impact of common law on Indonesia´s legal tradition

Topics: Law, Common law, Civil law Pages: 10 (2235 words) Published: December 4, 2014
BIPAS – UDAYANA UNIVERSITY

Law
Midterm test
“The influence of Common Law and Civil Law on Indonesia´s Legal Tradition”

Natascha Krauss3.11.2014

Table of content

1. Development of Indonesia´s Legal Tradition
2. Civil Law
3. Common Law
4. Influences and Impacts of Civil and Common Law

1. Development of Indonesia´s Legal Tradition

This paper is supposed to outline how civil law and common law influenced Indonesia´s Legal tradition. In order to be able to analyze this state of affairs it has to be clarified what the Indonesian legal tradition is and what it states. It is true that the question about the issue of “law and development” are impossible to be separated from the characteristics of the legal system in each country. Therefore to understand the legal system of Indonesia one has to be aware of its legal system. Prior to the advance of foreign colonists to Indonesian land, peoples of Indonesian had its own legal tradition. Indoensia´s legal tradition is the tradition rooted in, developed by, accepted by, and applied within the life of the nation of Indonesia. The Adat Law is the Indonesian genuine legal tradition. It´s objectives are security, peace and harmony of the community. Deductive the main function of adat law are to remain peace, security and harmony as well as to prevent disorder. Under the adat law the main function of sanction is to recover the harmony that has been disturbed. Adat law performance its existence within the society by providing rules and sanctions and by enforcement procedure. Dutch presence and subsequent occupation of Indonesia for 350 years has left a legacy of Dutch colonial law, largely in the Indonesia civil code. Following the independence in 1945, Indonesia began to form its own modern Indonesian law, not developing it from scratch, but modifying precepts of existing laws. Dutch legal decisions maintain some authority in Indonesia through application of the concordance principle. After the interdependence the “Principle of Concordantie” declares that all existing laws and regulations shall remain in effect as long as new laws and regulations have not yet taken effect under this constitution. Therefore three components of adat, or customary law; Dutch-Roman law; and modern Indonesian law co-exist in the current law of Indonesia. In order to understand how Common Law and Civil Law influence Indonesia´s Legal Tradition the term “Common Law” and “Civil Law” has to be clarified. 2. Civil law

Civil Law (or civilian law, Roman law) is a legal system originating in Europe, intellectualized within the framework of late Roman law, and whose most prevalent feature is that its core principles are codified into a referable system which serves as the primary source of law. Historically, a civil law is the group of legal ideas and systems ultimately derived from the Code of Justinian, but heavily overlaid by Napoleonic, Germanic, canonical, feudal, and local practices, as well as doctrinal strains such as natural law, codification, and legal positivism. Conceptually, civil law proceeds from abstractions, formulates general principles, and distinguishes substantive rules from procedural rules. It holds case law to be secondary and subordinate to statutory law. When discussing civil law, one should keep in mind the conceptual difference between a statute and a codal article. The marked feature of civilian systems is that they use codes with brief text that tend to avoid factually specific scenarios. Code articles deal in generalities and thus stand at odds with statutory schemes which are often very long and very detailed. 3. Common Law

The ancient law of England based upon societal customs and recognized and enforced by the judgments and decrees of the courts. The general body of statutes and case law that governed England and the American colonies prior to the American Revolution. The principles and rules of...
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