Konsekuensi Transplantasi Hukum terhadap Pancasila sebagai Norma Dasar dan Hukum Lokal
Journal Title: YUSTISIA JURNAL HUKUM - Year 2015, Vol 4, Issue 1
Abstract
Legal transplants in the form of ideas, concepts, solutions or structures, institutions, and methods, from one country to another has been a tendency in the development of the law in various parts of the world. Including Indonesia, has conducted legal transplants from various foreign legal system or any other country in the formation of various laws. Legal transplants in the perspective of comparative law and culture has potential mismatch between law and society, considering foreign law (the model) has material base differ with the recipient, such as Indonesia, the material and social base reflected in the values of Pancasila or local law. Therefore, studies on this subject is very important, and in this study aims to analyze: (1) the form of transplantation of foreign law into the legal system of Indonesia (national law); (2) inevitability of legal convergence in the development of national law in the future. Theoretically, this study relates to theories of legal transplant or diffusion of law, in particular mixing legal system and harmonization or convergence. This study confirmed the legal transplant theories are constructed from practices in Western countries. For that purpose, this study methodologically used socio-legal research types (nondoctrinal / socio-legal research). Based on the category of Esin Örücü, found that legal transplants in Indonesia occurred in various combinations of the most complex forms to simpler. Constitution as an example, transplant in the form of structures, institutions, and methods, in addition to the form of ideas, concepts, and solusion from Western law, both civil law system and common law systems. Legal transplants in Indonesia generally more formal process (formal diffusion) rather than substantive and make Western law have a dominant position. Local law and Pancasila under pressure of Western law. Therefore, the development of the law in the future must be built on a foundation of Jurisprudence as activity of theorizing, so that ideas, concepts, and solutions, as well as structures, institutions, and methods that can be characterized Pancasila as Western law competitor.
Authors and Affiliations
Hari Purwadi, Adriana Grahani Firdausy
Keywords
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- EP ID EP423463
- DOI 10.20961/yustisia.v4i1.8622
- Views 114
- Downloads 0
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