Friedrich Carl von Savigny about Law: Law as Manifestation Soul Nation
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Course
FH172032 (FH172032)
Institution
Indonesian Islamic University
Abstract
Friedrich Carl von Savigny was a legal figure with high reputation. Hey was recognized as a fi gure and the founder of the school of historical jurisprudence. This article attempts to discuss what is meant by law, how his thoughts about law start, and how these thought might have urgency ...
SYSTEM LAW WEST, SYSTEM LAW TRADITIONAL, AND SYSTEM
LAW ISLAM GOING TO AS SYSTEM LAW NATIONAL
A IDEA WHICH HARMONY
H. Mustaghfirin
Faculty of Law, Sultan Agung University, Semarang
E-mail: gus_rin@yahoo.co.id
Abstract
West Legal System follow the philosophy of legal positivism values conflict with the noble values of
the Indonesian nation, so there Gab between the law and the people of Indonesia are regulated,
System of Customary Law in the values of certain indigenous communities whose territories reached
350 indigenous territories, and can only be believed by public socialized habits, and can not be
validated as a national law, and Islam as the Legal System is based on the attributes of God as
"Asmaul Husna" and practice believed by the majority of individuals nationwide Indonesian society
and tolerance of permanent values believed by minority groups in Indonesia, therefore the system
of Islamic law that allows a system of national law in accordance with the personality of the
Indonesian nation and not contrary with the values of Pancasila.
Keywords : westerns Legal systems, system of customary law, islamic legal system, the national
legal system, perspective of legal philosophy, harmony.
Abstract
The Western legal system follows a philosophy of values positivism against legal values the noble
nation of Indonesia, so that there is a Gab between the law and the people of Indonesia which is
governed, System Customary Law in the values of certain indigenous peoples whose territory reaches
350 customary areas, and can only be believed by the public practice public habits, and can not be
validated as national law, and Islam as a legal system of values based on the attributes of God as
"Asmaul Husna" and practice is believed by the majority of individuals in Indonesian society
nationalism and permanent tolerance of the values shared by minority groups in Indonesia, therefore
the Islamic legal system allows a national legal system in accordance with personality nation
Indonesia And No contrary with values Pancasila .
Say Key : system law west, system law custom, system law Islam, system law national,
perspective philosophy law, harmony.
Introduction in between objective Which other, will but
Philosophy law 1 Wrong One the material after seeing the reality that with his theory the
is discussed about the purpose of the law, and German in lower power Nazi legalize practices
objective law among them is justice, as power Which No humane during period war
discovered by Cicero. Gustav Radbruch from World 2nd, with road make laws (regulations)
Germany who is prominent in face it objective that legitimize practice cruelty war on period
law consists from three matter, that is: That, Then Gustav Radbruch corrected his
certainty, justice And expediency. At first he theory by placing the goal of justice above the
stated that the purpose law certainty occupy goal law the other, thus justice is the goal law
position Which top which main, because matter That in
accordance with essence or ontology law
1
Camrida, "Draft Law In Perspective Philosophy",
Bilancia Vol. 2 No. 2, July-December 2008, p. 219-223
, 90 Jurnal Dinamika Hukum
Vol. 11 Edisi Khusus Februari 2011
itself, even the law is made to create order and for the national legal system which is
prosperity through law Which fair, ie set kepen- integration of the three legal systems, namely
interest Which each other contrary in a the system Islamic law, Western Legal System
balanced way so that everyone has get as much and System Customary Law, because the
as possible Which become part. The whole merger is meaningful merger from three mark
history of legal philosophy as then position the system law, even though the legal system has
special to the fair for legal purposes. three values different philosophical and
Justice is a fun- damental in law. people sociological foundations different, in other
Naturalist me- say that the main purpose of law words there has been "talbisul haqqa bilbatil”
is justice, will but in in justice There is the (mixing up the truths) an And error) in One
nature of relativism, because of its abstract system law nationally, this raises various
nature, broad, and complex then the purpose problems and injustice in the life of the nation
of law is often floating times, because of that it and state, therefore in the paper it will try to
should be tu- Judgment of law must be more reveal the truth based on legal theories to be
realistic. Legal purposes which is approaching able to find the right solution in the form of a
reality is legal certainty law and legal benefits. system national law which must reflect and
The positivist- I put more emphasis on legal values the Indonesian people at least a
certainty whereas clan functionalist prioritize reflection of the values of the majority of the
legal benefits, and if it can be argued that nation Indonesia Which No contrary with values
summum ius, summa inju- ria, summa lex, Pancasila.
summa crux (strict law can injure, except
justice Which can help him), thus even though Discussion
fair No is objective law One- the sole but most
Western Legal System, Customary Law
legal purpose substantive is justice.
System, and The Islamic Legal System in a
Philosophy Law as something branch
Philosophical Perspective Law.
philosophy existence created For mem- provide
Indonesia has adopt civil law system ,
and realize justice for everyone individual
the main principle of this legal system is
society in a country, then what happened in
positive law in form written or set forth in the
the Unitary State of the Republic Indonesia Still
form of law (principle of legism), and unwritten
need get critics Which deep, the direction of
law No acknowledged as law so Also regulations
legal development in Indo- nesia still doesn't
Which made besides by the state is also not
show certainty, p This can be seen about the
referred to as law but as moral public, matter
national legal system Indonesia which is formed
This as the theory put forward by John Austin
from three pillars of the system law, that is
(1790-1859).
system law west, system law custom And
civil law system has weaknesses because
system law Islam. Three This legal system has a
of its written nature it would be ti- inflexible,
philosophical basis each.
rigid and static. Writing is restrictions And
Explanation the in on pointing- right that restrictions on something matter abstract
in fact Indonesia until pie moment Now This nature or internal restrictions context material
Not yet own system established national law, And dynamic or restrictions in context time, by
which exists is systems law in Indonesia, Because That value community consciousness
pemben- into laws dang logically will bring a remains of
the substance of the law, beside That Lots
regulation legislation ba-
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