Legal Literacy - We often hear the word legal principle, some also mention adage, and sometimes the same thing or sentence is referred to as a postulate. So, what is the difference between it and legal principles, adagiums, old maxims, and postulates? Let's take a look at the explanation in the article below!
What are Principles, Adages, Old Maxims, and Postulates?
There are several terms that are often used as substitutes for the term "legal principle". These terms include "adagium", "old maxim", and "postulate". In the Great Dictionary of the Indonesian Language, "adagium" is defined as a proverb or saying. When the law is incomplete, regula pro lege, si deficit lex (a proverb can be used as a guide). According to the Legal Dictionary, "adagium" is defined as a scientific guideline or motto, as well as words of wisdom or slogans. On the other hand, "old maxim" is translated as an old proverb. Therefore, the word "adagium", which comes from Latin, is a synonym or has the same meaning as the word "maxim".
In contrast to "adagium" and "old maxim", "postulate" comes from Latin, namely postulatum. Postulatum comes from an older word, namely postulare. Literally, postulare means to ask or demand, while postulatio is defined as a complaint. The word "postulate" itself means a proposition that is the starting point of a search that is not a definition or a temporary assumption. According to the Indonesian Dictionary, a postulate is an assumption that is the basis of a theorem that is considered true without needing to be proven. A postulate can also be interpreted as a basic assumption. Based on these various definitions, the term "legal principle" is closer in meaning to the word "postulate."
Example of a Postulate: Accessorium non ducit, sed sequitur, suum principale
In simple terms, this postulate states that an accessory in a criminal act does not have a primary role but follows the instructions or actions of the principal perpetrator. This principle is an important part of criminal law, especially in the concept of accessory liability.
In criminal law, there are two forms of complicity that are generally distinguished: independent complicity and dependent complicity. Independent complicity is when each participant is assessed and tried based on their own role in the criminal act. Meanwhile, dependent complicity occurs when the liability of a participant depends on their role in the criminal act committed by the principal perpetrator, and whether the principal perpetrator's actions are considered a criminal act.
In this context, independent complicity involves the perpetrator, who acts alone or together with the principal perpetrator. Meanwhile, dependent complicity involves those who encourage or assist the principal perpetrator. They function as assessors for the principal perpetrator, and their liability depends on the liability of the principal perpetrator.
In the Netherlands, this concept was adopted by several criminal law experts and drafters of the Dutch Criminal Code, such as Simons, van Hamel, and the wetgever (legislator). However, some legal experts have different opinions regarding this division. They argue that in modern criminal law, a person's liability should be determined based on their own role without depending on the actions of others. Nevertheless, the history of the formation of the Criminal Code shows the existence of the concept of independent complicity and dependent complicity.
Pompe's opinion asserts that all forms of complicity are actually dependent, even though the role of each participant must be assessed individually. This opinion is supported by van Bemmelen, van Hattum, and Moeljatno. They argue that one participant and another form a unity. In addition, another principle that supports the separation of independent and dependent complicity is res accessoria sequitur rem principalem, which means the accessory follows the principal perpetrator.
Example of a Legal Principle: Actori in cumbit probation
This legal principle is known in civil law as the principle of evidence. Ei incumbit probatio qui dicit, non qui negat, which means the burden of proof lies with the party making the claim, not the defendant. This legal principle is explicitly regulated in Article 163 Herzine Indische Reglement, Article 283 Reglement op de Burgelijke, and Article 1865 of the Civil Code, which stipulates that the party claiming to have a right, intending to assert their own right, or denying the right of another referring to an event, is responsible for proving it.
Several other related legal principles are: First, affirmanti, non neganti, incumbit probatio, which means the burden of proof lies on the one who affirms, not the one who denies. Second, affirmantis est probare, which means the person who affirms must prove. Third, reo negate actori incumbit probatio, which means if the defendant denies the claim, then the plaintiff must prove it.
Old Maxim Example: C’est le crime qui fait la honter, et non pas vechafaus
This old maxim means it is the crime that brings shame, not the scaffold. This is the basis for justifying the death penalty. In addition to the death penalty being retribution or revenge, it is also intended as a deterrent. In fact, retribution is not only part of the death penalty, but is the main key in the criminal justice system, especially the classical school of thought in criminal law. The death penalty is intended for cruel crimes carried out by the state as a representation of the victims for perpetrators who are morally corrupt. Another adage related to the death penalty is crimina morte extinguuntur (crime can be eradicated by the death penalty), mors dicitur ultimum supplicium (the death penalty is the most severe punishment) and mors omnia solvit (the death penalty settles the matter).
Adagium Example: Ad officium justiciariorum spectat unicuique coram eis placitanti justitiam exhibere
The meaning of this adagium is that it is the duty of law enforcers to provide justice to anyone who pleads. This contains the profound meaning that everyone is equal before the law. Therefore, law enforcement officials must provide justice to anyone without discrimination for their rights that have been violated by other parties.
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