Juridical, Sociological, and Philosophical Basis

ADCO Law

Juridical basis is a term often found in general when discussing laws and regulations, especially in terms of their formation. Laws and regulations or so-called legislation is the main instrument owned by a state of law (Rechtsstaat). Article 1 paragraph 3 of the 1945 Constitution of the Republic of Indonesia (Undang-Undang Dasar 1945, “CRI 1945”) clearly states that Indonesia is a state of law. 

 

In line with that, Indonesia needs to have written regulations that are used as guidelines to regulate and create public order. Although the formation of legislation is a consequence of the continental legal system adopted by Indonesia, it does not mean that the process of its formation can be carried out haphazardly.

 

In order to produce strong and quality laws for the formation of legislation, the laws must be based not only on a juridical basis (juridische gelding), but also on two other bases i.e., sociological basis (sociologische gelding) and philosophical basis (philosophical gelding).

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A. Philosophical, Sociological, and Juridical Basis

Article 5 of Law Number 12 of 2011 on the Formation of Legislation (“Law 12/2011”) stipulates that the formation of legislation must be carried out based on the principles of the formation of good laws and regulations, which include:

1. Clarity of purpose;
2. Appropriate forming institution or official;
3. Suitability between types, hierarchies, and payload materials;
4. Applicability;
5. Usability and effectiveness;
6. Clarity of formulation; and
7. Openness

 

These principles contain the understanding that every formation of legislation must take into account its effectiveness and applicability in society, either philosophically, sociologically or juridically. Furthermore, pursuant to Article 7 paragraph (1) of Law 12/2011, the types and hierarchy of laws and regulations are:

1. The 1945 Constitution of the Republic of Indonesia;
2. Decree of the People’s Consultative Assembly;
3. Laws/Government Regulations in Lieu of Laws;
4. Government Regulation;
5. Presidential Regulation;
6. Provincial Regulation; and
7. Regency/City Regional Regulation

 

In their formation and preparation, the laws and regulations contain the main ideas that become considerations which are then poured into the word “consider” containing a brief description of the main ideas that form the background and reasons for making these laws and regulations, which are placed sequentially from philosophical, sociological, and juridical.

 

Philosophical Basis

The philosophical basis (Filosofische grondslag), which is also an element in the formation of laws and regulations, is the consideration or reason illustrating that the regulations are formed to take into account the views of life, awareness, and legal ideals, which include the atmosphere of mysticism, and the philosophy of the Indonesian nation originating from Pancasila and the Preamble to the CRI 1945. This basis focuses on the philosophy or way of life of a nation containing the nation’s moral or ethical values. Morality and ethics are basically good and bad values. Good values are always upheld as views and ideals that contain the values of truth, justice, decency, and various other values that are considered good.

Sociological Basis

The Sociological basis (Sosiologische grondslag), which is also an element in the formation of laws and regulations, is the consideration or reason illustrating that the regulations are formed to meet the needs of the community in various aspects. This basis is actually concerned with empirical facts regarding the development of problems, and the needs of society and the state that the provisions are in accordance with the general belief or legal awareness of the community. This is important so that the laws made are obeyed by the community, and do not become mere dead letters.

Juridical Basis

The juridical basis is a consideration or reason illustrating that regulations are formed to overcome legal problems or fill legal voids by considering existing regulations that will be changed or revoked in order to ensure legal certainty and a sense of justice for the community. This basis is concerned with legal issues related to the substance or material being regulated in the regulations so that it is necessary to form new regulations, some examples of which are outdated regulations, inharmonious or overlapping regulations, types of regulations that are lower than the law so that enforcement is weak, existing regulations that are inadequate, or completely new regulations.

 

With these three bases, a regulation that is useful and contains values of justice and legal certainty is created to be applied in society.

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ADCO Law as a Law Firm Jakarta assists the clients to structure, organize and implement their business ventures and investments, including structuring, financing, and securing investments as well as establishing new foreign companies in Indonesia. 

 

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Disclaimer: This article has been prepared for scientific reading and marketing purposes only from the ADCO Law. Furthermore, all the writings contained therein do not constitute the formal legal opinion of ADCO Law. Therefore, ADCO Law should be hold harmless and/or cannot be held responsible for anything from the parties who use this writing outside of what is the purpose of the ADCO Law.