Each country has a variety of forms. One of them is a rule of law. Usually, the
country makes all decisions or policies based on applicable law. This can be seen from the
various steps taken by the government when making a decision.
To understand more about the rule of law, the following is an explanation of the rule of law which has been
summarized from various pages on the internet.
Definition of the rule of law
The concept of ideas, ideals, or the idea of a rule of law is related to ‘rechtsstaat’ and ‘ the
rule of law’ . It is also related to the concept of nomocracy which
comes from nomos and cratos. Nomos means
norm, while cratos means power.
Historically, the term rule of law has long been known and embraced by various countries since the XVIII
century. The term was popularly used around the XIX century to the XX century.
The determining factor in the exercise of power is the norm or law. Therefore, the term
nomocracy is closely related to the idea of the rule of law or the principle of law as the highest
authority.
In Indonesia itself, the term rule of law has been used since this country proclaimed itself as an
independent country. This statement of the rule of law of Indonesia can be seen in the General
Elucidation of the 1945 Constitution, point I concerning the Government System.
In the General Explanation of the 1945 Constitution it is stated that Indonesia is a state based on law (
rechtstaat ) and not based on mere power ( machtstaat ). The mention of
the word rechtstaat in the general explanation shows that the concept of rechtstaat provided inspiration
and even inspired the establishment of the proclaimers and founders of the Indonesian state, although it
is not necessary to equate the concept of rechtstaat with the concept of a legal state of Indonesia.
Because between the two very different philosophies and cultural background of the
people.
In Johan Nasution’s view, a rule of law state is a state whose administration of power is based on law.
Meanwhile, Jimly Asshiddiqie, rule of law is defined as a unique form of state because all will is
based on law.
The rule of law according to FR Bothlingk is “De obey waarin de wilsvrijheid van gezagsdragers is beperkt door
grenzen van recht” (a state where the free will of the power holder is limited by a legal will).
Meanwhile, the holder of power is limited by “Enerzijds in een binding van rechter administatie aan de wet,
anderjizds in een begrenzing van de bevoegdheden van de wetgever” , (on the one hand the judge and
government are bound to the law, and on the other hand the limitation of authority by the makers
Constitution).
The concept of a rule of law was first put forward by Plato. For him, good governance is a
state that is governed by a constitution and has legal sovereignty. This was emphasized by
Aristotle that those who govern the state are not humans, but a just mind and decency that determine the
goodness or badness of a law.
The rule of law is called ( recht staat ), while the state of power is called ( macht staat
).
The rule of law in FR Bothing’s view is defined as the power of the holder of power which is limited by law, it
is further stated that in order to realize the limitation of the holder of this power, it is realized by means
of making laws.
Soepomo in his book entitled “The Provisional Constitution of the Republic of Indonesia” mentions the term rule
of law guarantees the existence of legal order in society, which means providing legal protection to society:
between law and power there is a reciprocal relationship.
A. Hamid S. Attamimi argues that a rule of law ( rechstaa t) is simply a state that places law as the basis
of state power and the exercise of that power in all its forms is carried out under the rule of law.
According to Philipus M. Hadjon, the idea of rechtsstaat tends towards legal positivism which has the
consequence that law must be formed consciously by a legislature-forming body.
The rule of law element was developed by Friedrick Julius Stahl and Albert Venn Dicey.
Following are the elements of a rule of law put forward by Friedrick Julius Stahl as
follows.
- human rights;
- Separation/sharing of powers;
- Every government action must be based on existing laws and regulations;
- There is an independent administrative court.
Meanwhile, the elements of a rule of law in the view of Albert Venn Dicey are formulated to have 3 main
characteristics as follows.
- The rule of law, in the sense that there should be no arbitrariness, so that someone will be punished if
they break the law. - That everyone is equal before the law, both as individuals and in the qualifications of state officials.
- Guaranteed human rights by laws and court decisions.
In Article 1 paragraph 3 of the 1945 Constitution, Indonesia is a state based on law in seeking objective
decisions from the government and its people. This is in accordance with the wording of the
article, “The State of Indonesia is a state of law.”
Characteristics and Principles of the Rule of Law
Launching from the Kai.or.id page, Azhary formulated the following characteristics of a rule of law
state.
- Law is based on Pancasila;
- People’s sovereignty;
- Government based on the constitutional system;
- Equality in law and government;
- Judicial power that is free from the influence of other powers;
- Formation of laws by the President together with the DPR;
- He adhered to the MPR system.
Meanwhile, in Jimly Asshiddique’s view, he formulated 12 main principles or main pillars in a rule of law ( the
role of law or rechtsstat ) as follows.
- Legal supremacy ( supermacy of law ), namely the existence of normative and empirical
recognition of the principle of legal supremacy, meaning that all problems are resolved by law as
the highest guideline. In essence, the supreme leader of the state is not actually a
human being, but a constitution that reflects the highest law. - Equality in law ( equality before the law ). This relates to the equal position of
everyone in law and government which is recognized normatively and implemented
empirically. - Principle of legality ( due process of law ). In every rule of law, the principle
of legality is required, that is, all government actions must be based on legal and written laws and
regulations. The written regulations must exist prior to administrative actions or
actions. - Limitation of power. Restrictions on state power and state organs are carried out by
applying the principles of vertical division of powers and horizontal separation of powers.
This is meant to allow for checks and balances to occur and no arbitrary
actions. - Independent executive organs. In order to limit power, there must be independent
government institutional arrangements, such as central banks, army organizations, police organizations
etc. grow to be independent. - Free and impartial judiciary. Free and impartial justice absolutely must exist in a rule
of law country. In carrying out his judicial duties, judges may not be influenced by any
party either because of political interests (position) or economic interests (money).
Judges only side with truth and justice. - State Administrative Court. In every constitutional state, there must be an opportunity
for every citizen to challenge the decisions of state administration officials.
Administrative Court is considered to be able to guarantee that citizens are not wronged by the
decisions of state administration officials as the party in power. - Constitutional Court (Constitutional Court). Besides the State Administrative Court, the
modern legal state has adopted the idea of a Constitutional Court. The importance of this
institution is in an effort to strengthen the system of checks and balances between
branches of power, for example by having the authority to decide disputes between state
institutions. - Protection of Human Rights. Every human being from birth has basic rights.
The state is not justified in limiting/reducing the meaning of freedom and human rights.
Human rights protection is an important pillar in every rule of law. - Democratic. The principle of democracy or people’s sovereignty is adopted and practiced
which guarantees community participation in the process of making state decisions, every statutory
regulation that is stipulated and implemented reflects the sense of justice that lives in society.
Laws and regulations cannot be applied unilaterally. - Serves as a means of realizing the goals of the state ( welfare rechtsstaat ). Law
is a means to achieve a common idealized goal. As Indonesia’s national ideals were
formulated in the Preamble to the 1945 Constitution. Indonesia’s legal state functions as a means to
realize or achieve the four goals of the country. - Transparency and Social Control. There is transparency and open social control over every
process of making and enforcing laws so that the weaknesses/deficiencies found in institutional
mechanisms can be supplemented in a complementary manner by direct community participation (direct
participation). The representative system in parliament cannot be relied upon as a channel
for people’s aspirations, because physical representation does not necessarily reflect representation of
ideas (aspirations).
Development of the rule of law
In its development, the rule of law state is divided into four parts, namely the rule of law policy, the
state of liberal law, the state of formal law, and the state of material law. The following
provides a more detailed description of the four sections.
1. Policy Law Country
A polis law state is a state that has authority in administering security, prosperity, or the economy.
In this type, the state is tasked with maintaining order only.
In countries that adhere to this ideology, the government is absolute monarchy. The public
interest is based on the will of the king, according to this polis state everything is determined by the
king and the people have no rights over the king.
2. Liberal Law Country
Liberal rule of law exists because of disappointment or as a form of reaction to the concept of a polis
state. At that time, the state acted arbitrarily against the people. The concept
of a liberal rule of law was introduced by Immanuel Kant.
In the concept of a liberal rule of law requires the state not to interfere in economic administration, while the
guardian of order is left to the state.
3. Formal Law State
A formal rule of law state is a rule of law country that can be ratified by the people, all actions of the
authorities require a certain legal form, must be based on the laws of the formal state of law. This is called a
democratic state based on law.
4. State of Material Law
A material law state is a development of a formal law state based on material law; the actions of the authorities
in pressing matters in the interests of their citizens are justified or the principle of opportunity applies.