Conceptions of State law

State definition: in ensklopedia Indonesia, the term "State law" (rechtaat) as opposed to state power (machtaat) is formulated as follows.
State law (dutch: rechtaat): State bertujuaan to hold law and order, that order is generally based on the law contained in the people. State law to maintain law and order so as not impaired and that everything goes according to law.
Meanwhile, according to Prop. Soediman kartohardiprojo SH:
"If we are dealing with a term, like rule of law and legal terms as well as other terlebuh we first have to know the mind of what would otherwise by these terms.
The background incidence of conception State law
The term "rechtaat" (State law) is a term that is still young, emerging on to the 19th century when compared with other tekenal terms in the state administration, but the conception of the State law has been instigated since the 17th century to the State-Western European countries together with the emergence of unlimited power struggle of the ruling, which the king absolute power. The ideals that at first, strongly influenced by the flow of individualism and got a strong boost from raisanisme and reform.
Principles or the essence of the concept of sovereignty is that the power of the State merupaka, the highest authority and is not limited, which can impose the commands with no heed to other commands, the State has the highest authority that requires absolute compliance from all citizens. State power is manifested in laws, in which State legislators are the highest (legal omnicompetence).
For machivelli, law and power are identical. Goods are ready to have power, he has a law, and anyone who does not have power, he has never had any law. The law will only king who holds absolute sovereignty and implemented with the physical.
Also, Jean Bodin (1530-1596) has put forward the theory that the king's absolute sovereignty in his book Six Liversde la republiqus (1576) he was the first mengaggap sovereignty (souverinite) as an attribute of State.
Monetis concept of sovereignty (sovereignty) is absolute, with the king who has absolute power, has given rise to arbitrariness of the king, in the form of the oppression of human rights so that it gets a reaction and challenge of the flow of political pluralism which denies the supreme power and not limited from the State.
Prof. hugo Krabbe (1857-1936) professor of Leiden University, has been criticized in terms of ethical, namely in terms of feelings that stem from individual legal and ethical normative, because it is a manifestation of the individual consciousness to things that are good and bad. According to Krabbe law is not merely what is formally enacted by the legislative bodies of law feeling something Negara.hukum springs community members.
(Locke, montesqueieu), according to legal provisions and applicable laws and for that there should be a division of State power, (authorities), particularly the judiciary should be separated from the king.
(Rousseau), schools of popular sovereignty and democracy, which gave birth to the State konstitional and democratic country. So since its birth, that the principle of rule of law, the principle of popular sovereignty, the principles of democracy and the principle that konstitional closely interconnected with each other, even their implementation can not be split apart.
In continental European countries, the concept of State and further developed by Immanuel Kant, Friedrich Julius Stahl, ficte, Laban, Buys and others, a concept known by the term "rechtaat". While in the State of Anglo-Saxon was born the concept of a kind, which is famous for the concept of "rule of law" in the pioneering though Dicey.
FREIES ERMESSEN

Everything related to the nature of government policy is not unilateral. The existence of laws on public policy can not be separated with authority independent of government which is often referred to as Freies ermessen. This is in line with the existence of pendapar Ridwan HR policy rules can not be released by independent authority (vrijebevoegdheid) from the government which is often called Freies Ermessen.

Related on the definition of ermessen freies, freies ermessen Etymologically derived from the word meaning fres free, loose, not bound, and independent, while it Ermessen interpreted as considering, judging, guessing, and estimates. Freies ermessen means a person who has the freedom to judge, guess, and consider something. This term is then typically used in government so freies ermessen (discretion) is defined as one means of providing space to move to the officials or agencies of State administration to take action without having to be bound entirely on the legislation. While deciphering Freies Nata Saputra ermessen as a freedom given to administration tools, namely freedom in principle allow the tool prioritizes the effectiveness of State administration to reach a goal of sticking to the provisions of the law. In other words freies ermessen is freedom of action of State officials without having to be bound to the law.

But freedom is not absolute. Freedom is leaning (guided / constrained) by the General Principles Governing Good / Algemene Beginselen Behoorjijk Van Bestuur (AUPB).This does not contradict the previous explanation that freies ermessen menyetakan that is freedom of action of State officials without having to be bound to the law, because AUPB is a principle, not the law.

AUPB itself regulated in Article 53 Paragraph (2) letter No. B Act. 9 of 2004 Act No. jo. 5 Year 1986 About the State Administrative Court, which consists of:

The principle of legal certainty, the principle of orderly implementation of the State, public interest principle (principle is not regulated in the Act No.9 of 2004)., The principle of openness, the principle of proportionality, principle of professionalism, accountability principle
Another definition is given by virtually matching Nana Saputra, which is a freedom given to the administration tool, namely freedom in principle to introduce the effectiveness of the achievement of a goal (doelmatigheid) rather than cling to kententuan law, or legitimate authority to intervene in social activities in order to duties hold public interest.
This principle is an element of an exception from the principle of legality itself. Discretion can be said as a form of authority or official government agency that allows for options in taking legal action and / or factual measures within the scope of the administration or governance of a government.

Furthermore, in article 1, paragraph (5) The draft Law on Government Administration (RUU AP) affirmed, discretion is the authority of Government Administration officials used in making decisions to resolve the problem by taking into account the limits of applicable law, general principles of governance good and norms developed in the community. In other words, discretion is the decision of administration officials that are specific, responsible and does not violate the general principles of good governance.
As such discretion arose because the goals that must be achieved statehood, state the purpose of understanding the state is to create a welfare state welfare. It is inevitable that the Indonesian state-is also a form of the modern welfare state are reflected in the opening of the 1945 Constitution. In the fourth paragraph of the opening of the 1945 Constitution explicitly portrayed as a state goal to be achieved. To achieve these objectives the state government is obliged to pay attention and maximize the efforts of social security in the broadest sense.

This resulted in the active role the government should interfere in the field of socio-economic life of society (public service) which resulted in the state administration may not refuse to take decisions or act on the pretext of going kekososngan law (rechtsvacuum). Therefore, for the freedom to move, given to the administration of the state (government) a freedom of action (pouvoir discretionnaire / freies ermessen).


B. Benefits and Problems Complexity Freies Ermessen
1. Benefits Freies Ermessen
There are several benefits or advantages in the use of the principle aspects Freies Ermessen or freedom of action by government officials some of them;
a. Government policies that are related emergency livelihood of the people can be decided or enforced by the government while still legally debatable legal vacuum or even occur at all;
b. Bodies or government officials do not get caught up in legal formalism with the assumption that there is no legal vacuum for every public policy (policy) is related to the public interest or the society at large;
c. The nature and the wheels of government becomes more flexible, so that more public service sector development for the improvement of living and livelihoods of our people into not remain static alias dinmais along with the dynamics of society and the times.

2. Complexity Issues Freies Ermessen
On the other hand freedom of action okleh Reform government authorities of course also raises the complexity of the problem because it is deviate the principle of legality in the juridical sense (the main exception).

C. Setting benchmarks
There are several parameters in terms of tolerance limits for the agency or government officials in using the principles of this discretion, namely: (a) the administration of the state of freedom or discretion to act on their own initiative, (b) to solve the urgent problems that do not have rules for that (c) must not result in harm to the public, should be legally defensible and morally. When talking about the accountability of the discretion will be related to the subject matter that has the authority to make discretionary.
According to Prof. Muchsan, subjects who are authorized to make a state administrative discretion is in the narrow sense, namely the executive. The juridical basis of the argument is that executives are more in touch with the problems of public service and therefore there is only practiced discretion and is known in governance.
Simple forms of administrative decisions beyond the laws and regulations which can be seen in everyday life example is a memo issued by the officials, the announcement, the decree (SK) and a number of other forms.
In the draft Law on Government Administration (RUU AP) also clarify the dispute caused by the discretion that has not previously accommodated in the Administrative Court Act.Accountability mechanisms according to the AP this bill is administrative accountability mechanisms associated with the decision or action taken by administration officials.
According to the bill AP Article 25 paragraph (3) otherwise; administration officials who use the discretion must account for his decision to his superiors and the public officials who are disadvantaged due to discretionary decisions that have been taken.Accountability to superiors carried out in written form by giving reasons for the decision-making discretion.
While accountability to the communities resolved through the judicial process. Decisions and / or administrative official discretionary acts of government can be tested through the efforts Administrative or lawsuit in State Administrative Court.


Debriefing
1. What is the function and purpose of the State law?
Answer: The scholars of all descriptions can be understood that the State and the law related to human existence, if there is no man, no State and no law, there may be able to imagine a country without human adnya which is a popular citizen. Thus, the community, including the State and the law as a norm penertib human behavior in order to create peace, prosperity, justice of man in society (the State), as an objective tool for the achievement of the nature of the purpose of human existence is happiness sempurna.sebagai individuals and social beings.
2. State law or rule of law in the sense of where we want to uphold in Indonesia?
Answer: of course, the goal of republic Indonesian State listed in the opening sentence to 4 of the 1945 Constitution is ".... Protect the whole Indonesian nation and the entire homeland of Indonesia and to promote the general welfare of the nation's intellectual life and participate in the establishment of world order based on freedom, eternal peace dams social justice for all Indonesian people "and the Pancasila base will give the right answers, that the concept of state law or rule of law in the sense that materiillah want it enforced in our country.
3. What is the One important aspect associated with the principle freies ermessen?
Answer: as Freies Ermessen is a form of deviation from the principle of legality in terms of wet matigheid van Bestuur.
In language freies ermessen derived from the word meaning frei free, loose, not bound, and free. Freies means someone who is free, unattached and independent. Meanwhile ermessen means consider, judge, guess, and estimate. Freies Ermessen means a person who has the freedom to judge, guess, and consider something
4. Mention the benefits of freies ermessen?
Answer: There are several benefits or advantages in the use of the principle aspects Freies Ermessen or freedom of action by government officials some of them;
a. Government policies that are related emergency livelihood of the people can be decided or enforced by the government while still legally debatable legal vacuum or even occur at all;
b. Bodies or government officials do not get caught up in legal formalism with the assumption that there is no legal vacuum for every public policy (policy) is related to the public interest or the society at large;
c. The nature and the wheels of government becomes more flexible, so that more public service sector development for the improvement of living and livelihoods of our people into not remain static alias dinmais along with the dynamics of society and the times.






Reference "
Prof.A. Mukthie Fadjar, SH, M.S. State the type of media law in 2005 Bayu Publishing unfortunate.