Definition of Law and the Elements of Law

PERTANYAAN

Can you explain what the elements of the law are? And is the president as a lawmaker also one of the elements of law? Thank you.

INTISARI JAWABAN

Legal scholars have not been able to formulate a definition of the law that satisfies the parties until now. So, from the existing understanding, it can be concluded that the definition of law is a set of coercive rules made by authorized institutions that must be obeyed by the community, containing threats of punishment if violated.

From that definition of law, the elements of law can be drawn. What are the elements of law?

Please read the review below for a further explanation.

ULASAN LENGKAP

This article is an English translation of Pengertian Hukum dan Unsur-unsur Hukum written by Bernadetha Aurelia Oktavira, S.H., and published on Monday, 17 July 2023.

This article is an update from the article with the same title and was published on Tuesday, 24 May 2022.

All legal information available on Klinik hukumonline.com has been prepared for educational purposes only and is general in nature (read the complete Disclaimer). In order to obtain legal advice specific to your case, please consult with Justika Partner Consultant.

Definition of Law

First of all, before we answer your question about the elements of law, it is necessary to understand its definition. In fact, giving a definition of the law is difficult because legal scholars themselves have not been able to formulate a legal definition that satisfies all parties.

However, Utrecht in his book entitled Pengantar dalam Hukum Indonesia quoted by C.S.T. Kansil provides the following definition of law (p. 38):

Law is a set of rules (commands and prohibitions) that manage the order of a society and therefore must be obeyed by the community.

Slightly different from what was explained by J.C.T. Simorangkir and Woerjono Sastropranoto still according to the same book, the definition of law is as follows (p. 38):

Laws are rules that are coercive in nature, which determine human behavior in a community environment made by authorized official bodies, violation of these rules results in taking action, namely with certain penalties.

So, from the various definitions of law above, it can be summarized that the definition of law is a set of rules that are coercive and made by authorized institutions that must be obeyed by the community/society, by containing threats of punishment if violated.

Elements of Law

Furthermore, after understanding the meaning of the law, according to C.S.T. Kansil, the elements of the law are (p. 39):

1. Understanding of human behavior in the association of society;
2. The rules are held by authorized official bodies;
3. The regulation is coercive;
4. Sanctions for violation of regulations are firm.

In contrast to what C.S.T. Kansil said, Ishaq in his book entitled Dasar-dasar Ilmu Hukum, distinguishes legal elements into ideal elements and real elements, with the following explanation (p. 7):

1. The ideal elements, because of their very abstract nature cannot be touched with the five senses, but their presence can be felt. This element of the law is sourced in man himself in the form of action, ideas, and artifacts (in Bahasa Indonesia is known as cipta, rasa, karsa).
2. Real elements, because of their concrete nature, are sourced in humans, nature, and culture which will cause the existence of science about reality. This legal element includes external social aspects in the association of community life.

Then, what is not included in the elements of law is the president as you mentioned in the question. Because the one who is authorized to make regulations is not only the president. Regarding the types of laws and regulations and the authority that establishes them, you can refer to the article entitled Hierarchy of Laws and Regulations in Indonesia.

These are the answers we can provide, we hope you will find them useful.

Reference:

1. C.S.T. Kansil. Pengantar Ilmu Hukum dan Tata Hukum Indonesia. Jakarta: Balai Pustaka, 1989;
2. Ishaq. Dasar-dasar Ilmu Hukum. Jakarta: Sinar Grafika, 2009.