Role of Legal Education in Development and Law Enforcement for the Future Indonesia
Analysis of the relationship and the role of law to the demands of renewal and development (political, economic, social, etc.) is not a new one.
(*) Chairman of the Supreme Court; Paper presented at the inauguration of the digital campus Univ. Pelita Harapan Read: 20 454 Comments : 10
Karl Marx was one among the thinkers who systematically associate law with the power structure and the demands of reform (political, economic, social and others). Using a historical approach from an economic standpoint (historical materialism), Marx put the law is nothing more than an instrument to protect and safeguard the interest of the ruling class (capitalists) on the one hand, and squeeze and oppress the working class (proletariat) on the other.
Regardless of agree or disagree with the basis of these approaches, including the utopia of a society of communism as a classless society, where each person will carry out the rights and obligations without having to be regulated by a law made by the ruling, the historical reality confirming Marx's analysis that in the political system, social or economic is found to the various laws that were created for the sake of power and harm the interests of the people.
The laws in a dictatorship system can be an example of the truth of Marx's analysis. Similarly, Indonesia's national history. How many laws were created for the sake of the interests of the colonial and detrimental to the people of Indonesia. The rules of law regarding the classification of the population and its subsequent products, as well as a result of the regulation concerning the agrarian reform (land), the difference in treatment in government and others are real examples of the laws made for the interests of the authorities and harm the interests of the people.
Although it contains the truth, Marx's view of the law, in addition to excess, is also incompatible with the experience of countries that the teachings of Marx, better known as the Communist countries.
First , in the final analysis Marx admitted that it would remain a kind of social rules governing relations in society. Thus there will remain no law, although no longer a law that primarily regulate their power and controlled. Marx would not openly put social rules as a kind of natural law according to the teachings of John Locke, because it would be contrary to the historical basis materalisme. Marx which departs from the premise versatile material may not accept the fundamentals of Locke speculative.
Both , in fact, the law as a social phenomenon ( potato sociatas ibi ius: Cicero ), formed and the rules to meet a variety of individual interests and or related to the interests of society without power. Individual or social interests include things such as certainty in the transaction (legal relations), public order, order in kinship and others. These things are the interests of individuals or people who are not related to the interests of power. Even if there are no laws as the social rules, it will be difficult for the authorities themselves, because there would be chaos or social relationship between individuals who by Thomas Hobbes described as "homo homini lupus bellum, omnion centra omnes" .
Even if the latter is still tucked interests of the ruling, but it was not aiming to squeeze or oppressive, but the law as an instrument which gives the base in power, to function as a security guard and order. At the very least, the presence of the law can be seen as an institution of mutual benefit between society and the authorities.
Third , in reality, the development of the law does not run linearly follow the flow of historical materialism of Marx. In communist countries based on the teachings of Marx, was the presence and role of law has never waned. Justification or pretext that it is not composed of government and communist society are real, but is still in transition, so that the state and the government is still running in the order of the dictatorship of the proletariat is accompanied wrappers such as " legal socialism ", it does not negate the fact that the law remains as something that required.
Regarding whether the law was only for the sake of power, oppress, or do not oppressive, depending on the basic point of view is used. The persistence, even the development of law in communist countries, not only for the internal needs but as a consequence as a member of the community of nations (the world). To be part of the social system of the world communist countries shall be subject, adopting and adapting various law both internationally and which arise from bilateral or multilateral relations.
Fourth , the teachings of the new law, just as the sociological jurisprudence and others - enough spare besides focusing on the people as the basis and justification discover the nature of a legal rule, also focused on the role of law as an instrument of renewal and general welfare instrument.
Teachings on the relationship with the community of law-including the role of the law to change sosial-- has long been known and studied Indonesian legal experts. But it was only in the seventies teachings more openly discussed and linked to policy renewal (construction) law, even national development, as then loaded in the Guidelines, Repelita and Annual Program (APBN).
Besides addressed in discussions (scientific or regular), a new orientation concerning the legal relationship with the community and development, also the themes of the writing in the legal field and the addition of the subject in law schools. New subjects such as "Sociology of Law", or new content material in lecture event Philosophy of Law, shows the "response" jurist and legal education to the demands of new approaches and legal education.
In curriculum renewal, formulated new educational goals, among others preparing legal scholars ready. In keeping with these objectives, the adjustment of the contents of existing courses so that more meaningful ready. In addition, there was also a variety of educational skills (legal drafting, contract drafting ), and the various fractions of the existing courses to be more specific. But it does not reduce the renewal of various complaints regarding legal education product. Old complaint as "not ready" still resonates.
In fact, with a pragmatic approach is new complaints arise, among others, the graduates do not have the basic legal reasoning adequate, low mastery as the theoretical basis of rational thought and systematic. As a result, not be selective about who actually require the structural level, making more appearances as a display of the substance.
In various situations of misuse, both from education providers and enthusiasts. From education providers, this structural level rather be seen as a new source of revenue. Of enthusiasts, this opportunity is not to produce quality but only collects a variety of new titles. In fact, secondary education professions such as notary transformed into an advanced educational degree. In addition to expanding enthusiasts also considered to be more meaningful to the situation rather than professional education degree education.
From the facts above, it is necessary reexamination thorough regarding legal education we good conception, approach, as well as various supporting factors needed to output legal education (undergraduate and results of scientific work) can make a significant contribution in increasing role in development and law enforcement.
Legal education as a subsystem law
Laying and realized in earnest legal education as a subsystem of the legal system is very important and fundamental. This approach will allow legal education is arranged in an integrated and functional, both theoretically and practically with all the components of the legal system (rule of law, law enforcement, the legal profession, legal education, forming the law, and legal education).
During this time, the legal education placed as something that stands alone. This resulted in legal education and their fruits are less functional in developing and accurately fill subsystems components of law. Although there are a variety terdahulu-- just as the proposed new approaches and experiments structuring and new educational contents, but still has not managed to negate some sort of separation from the sub-systems of law.
Above occurs and sourced among others on the use of the sense of the legal system itself. The structure and content of legal education from the first until now is very much on the content of the systematic and legal norms. Consciously or unconsciously, the state fosters a mindset that the legal system is nothing other than a set order of legal rules written and unwritten.
As evidence can be seen and read in the books or writings on the Indonesian legal system (Utrecht, Kusumadi, Sudiman and a variety of books new), which only discuss or describe the components of the law on the division of disciplines or branches of science strict laws even closed one other. The branch of law that was impressed laid off without an accountability approach shows that the various components that constitute the legal system.
It is not surprising, if occasionally ejected speech that Indonesia does not have a legal system. One, which is both scientifically and reality, could not be justified. In the words of Cicero has been noted earlier, should be interpreted in addition to existing law, there must be a legal system. There is no society without legal system. Although the books and teaching there is a study on the institutional aspects, it is done as a discipline rule of law that is unrelated to its function in the legal system as a whole.
Discussion of procedural law, separate or apart from the court, the prosecutor, or the police because the latter is included in other disciplines. Court issues included in the scope of constitutional law. In fact, prosecutors and the police is not clear where. As a result, law students and even graduates of the law is a good understanding about the police and prosecutors in the judicial order, except for those working in the field. A narrow understanding of the legal system is inseparable from the history and purpose of education in the past that only aims to educate personnel to know and explore the legal rules that exist and are able to apply for a concrete event appropriate work environment.
Since the seventies, conceptually been socialized approach and a broader scope of the legal system. Law, (more precisely the legal system), not just a set of norms or rules of law but covers also processes and institutions (Mochtar Koesoemaatmadja). The process itself is not limited to the application of the law but the law-making. Institutional cover-making bodies of law and law enforcement. And should the institution including legal education.
Through legal education is not only produced legal experts who know the ins and outs of the rule of law, implementation of laws and institutions will fill in the legal field, but also "create" and "develop" the law through the teachings of the law ( legal doctrine ) and legal analysis. In fact not the case. This is reflected in the policy development of the law in the New Order. Development or educational reform law placed as a component of development, or the renewal of the law, but as a component of educational development. Development of legal education apart and not an integral part of development or renewal of the law.
Supposedly, in order to guarantee the development or renewal of the law as a system, legal education should be addressed as an integral part of the development of law. Similarly, the teaching of law must be seen and put into perspective the legal system and not something that stands alone. With such a perspective, the expected outcome of legal education will not necessarily correspond and meet the needs of sub-systems of law.
The structure and content of legal education in the perspective of the legal system.
Although just as the stated atas-- since the seventies, even the sixties there have been various efforts to reform the structure and content of legal education, but it does not reflect the association with the legal system. Branches or discipline iimu taught law does not ensure that output (legal scholars) who think in the determination of law as a system.
With the structure and content of the curriculum fragmented system, just as the majors or courses that lead to college students and graduates ketat-- just think in those boxes. Not infrequently, a student or a law degree so proud if you are in an environment specific courses such as programming are study law or international business law and there is no feeling less because it does not dominate other fields of law such as criminal law, civil law, administrative law or constitutional law. Although the branches of law or discipline iimu latter are compulsory, but still regard it as something that is less important than the main courses.
No matter how profound studies in the boxes, but the cause of the graduates still not ready because as a real law ( law in action ) is cross-disciplinary, not checkered. As long as it is not addressed in a comprehensive manner by putting the legal system as a basic approach to legal education and the law is designed as a component of the legal system, during which there will always be concerns regarding the ability serjana berrnutu law to participate in the development, including in law enforcement of quality.
To patch the shortage develops additional efforts, both institutional as continuing education, Pre-service training, or businesses no other official. Because of the importance negate plaid study program, and build a curriculum that reflects the determination of legal education as an education system of law, not a mere rule of law education. Legal education should mengendepankan exercise to be ready to think not just ready.
Within the framework of the existing curriculum, unanimity was expected to be achieved through a philosophy of law or legal theory. But in fact not the case. The reason, the content of teaching and the philosophy of law or legal theory in general is approached from the perspective of the history of the development of thought or a legal theory that begins with the earliest theory, like the theory of natural law and so on.
Keep in mind an approach which crosses the history of thought that are thematically. As the theme of society and the law, which includes the sub theme of law and legal awareness, legal and pembanguinan, the law in the perspective of social change and others. Other themes such legal purpose and function of the law that covers legal topics as the purpose, the law as an instrument and others. In addition to the more concrete, this theoretical approach will train students to think cross-theories or thoughts fragmented way of thinking towards a comprehensive and integral.
In this integral education can also be supported by developing the legal system as a stand-alone subjects including studies on legal education. Comprehensive exercise rational thinking is not identical to present as many diverse disciplines. Distribution of subjects is too much with the education system in the short term without supported by the presentation system and adequate facilities, is one factor the lack of legal scholars to carry out the expected role, both in meeting the demands of development and the rule of law.
Weakness may increase because the teaching of legal ethics in the legal profession is not yet a major component of legal education.
Cover
Naturally the question arises because the above description is not concretely touching role in the development of legal education and law enforcement. The theme of this kind have often become discourse. In the system of social democratic underpinned by the principle of the rule of law, there is no doubting the legal education is a source of development and the rule of law, both in the realization of human resources legal experts as well as a variety of legal thought that can be relied upon in the formation of law, improvement of law and administration of justice ,
However, to achieve the role needs to review internal state education law allows or does not allow the execution of these roles. This is the purpose the above description is merely call attention to the issues facing education law that would inhibit or do not allow a legal education can perform the role expected or appropriate it.
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Development and Law
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