PERANAN HUKUM
DALAM
PEMBANGUNAN EKONOMI
MAGISTER ILMU HUKUM
UNIVERSITAS TRISAKTI – MEGA KUNINGAN
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RANGKAIAN BAHASAN
1.
“What Is A Legal System?”
2.
”Law And The Development Of Nations”
3.
“Law And Economic Development”
4.
“The Role Of Law In Economic Development”
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WHAT IS A LEGAL SYSTEM
(Lawrence M. Friedman)
American Law
W.W. Norton & Company
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SISTEM HUKUM: MELIPUTI BERJALANNYA 3
KOMPONEN HUKUM
STRUKTUR
SUBTANSI
BUDAYAHUKUM
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SRUCTURE
First many features of a working legal system can be called
structural – the moving parts, … machine Courts are
simple and obvious example, their structures can be
described: a panel of such & such a size, sitting at such &
such time, which this or that limitation on jurisdiction. The
shape size, and powers of Legislature is another element of
structure. A written constitution is still another important
feature in structural landscape of law. It is, or attempt to be,
the expression or blueprint of basic features of the
country’s legal process, the organization & frame work of
government
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SUBSTANCE
The second type of component can be called
substantive. These are the actual product of the
legal system – what the judges, for example,
actually say and do. Substance includes, … those
propositions referred to as legal rules; … it also
includes rules which are not written down, i.e.
those regulative of behavior …. Every decision,
too, is a substantive product of the legal system, as
is every doctrine announced in court, or enacted by
legislature, or adopted by agency of government
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LEGAL CULTURE
Legal culture can be defines as those attitudes and
values that related to law and the legal system,
together with those attitudes and values affecting
behavior related to law and its institutions, either
positively or negatively. Love of litigation, or hatred
of it, is part of the legal culture, … these attitudes
affected behavior which is at least nominally
governed by law of the legal culture, …
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”LAW AND THE DEVELOPMENT
OF NATIONS”
(Wallace Mandelson)
The Journal of Politics, Vol. 12, 1970
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HUKUM SELARAS DENGAN
TAHAP PEMBANGUNAN BANGSA
•
•
•
UNIVIKASI
INDUSTRIALISASI
KESEJAHTERAAN
3 TAHAP PEMBANGUNAN BANGSA: TEORI
ORGANSKI
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UNIFICATION


The politic of unification
In stage one the primary problem is the political
integration – the creation of national unity
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INDUSTRIALIZATION



The polities of industrialization
Stage two is a battle for economic and political
modernization
The chief governmental function is to encourage
a new elite – the industrial managers to promote
the accumulation of capital
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SOCIAL WELFARE

In stage three government’s chief job is “to
protect the people from the hardships of
industrial life”
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PERANAN HUKUM
DALAM
PEMBANGUNAN EKONOMI
MAGISTER ILMU HUKUM
UNIVERSITAS TRISAKTI – MEGA KUNINGAN
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“LAW AND ECONOMIC DEVELOPMENT”
(Leonard J. Theberge)
Journal of International Law and Policy, Vol. 9:231, 1980
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PRASYARAT HUKUM KONDUSIF BAGI
EKONOMI: TEORI BURG
1.
STABILITY
2.
PREDICTABILITY
3.
FAIRNESS
4.
EDUCATION
5.
THE SPECIAL DEVELOPMENT ABILITIES OF
THE LAWYER
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STABILITY

Include in the stability function is the potential of
law to balance & to accommodate competing
interests
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PREDICTABILITY

The need for predictability is especially great in
countries where most people are entering for the
first time into economic relationships beyond
their traditional social environment
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PREDICTABILITY

Underscore the function substantive law plays by predicting which
of man’s actions will invoke the power of the state to the benefit of
one side or another to the controversy

By these prediction, men come to guide their own actions in
relations to others & to have confidence in the assessment of how
others will act

In many developing countries, the mass of the people are for the
first time beginning to enter into economic relationships beyond
their immediate traditional social environment

Predictability based on the traditional customs of a closed group
will be replaced by system for predictability that can encompass the
widened economic activity
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FAIRNESS

Aspect of fairness such as due process, equality
of treatments, & standards for government
behavior, have been emphasized as necessary for
both the maintenance of the market mechanism &
the prevention of bureaucratic excesses
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EDUCATION

… is the law’s capability to act as a habit forming
force that can conform old habits or create new
response and conditions
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THE SPECIAL DEVELOPMENT
ABILITIES OF THE LAWYER




Unresponsive to the development needs
Unconcern to the development problem
Excessive litigation
Lawyers in many LDC’s are in a comparatively
poor position to serve as agent for economic
change …
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
..ill-equipped to use the law for development
purposes, since their training has generally
involved memorization of statue and principles
without a broader understanding of law and
society

Disparity between legal theory and practice
Remote from the popular culture and hence
meaningless to a majority of the populace

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“The Role of Lawyers in Developing Countries”
(L. Michael Hager)

…citizens regard them as “manipulator”,
“professional liars,” …

NEED COURAGEOUS LAWYERS WITH THE
HIGHEST ETICHAL STADARDS
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“THE ROLE OF LAW IN ECONOMIC
DEVELOPMENT”
(J.D. Nyhart)
Working paper School of Industrial Management,
Massachusetts of Technology, 50 Memorial Drive ,
Cambridge 39, Massachusetts, 1964
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PRASYARAT HUKUM KONDUSIF BAGI EKONOMI:
TEORI J.D. NYHART
1. PREDICTABILITY
2. PROCEDURAL CAPABILITY
3. CODIFICATION OF GOALS
4. EDUCATION
5. BALANCE
6. DEFINITIONS AND CLARITY OF STATUS
7. ACCOMMODATION
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PREDICTABILITY

Underscore the function substantive law plays by predicting which
of man’s actions will invoke the power of the state to the benefit of
one side or another to the controversy

By these prediction, men come to guide their own actions in
relations to others & to have confidence in the assessment of how
others will act

In many developing countries, the mass of the people are for the
first time beginning to enter into economic relationships beyond
their immediate traditional social environment

Predictability based on the traditional customs of a closed group
will be replaced by system for predictability that can encompass the
widened economic activity
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PROCEDURAL CAPABILITY

Substantive rules are given effect through the
processes set up to resolve dispute

Procedural institutions: adjudication in a court – out
of court

Procedural institutions need to operate efficiently if
economic activity is to reach its maximum level

Well-established procedures tend to hamper
arbitrary action
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CODIFICATION OF GOALS

Legislation often embodies a government’s
statements of goals for its country

A cooperative law may recite goals pertaining to
a hole sector of the economy which is to be
developed under co-operative institutions
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EDUCATION

Closely associated with the goal-living quality is
the law’s capability to act as a habit forming
force that can conform old habits or create new
response and conditions
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BALANCE



Seldom is the nation dedicated to only one goal
At different times in the country’s life these
various goals will come into conflicts
The legal system by commending adherence to
both substantive laws and procedure may be a
force for maintaining balance of society’s values
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DEFINITIONS AND CLARITY OF
STATUS

Law frequently defines the status of people

Similarly, law clarifies the acceptable or
legitimate status of things as well as of people

Both qualities are needed in time of rapid change
for increasing understanding of the direction that
change is taking
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ACCOMMODATION

Where forces of rapid change have in fact upset
old balance and relationships among individuals
or groups within a society, there is a need for
means to allow them to regain a state of
equilibrium

The machinery of courts, arbitration boards and
other administrative bodies provide mechanics
for this accommodation
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TUGAS AKHIR: SADURAN + PAPER
1.
“What Is A Legal System?”
2.
”Law And The Development Of Nations”
3.
“Law And Economic Development”
4.
“The Role Of Law In Economic Development”
5.
“The Role of lawyer in Developing Countries”
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