Law Enforcement and Legal Finding

Introduction to Law, 25th and 30th November 2020

Totok Dwi Diantoro

Law Enforcement
• The function of the Law is to protect people’s interest
• In order that people’s interest is protected, then the law
should be performed
• Performing the law could be held not just in peace or normal
situation, but also in the situation when it’s violated
• In case the law is violated, so the law enforcement should be
imposed
• Through the law enforcement then the law become real. In
term the law getting actual!
 Three elements of the law enforcement [Sudikno, 2005:
160]:
1. Legal certainty (Rechtssicherheit) is a protection over justice seeker against abuse of power,
which means someone would got something that is expected in the certain situation. Public
needs the legal certainty, because with the legal certainty the public order can be achieved.
And the law has an obligation to create the public order.
2. Expediency (Zweckmaasigkeit) public also needs expediency from the law enforcement.
Due to law is for people, so implementation and enforcement of the law should give
expediency and usefulness to public. Don’t let implementation and law enforcement cause the
public restlessness.
3. Justice (Gerechtigkeit) the law enforcement should invite sense of justice which is core of
the law itself.

In the law enforcement all the three elements above should get attention together proportionally.
• Without legal certainty, people don’t know what have to do and
finally could generate restlessness
• But if too heavy on the legal certainty, over comply to the regulation
could also rise sense of unfair
• In case violation of the law is took place, then judges have to
implement the law which is not only base on provisions from the
regulation, but also have to calculate the other elements (expediency
and justice) proportionally at the same time
Three components of law enforcement [Friedman, 2018: 15-18]

1. Legal substance all kind of the written regulation

whether material law or procedure law
2. Legal structure it’s correlated with the institution,
mechanism, law officer, bureaucracy who implement or
conducting the law
3. Legal culture it’s related to the legal awareness of people
as the subject of law, in term of law implementation in the
social relation
Legal awareness:
• The degree of the legal awareness of people is a key aspect of the law
enforcement
• Not just related to as consequences that people should faced the
regulation when they dealt with legal event (how far they would obey
or comply to the law)
• But also their willingness to choose the law as the standard of
civilization. For instance when they have trust to the court institution
and determine it as the way to help their conflict resolution
 Legal Finding (rechtsvinding) [Sudikno, 2005: 162]
• Often time, law enforcement and law implementation are not just the
law application, but the legal finding
• Process of the legal finding could be defined as the law formulation by
judges or other law officers whose have authority to enforce the law
over the concrete legal events
• Object of the law formulation by the judge is the concrete legal events
• Judges do not create the written law, but they apply/implement the
regulations which had been formulated by other authority (executive
and legislative branch of power)
 Legal Finding [Algra in Salim HS, 2019: 217]
• Legal finding activity is to catch the concrete law event by
the judges or other legal officers who have the authority
upon it
• Three elements:
The target concrete law events
The subject judges or other legal officers with their authority
The philosophy to solve/settle dispute in the society
• The definition of the legal finding above are not putting a method
word, whereas the method is very important to know how the way
that used by the judges in the law formulation over the concrete legal
events [Salim HS, 2019: 2017]
• The legal finding method: “The way to find norms, whether have
written in the regulation or not existed yet that done by the judges
over the concrete legal events, with aim to settle parties’ dispute”
 The school of thought in the finding
1. History school of thought the thought that focused to the living law in
the society. Promoter of this thought is von Savigny: “Law is not create,
but growth and develop in the society” [Algra in Salim HS, 2019: 218]
2. Freedom of the judge school of thought (begriffsjurisprudenz) the
distinction of this thought, the law is seen as the holistic system that cover
all include social activity. This school of thought is stressing on freedom of
the judge than just as the articulator of regulation. The judge has flexibility
to cinstuct his own argumentation over the implicit provision from
regulation. The prominent promoter is Rudolf van Jhering [Algra in Salim
HS, 2019: 218]
3. Legalism school of thought (interessenjurisprudenz) “The judge
find and found justice in the border of norms which have
determined, through implementation over the concrete legal
events”. The essence of this thought is that decision of case by judge
should based on regulations.
4. Value school of thought (freirechtsbewegung) “The judge
decisions are not just come from regulation and also from legal
principle, but there are appraisal/value components also.” Value is
conceptualized as the judge when decide cases based on the value
in himself related to the evidence and the regulation.
 Method of Legal Finding
• Classification of the legal finding method:
1. Interpretation method “the art or process of
discovering and expounding the meaning of a statute,
will, contract, or other written document.” [Henry
Campbell Black, Black’s Law Dictionary]
2. Argumentation method also as known as the legal
construction (method of legal argumentation)
 Interpretation [Salim HS, 2019: 220-2021]:
• Hans Kelsen: “Intellectual activity that accompanies of law implementation
process from higher level to lower level.”
• Algra, et. al: “Every single provision should be gave meaning by party who will
implement it. There’s no provision is clear automatically, then it should be an
elucidation (interpretation) upon it. The method of interpretation is needed to
make regulation can be implemented.”
• Lieber: “Effort to found and provide the true meaning of any signs which is used
for delivering ideas.”
• Sudikno: “Interpretation is one the legal finding methods which give clear
explanation upon text of the regulation in order to implement for a certain
event/circumstance.”
 Types of Interpretation Method
1. Grammatical Interpretation
2. Historical Interpretation
3. Systematic Interpretation
4. Sociological Interpretation
5. Comparative Interpretation
6. Restrictive and Extensive Interpretation
7. Futuristic Interpretation
 Grammatical Interpretation
• is an interpretation method where the judge interpret
the substance of regulation based on grammar rules
• Interpretation when “Provisions in the written
regulation which is defined according to sentence or
language just like it is understood by common people
in daily life” [Mochtar Kusumaatmadja & Arief
Sidharta in Salim HS, 2019: 232]
 Historical Interpretation
• When conducting interpretation, the judge look at the law in
accordance with the time it was formulated
• It is classified into:
1. Based on history of the law formulation to find aim of the regulation from
the formulator’s perspective at that time. In here is the will of the formulator.
2. Based on the law history “the interpretation method that want to
understand law/regulation in the context of the whole legal thought. If we
want to know the meaning of regulation, it is not enough to see it from the
history of it’s birth, but should be also analyzed farther until previous history”
[Ahmad Ali in Salim HS, 2019: 234]
 Systematic Interpretation
• “The method of law/regulation interpretation through connect with
other rules or with entire law system. In this method, law is seen as a
whole, and not part which stand alone but apart of the system”
[Ahmad Ali in Salim HS, 2019: 234]
• System is a regular set of elements which one and other connected
and can not be separated, and have common objective together as
well
• In this interpretation, law is seen as a system that have
intercorrelation between one regulation with the other
 Sociological Interpretation
• “The method of interpretation that apply meaning of
regulation based on objective of the society” [Sudikno in
Salim HS, 2019: 235]
• The judge interprets a regulation in accordance with the
present social condition and situation
 Comparative Interpretation
• Interpretation that is conducted through comparison with
other provision from other law system
• For instance: when the judge needs to formulate his decision
regard to the concept of citizen lawsuit. Because in our law
system was not recognized this concept, then the judge
could use the original concept where it came from. In here
the concept of citizen lawsuit can be translated from where it
is practiced, which is in US law system
 Restrictive and Extensive Interpretation
• Restrictive interpretation interpretation that make clear the
regulation into the scope of regulation which is limited through
narrowing the regulation meaning based on language meaning
• Extensive interpretation interpretation that beyond border that
gave by the grammatical interpretation. For example: meaning of
“sell” word in the art. 1576 Book of Civil Law is not only interpreted in
the terminology of trade, but also could be interpreted as “transfer of
right” [Abdul Manan in Salim HS, 2019: 236]
 Futuristic Interpretation
• “The legal finding method which is based on anticipation
through some concepts that believed by judge upon a case
with there’s no regulation before” [Sudikno in Salim HS,
2019: 237]
• For instance: when a judge facing a case and there’s no
relevant regulation which is existed for it. But the judge knew
that there’s a draft of regulation that consist of some
relevant issues over that case. Later he can use it as the basis
for his decision.