Legal System in the World

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There are several legal systems applicable in the world and differences in legal systems also affect the field of civil law among other. World civilization history from the beginning is logic reason why legal system grow differ each other. They are Anglo-Saxon legal system (common law), Continental legal system (civil law), Communist legal system, Religious legal system (such as shariah law), Customary legal system, and combined/mixed legal system between mentioned before. In United States, there is also Louisiana State legal system United States which is based upon French and Spanish civil law.

Each countries in the world apply each legal system one or more by combine each other. Anglo-Saxon legal system applicable in the Kingdom of the UK and commonwealth countries or countries affected by the UK, such as the United States and Canada (except Quebec Province), Malaysia, Australia, India, New Guinea, Ireland, New Zealand, South Africa, etc. Continental European legal systems applicable in European main continental and countries that affected by European mainland counties colonization/occupation (Almost 60% of the world's countries follow this system of law).

Legal communist system is used by communist country such as China and Rusia. Meanwhile, Islamic legal systems mostly used by middle east country and mixed applicable by other countries where people population dominated by moslem religion, such as Malaysia, Indonesia, Brunei Darussalam (especially for marriage and inheritance law). Civil law in Indonesia is based on civil law in the Netherlands, especially in civil law during the Dutch colonization in Indonesia. Please read also detail article on Differences of the Anglo Saxon with the European Continental Legal System.

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Differences of the Anglo Saxon with the European Continental Legal System

There is a very fundamental difference between the legal system of Continental (European) and Anglo-Saxon (U.S.) legal system . In the continental legal system, the philosophy appear in nature-that is repressive, that always tends to protect the powerful. This may be understood because the power (that time) was the colonial Dutch who want to clear and maintain his power through enforce various law or legal system.

Anglo Saxon legal system in addition of course there is a repressive nature, but nature more emphasis on the nature of prevention. Article-The buoy is a buoy-to prevent the emergence of corruption, collusion and nepotism in all forms.


In the current the multidimensional crisis, have not arrived in time for serious reflection, to which our legal system to legal Continental Anglo-Saxon legal system for the New India in the future. Hopefully. (Cartono Soejatman)

Fundamental difference with the Anglo Saxon Continental is located on the device that used the law and the political system that is used.

Anglo Saxon System
Anglo-Saxon system is a system of law based on jurisprudence, the decisions of judges who then became the primary decision judges next. The legal system is implemented in Ireland, UK, Australia, New Zealand, South Africa, Canada (except Quebec Province) and the United States (although the state take the Louisiana legal system together with the Napoleon continental European legal systems). Besides these countries, other countries are also implementing the legal system a mixture of Anglo-Saxon, for example Pakistan, India and Nigeria to implement the system most of the Anglo-Saxon law, but also the customary law and religious law.

Anglo Saxon legal system, actual implementation is easier, especially in the community on developing countries. An opinion in accordance with the experts and more prominent lawyer used by judges, cut off in case.

Anglo-Saxon is a region of interest. Anglo-Saxon name, since the 8th century, commonly used to take the Briton, the nation that came from Germania tribes Anglia, Saks, and Yut. Perhaps, in the year 400 M of them cross over East Germany and Southern Scandinavia to conquer the nation Kelt, then establish a small kingdom 7 called Heptarchi. They convert to be christian between 596-655 M.

Anglo-Saxon history is, by Theresa Tomlinson, was a background story in the novel Wolf Girls , a fiction about a teenage girl named intrepid Wulfrun. Wulfrun children a weaver, Cwen. They live in the area of the Whitby monastery are sister Hild. Every day, Wulfrun duty goosee graze along with their friend, Cadmon, a cattle rancher. Cwen young childless life is very poor. Because the poor, he was forced to be sold by her old son, Sebbi, as a slave. At this period, slavery is still a common thing that happens. Perhaps due to the war continues between the areas of mutual hostile. People there divided into two: the free and the not-free.

History of Europe and North America to be a reference for case studies middle layer, which is known as the middle-class struggle during the 18-th century and the end of the 19th century. Two models are proposed Francois Raillon, namely Anglo-Saxon model and the continental European model, to attract follwed. Anglo-Saxon model, which according to rely too Raillon experience the history of bourgeois England and the United States, not necessarily relevant to explain the possible growth of political democratization and economic development in developing countries.

Too many push given model on the "people" dealing with "country". Raillon narrate middle layer that can grow and develop in the body of the state, because the relation between state officials and partners in the private sector. This model, he said, more suitable to describe the middle layer of the growth, especially in the former French state, including in Indochina.

The debate about the Anglo-Saxon or continental European model indeed no means too large. However, the second model was developed on the basis of the structure and nature of the world economy is far different from the economic development of the last 30 years. The world economy 30 years (1966-1996) with a far different economic past, when the information revolution has not been growing rapidly. Because the environment is different so different roles also track foreign middle layer.

The main difference is the middle layer of many other countries now have a more information on the economy or knowledge economy. Unlike the pre-1966 period, economic movement in the world now rely more on the role of (information, services, technology) rather than economic production and trade. This means that the economic stimulus is mostly done by the speed and accuracy of knowledge of the production processing and distribution of goods. Every day around U.S. $ 1.6 trillion in transactions processed foreign exchange, trade and manufacturing goods (goods with the means to make hands) "only" about U.S. $ 600 billion. This means that the layer in the middle part of the largest foreign expert processing of the brain processing muscle. So middle layer of the present is not more trade 1940s or 1950s who became the owner of land, capital, and labor. Middle layer of Indonesia is now the brain is made up of workers (engineers, lawyers, accountants, broker capital market, medical specialist). Their loyalty is to the professional expertise, not to particular company.

On the other hand, Friedman does not analyze further the principle that democracy is not a practical system for each country with the same recipe, that this is visible from the continental tradition and Anglo-Saxon. Even now Nicholas Syarkozi want more French-like American democracy. That is, the development of democracy more closely with the trend of the relative or something to come and delayed, as revealed philosopher Derrida. Temperament and inability to see the condition of the Middle East that caused the failure of the mission the United States. Basically, the people reject the Middle East of a prestigious project for democracy, freedom, and not because of values that contradict, but more due to the act permissive the United States. In principle, the Arab heterophobia not more than the United States.

Fundamental difference with the Anglo Saxon Continental is located on the device that used the law and the political system that is used.

One of the areas of law that regulates the rights and obligations of the law on the subject and the relationship between the legal subject. Also called the civil law or private law as a public opponent of the law. If you set the public law matters relating to the state and the public interest (such as politics and elections (the law governing the state), the activities of day-to-day (administrative law or state administration), crime (criminal law), then set the civil law relations between residents or citizens everyday, such as someone adulthood, marriage, divorce, death, inheritance, property, business activities and actions of other civil.

Continental law system
Continental European legal system is a system of law with the characteristics of the various provisions of codification law  that are systematically more will be deciphered by the judge in the application. Almost 60% of the world's population live in countries that follow this system of law.

System law which is also known by the name Civil Law is derived from the Roman then developed to France. It development begins with the Roman occupation over France. This system is practiced in the interaction between the two nations on behalf to regulate their interests. This process lasted many years, until the French state-own adopted this legal system for a nation on its own.

French nation to bring this system to Holland, with the process of the same as the entrance to the French. Continue to develop this system Italy, Germany, Portugal, Spain, and so forth. This system was developed to all mainland European continent. Civil law in Indonesia is based on civil law in the Netherlands, especially in civil law during the Dutch colonization in Indonesia.

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Indonesia Legal History

The Indonesian legal system is based on Roman-Dutch law, modified by custom and Islamic law. Sources of law are Islamic law, statutory legislation, presidential instructions, and official compilations of Islamic law.

European explorers arrived in the region in the 16th century, and the Dutch East India Company was founded in 1602. The Dutch established a trading post on the north coast of Java, later named Jakarta. The Dutch gradually asserted political and military control beyond Java from the 18th century until most of archipelago was under Dutch rule by the start of the 20th century.

Under Dutch rule, the Netherlands Indies population was divided into Europeans, Natives, and Foreign Orientals. The Dutch established separate tribunals for Europeans and Natives. Indonesians were subject to adat law (custom law), with the Netherlands East Indies divided into several jurisdictions based on cultural and linguistic criteria. Dutch scholars identified and classified 19 different systems of customary law in the region. In areas under direct rule, there were European courts, native courts, and general courts for all of the population. In areas under indirect rule, there were native courts applying adat with very limited criminal jurisdiction and no jurisdiction over Europeans or foreigners.

The basic principle was dominance of the received civil law system, and application of adat for natives as far as it was not replaced by statute. The first legislation relating to the application of Islamic law was an 1882 Royal Decree establishing a Priest Court for Java and Madura, although the Decree acknowledged that most Indonesians were also subject to adat law administered by native courts. The Priest Court had jurisdiction over Muslim family and inheritance law where all parties were Muslim and awqaf, and had concurrent jurisdiction with the native courts of Java and Madura. The Priest Court was composed of a President selected from the native courts officers and three to eight qadis, all appointed by the Governor-General.

Subsequent legislation by Dutch authorities was also of a largely of regulatory and administrative nature. Independence was declared two days after Japanese occupying forces withdrew in 1945. Calls for the reform of marriage laws led to various proposals from members of government, womens groups and the National Institute for Law Reform from 1945 to 1973, but conflicting interests prevented any consensus being reached. The only statutory reform of Muslim personal status in that period was the enactment of the Muslim Marriage and Divorce Registration Law 1946 requiring registration.

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Researching Indonesian Law

Those undertaking Indonesian law research face the major hurdle of sourcing relevant legal material. Indonesian legal information is not widely available through print or online media, although recent improvements in the latter are making significant progress to the benefit of researchers. The main print media are the Government Gazette and its sister publications. The problem is that these publications are often behind schedule. The Government Printing Office (Pusat Penerbitan PNRI) also publishes individual legislation on a case-by-case basis. Although these are useful and relatively inexpensive, they are not entirely error-free.

The other print media providing legal materials are books, journals and other publications. Most are in the Indonesian language and their standards of presentation and analysis vary. Many of these publications are available only in Indonesia or in specialist Indonesian collections in overseas libraries.

Online media promises to be a useful means to make Indonesian legal material more readily available to the public. Certain Indonesian government departments are beginning to make available on their websites key legislation in their respective fields of interest. For a listing of government departments with websites, see the section on Useful Links, below. The best free website currently available for law seems to be the site maintained by Hukumonline, a partially USAID-funded project operated by a local non-profit group based in Jakarta. Hukumonline provides most of the past and current legislation which can be viewed onsite. Operating since 2001, this website is updated regularly and contains useful legal information.

One major limitation of Indonesian legal materials from most print and online sources is that they are presented in a non-consolidated form. For example, a statute like the Banking Law 1992 is available as it was first enacted in 1992. Its major revision, the Banking Amendment Law 1998, is available as a separate statute. Most publishers do not make the effort of consolidating the amendments, with the result that researchers have to undertake their own “cut-and-paste” effort to create a consolidated legislation. Another obvious limitation with many Indonesian print and online sources is that they publish their material almost entirely in the Indonesian language. This creates a major stumbling-block for foreign researchers who are not familiar or fluent with the language.

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Legal Professionals in Indonesia

There are at least three distinct branches of legal professionals in Indonesia. They are the notaries, advocates and legal consultants. A notary (notaris) is a legally trained semi-public official appointed by the Department of Justice & Human Rights (Departemen Kehakiman dan Hak Asasi Manusia) to notarise deeds (akta). The semi-public nature of a notary’s office arises because he is a government appointee who, at the same time, conducts a private professional notary practice.

A notarised deed, also called an authentic deed (akta otentik) is a formal deed prepared by and executed before a notary. At law, some legal documents require notarised deeds. Notarisation verifies that the deed is properly executed by the parties and, at law, the deed is conclusive proof on the matters to which it refers. To establish a company, for example, requires the assistance of a notary since the deed of establishment (akta pendirian) must be executed in his presence.

Since a notary is a government appointee, he does not provide legal advice to parties appearing before him. The parties to a transaction should have obtained independent legal advice and agreed upon the matters contained in the deed prior to appearing before the notary. In this way, the notary acts as a neutral party who prepares, witnesses and authenticates documents, and subsequently archives the signed original in his office. At present there are about 140 notaries throughout Jakarta. Parties are free to engage any notary they desire to authenticate their documents. Many notarial fees are charged in accordance to a scale issued by the Department of Justice & Human Rights although the fees for some matters are negotiable.

Advocates (pengacara) are lawyers in private practice with formal legal training. They are the Indonesian equivalent of attorneys in the United States and barristers and solicitors in England. Many advocates focus on litigation although others also provide general legal advice. Due to the limited size of many of their practices, advocates in smaller firms may not have sufficient expertise to provide commercial law advice on international business transactions.

Legal consultants (konsultan hukum) began to emerge as a distinct group of legal professionals in the late 1960s and early 1970s, when foreign investors started to venture into Indonesia in significant numbers. Most of them are also advocates although they tend to refrain from accepting litigation cases. Many legal consultants have completed advanced legal training overseas and prefer to specialise in providing legal advice and documentation for corporate, commercial, banking and cross-border matters.

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Indonesian Judicial System

The Indonesian judicial system comprises several types of courts under the oversight of the Supreme Court (Mahkamah Agung). Following the civil law tradition of The Netherlands, Indonesian courts do not apply the principle of precedent which is so familiar among common law jurisdictions.

Most disputes appear before the courts of general jurisdiction, with the court of first instance being the State Court (Pengadilan Negeri). There are about 250 State Courts throughout Indonesia, each with its own territorial jurisdiction. Appeals from the State Court are heard before the High Court (Pengadilan Tinggi), of which there are around 20 throughout Indonesia. The High Court is a district court of appeal. Appeals from the High Court and, in some instances from the State Court, may be made to the Supreme Court located in Jakarta. The Supreme Court can hear a cassation appeal (kasasi) which is a final appeal from lower courts. It can also conduct a case review (peninjauan kembali) if, for example, new evidence is found which justifies a re-hearing.

In 1998, the Indonesian authorities established the Commercial Court (Pengadilan Niaga). Initially, the Commercial Court is tasked to handle bankruptcy and insolvency applications. Its jurisdiction can be extended to other commercial matters. Appeals from the Commercial Court proceed direct to the Supreme Court. There is also a State Administrative Court (Pengadilan Tata Usaha Negara) which hears administrative law cases filed against the government.

In the 2001 constitutional amendments, provision was made for the creation of the Constitutional Court (Mahkamah Konstitusi). Among other matters, the Constitutional Court has the jurisdiction to hear cases involving the constitutionality of particular legislation, results of a general election, as well as actions to dismiss a President from office.

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Indonesia Constitutional Structure

To understand modern Indonesia’s legal system, some background must be given regarding the Indonesian constitutional structure. Indonesia is a unitary republic established pursuant to the constitution declared at independence, commonly called the 1945 Constitution (Undang Undang Dasar 1945). During the 32-year period when Soeharto was in power, the 1945 Constitution was never amended.

After his resignation in May 1998, the 1945 Constitution was amended four times - in October 1999, August 2000, November 2001 and August 2002. Among other things, these amendments deal with far-reaching issues such as limitations on the powers and term of office of the President; decentralisation of authority from the central government to provincial and regional governments; and the creation of additional constitutional bodies such as the House of Regional Representatives (Dewan Perwakilan Daerah) and the Constitutional Court (Mahkamah Konstitusi). Proposals for future amendments, some of which deal with equally weighty matters, are currently being discussed.

The 1945 Constitution provides for a number of constitutional bodies. Two of the most important are the People’s Consultative Assembly (Majelis Permusyawaratan Rakyat or MPR) and the House of People’s Representatives (Dewan Perwakilan Rakyat or DPR). The DPR is 500-strong and consists of elected and appointed representatives. Its main function is to make legislation and hold the President and his ministers accountable. The DPR meets during sessions scheduled throughout the year.

The MPR currently has almost 700 members comprising all the DPR members, appointed individuals representing the provinces, and other nominees. Constitutionally, the MPR is the supreme state body. Only the MPR has the power to amend the Constitution. It meets more infrequently, typically on an annual basis (constitutionally, it must meet at least once every five years). It issues policy statements in the form of resolutions (ketetapan) as well as the broad outline of state policy (Garis Besar Haluan Negara or GBHN). The country’s overall economic plan is included in the GBHN.

Whereas the MPR previously elected the President and Vice-President, recent constitutional amendments stipulate that the President and Vice-President are to be directly elected by the people. The first direct elections for the presidency and vice-presidency are expected to take place in 2004. Presidential powers have also been circumscribed to some extent by recent constitutional amendments. Also pursuant to these amendments, a person can only be elected as President or Vice-President for a maximum of two consecutive terms of 5 years each. Nevertheless, the Presidency is still a powerful position in that the President is the head of state and head of government as well as the supreme commander of the armed forces.

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Introduction of Indonesia Legal System

The Indonesian legal system is complex because it is a confluence of three distinct systems. Prior to the first appearance of Dutch traders and colonists in the late 16th century and early 17th century, indigenous kingdoms prevailed and applied a system of adat (customary) law. Dutch presence and subsequent colonisation during the next 350 years until the end of World War II left a legacy of Dutch colonial law. A number of such colonial legislation continue to apply today. Subsequently, after Indonesian declared independence on 17 August 1945, the Indonesian authorities began creating a national legal system based on Indonesian precepts of law and justice.

These three strands of adat law, Dutch colonial law and national law co-exist in modern Indonesia. For example, commercial law is grounded upon the Commercial Code 1847 (Kitab Undang-Undang Hukum Dagang or Wetboek van Koophandel), a relic of the colonial period. However, commercial law is also supplemented by a large number of new laws enacted since independence. They include the Banking Law 1992 (amended in 1998), Company Law 1995, Capital Market Law 1995, Antimonopoly Law 1999 and the Oil & Natural Gas Law 2001. Adat law is less conspicuous. However, some adat principles such as “consensus through decision making” (musyawarah untuk mufakat) appear in modern Indonesian legislation.

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