A comparative analysis of the legal systems of the United States and Indonesia

  Comparing a country's legal system with other countries is not an easy task in the sense of seeing and comparing the legal framework. The legal order also has a social context and the purpose of the birth of these legal provisions, so the legal system that establishes the legal system as a tool of social engineering is the reality (legal tool) Social engineering) and having a legal system that confirms the emergence of legal development. the society thus needs to establish judicial decisions (kraht van gewisde) or jurisprudence as a source of law with permanent legal force. Indonesia's legal system, for example in the field of criminal law, civil law and constitutional law, still uses the legal system and the "Civil Law" approach to the legal system. The "civil law" legal system places codification as the sole source of law in the practice of law enforcement. In contrast to the "Common Law" legal system, which places jurisprudence as the source of law in the application of law.

The legal system is a social phenomenon and reveals only one aspect of society. Therefore, the legal system cannot be separated from other aspects of a society. Foreign legal regulations must be understood in the least possible legal environment (economic, political, ethical, religious and cultural environment). social goals. Only in this way can one understand the real role and function of the rule of law in society. Despite the number and variety of legal systems in the world, the dichotomy of a "civil law" legal system and a "common law" legal system reflects the different purposes and social contexts of the two legal systems in the countries that use them. The national legal system in Indonesia and in many countries previously explored and colonized by Western European countries is largely modeled after the national laws of European countries, namely the "civil law" and "common law" legal systems. The civil law system differs from the tradition originally developed in France and adopted by the countries of Continental Europe and later by the new nation states of the former colonies. At the same time, the common law system emerged from the English tradition and was adopted by the former colonies.

 

Current developments in Indonesia show that a "common law" legal system has been used in the field of civil law, including business contract law and business dispute resolution. This is confirmed by the signing of the Free Trade Agreement in 1974, even now all legal areas related to the financial system, banking and capital markets have met the characteristics of prevailing laws and are used in the Common Law system. In the practice of the civil law legal system, jurisprudence is still seen as the absolute source of law.

 

The United States Legal System

When we talk about the American legal system, we basically see fifty-plus legal systems that are closely related but not identical. The United States of America became a federation of states with independent legal systems that had all the powers that the Federal Constitution did not grant to federal agencies. Where there are multiple areas of jurisdiction between the state and federal governments, federal law takes precedence over state law.

 

The states' legal systems are based entirely on closely related common law traditions, with the exception of Louisiana, which still displays traces of its French legal heritage, such as the Civil Code of 1808. Individual states maintain and develop regulations. law in areas such as: contract law, corporate law, criminal law, family law, inheritance law, property law, torts and conflict law (international civil law). Meanwhile, maritime law, bankruptcy and patent law are governed by federal regulations.

Despite the many legal differences between states, federal law applies to all states and territories, and it is these similarities that make "American law" possible. Differences can be used by astute lawyers/lawyers to find courts that can accept cases or choose states that are more favorable to their clients. For example, when it comes to corporate law, the state of Delaware is mostly chosen by employers to list companies, or the state of Nevada is favored by many couples seeking a quick divorce. There are significant differences between the laws of different states, making conflict of laws rules very important. Generally, American courts apply the same rules to resolve international conflicts of law and conflicts of law between states, but, of course, these rules are always applied with consideration of the choice of law between states.

Author: Abdul Fiqar Hajjar