PRINCIPLES OF THE LEGAL STATE AND DEMOCRACY

PRINCIPLES OF THE LEGAL STATE AND DEMOCRACY*)

 

By:

Muhammad Irham

 

ABSTRACT

A country is a form of large group life with a large number of members so that it can be classified into the type "secondary group"National life as a form of group life has similarities with other forms of life such as villages, hamlets, forests, and so on. There are two kinds of characteristics of the state as a form of social life that are not possessed by other forms of social life that are not states, namely (1) The state has higher power than other forms of social life, (2) The state has a higher position than other forms of social life. From a sociological perspective, the meaning of a state is to understand it as a member of society or "zoon politicon"Therefore, a country must not only enforce its will through laws or regulations that are made and agreed upon together, but must also realize human welfare and human rights. Research methods: The type of research used is normative legal research, namely research conducted or aimed at written regulations and other legal materials which are secondary data found in libraries and other legal journals. Conclusion: The principles of a democratic state based on law are as follows:Supremacy of law. (Supremacy of Law), Equality under law. (Equality before the Law), The principle of legality. (Due Process of Law), Limitation of Power, Independent Supporting Organs, Free and Impartial Judiciary, State Administrative Court, Constitutional Court. (Constitutional Court), Protection of Human Rights, Democratic in nature (Democratic State of the Republic of Indonesia), Functions as a means of realizing national goals (Welfare Law State), Transparency and Social Control.

Keywords: Rule of Law, Democracy

 

1. Background

A country is a form of large group life with a large number of members so that it can be classified into the type "secondary group"National life as a form of group life has similarities with other forms of life such as villages, hamlets, forests, and so on.[2]

There are two kinds of characteristics of the state as a form of social interaction that are not possessed by other forms of social interaction that are not states, namely (1) The state has higher power than other forms of social interaction, (2) The state has a higher position than other forms of social interaction.[4]

In his book “De Sach”e which describes the state, explains that the state is a tool of the powerful to implement social order, which the powerful enforce on the weak. The purpose is to organize and defend the power of those in power.

1. Leon Duguit

Leon Duguit in his book Traite de Droit Constitutionel. Contains realistic legal and state teachings. The state is the power of the strong to rule over the weak. Even in modern states, the power of the strong is derived from political factors.

Regarding his opinion about the state, Kranenburg said that the state is essentially an organization of power, createdaby a group of people called a nation. So, according to Kranenburg, there must first be a group of people who have the awareness to establish an organization, with the aim of protecting the interests of that group.

1. Logemann

In contrast to Kranenburg's opinion, Logemann stated that the state is essentially an organization of power that encompasses or unites a group of people, then called a nation. So, first of all, the state is an organization of power, so this organization has authority, or gezag, which contains the meaning of being able to impose one's will on everyone covered by the organization.

From the various definitions above regarding the state, the essence of the state is actually an organization of power, which was created by a group of people. This organization has an authority that can impose its will on all the people covered by the organization to maintain the interests and provide for the prosperity of its citizens. Thus, the human aspiration to become a state from the past until now is to achieve the interests of the people (people's sovereignty) into the law (constitution), in order to achieve a just and prosperous life.

1. Research methods
2. Types of Research and Research Approaches

The type of research used is normative legal research, namely research conducted or aimed at written regulations and other legal materials of a secondary data nature that exist in libraries and other legal journals.[6]

1. Research into legal principles, such as research into positive lawwritten or research into the legal rules that exist in society.
2. Research into legal systematics is carried out by examining the basic understanding of the legal system contained in statutory regulations.
3. Research into legal synchronization can be carried out either vertically (different degrees) or horizontally (same degree/equal).
4. Legal history research is research that is more focusedEmphasize legal developments. Each analysis conducted in this research will utilize comparisons with one or more legal systems.
5. Comparative legal research is research that emphasizes and looks for differences that exist in various legal systems.

Meanwhile, the research approach used is an approach that starts from legal principles, such as research into positive law written or research into the legal rules that exist in society. Namely by examining written legal materials, legal theories. Furthermore, according to Peter Mahmud Marzuki, the approach in legal research consists of: the statutory approach (statute approach), case approach (case approach), historical approach (historical approach), comparative approach (comparative approach), and conceptual approach (conceptual approach).Data Types and Data Sources

The data collection tool used in this research is a literature study where data is obtained from:Primary legal materials, which include the doctrines and theories related to the problem being researched.

1. Secondary legal materials, namely materials that provide explanations and are closely related to primary legal materials, can help analyze and understand primary legal materials. These primary legal materials include: books, research results, magazines, legal journals or general journals, articles, lecture notes and papers, and other materials related to the problem being studied.
2. Tertiary legal materials are legal materials that support primary and secondary legal materials, such as the General Dictionary of the Indonesian Language.
3. Data collection technique

In normative legal research, several data collection techniques can be used, including:

1. Collecting information to get an overview or information about similar research and related to the problem being researched.
2. Inventory of materials to obtain methods, techniques, or approaches to problem solving used as secondary data sources.
3. Visits to libraries, both regional libraries, faculty libraries and university libraries to obtain books, previous research results related to research problems, for example research reports, bulletins, brochures, and so on.
4. Data Analysis Techniques

In normative legal research, data management is essentially the activity of systematizing written legal materials. Systematization means classifying these written legal materials to facilitate analysis and construction.

 

Discussion

1. State of Law and Democracy

            According to Thomas Hobbes, humans have always lived in power due to the fear of being attacked by other humans who are physically stronger. Therefore, a social agreement was made, in which the king was not included. So, the agreement was made between the people themselves. After the social agreement was made, individuals surrendered their rights or basic rights to a collectivity, namely a unity of individuals obtained through Pactum unions, so here the collective surrenders its rights or power to the king without any conditions whatsoever. The king is completely outside the agreement, and therefore the king has absolute power after the people's rights are surrendered to him (Absolute Monarchy).[11]

            Furthermore, Jean Jecques Rousseau's teachings are that the sovereignty of the people and the power of the people are never handed over to the king, even if there is a king who rules, the king is only a mandatary of the people. For this, Rousseau provides the following explanation: "The main thing of this social agreement is, determining a form of unity, defending and protecting shared power in addition to personal power and property of each person, so that all can be united, but each person still obeys himself, so that people remain independent and free."[13]

            Rousseau's thinking also inspired the formation of the French constitution (1791), particularly regarding human rights. This period marked the beginning of the concretization of the constitution in the written (modern) sense. The constitution, as a fundamental law and fundamental law of significant significance, often referred to as the "Modern Constitution," emerged alongside the growing development of the "representative democracy system and the concept of nationalism." Representative democracy emerged to fulfill the people's need for a legislative body. This body was expected to enact laws to reduce and limit the dominance of the king's rights. This reasoning positioned the (written) constitution as a fundamental law superior to that of the king/president. [15] This is what then gave birth to the concept of a state based on law and democracy.

1. Principles of the Rule of Law and Democracy

            There is a clear correlation between law, which is based on the constitution, and popular sovereignty, which is exercised through a democratic system. This correlation is evident in the emergence of the term constitutional democracy. In a democratic system, popular participation is the essence of the system. In other words, a state governed by the rule of law must be supported by a democratic system. Democracy without legal regulation will lose its form and direction, while law without democracy will lose its meaning.[17]

1. Principles of the rule of law
   1. The principle of legality. Restrictions on citizens' freedoms (by the government) must be based on laws that constitute general regulations. In general, laws must provide guarantees (for citizens) against arbitrary (government) actions, collusion, and various types of improper actions. The exercise of authority by government organs must be based on written laws, namely formal laws.
   2. Protection of human rights
   3. The government is bound by law
   4. The government's monopoly on coercion ensures law enforcement. Laws must be enforceable when they are violated. The government must ensure that legal instruments for law enforcement exist within society. The government can coerce anyone who violates the law through the state's judicial system. Enforcing public law is, in principle, the government's duty.
   5. Oversight by independent judges. Legal superiority cannot be demonstrated if legal rules are implemented only by government organs. Therefore, every state governed by the rule of law requires oversight by independent judges.

1. Principles of democracy
   1. Political representation. The highest political power in a country and in society is decided by a representative body, which is elected through general elections.
   2. Political accountability. Government organs, in carrying out their functions, are more or less politically dependent on representative institutions.
   3. Dispersal of authority. The concentration of power in society in a single governmental body is arbitrary. Therefore, the authority of public bodies must be distributed among different bodies.
   4. Supervision and control. (implementation) of government must be controllable.
   5. Honesty and openness of government to the public.
   6. People are given the possibility to raise objections.

Next, with almost the same formulation, HDvan Wijk/Willem Konijnenbelt mentions the principles constitutional state and the principles of democracy as follows:Principles constitutional state

1. Government based on law; the government only has the authority expressly granted by the Constitution or other laws.
2. Human rights; There are very fundamental human rights that must be respected by the government.
3. Division of power; government authority should not be centralized in one institution, but should be divided among different organs so that they can monitor each other, which is intended to maintain balance.
4. Supervision of judicial institutions; the implementation of government power must be able to be assessed legally by independent judges.

1. Principles of democracy
   1. Important decisions, namely laws, are taken together with the people's representatives who are elected based on free and secret elections.
   2. The results of the general election are directed towards filling the people's representative council and for filling government officials
   3. Government transparency
   4. Anyone who has interests that are (violated) by the actions of the authorities, (must) be given the opportunity to defend their interests.
   5. Every decision must protect the interests of various minorities, and must avoid as little as possible untruth and error.

Utrecht distinguishes two types of rule of law: a formal rule of law, or classical rule of law, and a material rule of law, or modern rule of law. A formal rule of law encompasses a formal and narrow understanding of law, specifically written legislation. The state's task is to enforce these laws to maintain order. This traditional type of state is known as a night watchman state. A material rule of law encompasses a broader understanding, including justice. The state's task is not only to maintain order by enforcing the law, but also to achieve the welfare of the people as a form of justice (welfare state).Supremacy of law. (Supremacy of Law)

1. Equality under law. (Equality before the Law)
2. The principle of legality. (Due Process of Law)
3. Limitation of Power.
4. Independent Supporting Organs.
5. Free and impartial justice.
6. State Administrative Court.
7. Constitutional Court. (Constitutional Court)
8. Protection of Human Rights
9. Democratic in nature (Democratic State of the Republic of Indonesia)
10. Functions as a means of realizing national goals (Welfare Law State)
    1. Transparency and Social Control.

Thus, the principles of the rule of law (nomocracy) and the principles of popular sovereignty (democracy) are carried out simultaneously as two sides of the same coin. This understanding of the rule of law is known as a democratic rule of law (democratic state) or in constitutional form is called constitutional democracy. Laws are built and enforced according to democratic principles. Laws should not be made, established, interpreted, and enforced with an iron fist based on power alone (state power). On the contrary, democracy must be governed by law. The realization of the democratic ideal requires legal instruments to prevent the emergence of mobocracy, which threatens the implementation of democracy itself.

 

Conclusion

From the discussion above, it can be concluded that in order for a country to be said to be a country based on law and democracy, then in the administration of the state or the state constitution and its government there must be at least the following principles:

1. Supremacy of law. (Supremacy of Law)
2. Equality under law. (Equality before the Law)
3. The principle of legality. (Due Process of Law)
4. Limitation of Power.
5. Independent Supporting Organs.
6. Free and impartial justice.
7. State Administrative Court.
8. Constitutional Court. (Constitutional Court)
9. Protection of Human Rights
10. Democratic in nature (Democratic State of the Republic of Indonesia)
11. Functions as a means of realizing national goals (Welfare Law State)
12. Transparency and Social Control.

 

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