Ilmu Negara (Bab 1)
Constitutional + administrative law treat state as a concrete concept; has practical value because it can be implemented directly in state practice with the study of hukum positif (laws that can specifically be applied to certain times and places)
What is nature of the state and the three perspectives it is typically studied from?
Nature of the State = explanation of what the state means; reviewed through historical, sociological, and legal lens
What is the root language of Austronesian?
Proto-Austronesian
Explain what hukum positif or positive law is.
Laws that are relevant and binding in a specific country and time frame
What are the two types of tradisi hukum?
Tradisi Hukum Eropa Kontinental (Civil Law) dan Tradisi Hukum Anglo Saxon (Common Law)
Explain the two fundamental components of theory of state.
General Definitions = concepts that are generally understood with the same definitions and universally applicable
Fundamental Principles = concepts that, due to various perspectives on life and population conditions in different countries, are understood differently
How was the nature of the state defined in Ancient Greece and why is this term no longer applicable?
In Ancient Greek times, state was known as Polis; this referred to city-states defined by having a direct democracy system
The boundary of these city-states’ territories was only limited to a city, with the populace being able to participate directly in state activities
However, when boundaries of the state’s area began expanding, the term Polis was no longer applicable
This is because the country is already a country state with a very large territory wherein state activities are carried out using a representative democratic system
How did Solheim define Nusantao?
Initially defined as Austronesian speakers, Solheim refines Nusantao to denote natives of Southeast Asia and their descendants with a maritime-oriented culture originating around 5000 BCE.
Explain the difference between "de jure" and "de facto".
De jure adalah ungkapan yang berarti "berdasarkan (atau menurut) hukum", yang dibedakan dengan de facto, yang berarti "pada kenyataannya (fakta)".
Define sistem hukum.
Sistem Hukum → tatanan yang terdiri dari Unsur-Unsur yang satu sama lain saling terikat
Explain stufenbouw des rechts' history and definition.
Abstrakte Norm: highest legal norms that are composed of the objective of law and become the principles of law, such as justice
Generalle Norm (Tussen Norm): a legal norm contained in the law books or fundamental laws, though their implementation may not always align with what law books state
Concrete Norm: all norms relevant to the populace
Why did Kranenburg disagree with McDougall’s theories and what did he propose as an alternative for the definition of the state?
Kranenburg: McDougall’s theories do not explain societal groups that fulfil the essence/meaning of a country; believed the state is actually a system of human groupings based on two measures: whether the human grouping is in one particular place or not, and if the grouping is regulated or not; from these measures, there are 4 types of human groupings
A state is defined as a group of people who do not stay in one place but is regulated; this occurs due to a strong sense of unity in facing danger together; creates a desire in each member of the group to obey the rules which then manifests in a bond of mutual will (willen verhaltnis)
After that, a common goal will automatically emerge from this community group
According to Kranenburg, every country anywhere is a union of one nation (Volk Gemeinschaft), it cannot be composed of several nations
Explain the Nusantao Maritime Trading and Communication Network.
Wilhelm Solheim's "Nusantao Maritime Trading and Communication Network" refers to a complex maritime trade network connecting Southeast Asia and the Pacific from 1500 BC to the early centuries AD. The network, driven by advanced seafaring skills, facilitated the exchange of goods, technologies, and cultural practices across islands, promoting the spread of farming techniques, pottery styles, and social traditions. Archaeological evidence, such as pottery designs and trade artifacts like obsidian tools and beads, supports the idea of both regional and interregional trade. Solheim's model emphasizes the importance of maritime pathways in shaping Southeast Asian and Pacific history, challenging land-based migration theories.
Define disiplin hukum.
Disiplin Hukum: sistem ajaran yang menentukan apakah yang seyogyanya atau seharusnya (preskriptif) maupun yang senyatanya dilakukan (deskriptif)
Explain the two branches of Hukum Eropa Kontinental and 2 fields of law in each of those branches.
Publik: Tata Negara, Administrasi Negara, Pidana
Privat: Sipil (Perdata), Dagang
Explain the four stages of Receptie.
Teoritische Receptie: scholars in Western Europe dug up and re-learn Ancient Roman laws straight from Rome; they not only accepted these laws but also considered them superior to the current laws existing in Western Europe
Praktische Receptie: the scholars who learnt about Ancient Roman laws would go on to become judges and hold other administrative positions in their respective countries, leading to all of Western Europe to accept Roman law
Wetenschappelijke Receptie: after Roman law was accepted and embraced by each Western European country, the scholars created their own academic faculties and universities
Positive Rechtelijke Receptie: roman law was officially considered as hukum positif in Western European countries; one result of this involves the codification of civil law known as Code Civil Napoleon, which is 90% born out of Roman law
Explain the history of the 5 sources of authority and what they are.
Max Webber: three pillars that are sources of authority
Charismatische Gezag: authority derived from advantages that a person has and are recognized but cannot be assessed according to ratio
Traditioneel Gezag: authority derived from several tradition-based factors
Rationeel Gezag: authority that is accepted due to rational logic
Logemann developed Webber’s theory, resulting in him forming 5 pillars of authority
+ Magische Gefundeerd Gezag, which is authority derived from magic
+ Rationeel Gefundeerd Gezag, which specifically related to the problem of "mythe" as the basis of authority (George Sorel believed that the strength of faith in myths was significant); 18th-century Mythe revolved around heroic tales of leaders while 19th-century Mythe was about sovereignty with a representative system
+ Gezag Ener Elit, which was rooted in membership of an elite group (Gezag Ener Elit); expanded it would become an Aryan Race or a Nordic Race; stated by Alfred Rossenberg (Deuchland Uber Alles)
Explain Bellwood's Out-of-Taiwan Hypothesis.
Peter Bellwood’s Out-of-Taiwan (OOT) hypothesis is the dominant explanation for the Neolithic migration of Austronesian-speaking peoples across the Pacific. The hypothesis centers on the Austronesian language family, which spans from Southeast Asia to Madagascar and Easter Island. According to Bellwood, population pressures and agricultural development led Pre-Austronesian-speaking peoples to settle in Taiwan around 4500–4000 BC. From there, these peoples migrated southward, influencing the Philippines and Indonesia by 1500 BC. Linguistic and cultural evidence, including similarities in pottery, supports this theory of migration. The Austronesian expansion continued both westward, reaching Southeast Asia and Madagascar, and eastward into the Pacific, blending with local cultures and spreading technologies.
Explain the difference between politik hukum and filsafat hukum.
Politik: Kegiatan-kegiatan memilih nilai-nilai dan menerapkan nilai-nilai
Filsafat: Perenungan dan perumusan nilai-nilai
Explain tata kaedah hukum.
Pancasila --> KK --> KA/U --> KK/I
Explain the two branches of Staatswissenschaft, along with the three further branches of one of these aforementioned branches.
Staatswissenschaft can be separated into Staatswissenschaft (narrow meaning) and Rechtswissenschaft, with the latter being the study about the state that focuses on legal aspects such as constitutional law, state administrative law, and public international law
Staatswissenschaft (narrow meaning) is state science, with it having 3 branches
Beschreibende Staatswissenschaft/Staatenkunde: study about the state that is only descriptive or depictive in nature
Teoritische Staatswissenschaft/Staatslehre + Staatsleer (Dutch): branch of theory of state that focuses on underlying principles and ideas that define a state
Praktische Staatswissenschaft/Angewandte Staatswissenschaft: how political science is the practical application of Teoritische Staatswissenschaft
Explain the three legal theories of the legal perspective on nature of the state.
#1: state as a legal object; a tool formed for human needs --> also known as the patrimonial theory, it viws the state from the perspective of ownership law
#2: state as a reciprocal agreement between two parties who have different priorities yet still enter a legal bond (recht verhaltnis)
#3: stufenbouw des rechts
Explain the Nusantao Hypothesis and how it disputes theories of how a central origin point for Austronesian was Taiwan.
Solheim then introduces the Nusantao hypothesis, naming the Austronesian-speaking maritime people as Nusantao (people of the island homeland) originating in southeastern Island Southeast Asia around 5000 BCE. This hypothesis suggests that rising sea levels isolated eastern Southeast Asia from the western and northern regions, leading to the development of distinct Pre-Austroasiatic cultures in eastern Indonesia and southern Philippines. These eastern groups became more maritime-oriented due to their island environments, while western groups remained more land-focused.
However, Solheim disputes the Taiwan-centric view, arguing that archaeological evidence does not support extensive shell tool use in northern sites like Hong Kong, implying that shell tool traditions originated in southern islands and spread northward.
Explain the history of asas konkordansi and its definition.
Asas Konkordansi, which translates to the "principle of concordance" or "principle of similarity," refers to the application of Dutch laws in the Dutch East Indies (Indonesia) during the colonial period. Initially, when the VOC (Dutch East India Company) arrived in Indonesia, their primary goal was trade rather than colonization. However, as the company grew, it acquired authority similar to that of a state, and Dutch influence became more prominent.
The Asas Konkordansi principle emerged when Dutch laws began to be applied in Indonesia, creating a legal system where Dutch law was enforced in the colony to maintain order and governance, aligning the legal framework in Indonesia with that of the Netherlands. This ensured that the legal systems in the colony were consistent with the Dutch model, reflecting the company's shift from a purely commercial enterprise to one with state-like control and influence over the region.
What is the core principle of Hukum Eropa Kontinental?
Hukum itu memperoleh kekuatan mengikat karena berupa peraturan yang berbentuk undang-undang yang tersusun secara sistematis dalam kodifikasi.