Kamis, 21 Mei 2009


What is 'Rule of Law'? It is not possible to give an unequivocal answer to this question. Concepts of Rule of Law and Rechtsstaatb have varied from one place to the other and over time and no one has ever come up with a definition generally agreed upon. As a result there often is a profound degree of misunderstanding between legal scholars and others when discussing 'Rule of Law'.

Cenceptions of Rule of Law can be devided into two general types, thin and thick. A thin conception stresses the formal or instrumental aspects of Rule of Law - those features that any legal system allgedly must posses to function effectively as a system of laws, regardless of whether the legal system is part of a democratic or non-democratic society, capitalis, liberal or theocratic.

A thick or substantive conception of Rule of Law, on the other hand, is characterized by Peerenboom as a state with the basic elements of a thin Rule of Law state plus elements of political morality 'such as particular economic arrangements (free-market capitalism, central planning,'Asia developmental state' or other varieties of capitalism), forms of government (democratic, socialist, soft authoritarian) or conceptions of human rights (liberatian, classical liberal, social welfare liberal, communitarian, 'Asia values' etc).

Sabtu, 02 Mei 2009


At the outset of our endeavour, we want to draw attention to two different meanings of the term 'law' itself. The different views on rule of law in the countries under examination can be partly traced back to terminology. Most European languages have two different words for the English and the American word 'law'. The first term has the meaning of the word 'Gezetz' in German, 'Loi' in French, 'Wet' in Dutch, 'Ley' in Spanish (compare 'Undang-undang' in Indonesia), In all those languages there also exists another term for 'law', which expresses a higher nation of law and is reflected in the word 'Recht' in German and Dutch, 'Droit' in French, 'Derecho' in Spanish ('Hukum' in Indonesia).

This Law in a higher sense is related to the rights of 'Human Rights' in the sense of higher rights or principal rights.

Hence we can derive two different manifestation/meaning for the Rule of Law :
  • Rule of law in the narrow, which means a state based on the principle that the government is bound by rules that have been written and announced beforehand (compare hereafter the thin conception of rule of law).
  • Rule of law in broad sense, which means an ideal for good government with in it the dimension of good Law or Right. In this concept great empasis is being laid on the constitution and on judicial review (compare hereafter the thick conception of rule of law).