Yurisprudensi and Discovery of Law University of Indonesia Faculty of Law International Class Program 21 November 2012

Roadmap for Today Where we are History and Definition Stare Decisis v. Precedent v. Yurisprudensi Schools of thought on Yurisprudensi Principles of Yurisprudensi Discovery of Law Methods of Discovery of Law Methods of Arguments to Find Law

Where Are We? Sources of Law: Laws and Regulations Customs International Agreements Yurisprudensi Doctrines

History and Definition of Yurisprudensi Yurisprudensi comes from the Latin word Jurisprudentia, meaning knowledge in law ( Rechtsgellerheid ) Yurisprudensi (Indonesia) = Jurisprudentie (Dutch) = Jurisprudence (French) What makes a decision a Yurisprudensi ? Yurisprudensi and Stare Decisis et non Quieta Movere Differences? Binding forces of precedents

Schools of Thought on Yurisprudensi (1) Legism The law is what is contained in the laws and regulations. The only thing a judge needs to do is to apply it. Knowledge of the law is of the utmost importance. Freie Rechstbewegung The law is not solely contained in the laws and regulations. A judge has the option to be in accordance with the law or go out and create his own law. Mastery of the past cases is more important than mastery of the law Rechtsvinding The law must be adjusted to the dynamics of society and the times. A judge has that duty of adjustment, he/she is both bound and freed by it.

Schools of Thought on Yurisprudensi (2) Rechtsvinding A judge is both bound by and has the freedom to decide on: Interpretation of the law ( wetsinterpretatie ) Construction of the law By analogy; By Rechtsverfining ( Determinatie )

Principles of Yurisprudensi Two types of Yurisprudensi : Regular Yurisprudensi; and Permanent Yurisprudensi. Principles of Yurisprudensi : Precedent Principle Freedom Principle

Methods of Discovery of Law Grammatical Interpretation The simplest method; Elaborating on the everyday meaning of the words; Must be logical Sociological/Teleological Interpretation Adapting regulations that were made before the event took place; Using regulations to fit the sociological demands of the present; Example: electricity theft was not regulated under the criminal act of theft.

Methods of Discovery of Law Systematical Interpretation A law is always related to another law, it does not stand alone; Interpreting the law by looking at how it is connected with the entire legal system/framework. Historical Interpretation Interpreting the law by looking at the history of how it was legislated or how through the history of law; Legislated means that we look at the process of legislation and seek what the intent of the legislators; By history of law means that we look at the historical functions of a concept in a law.

Methods of Discovery of Law Comparative Interpretation Interpreting a law through comparing laws; This is often used for laws that derives from international agreements or treaties. Futuristic Interpretation Interpreting by looking at bills (laws that have not been enacted). Restrictive and Extensive Interpretation Used to limit or expand an interpretation of a law.

Methods of Arguments to Find Law Argumentum per Analogiam Similar events will be treated similarly; Example: Article 1576 ICC where sale does not revoke rent, grant (or gift) can also be interpreted as sale as it also involves a transfer of object. Narrowing the Law ( penyempitan hukum ) A broad reading can then be simplified and narrowed down; Example: Article 1356 on Unlawful Act. A contrario argument Concluding from what is not regulated.

Yurisprudensi and Discovery of Law University of Indonesia Faculty of Law International Class Program 21 November 2012