LEGAL PURPOSE

LEGAL PURPOSE

The purpose of the law is to regulate the peaceful association of life. The law requires peace. That thought, which was uttered in one of the prologues of the folk law, Frank Salis", lex Salica (about 500 BC), was very influential in the lives of the Germanic peoples in ancient times. ; they do not need state and time. To Justinian's law they know Germanic law and they hide their incompetence behind a veil of ridicule. As a result of the ancient Romans, who are now very powerful in the universities and who also exercise their influence even if only in court, is that the Bumiputra law in the vast majority of European countries was for the most part enforced by Roman law.

With the inclusion of "Wetboek Napoleon ingerigt voor het koningkrijk Holland" (1890), it means that Roman law in the Netherlands is not abolished. This does not mean that at that time it really lost its power. The abolition was only formal. Materially, Roman law directly lives in the civil legislation of the Netherlands, which was built on Roman principles. Roman law continues to live in the souls of jurists, continues to control the soul, because it is caused by the influence of the beginning of the humanist school which was passed on from children to the grandson against the legislation Justinian took an important place in college.

What we call the rule of law they call peace (vrede). The judge's decision, called uredeban (vredegebod), crime means a violation of peace (vredebreuk), criminals are declared non-peaceful (vredeloos), i.e. excluded from legal protection. Peace between humans is maintained by law by protecting certain human interests, honor, freedom, life, property, etc. against the losers

right? The interests of individuals and the interests of human groups are always at odds with each other. This conflict of interest will always lead to conflict, even war between everyone against everyone, if the law does not act as an intermediary to maintain peace. And the law maintains peace by carefully considering conflicting interests and striking a balance between them, because the law can only achieve its goal (regulating peaceful association) if it leads to just regulations, meaning regulations in which there is a balance between protected interests, in which each person gets as much as possible to which he belongs. Thus justice has been described by Aristotle in Rhetorica” epeτη ην 3). Bangs Kunawi translates it as: ius suum cuique tribuere. Justice should not be considered the same as equality. Justice does not mean that everyone gets an equal share.

Also Aristotle has taught it. He recognizes two kinds of justice, distributive justice and 'commutative justice'. Distributive justice is justice that gives each person a share according to his merits. He does not demand that everyone get the same amount, not equality, but proportion. If article 5 of the Dutch Constitution says: "Every Dutch person can be appointed to any position", then this does not mean that every Dutch person has the same right to be appointed as a minister, but it means that the position - positions should be assigned to those who, by virtue of their merits, deserve them. Commutative justice is justice that gives everyone the same amount without remembering individual services. It plays a role in exchange, in the exchange of goods and services, in as many ways as possible there must be a similarity between what is exchanged. He is more concerned with the relationship between special individuals. Distributive justice mainly controls the relationship between society-especially the state and special individuals ). There is a theory that teaches that the law solely wants justice. Theories that teach this are called ethical theories because according to these theories, the content of the law must solely be determined by our ethical awareness of what is fair and what is unjust. These theories are one-sided. He exaggerates the level of legal justice, because he does not pay enough attention to the actual situation. The law establishes general rules that guide people in social life. If the law solely wants justice, so it has the sole purpose of giving everyone what he deserves, then it cannot form general rules. And the last is what must be done. It is a condition for him to be able to function. Order law that does not have general rules, written or unwritten, is impossible. The absence of general rules means serious uncertainty as to what is fair or unjust. And that uncertainty will always lead to discord between people, thus causing a state of disorder instead of order

So the law must determine general rules, must generalize. Justice forbids generalization; justice demands that each case must be weighed separately: suum cuique tribuere. Sometimes legislators fulfill this demand as much as possible by formulating their regulations in such a way that judges are given great leeway in carrying out these regulations on matters special thing. This is especially so, if the legislator orders the judge to pay attention to justice in his decision (which has been appointed by Aristotle as a tool to prevent the use of general rules in special cases from causing injustice) or what according to Hoge Raad simultaneously - appropriateness (redelijkheid) or good faith. However, there is a danger that legal certainty will not be fully fulfilled, especially in connection with the fact that in our judiciary, we can see the ideals of always expanding the principle of good faith, also if the law does not refer to it. ). So in law there are unavoidable clashes, conflicts that are always repeated between demands for justice and demands for legal certainty. The more laws meet the requirements of fixed regulations, which eliminate as much uncertainty as possible, so the more precise and sharp the laws are, the more pressing justice is. That is the meaning of summumius, summa iniuria

De Groot (Inleiding I, 2 23) describes the conflict in the law precisely as follows: the law between residents is made in general (that is, it gives general rules), although the reasons are not always correct, because of the various colors of affairs. Human affairs are very uncertain, even though the law must stipulate something definite

The imperfection of the law, in practice, is partially accommodated, because the judge in carrying out the law in real matters, in interpreting the regulations, can use free interpretation to eliminate or reduce injustice. However, this effort reduces legal certainty and cannot always be carried out: This is not the case, for example in matters that cannot be brought before a judge. Remember, for example, that women are not allowed to hold certain positions at all, the rules for the same maturity period for everyone, etc. Nor is it so in the case where the law gives a serious and unambiguous order, because lex dura, sed tamen scripta applies.

Thus article 1374 B.W. stipulates that every agreement made legally, binds those who make it with force as if it were a law. The regulation also applies (except in some cases) 3), if in that case one of the parties is greatly harmed because he is based on the law must perform an achievement whose value far exceeds the value of the other party's achievement). In this case the agreement is contrary to commutatief justice. Therefore, based on the so-called laesio enormis, the law previously ordered to choose either the seller, who sold the goods for less than half the price, and the buyer, who paid for it at a price more than double the price so even though there was also no fraud between the claims. law so that the sale and purchase agreement is canceled, or lawsuits to pay for losses ). This legal instrument is not included in B.W.: people fear that legal certainty will therefore be squeezed due to the great difficulties that may arise in determining the exact value of an achievement.

,br> So the law is forced to sacrifice justice to a minimum for the sake of efficiency: it is forced to have a compromising nature. In fact, there are a large number of legal regulations that do not at all embody justice, but are based solely on the interests of efficiency, for example those regarding evidence and expiration and regulations that even protect "bezitter" to a certain extent against eigenaar. for the sake of peace in society. We regret it, but we cannot change it: the law is man-made and thus imperfect.

Fries' legal sources from the Middle Ages (von Richthofen, Friesische Rechtsquellen, p. 435) provide an answer to the question: ,,what is law?" as follows: Erlykera tinga subside, treftlykera tingh bieda, urbieda dat unriucht, hinzia moetlykera ting, ende aecmoetlikera oen tingh, truch fruchta des era", namely: commanding what is right, enjoining what is good, forbidding what is unjust, allowing what is just and sometimes also what is unjust, for fear of worse things. Compare Predictor 7:16: "Don't be too fair".

Geny teaches that the purpose of law is solely justice, but feels compelled to also include the notion of usufructuary and expediency "as a definition of justice: le juste contient dans ses flancs must once be rejected. If the answer to the question, what is said is fair, depending on, or co-dependent on the question of what is said to be useful, we negate justice. E. Brunner, Gerechtigkeit (Zürich 1943), p. 116 etc., seeks a solution to the problem in the distinction between ,absolute Gerechtigkeit" and ,,das relativ Gerechte " or Bestmögliche". ,,Jede positive Gerechtigkeitsordnung ist ein Kompromis zwischen dem wahrhaft Gerechten und dem Möglichen", and : ,,Das relativ Gerechte ist, in der positiven Rechtsordnung, das Bessere als das absolute Gerechte, darumvordheals Rechtsin absolute Gerechte, darumvordheil , eine Lüge undeine Vergewaltigung sein könnte". In my view it is just another formulation of the view I hold.

Jadi jika teori-teori tersebut, menurut mana hukum tak mempunyai tujuan yang lain daripada imewujudkan keadilan, berat sebelah dan bertentangan dengan keadaan sebenarnya, sebaliknya berat sebelah jugalah ajaran, bahwa hukum semata-mata menghendaki hal yang berfaedah atau yang sesuai dengan daya guna (teori-teori utilistis). Ajaran tersebut terutama dirumuskan sebagai berikut ¹): hukum ingin menjamin kebahagiaan yang terbesar untuk jumlah manusia yang terbesar (eudaemonisme atau utilitarisme) 2). Pandangan ini bercorak sepihak karena hukum barulah sesuai dengan daya guna atau berfaedah, jika ia sebanyak mungkin mengejar keadilan. Jadi tujuan hukum adalah: tata tertib masyarakat yang damai dan adil. Meniadakan pandangan keadilan dari hukum berarti menyamakan hukum dengan kekuasaan.

J. Schrassert, Commentatio ad Reformationem Velaviae (Harderwijk 1719) c. 30, n. 1: Sunt enim duae eaeque principaliores legis qualitates: Justitia et Utilitas 1). Mengenai kepastian hukum lihatlah terutama bab VI bag. 1 & 2 sub B, dan selanjutnya R. D. Kollewijn, Zekerheid van Recht (Zwolle 1938): Ph.A.N. Houwing. Zekerheid omtrent het Recht (Zwolle 1947), G. de Grooth, Enige beschouwingen over de conflicten tussen rechtszekerheid en het levende recht (Leiden 1947); Scholten, Alg. Deel, cetakan ke 2, hal. 28 dst.; Prae-adviezen voor de Ned. Advocatenvereniging dari F. J. M. Van Nispen tot Sevenaer dan P. S. Noyon tentang Rechtszekerheid en billijkheid, dalam: Advocatenblad 15 Juni dan 15 Oktober 1951: W. Sauer, Sécurité juridique et justice, dalam Recueil Edouard Lambert III, hal. 34 dsb.; K. G. Wurzel, Das Juristische Denken, 2. Aufl. (Wien-Leipzig 1924), hal. 9 dst.; Max Rümelin, Rechtssicherheit (Tübingen 1924); C. A. Em ge, Sicherheit und Gerechtigkeit, dalam Abhandl. Der Preusz. Akad. der Wissenschaften, Jahrg. 1940 (Phil.-hist. Klasse),

Benjamin N. Cardozo, The growth of the law, . (Yale University Press 1931), p. I Jerome Frank, Law and the modern mind (London 1949), completely rejects the view of legal certainty. According to him, legal certainty cannot be achieved and cannot be implemented. In this regard, his views coincide with those of I. H. Hijmans (among others in: Het recht der werkelijkheid, Haarlem 1910).

The author's legal purpose is to position as intended; for justice in an action or the implementation of an achievement that is determined in the rules that have been set in every legal and community relationship, but it becomes something that is strictly enforced and if it is not obeyed so that it has sanctions in the future it makes the achievement of justice a legal determination or decision.

_____________________________ 1.Prof. Dr. Mr. LJ. Van Apeldoom." Penghantar Ilmu Hukum" Balai Pustaka . Jakarta. Cetakan Ke. 35. 2015.

2.Muktar Panjaitan.