To begin with, we are going to clarify first in regards to the that means of regulation. Legal guidelines are coercive rules that decide human conduct in a society made by licensed official our bodies, which violations of those rules lead to motion being taken, specifically with sure punishments, in keeping with JCT Simorangkir and Woerjono Sastropranoto within the e book Indonesian Legislation Classes as quoted by CST Kansil in Introduction to Indonesian Legislation and Authorized Administration (p. 38).
Nevertheless, CST Kansil later quoted WLG Lemaire in his e book Het Recht in Indonesia that it’s troublesome to provide a exact definition, as a result of the regulation has many facets and types, so it’s unattainable to cowl all facets and types of the regulation in a single definition. p. 36).
Moreover, though the regulation can’t be seen, it is vitally necessary for folks’s lives, as a result of the regulation regulates the connection between members of 1 group and one other, in addition to the connection between group members and their group. That’s, the regulation regulates the connection between particular person people and society (p. 37).
After understanding that the definition of regulation is a regulation that’s coercive and regulates the connection between one individual and one other, what you want to know subsequent, the traits of the regulation are that there are orders and/or prohibitions and that orders and/or prohibitions should be obeyed by everybody.
CST Kansil additionally defined what the aim of the regulation was. In keeping with him, to make sure the continuity of steadiness within the relationship between group members , a authorized regulation is required, during which each violator of the regulation will probably be topic to punishment (p. 40).
With the intention to preserve the rule of regulation can proceed and be accepted by the group and should be in accordance with and should not battle with the precept of justice, the aim of the regulation is to ensure authorized certainty in society and the regulation should be primarily based on justice , specifically the precept of justice from the group (pp. 40-41). .
As well as, the aim of the regulation is to guard and stop everybody from turning into a choose over himself ( eigenrichting is verboden ), from judging and punishing each violation of the regulation in opposition to him . Nevertheless, every case should be resolved by way of a court docket course of by way of the mediation of a choose (p. 45).
After understanding how the aim of regulation, not removed from the notion of regulation is the regulation of relations between one individual and one other, Budiono Kusumohamidjojo in his e book Philosophy of Legislation, Issues with Truthful Order, explains that the perform of regulation is to realize public order and justice (pp. 165-166).
Conceptually, sourced from the identical e book, public order may be understood as a manifestation of a peaceable state assured by collective safety, specifically an order, during which folks really feel protected collectively (p. 169).
In the meantime, Hans Kelsen , the pioneer of pure authorized teachings, emphasised that the notion of regulation should be distinguished from the notion of justice . Magnis Suseno quotes Gustav Radbruch as saying that the regulation could also be unfair, however the regulation is barely regulation as a result of it desires to be honest (p. 173).
However even when there are variations, the hassle to place the 2 in a purposeful relationship is justice achieved by way of the regulation is crucial for any nation (p. 173).
Thomas Aquinas places the thought of justice into the next framework (p. 190):
- Distributive justice, justice associated to the division of positions, fee of taxes, and others.
- Authorized justice, which issues the implementation of basic regulation.
- Barter equity, which pertains to sale and buy transactions.
- Revenge justice, which at the moment prevailed in legal regulation.
Thus a proof of the aim of regulation and what the perform of regulation is from varied literatures.