility: Provides judges with room to achieve fair outcomes in complex situations.
  • Justice: Allows judges to consider moral and social values in decision-making.
  • Efficiency: Can help resolve cases more quickly and in a way that is more satisfactory to all parties.

Weaknesses:

  • Legal uncertainty: Can open the door to interpretation and personal bias.
  • Arbitrariness: If not applied carefully, aequo et bono can be used to justify unfair decisions.
  • Injustice: It can make it difficult for parties in a case to predict the outcome and prepare themselves adequately.

Conclusion

Ex Aequo et Bono is a valuable tool in the justice system, but it must be used with caution. By considering its advantages and disadvantages, aequo et bono can help judges achieve fair and satisfactory outcomes in complex situations.

For ease of understanding, we have included a summary table below:

[ninja_tables id="10087"]

References