The Rule of Law Theory and the Theory of Justice

Legal Literacy- Explore the essenceThe Rule of Law TheoryandThe Theory of Justicein this article. Learn how the concept of the rule of law underscores the importance of the supremacy of law in a country, while the Theory of Justice details efforts to achieve equality and social justice. Discover the views of prominent figures and a comparison of these two theories to enrich your understanding of legal structures and principles of justice in the context of modern society.

The Rule of Law Theory

Indonesia, as stipulated in its constitution, has agreed to be a democratic and sovereign state of law in the administration of its constitutional life. Currently, most countries in the world declare themselves as states of law as well as democracies. As a terminology, the words "state of law" or "democracy," although difficult to define holistically, have distinctive characteristics (elements). The term "state of law" is often associaandted with the words rechtstaat and the rule of law. Dicey in his book Introduction to the Study of the Law and the Constitution, puts forward three elements of the principle of the rule of law, namely

1. absolute supremacy of law, as opposed to the influence of arbitrary power and excluding arbitrary rulers, prerogative or any broad discretion on the part of the government;
2. equality before the law, that is, equality for all people (classes) before the law as administered by the government or the courts; and
3. due process of law., that is, all state actions must be based on law and no action should be without a legal basis.

Meanwhile, according toThe International Commission of Jurists, three important characteristics considered as the essence of the rule of law are, first, the state must be subject to the law; second, the government respects individual rights; and third, an independent and impartial judiciary. Long before, in ancient Greece, at the conceptual level, Plato suggested "Law was seen as a means by which to rule, rather than a constraint on the King", furthermore Plato said "… the law should be the master of the government to restrain potential despots”. In agreement with Plato, Thomas Paine said “For as in absolute governments the king is law, so in free countries the law ought to be king; and there ought to be no other”. The main characteristic of the concept of the rule of law is the existence of a set of legal principles that must be respected by everyone, including lawmakers (as law makers). Thus, in brief, the idea of the rule of law is equivalent to the supremacy/sovereignty of law. The principle of the supremacy of law is always accompanied by the adoption ofandthe practice of the principle of democracy or popular sovereignty which guarantees public participation in the process of making state decisions, so that every law and regulation that is applied and enforced reflects the sense of justice of the community. Law is not intended to only guarantee the interests of a few people in power, but to guarantee the interests of justice for all. Thus, the rule of law that is developed is not anabsolute rechtsstaat, but rather ademocratische rechtsstaat. Indonesia, as stated in its constitution, has determined to be a democratic and sovereign state of law in the administration of its constitutional life. Currently, most countries in the world declare themselves as countries of law as well as democracies. As a terminology, the words "rule of law" or "democracy," although difficult to define holistically, have distinctive characteristics (elements). The development of the concept of the rule of law continues to evolve following the historical development of mankind. Therefore, in order to understand the concept of the rule of law accurately and correctly, it is necessary to first know the historical overview of the development of political and legal thought, which encouraged the birth and development of the conception of the rule of law. From a historical perspective, the development of legal and state philosophical thought, the idea of the rule of law has been developing since 1800 BC. The initial idea of the rule of law was during the ancient Greek era, but according to Jimly Asshiddiqie, the idea of popular sovereignty grew and developed from the Roman tradition, while the ancient Greek tradition became the source of the idea of the sovereignty of law. During the ancient Greek era, the idea of the rule of law was initially developed by Plato and Aristotle. In his book Politicos, which was produced at the end of his life and further explained by Plato in describing the forms of government that might be carried out.basically there are two kinds of government that can be organized,first, government formed through the rule of law and, the government formed did not go through legal means. According to Aristotle's concept of the rule of law, it is a state that stands on the law that guarantees justice to its citizens. Justice is a condition for achieving happiness in life for its citizens, and as the basis of justice, a sense of morality needs to be taught to every human being so that they become good citizens. For Aristotle, what rules in the state is not actually humans, but fair thought and the real ruler is only the holder and the balance. In the context of a state based on law, it is certainly inseparable from the existence of a constitution as the basic foundation in national and state life, because the constitution is a manifestation of the concept of the rule of law. All aspects of state administration must submit and comply with the constitution in force in a country. In the context of state life, the constitution functions to regulate the administration of the state carried out by state organs. In order for the administration of the state to run well, state organs must have authority in accordance with their functions, namely legislative, executive, and judicial authority. Starting from this authority, state institutions can carry out their duties in accordance with the expectations of the community. If the meaning of law is interpreted narrowly as the decision of the ruler and in an even more limited sense as a legal decision (court), the main problem is the task and obligation of the judge in finding what can become law, so that through his decision the judge can be considered as one of the factors forming the law. Based on the provisions of laws and regulations, especially Law Number 48 of 2009 concerning Judicial Power (Law 48/2009) which implies to judges that if a law or regulation is unclear or does not regulate it, the judge must act on his own initiative to resolve the case. In this case, the judge must play a role in determining what constitutes law, even if the laws and regulations cannot help him. This action of the judge is called legal discovery. So the important task of a judge is to adjust the law to real things in society. If the law cannot be implemented according to its literal meaning, then the judge must interpret it. In other words, if the law is unclear, the judge is obliged to interpret it so that he can make a fair decision and in accordance with the intent of the law, namely to achieve legal certainty. Therefore, one can say that interpreting the law is a legal obligation of the judge. In order to achieve the will of the lawmakers, and to implement the law in accordance with social reality, judges use several methods of interpretation, namely: