Legal Literacy - This article discusses the state in the portrait of a legal policy. A popular theory as an introduction that is certainly well known in all circles of discourse entitled legal products and their interpretation. Namely, Lawrence M. Friedman in ideally mentions that the effectiveness and success of law enforcement depends on three elements of the legal system, namely the structure of law, the substance of law, and the culture of law.
By: Ch Idzan Falaqi Harmer (Postgraduate Student, Faculty of Law, Gadjah Mada University)
A popular theory as an introduction that is certainly well known in all circles of discourse entitled legal products and their interpretation. Namely, Lawrence M Friedman in its ideal context mentions that the effectiveness and success of law enforcement depends on three elements of the legal system, namely the structure of law, the substance of law, and the culture of law.
The majority agree that the theory above is used as a reference and basis for legal interpretation, the making of legal products, and their implementation as an inseparable unit. In the content of the basic norm or what is referred to as the constitution (the 1945 Constitution of the Republic of Indonesia), which is used as the highest legal norm in the hierarchy of laws and regulations, it often reaps various interpretations. So, it is not uncommon for the mandate for the implementation of the norms contained in the constitutional material to receive attention, which can then be seen with the emergence of various discourses in various academic, social and community circles or groups.
Ironically, the formation of laws and regulations that are below it often clashes with the material and content of the constitution which is legitimized as the highest legal norm. This is evidenced by the emergence of various judicial reviews of these laws and regulations against the 1945 Constitution at the Constitutional Court (Mahkamah Konstitusi/MK).
How Does the Constitution Exist as a Basic Norm?
Everyone agrees that the constitution, which contains basic legal norms, regulates interests regarding fundamental rights and protects the interests of the nation and all citizens, of course. This is in line with the theory put forward by Hans Kelsen through his Stufenbau theory. He stated that the legal system is a ladder system with tiered rules, where the lowest legal norm must adhere to the higher legal norm, and the higher legal norm (such as the constitution) must adhere to the most fundamental norm (Grundnorm). He said, regarding Grundnorm, is
a statement from which all other duty statements ultimately get their validity from.
In subsequent interpretations and enrichments, it is interpreted that the formation of laws and regulations under the 1945 Constitution as the highest legal norm should not violate the values and basic norms that are the benchmark or foundation of the highest source of law of a nation and state.
Isn't it clear that the purpose of forming laws and regulations is solely for the benefit and to guarantee the fundamental rights of citizens? Good intentions and good faith, hopefully the formation or product of legal politics will always reflect the implementation of Law Number 12 of 2011 as amended to Law Number 15 of 2019 concerning the Formation of Laws and Regulations, which is carried out properly by embodying the values and provisions contained therein.
The Ideals of Legal Policy?
As a product is created, it cannot be separated from the mandate of its formation and the purpose for which it was formed. In line with the purpose of law, which generally has the aim of realizing "justice, expediency, and legal certainty." It's like a human body organ, if drawn into the enrichment of a philosophy of science.
Perhaps the above is a part that cannot be separated from one another. This means that a good legal product is a legal product that guarantees the principles and objectives of law in a complete and comprehensive manner, so it is not justified to violate the essence, values and provisions of the purpose of law. When one of the objectives of the law is not fulfilled, the legal product of the legislation can be assessed as a legally flawed product.
As expressed by a French philosopher, Montesquieu, he stated that
there is no tyranny that is done under the protection of law and in the name of justice.
Thus, through interpretation in this expression, the tendency of power is not justified and can even be said to be cruel at any time if the exercise of that power is sheltered under the umbrella of law.
Thus, there is no truth that can be accepted in the reasons that become narratives and justifying arguments to deny inevitability and perpetuate power that tends not to adhere to and side with the people as the holders of the highest sovereignty. Moreover, if the country has aspirations democracy, but in practice, it gives the impression of "straddling" the very foundation of democracy itself. How ironic.
Read Also: What is the Rule of Law?
Doesn't the State Exist to Guarantee People's Sovereignty?
Reliable and skillful. Actually, the state institutionally is undoubtedly capable of absorbing all schools of thought and legal streams, as well as legal theories as guidelines that have developed from the past to the present, then interpreting things that are suitable to these values and adopting them into values and norms that become a collective understanding by the community, and pouring them into the form of carrying out tasks as guarantors of the basic rights of a nation and its citizens.
The presence of state institutions is as the embodiment of all their skills, as holders of executive, legislative, and judicial power. In the form of good prejudice, it is very unlikely that the implementers of these values and norms will carry out interests that are immediately only for themselves personally, and not for the purpose of public benefit. However, on the other hand, perhaps such a narrative is just one form or example of a citizen who tends to be guided by naive behavioral benchmarks.
In a noble hope, it is appropriate for the state as the guarantor and protector of all the people's interests, as stated in the state's objectives in the point and main paragraph 4 of the 1945 Constitution, namely:
to protect all the Indonesian nation and all Indonesian blood; to promote public welfare; to educate the nation's life; and to participate in implementing world order based on independence, eternal peace and social justice.
Carrying out these tasks and having a collective belief that the state is present thanks to the du contract social, then this is essentially realized that by nature the laws and regulations intended for civilized humans to create a civilized nation, is essentially placing power in the hands of the people. And of course, all interests in the formation of legislation are solely for the interests of the people. By reflecting the objectives of law that have elements of justice, benefit, and legal certainty. And, by always placing the purity of the owner of sovereignty in the hands of the people themselves.
Wallahu’alam bish-shawab.
*This article is the personal opinion of the writer and does not represent the views of the editors of Legal Literacy Indonesia.
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