Anita Khoirunisa
Have you ever read a story of law? Do you know the law system concept that they use as the basis for the story concerned? Sometimes, we read various stories regarding law and judicial process, but all law system concepts that are used look the same. In reality, does the law system between one country and other country could be equalized? The answer is, no. The law system in a country will be based on various factors that could effect the development of law system in the country concerned.
Before further explanation, it should be understood whereas law system is regulations arranged orderly as basis for creating security, order, and justice in a country. Historically, there are two groups of major law systems that apply in the world, which are Civil Law and Common Law. The differences between the two law systems will be explained as follows:
| No. | Civil Law | Common Law |
| 1. | Statutory laws and regulations are the main sources of
law. | Judge decisions are the main sources of law. |
| 2. | There are codification on rules of law. | The rules of law are not codified. |
| 3. | The Judges are not bound to the previous decision. | Previous judge’s decisions shall be the basis for
similar case. |
| 4. | Judges shall be active in finding facts and carefully
evaluating evidences. | Judges have limited actions in examining and making
decisions. |
| 5. | Applicable in countries such as Netherlands, France, Germany, and its colonies. | Applicable in countries such as England, United
States, Canada, New Zealand, and its colonies. |
One of reasons in applying Civil Law or Common Law systems in a country, are based on various factors, one of the factors is the history of the related country. For instance, historically, Indonesia is one of the countries that use Civil Law system. The colonies that conducted by Europe countries, specifically, Netherlands, to Indonesia’s territories, have made the basis of Civil Law which is used by Netherlands, to be applied in Indonesia. The beginning of European came to Indonesia was after the fall of Constantinople City in result of the termination of relation between West world (Europe) and East world (Western Asia), therefore European must search for other path to the East world.
Eventually,
European started their expedition to explore Asia. However, their first
intention to carry out expeditions, changed to colonize plan, due to European saw
that Asia have big Natural Resources but have weak security system, which one of
them is Indonesia. In result, many countries in Europe came to Indonesia at
that time to colonize the country concerned, one of them is Netherlands.
Netherlands that conducted various activities in Indonesia has applied regulations such as Herzien Inlandsch Reglement (“HIR”) and Rechtregelment voor de Buitengwesten (“RBg”) which established and applied by Netherlands for its colony. At that time, Netherlands set forth several different laws based on certain groups in Indonesia, one of the groups is indigenous group. HIR and RBg are applied for indigenous group. HIR is civil procedural law that is in prevail within Java and Madura islands, whilst RBG is in prevail outside Java and Madura islands. Moreover, civil law is regulated in Burgerlijk Wetboek (“BW”) and criminal law which is regulated in Wetboek van Strafrecht (“WvS”) are also used by Netherlands in the course of its colonization in Indonesia.
After
the independence of Indonesia, regulations formed and applied by Netherlands
for Indonesia started to be adopted by Indonesia in order to form regulations
in accordance with Indonesian society. Regulations that are adopted and
enforced by Indonesia on the beginning of Indonesia’s independence period are consist
of:
1. Civil Law adopted from BW which enacted based on Transitional Rules of 1945 Constitution;
2.Criminal Code adopted from WvS which enacted based on Law Number 1 of 1946 concerning Criminal Code Regulation;
3.Civil Procedural Law adopted from HIR and RBg which
enacted based on Transitional Rules of 1945 Constitution; and
4.Criminal Procedural Law which enacted based on Law Number
8 of 1981 concerning Criminal Procedure Code.
The concept of written regulations owned by Indonesia
as illustrated in regulations as stated above, characterized that there are
influences brought by Netherlands with its Civil Law system to Indonesia’s las
system. In result, essentially, law system between one country and other
country are different which based on various factors that could effect the law
system development of the country concerned.
The concept of written regulations owned by Indonesia as illustrated in regulations as stated above, characterized that there are influences brought by Netherlands with its Civil Law system to Indonesia’s law system. In result, essentially, law system between one country and other country are different which based on various factors that could effect the law system development of the country concerned.
This Article is generally made for the purpose of ANR Law Firm publication only and should not be treated as legal advice for your legal problem. Shall you have any further questions regarding this topic, you may contact the Advocate who authored this article at anrlawfirm@anr-lawfirm.com.
Author: Anita Khoirunisa, S.H.
