Legal Literacy – Often we hear the word legal principle, some mention adagium, and sometimes the same thing or sentence is referred to as postulates. So what exactly is the difference between a legal principle, adage, old maxim, and postulate? let’s see the explanation of the article below!
What are Principles, Adages, Old Maxims, and Postulates?
There are several terms that are often used in place of the term “legal principle”. These terms include “adage”, “old maxim”, and “postulate”. In the Big Indonesian Dictionary, “adage” is defined as a saying or proverb. When the law is incomplete, regula pro lege, si deficit lex (a proverb can be used as a guide). According to the Legal Dictionary, “adagium” is defined as a scientific guideline or motto, as well as aphorisms or slogans. On the other hand, “old maxim” translates as an old saying. Therefore, the word “adagium”, which comes from Latin, is synonymous or has the same meaning as the word “maxim”.
Unlike “adagium” and “old maxim”, “postulate” comes from the Latin word postulatum. Postulate comes from an older word, postulare. Literally, postular means to ask or demand, while postulatio is defined as a complaint. The word “postulate” itself means a preposition that is a starting point for a search that is not a definition or provisional supposition. According to the Big Indonesian Dictionary, a postulate is an assumption that forms the basis of a proposition that is considered true without the need to prove. Postulates can also be interpreted as basic assumptions. Based on these various definitions, the word “legal principle” is closer to the meaning of the word “postulate”.
Example Postulate: Accessorium non ducit, sed sequitur, suum principale
In simple terms, this postulate states that an auxiliary participant in a criminal offense does not have a leading role, but follows the instructions or actions of the main perpetrator. This principle is an important part of criminal law, especially in the concept of joint liability.
In criminal law, two forms of participation are generally distinguished: independent participation and non-independent participation. Stand-alone participation is when each participant is judged and tried based on his or her own role in the criminal offense. Non-independent participation occurs when a participant’s liability depends on his or her role in the crime committed by the main perpetrator, as well as whether the main perpetrator’s actions are considered a criminal offense.
In this context, stand-alone participation involves the perpetrator acting alone or together with the main perpetrator. Non-independent participation involves those who encourage or assist the main perpetrator. They serve as assessors for the principal, and their liability is dependent on the liability of the principal.
In the Netherlands, this concept was adopted by several criminal law experts and drafters of the Dutch Criminal Code, such as Simons, van Hamel, and wetgever (legislators).
However, some jurists have different opinions regarding this division. They argue that in modern criminal law, a person’s liability should be determined based on his or her own role independent of the actions of others. However, the history of the formation of the Criminal Code shows that there is a concept of independent participation and non-independent participation.
Pompe’s argument emphasizes that all forms of inclusion are not mutually exclusive, although the role of each participant must be assessed individually. This opinion is supported by van Bemmelen, van Hattum, and Moeljatno. They argue that the participants form a single entity. In addition, another principle that supports the separation of stand-alone and non-stand-alone participation is res accessoria sequitur rem principalem, which means that the accomplice follows the principal.
Examples of legal principles: Actori in cumbit probation
This legal principle is known in civil law as the legal principle of proof. Ei incumbit probatio qui dicit, non qui negat, which means the burden of proof is on the party making the claim, not the one being sued. This legal principle is expressly regulated in Article 163 Herzine Indische Reglement, Pasal 283 Reglement op de BurgelijkeArticle 1865 of the Civil Code stipulates that the party who claims to have a right or wishes to strengthen his own rights or deny the rights of others with reference to an event, is responsible for proving it.
Some other related legal principles are: First, affirmanti, non neganti, incumbit probatio, which means the obligation of proof lies with the one who admits, not the one who denies. Second, affirmantis est probare, which means that the one who admits must prove. Third, reo negate actori incumbit probatio, which means if the defendant denies the claim, then the plaintiff must prove it.
Contoh Old Maxim: It’s the crime that makes the honter, not vechafaus
This old maxim means the crime of shame, not the death penalty. This is the basis for the justification of the death penalty. In addition to the death penalty being retribution, it is also intended as a deterrent. In fact, retribution is not only part of the death penalty, but is a key element in the criminal justice system, especially the classical school of criminal law.
The death penalty is reserved for violent crimes that are carried out by the state as a representation of victims for perpetrators with bad morals. Other adages related to the death penalty are crimina morte extinguuntur (crime can be exterminated by the death penalty), mors dicitur ultimum supplicium (death penalty is the toughest law) and mors omnia solvit (death penalty solves the case).
Example Adagium: Ad officium justiciariorum spectat unicuique coram eis placitanti justitiam exhibere
The meaning of this adage is that it is the duty of law enforcers to provide justice to anyone who requests it. This implies that everyone is equal before the law. Therefore, law enforcement officers must provide justice to anyone without discrimination for their rights violated by other parties.
