The Law : Source of Legal Theory

 The Law

Source of Legal Theory

Legal theory draws its inspiration from legal academics' perspectives on the law and their interpretation of a law according to the logic they follow or maintain while using it to define the meaning of the law.

As outlined by Radbruch, who advanced a legal theory to clarify the many values and tenets of law up to its most fundamental philosophical premises.

Another example is given by Hans Kelsen, a professor of pure legal theory, who claims that pure legal theory is a general theory of law that both attempts to explain how existing laws are produced and fails to do so.

He added that the theory is known as a pure legal theory because it only considers the knowledge or cognition found in the law itself and because it purges the science of law of anything that is not the object of knowledge or cognition that is really determined to be the law. foreign substances are present.

Karl Marx, who lived throughout the current industrial revolution, also asserted that the current legal system serves as a justification for a particular social class. The "those who have" who own capital are the only individuals whose interests the current legal system supports.

He proposed the well-known view that law exists throughout the infrastructure and superstructure. The in issue infrastructure is a product of local economic interactions. The superstructure in question, meantime, consists of non-economic social structures, including the legal system, the political order, the cultural norms, and many others.

That explains legal theory in terms of the methodological development that was done in light of the foundation and history of studying law more widely.

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The Law : Features of Legal Theory and Legal Theory's Uses

 The Law

Features of Legal Theory

Following are inferences that can be made about the attributes of the legal theory based on the above description and comprehension of the legal theory.

a). The first characteristic is a way of thinking about law called legal theory.

b). Legal theory is used to find everything about law, which is the second characteristic.

c). The third trait is legal theory, which is a science that investigates what constitutes the law.

d). The question of what the components of the current legal system are is addressed by the fourth feature, legal theory.

e). The legal theory does not create a permanent law, which is the sixth characteristic.

f). The sixth characteristic is that the foundation or content of legal theory comes from the study of law.

g). Legal theory, the sixth trait, is a subset of legal theory.

h). The eighth characteristic is that legal philosophy reflects a legal strategy.

i). Legal theory, the eighth characteristic, is a style of how lawyers discuss the law.

j). The tenth characteristic is the employment of legal theory with non-juridical technical language to explain law from a non-juridical technical perspective.

k). In the eleventh feature, problems about the applicability of logical interpretation approaches are raised using legal theory.

l). The twelfth trait, legal philosophy, covers the factors and justifications used by legal professionals.

m). Legal theory does not care about the best answer, which is the thirteenth characteristic.

n). The fourteenth trait, legal theory, is utilized to analyze the factors that legal experts take into consideration as well as develop into an instrumentarium used by legal professionals.

Legal Theory's Uses

With an interdisciplinary and external perspective, legal theory, a distinct field that lies between dogmatism and legal philosophy, critically examines various legal phenomena on their own and in the context of the whole.

The objective of legal theory is to both explain diverse legal developments and attempt to offer an evaluation of them. The study of positive law itself continues in the form of legal theory. Positive law is utilized as study material where legal theory is used, and philosophical studies are employed to help explain the law.

This also applies to the theoretical concept of legal theory and how it relates to the whole. Both in its theoretical concept and in its practical application, legal theory aims to gain a better understanding of and offer the most concise justification for the law that actually exists in social reality.

1. The legal theory's urgency has the following applications.

Through the interpretation of a meaning or understanding, a condition or a legal element of a legal event, as well as the hierarchy of powers that exist in the rule of law, legal theory is used to explain the law.

An existent legal occurrence is evaluated using legal theory.

Legal theory is employed to make predictions about future events.

2. Radbruch claims that legal theory also contains obligations, specifically:

The many values and postulates of law are explained using legal theory to the greatest philosophical foundation.

3. Kelsen also lists the following applications for legal philosophy.

Legal theory serves to lessen confusion and plurality so that it might become a unity.

4. According to Mochtar, there is also the usage of legal theory. In particular, the development law theory that has received a lot of attention is as follows.

a). Based on an examination of the characteristics and culture of the Indonesian people, the theory of development law that exists today is a legal theory. The legal theory of growth was thus born, expanded, and developed in accordance with the circumstances in Indonesia through the use of the already-existing dimension benchmarks. In essence, if it is used in a manner that is consistent with the circumstances and demands of Indonesia's multicultural society.

b). The theory of development law uses a frame of reference on the way of life or the view of life of the people as well as the Indonesian nation, both of which are based on the Pancasila principle and have a familial relationship to the norms, principles, institutions, and rules that are currently present in the theory of development law. structure, culture, and substance are all included in the dimension that is relative and already exists.

c). The idea of development law essentially lays the groundwork for legal procedures utilized as a means of community renewal, or what is known as law as a social engineering instrument, as well as for law as a system that is essential for the Indonesian nation, which is a developing country.

The distinction between legal theory and legal philosophy is made in the book Legal Theory by Prof. Dr. Peter Mahmud Marzuki, S.H., M.S., LL.M. He also discusses how developing laws must be based on legal principles in his book, which you may read below.

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The Law : According to Experts, Understanding Legal Theory

 The Law

According to Experts, Understanding Legal Theory

To be more specific, the theory of law itself lacks a clear definition. However, a few ahli have expressed concern about their views on the discipline of hukum theory, as shown below.

1. Hans Kelsen

According to Hans Kelsen, hukum theory is a body of knowledge about current hukum, not just the hukum that is required. According to him, the most important aspect of hukum theory is murni hukum, which is also sometimes referred to as positive hukum theory.

Teori hukum murni atau teori hukum positif yang dimaksud karena hanya menjelaskan hukum serta berupaya untuk membersihkan objek penjelasan dari segala hal yang tidak ada sangkut paut dengan hukum. Hans Kelsen also explains what the law is and how it came into being as a theory.

2. Friedman

According to Friedman, legal theory is a discipline that investigates the fundamentals of law and establishes a connection between legal philosophy and politics.

Because it is a scientific discipline with an autonomous nature, the field of legal theory as it currently exists does not have a space to develop into an independent science.

3. Ian McLeod

Ian McLeod also shared his thoughts on how to define legal theory. He asserts that legal theory serves as a manual for the systematic theoretical examination of numerous fundamental characteristics of laws, regulations, and legal institutions in general.

4. John Finch

John Finch defines legal theory as a study that incorporates the fundamental traits that exist in law and customs that have universal traits that exist in a legal system in order to assess the many fundamental components that characterize it as a law and set it apart from other laws.

5. Mark van Hoecke and Jan Gijssels

Legal theory is described by Jan Gijssels and Mark van Hoecke as a science with the function of explaining and explaining the law. Legal theory itself can be seen as a material discipline that, as it develops, is greatly influenced by and connected to general law.

According to Jan Gijssels and Mark van Hoecke, the general law teachings currently in use can be categorized into the two categories below.

a). Legal theory is a development of broad legal teachings that have distinct discipline goals, such as legal dogma on the one hand and legal philosophy on the other. In addition to serving as a supplement to legal philosophy and legal dogmatics, each of which has its own domain and significance, legal theory has evolved to be acknowledged as a third discipline.

b). Legal theory is also seen as an a-normative science with no inherent values, which distinguishes it from other subjects.

6. Bruggink

Legal theory is defined by Bruggink as all propositions that are connected to one another by the conceptual framework that underlies the rule of law and legal judgments. A constructive use of the system is extremely crucial.

Bruggink defines legal theory as both a process and a product, which gives his interpretation of the term a dual meaning.

7. Sidharta

According to Arief Sidharta, the theory of legal science, or rechtstheorie in general, can be characterized as a scientific or legal discipline that, when viewed from an interdisciplinary and external perspective, can be critically used to analyze various legal phenomena, both individually and collectively, both in terms of theoretical concepts as well as practically, with the aim of gaining a better understanding and being able to provide as clear an explanation as possible.

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The Law : Acquiring knowledge of legal theory

 The Law

Acquiring knowledge of legal theory

Legal Theory by Abintoro Prakoso, which also covers significant legal theory topics you should be aware of, describes how legal theory was originally established in 1926 and how it later progressed in the 1930s.

The three legal theory disciplines can be categorized into one of the following three groups based on the knowledge and opinions of the experts mentioned above.

Legal theory and legal philosophy share the same definition.

Legal philosophy differs from legal theory in its significance.

Legal science is another name for legal theory.

Lili Rasjidi and Ira Thania Rasjidi attempt to differentiate between legal theory and legal philosophy in the statement above. They consider legal theory to be a discipline that investigates the fundamental purpose and current frameworks of the law.

The fundamental comprehension can take the form of legal issues, legal proceedings, or other concepts with broad and specific definitions. This fundamental knowledge is crucial for comprehending both the negative legal system and the legal system in general.

They also describe the legal philosophy, which represents the goals and procedures of different branches of the study of law.

The two main schools of thought in legal theory are inherently at odds with one another but share a common reality. Here is how these two points of view are explained.

1. of these three arguments, which assert that law as a system has predictable principles from proper knowledge of the system's current state, that the behavior of the system is then determined by the smallest parts in the system, and that legal theory can explain about the issue as it is without having to do with people or observers, supports the view. This exemplifies a realistic, deterministic, and reductionist understanding of legal theory.

2. perspective holds that law is not a rigidly structured system but rather something that deals with irregularity, is unpredictable, and the interpretation of the law by an individual or outside observer has a significant impact on the law. People who have studied sociology and postmodernism, who often believe that everything changes constantly in both small and large scales and through evolutionary or revolutionary processes, frequently express this viewpoint.

Legal academics emphasize three fundamental features of legal theory, which are as follows, in accordance with the expansion of current jurisprudence:

a). Existent institutions must work to imitate the existing natural law, which is the notion that there is an unchangeable law that exists and governs us.

b). Analytical Jurisprudence is a branch of law that examines the meaning of law, the standards by which laws are judged to be valid, the connection between morality and the law, and other related issues as discovered by legal philosophers.

c). The topic of normative jurisprudence is what the law ought to be. Along with concerns like why people should obey the law, why breaching the law is penalized, how to use and apply applicable regulations, and how judges resolve disputes, it also draws on moral and political ideologies.

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The Law : Human Rights (HAM) Types and Examples

 The Law

Human Rights (HAM) Types and Examples

Human rights come in a variety of forms, according to Law Number 39 of 1999 regarding human rights, including:

1. Life is a Human Right

Examples of human rights to life include the rights to life, life defense, and welfare improvement. Every person has the right to a safe and healthy environment, as well as the right to a sense of security, peace, tranquility, and inner and exterior prosperity. This is another illustration of the human right to life.

2. Family and Continuing Descendants' Rights

There are many examples of how human rights relate to starting a family and having children later on, including the right for every person to do so freely and the right to bear children through a valid marriage. If the intended husband and intended wife have satisfied with the relevant legal requirements, whether they be state law or religious law, the marriage is recognized as valid in this situation.

3. Self-Development Rights

Every person has the right to proper self-development. The right to self-development as a result was established. Every human being has the right to communicate and obtain information in accordance with his or her requirements, as well as the right to experience the positive effects of knowledge, technology, art, and culture. The right to self-defense is the final illustration of the right to self-growth, which each and every person has in order to pursue his or her own personal or collective development.

4. Right to Justice

In order to prevent prejudice against certain people or groups, every human being has the right to receive equal justice in the eyes of the law. There are many examples of the right to seek justice, such as the presumption of innocence or a person's right not to be judged guilty if there hasn't been a conclusive legal ruling from the court. Additionally, from the beginning of an investigation until the conclusion of a court case, every person has the right to legal representation.

5. The right to individual freedom

Every person has the ability to decide which freedom they will pursue in daily life. As long as it does not cause harm to oneself or to others, this freedom will still be permitted. Examples of the right to personal freedom include the freedom for each person to choose his or her own nationality, political affiliation, and religion, as well as the freedom to express their beliefs.

6. The right to security

Everyone has the right to feel secure in their lives, which will make them more at ease. People have the right to defend themselves and their families, to be free from cruel acts (such as torture and assault), and not to be detained, imprisoned, forced, or thrown away. These are just a few examples of the right to a sense of security. arbitrarily.

7. Welfare Rights

Humans have the right to welfare since these human rights exist. When people can live in affluence, their lives can function effectively. No one may seize by force or deprive another person of their essential rights in conjunction with this right to welfare. One example of a welfare right is the right of every person (male or female) to obtain employment that is in keeping with human dignity and the right to select a profession in line with their preferred field.

8. The right to take part in politics

Indonesia, which upholds a democratic form of governance, grants its citizens the opportunity to express their opinions and select their own political affiliations. As a result, the right to participate in government is established. For instance, everyone has the right to be appointed as an official or to hold a position in the government, everyone has the right to voice his opinion regarding the functioning of the government, and every citizen has the right to vote.

9. Women's Rights

In accordance with Law Number 39 of 1999, women have rights. Some instances of women's rights include the right to particular protection while doing their duties, the right to choose careers that adhere to rules and regulations, and the right to choose their nationality (after being married to a foreign man).

10. Rights of Children

Every kid born today has the right to be protected by their parents, their families, their communities, and the government. Examples of children's rights include the right for every child to receive a name and citizenship, the right for every child to practice their religion, think for themselves, and express those thoughts under the supervision of a parent or guardian, and the right for every child to receive legal protection from all forms of violence, whether they be mental or physical.

Based on Law Number 39 of 1999 covering Human Rights, they are the 10 categories of Human Rights that we are aware of. Knowing the many categories of human rights will make it simple for us to organize them.

Different Human Rights The Universal Declaration of Human Rights states (UDHR)

The Universal Declaration of Human Rights (UDHR) lists five different categories of human rights, including:

1. Individual rights (related to individual needs)

2. Legal rights (related to legal protection)

3. Rights civil and political (related to freedom of political choice)

4. Rights to subsistence (related to resources to support life)

5. Cultural, social, and economic rights

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The Law : Characteristics of Human Rights (HAM)

 The Law

Characteristics of Human Rights (HAM)

Following a discussion of the constitution's and experts' definitions of human rights (HAM), this section will focus on the traits of human rights (HAM).

1. The importance of human rights

First and foremost, human rights are inherent, which means that they belong to every human being and are bestowed upon them at birth. Each and every human must uphold the fundamental rights that are already held by other people. It is conceivable that harmony amongst humans can be well created if people can appreciate and support one another.

2. Universality of human rights

The second attribute of human rights is that they are universal, which means that they apply to all people regardless of where they are from in the globe. The background in question here includes things like gender, religion, socioeconomic class, race, and ethnicity. In other words, having human rights can lessen the likelihood of conflicts arising from differences.

3. Individuals have unalienable rights.

Human rights are inalienable, which is their third defining quality. The basic rights that humans have been endowed with since birth cannot be transferred to or taken away by others, according to this attribute of human rights. It is quite simple for people to engage in conflicts that could damage the individual and his surroundings if basic human rights are violated by others.

4. The Universality of Human Rights

The fourth attribute of human rights is that they are unalienable, which means that everyone has the same legal standing to exercise their civil, political, economic, social, and cultural rights. People would believe they are being treated unfairly if human rights are divided up as they do not receive the same rights as other people.

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The Law : Understanding Human Rights (HAM)

 The Law

Understanding Human Rights (HAM)

It is our responsibility as God's creatures to uphold and protect humankind's ability to live in peace and prosperity. This must be done to preserve environmental harmony and to improve the prosperity and decency of human life. As a result, every human being is born with some fundamental rights. In order for there to be more peaceful interactions between people, these fundamental rights must be recognized, treasured, and defended. They should also not be seized or imposed by others.

Human Rights is a term used to refer to the fundamental rights that all people have (HAM). Despite the fact that every human being is already endowed with human rights, every individual must work together to preserve society, the nation, and the state.

These fundamental human rights, which are recognized by law and are guaranteed to all people, can force people to respect and value one another. According to the following definition of human rights as outlined in Law Number 39 of 1999 respecting Human Rights: "As creatures of God Almighty, humans have a set of rights that are fundamental to their nature and existence. These rights are His gifts and must be honored, protected, and cherished. For the purpose of honor and the preservation of human dignity, every person is safeguarded by the state, the law, and the government."

Due to the fact that the United Nations has recognized and safeguarded human rights, they are applicable to everyone worldwide (UN). According to the KBBI's definition of human rights, these are rights that are guaranteed on a global scale (i.e., by the UN Declaration of Human Rights), including the right to life, the right to independence, the right to own property, and the right to free speech.

As a result, these fundamental rights can shield people from various forms of deliberate torture. However, if people do not uphold their responsibilities, namely to protect and adequately defend one another, then human rights will not function well or be enforced.

Experts' Understanding of Human Rights (HAM)

The idea of human rights is also mentioned by several specialists (HAM). According to a number of experts, human rights are as follows:

1. Peter R. Baehr 

According to Peter R. Baehr's book Human Rights in Foreign Policy, human rights are fundamental freedoms that are inherent to every person and are employed for their growth. These fundamental freedoms are absolute in nature. and is unquestionable.

2. John Locke.

Speaking of John Locke is essential while discussing human rights. According to John Locke, who quoted from The Second Treatise of Civil Government and a Letter Concerning Toleration, human rights are privileges bestowed upon people by God and include the right to life, liberty, and the pursuit of happiness.

3. A.J.M. Milne

Human rights, according to A. J. M. Milne, are rights that every person has in the world regardless of their background, including their religion, nationality, gender, ethnicity, social and cultural affiliations, and their economic situation.

4. G.J. Wolhoff 

According to a quote by G.J. Wolhoff from the book Introduction to Constitutional Law of the Republic of Indonesia, human rights are rights that are inherent in people and are tied to them from birth. Because taking away these rights could result in people losing their position, they must always remain in humans and should never be removed.

5. Austin Ranney 

According to Austin Ranney, human rights are an area of freedom that belongs to each individual, is governed by the legal constitution, and has its execution ensured by the state or the government.

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