Legal Literacy - This article explains the use of interpretation in criminal law and some principles that are often used in criminal law analogy in Indonesia.

Principles and General Principles of Interpretation in Criminal Law

In legal discovery activities, one of the methods often used is interpretation and legal analogy. There are several general principles/principles regarding interpretation in criminal law. Namely:

  1. The Principle of Proportionality, which means that there is a balance between the method and purpose of a law.
  2. The Principle of Subsidiarity, which means that if there are difficulties in presenting several alternative solutions, then the solution that causes the least harm must be chosen.
  3. The Principle of Relevance, means that the applicability of criminal law which only questions deviations in social behavior that deserve reaction or correction from a criminal law perspective.
  4. The Principle of Propriety (Maarten Luther), states that propriety must test juridical logic.
  5. The principle of in dubio pro reo, means that if there is doubt, the provision or explanation that is most beneficial to the defendant must be chosen.
  6. The principle of exceptio format regulam, means that if a deviation from the general rule is made, then the deviation must be interpreted narrowly.
  7. The principles of titulus est lex and rubrica est lex, the first principle means that the title of the legislation determines, while the second principle means that the rubric or part of the legislation determines.
  8. Material Principle, which concerns unwritten rules that refer to or refer to an important socio-ethical value, a certain ideal or legal ideal.

Basically, an interpretation is something that cannot be avoided. This was stated by Van Bammelen and Van Hattum. Broadly speaking, there are four commonly used interpretation methods, namely:

Grammatical Interpretation, namely the meaning of the provisions of the law is interpreted by describing it according to everyday language.
Systematic Interpretation, namely interpreting the provisions of the law by connecting them with other legal regulations or with the entire legal system.
Historical Interpretation, which is the interpretation of the meaning of laws according to their occurrence by examining the history of the legislation.
Teleological/Sociological Interpretation, which is interpreting the meaning of laws in accordance with the purpose of the drafters of the law rather than the sound of the words of the law.

According to Sudikno Mertokusumo, interpretation can be distinguished into restrictive interpretation and extensive interpretation.

Restrictive interpretation is explaining a provision of law by limiting its scope, namely narrowing the meaning of a regulation by starting from its meaning according to language (grammatical interpretation, systematic interpretation). Meanwhile, extensive interpretation is exceeding the limits of understanding something according to grammatical interpretation (historical interpretation, teleological interpretation).

Another opinion was also put forward by Jan Remmelink adding several interpretations in law criminal.

First, creative interpretation, this interpretation is not extensive but rather restrictive. With this interpretation, the judge reveals a certain element that he considers contained in the criminal formulation, even though the element is not explicitly described in it.

Second, traditional interpretation, which is finding law by looking at a behavior in legal tradition.

Third, harmoniserende interpretatie, which is used to avoid disharmony or conflict between one regulation and other legislation.

Fourth, doctrinal interpretation, which is to strengthen argumentation by referring to a particular doctrine.

References

  • Eddy.O.S. Hiariej, Principles of Criminal Law, Cahaya Atma Pustaka, Yogyakarta, 2016.
  • Sudikno Mertokusumo, Legal Discovery, An Introduction, Liberty, Yogyakarta, 2001.