Comparative Analysis of US and Indonesian Legal Systems


By: Abdul Ficar Hadjar


Comparing the legal system of a country to another country is not an easy task in the sense of seeing and comparing only the rules of a rule. In a legal regime also attached to the context of the soial and the purpose of the birth of the provisions of the law, therefore the reality of a legal system that places law as a means of social engineering (law is atools of social eingenering) and the existence of a legal system that views that law was born from the development society so that putting a court decision with a permanent legal force (in kracht van gewijsde) or jurisprudence as a source of law is a necessity. The Indonesian legal system, for example, in the field of criminal law, civil law as well as state law still uses the legal system and method of approaching the Civil Law legal system. The civil law legal system places the codification of the law as the sole legal resource in the practice of law. In contrast to the Common Law legal system that places jurisprudence as a source of law in the practice of its application of law.

The legal system includes a social phenomenon and reveals only one aspect of society. Therefore, the legal system can not be separated from other aspects of the same society. To be able to understand the rules of law in a foreign country, as far as possible must be understood by its non-legal environment (such as economic, political, ethical, religious and cultural environment) its social goals. Only in this way can it be understood the real role of the rule of law in society and its function in reality. Regardless of how much and varied the legal system in the world, the dichotomy of the civil law legal system and the common law legal system illustrates the different social goals and contexts of the two legal systems in the countries that apply them. In Indonesia and in many of the former countries of Western Europe, its national legal system is essentially a legal system modeled on the national laws of the European nations, the civil law and common law system. The civil law legal system departs from a tradition originally developed in France and adopted by Continental European countries and later by new nationalities of its former colonies. Meanwhile, the common law law system evolved from the British tradition and was embraced by the former colonial countries.

The development of Indonesia now shows that, in the field of civil law including business contract law and business dispute resolution, has been used common law law system. This proves by the signing of the Free Trade Agreement in 1974, even today almost all legal fields relating to the financial system, banking and capital markets have used the provisions of the law that match the characteristics of legislation apply within the common law law system. In the practice of the civil law legal system, jurisprudence is still regarded as a complementary legal source of the Act.


Talking about the American legal system we basically see fifty more closely related legal systems, but not at all identical. The United States became a federation composed of states whose legal system stands alone with all its authority which the Federal Constitution does not submit to Federal organs. In the case that there are several areas that have the same jurisdiction between the state government and the federal government, then federal law is considered more important than state law.

The legal system of states is entirely built on common law traditions that are closely intertwined, with the exception of the state of Louisiana which still contains traces of French legal law such as the Civil Code of 1808. The states of their respective states maintain and develop legal rules in areas such as: contract law, corporate law, criminal law, family law, inheritance law, property law, tort, and legal conflicts (international civil law). Whereas, the law of the sea, bankruptcy and patent law are governed by federal rules.

Despite the many legal differences between states, federal law applies to all states and territories, these equations allow for American law. By intelligent Lawyers / Attorneys differences can be used to look for courts that can accept cases dealt with or choose legally favorable states of clients. For example, in the case of hThere are several modes of legal uniformity in the American legal system, including: a. Criminal acts occurring in and under state law are a crime, but if the proceeds of a crime are brought to another state, then the offender may be punished for committing a federal crime, that is, the transport of stolen goods across the state border. For that the offender can be prosecuted and sentenced in federal court and sentenced in federal prison.

b. The uniformity of American law is due to the contribution of the states and the courts. The conceptualization of state legislation is usually done by considering laws in other states. And usually the state does not adopt rules that are very contrary to the rules that apply in most other states.

c. Validation of model codes by state legislatures is another way of achieving American legal uniformity. A special institution called the National Conference of Commissioners on Uniform State Law since the late nineteenth century produced about a hundred models of uniform codes that were adopted by states with varying degrees. The most important and successful unified or unified rule of law is the Unvers Commercial Code (UCC) of 1951 with its amendments, adopted by 50 states, covering a broad section of business law, including contracts for the sale of goods, bonds, a bill of exchange, a check, a variety of securities and a bill of lading.

The American Constitution as a living document of the American Constitution is what the judges say about it, so to illustrate the dynamic and growing constitution of America, both the federal constitution and the state constitution. The United States Constitution dates from 1787, comprising seven relatively wide Article and 27 Amendments. In practice, the Constitution looks like codified law. This is evident from the provisions protecting individual civil rights in the ten Amendments since 1791 called the Bill of Rights. The Constitution, through the judicial interpretations, of the Supreme Court of the United States, has ruled binding all state and federal courts as well as other authorities. So it can be concluded that the court set the actual constitutional rules.

The United States Constitution is the main core of the US legal system not only formally but also in reality. The Constitution of the United States is not an aplicable political declaration, but it is composed of ractical rules often applied by courts. Therefore any state or federal or municipal legislation in contravention of the Constitution may be challenged and rejected. Usually violations of the Constitution usually involve matters: violations of civil rights, inconsistent with the division of powers between the legislative, executive and judicial authorities, or the division of power between the federal organs and the state. Amendment to civil rights such as the First Amendment which guarantees freedom of speech and religion and the Fourteenth Amendment on equal protection and due process of law.

Judicial Review

The judicial review of the constitutionality of legislation is not explicitly mentioned in the Constitution of the United States, but is firmly established in the case of the United States Supreme Court, Marbury v. Madison in 1803. Judicial review can not only be done by the Supreme Court, but all state and federal courts are also have the authority to do so through actual lawsuits, not in abstract form. In certain cases, the law can be directly terminated unconstitutional, but usually the decision is limited to the refusal to apply the law in a case.

One of the characteristics of constitutional litigation in the United States is the tendency of the judiciary to develop and change the rules of the Constitution in order to adapt to developments in society, so the constitution of the United States is characterized as a living document. The case of Brown Vs Board of Education of Topeka is evidence that the interpretation and application of the Constitution is applied in a way that has clearly never been foreseen before, through the Supreme Court decision of the United States in 1954 it was announced that a separate school system between black children and children white children violate the Constitution.

United States Judicial Organization

In the United States, there are federal courts and there are state courts. The state court system varies from state to stateThe federal courts consist of 94 district courts and two special jurisdiction courts adjudicate cases with single judges, 13 Courts of Appeals adjudicate cases with three judges and Supreme Court of the United States United States). Congress sets the number of judges to the federal court system. However, Congress can not exclude the Supreme Court.

Of the 13 federal appeals courts, eleven of them cover specific geographic regions called circuits, such as the 5th Circuit covering the states of Mississippi, Louisiana, and Texas. U.S Court of Appeals for the 12th Circuit examined an appeal from the United States District Court for the District of Columbia. The 13th federal Court of Appeals, U.S. Court of Appeals for Federal Circuit (established 1982) to examine appeals directed against decisions issued by some special federal courts or semi-judicial bodies, such as U.S. Claims Court (handling demands against the United States government), Patent and Trademark Office (handling patent cases and trademarks), and Court of International Trade (handling customs cases).

The US Supreme Court, comprised of a Chief Justice and eight Associates Justice, who were lifetime appointed by the President with the approval of the upper house of the United States Congress, the Senate (Lower House of Refresentatives). Here is an overview of checks and balances mechanisms between legislative, executive and judiciary. The Supreme Court in performing its duties focuses on the question of fact rather than on the question of fact, if there are additional facts to be examined, then the case will be sent back to the court court for further processed in accordance with the Supreme Court opinion statement on the law. Have exclusive jurisdiction over two states' dispute, and non-exclusive jurisdiction in cases filed by the ambassador of a foreign country. Under normal circumstances, the United States Supreme Court examines cases of over 5,000 cases annually, to limit its workload, the Supreme Court can reject the case (writ of certiorari) as non principal cases.

In addition to the MA judges appointed for a lifetime term of office by the President with the approval of the Congress & the Senate, District court and Courts of Appeals courts are also appointed by the President for a lifetime of office with the consent of the Senate.


The jurisdiction of federal courts and state courts in civil cases may overlap. Federal courts have jurisdiction in cases of civil cases in the event of diversity jurisdiction. In bankruptcy, patent, antitrust, and maritime cases, federal courts have exclusive jurisdiction, while in other cases the claimant may choose between a federal forum or a state forum. In case a case is subject to the same federal and state juisdiction, the defendant has the right to request that the case be tried by a federal court. Regarding criminal prosecution, federal courts have exclusive jurisdiction over federal crimes, which is the demand for violations of federal legislation.

In state trial courts and federal trial courts, the use of a jury is commonplace, in which the jury's assignment determines the question of fact, but is not something of a nature must. If both parties do not seek examination by a jury, then the judge will not only decide the question of law but also decide on the fact of the matter.

The role of precedent

The role of binding precedents in the legal system of the United States is somewhat different from that in England, because American courts are never bound by its own precedent. There are even two different opinions about the stare decisis rule is mandatory or just as a tradition only. It does not matter which view is right, but the ultimate court decisions are followed.

The procedural institution that matters in the United States even though it comes from the UK is a class action litigation, in which the claimant filed a lawsuit not only for his own sake but also for a number of persons without identification who also suffered the same loss or damage. Although the claimant whose name has not received direct approval or power of attorney represents other members of the class, the verdict shall be binding on all parties who do not expressly contribute to the claim if the claim is successful and receives compensation.

In a criminal case, plea bargaining agency refers to an agreementLegal Education and Legal Profession

The United States is a country with the density of lawyers as the highest legal profession in the world, it is estimated there are more than 750,000 lawyers who constitute half of the total lawyers in all duna. As important as the role of lawyers in American society, 27 of 56 signatories to the Declaration of Independence of America in 1776 are lawyers, and the majority of American presidents have legal education backgrounds. Lawyers in the United States must have an academic law school, even the first law school in the United States was first established in Connecticut in early 1774. There are now more than 200 law schools in the United States and all become part of a private state or university university.

Education in law school is a three-year undergraduate program provided that it already has a university degree (for example, Bachelor of Arts, BA). Law degrees are now called Jurist Doctors (JDs), some law schools provide scientific degrees requiring dissertation writing, and the title is Doctor of the Science of Law (J.S.D. or S.J.D.). The quality and status of this law school is very diverse, so almost all law schools are accredited by the American Bar Association (ABA) which requires schools to meet some of the minimum requirements. The top law schools are also accredited by the Association of American Law Schools (AALS) which are of a higher standard than ABA.

Some law schools have students who are entirely from the state or local community, and focus their education on legal work in their state only. Yet more qualified and more prestigious jurisprudential schools (such as Yale, Harvard, Columbia, Standford) have different profiles, as this school prepares students for a legal career in any state or even common law jurisdiction anywhere.

Compared to law schools in other countries, American law schools are more practically oriented, with mock court exercises and detailed analyzes of court decisions (Annotation or Examination) in the form of dialogues between professors and students (the Socratic method) requires that students prepare themselves beforehand to explain and evaluate them. Legal education in America gives more freedom to students to choose elective courses and practical experience, while the compulsory courses are given only in the first year. Many law professors are from law practitioners, but the best law schools always recruit well-known authors and law scholars.

Judges are appointed from experienced lawyers (in certain selected states). There is no difference between a barrister (litigator) and a solicitor (legal counsel), above the lawyer's official documents called attorney-at-law or lawyer. Being a member of a state bar association association is an integrated bar, membership is only applicable to one related state, but after a few years of law practice in the state itself it is possible to obtain practice licenses in other states. No requirement as a member of a lawyers association in America shall be a citizen of the United States of America.

Most US lawyers practice single, or small groups, but in big cities there are many big law firms that even hundreds of people can membership. Members of the firm as owners are called Partners, while younger subordinate lawyers are called assiciates. Regarding the fees of lawyers the United States generally works on a contingent fee, meaning that the amount the lawyer will receive for his services is calculated as a percentage of the settlement payment in Indonesia called a succes fee. The percentage usually ranges from 25 persesn to 50 percent, on average about 35 percent. Contingent fee systems have contributed to making the United States the most litigious society in the world. There is an interesting appeal to US lawyers who are active in getting clients, as ambulance chasing as a way of gaining employment by taking advantage of accidents or misfortunes of others.

Comparative Analysis of United States & Indonesia Judicial Institutions

Although there are differences in the legal system between the United States and the common law system adopted by Indonesia, namely Civil Law, but in its development in the field of civil law including business contract law and business dispute resolution Indonesia has been using the Common Law legal system. Not only in the field of civil law, in other law enforcement also shows the similarities between the two, especially in the judiciary which will be described below.

MA & MK as the Supreme Judicial Power

Although there are two MahIn Indonesia it is not too different, courts other than to be authorized to adjudicate disputes, can also judge the legitimacy of a law on which a legal relationship is disputed by the parties, as long as it is contrary to the laws and regulations therein. It's just that in the Indonesian judicial system the authority rate is divided into two. For legislation under the Law contrary to the Law, its authority is given to the Supreme Court either directly submitted to the Supreme Court or through a lawsuit in the District Court, whereas for the Constitutional Law (UUD45) the authority to check and judgment was given to the Constitutional Court.

Other functions of the Constitutional Court are also owned by the Supreme Court of the United States, such as in addition to testing the legislation on the Constitution, also adjudicating the main election disputes, the Marbury Vs Madison case becomes an obvious example of the US Supreme Court's power together with the Constitutional Court. The 1998 Reformation has determined the choice of separating this function by MA & MK based on practical experiences of law enforcement implementation in Indomnesia which tends to benefit the ruling party.

Recruitment of Supreme Court Judges and other Judges

Judges of the United States Supreme Court are appointed by the President with the approval of the Congress and the Senate, for a lifetime term, and many bearasal from experienced senior lawyers. There is a difference with the system of recruitment of Supreme Judges and Judges in Indonesia, but substantially there are many similarities, because the pattern both describes the checks and balances between the legislative, executive and judicial powers. Supreme Court Justice in Indonesia is proposed by an independent state institution namely the Judicial Commission (KY) with twice the need of the Supreme Court to fill retired and deceased judges, then the House of Representatives elects half of what KY proposes, where the outcome will be determined as the new Supreme Court Justice by the President as Head of State. With the new Law ic Law no. 18 of 2011, KY is also jointly authorized to participate in recruiting judges to fill state courts, judges of the State Administrative Court and Religious Courts together with the Supreme Court.

Regarding the raw material or the origin of the supreme judge is basically unrestricted, the most important requirement of a law degree with three stages of education (S3) or Doctor of Law Science and 25 years experience in law. In practice there are two types of professions that fill this need in addition to career judges from the high court, ie lawyers or advocates and academics. In Indonesia there is no lifetime title, all public offices are limited by the retirement age, to the knowledge of the author except the personnel of the Academy of Sciences. No matter how glorious the judge's position remains limited by retirement, the likelihood of a ration is that a person's ability is limited by age, let alone the system requires an examination in the Supreme Court by the Supreme Court even though the provisions of the law only authorize judex yuri to examine only the application of law law) as in the United States, but with a review body it has authorized the Supreme Court Justice not only to judex yuri's authority to examine the application of law, but also to the authority of judex factie, ie to examine facts and facts. That is why this review body then referred to as a fourth-level court.

About the Special Court, CLS and Class Action.

In the United States, in addition to District Courts and the Trial Court, there are also special federal courts or semi-judicial bodies, namely the US Claim Court, which handles demands against the United States government, the Court of International Trade handling customs cases, and Patent and Trademark Office handling patent cases and trademarks. Although not the same areas of authority in Indonesia was post-reform has been born some special courts, both in the civil field such as: Commercial Court handling cases of Bankruptcy and IPR Rights that includes Copyright, Brand, Patent, Secrets Trade, Industrial Design and Layout Design of Integrated Circuit. The Industrial Relations Court (PHI) handles employment and other industrial relations cases, the Tax Court, handles tax cases, and a special Court is a Shari'a Court in Aceh that charges cases of family and civilization for Muslims. In addition there are also specialized semi-judicial bodies such as Per Supervisory CommissionActually the judicial system of Indonesiapun knows jury system, but in sociological perspective. In the first case of corruption court (when the Corruption Court is organized jointly by the Corruption Eradication Commission in the KPK Law) the presence of more Ad Hoc judges of the career judges (three of the five members of the judges) is intended as a representative of the public who supervises the career judges who was stigmatized as corrupt judges in examining and judging cases, although in its development the Ad Hoc Judges scattered in almost 33 (thirty three) Corruption courts were more caught accepting bribes and corruption. The Ad hoc Judges of the Industrial Relations Court, the Human Rights Court, the Fisheries Tribunal are essentially representatives of the community in society such as representing workers and employers' communities, representing human rights or Fisheries Society observers, who in essence also represent the people of Indonesia.

About the precedent in England as a country where the common law legal system derives very binding in court decisions. Somewhat different role of precedent in the United States despite equally adopting common law law system. American courts are never bound by their own precedents. Compared with Indonesia is actually similar, because the Indonesian judiciary is not bound to make precedent or jurisprudence as the main source of law. The Indonesian judiciary places the law as the primary reference and consideration in deciding a case, nevertheless, some insights which, due to the lack of clarity of the law, jurisprudence are also not uncommon to be the judges' references in deciding cases.

Plea Bargaining as an institution which in American legal system especially criminal court is used as an institution to make agreement between prosecutor and defendant, reducing demands of defendant to be lighter in the case of defendant to acknowledge his mistake, by the Indonesian legal system began to be adopted, among others by the establishment of the Institute of Protection Witness & Victim (LPSK) which provides protection both witnesses and victims who cooperate with law enforcement to dismantle bigger crime (the big fish). Wibiel blower or justice collaborator witnesses or defendants acknowledging errors and willing to cooperate with law enforcement, the Supreme Court issued a Circular Letter to the judges to reduce the punishment to the defendants who acknowledged the error and gave an honest testimony to dismantle the greater evil. This means that Indonesia's legal system has perceived the legal system of the United States, at least in some cases, especially in relation to the eradication of corruption.

Likewise legal education and the legal profession in the United States with Indonesia have many similarities, as shown in the chart below.

Legal & Professional Education In the United States

Legal Education:

– The first law school in America was founded in early 1774 at Connectitut; – There are now about 200 law schools in the US, and almost all are part of private state or university universities. – School / legal education requires basic education to hold a University of BA (Bachelor of Art); – Duration of school / Legal education 3 (three) years; – Law degree; Jurist Doctor (JSD or SJD); – State law schools study only state law and focus education for legal work in the state only; – Quality & prestigious law schools (such as Yale, Harvard, Columbia, Standford) in addition to studying laws in any state, even the law within the common law jurisdiction, students almost from all over the United States; – School of law accredited ABA (American Bar Association); – The Best Law School is accredited by the Association of American Law School (AALS); – Law education is more practical-oriented (moot court training, detailed analysis of court decisions in the form of student professors' dialogue); – In legal education the compulsory course is only the first year, far more elective courses as well as practice experience; – Many law professors come from practitioners, although many are well-known scientists, writers and law scholars;

Legal Profession in America

JUDGE – Supreme Court and Judge Court of Apeal, District Judge appointed by the President, special Supreme Court Justices with the approval of Congress and the Senate; – The judge's profession is appointed from an experienced lawyer (in selected state judges); ATTORNEY / ADVOCATES – The United States is a country with the highest density of lawyers in the world (an estimated 750,000 lawyers); – 27 of the 56 signatories of the United States Declaration of Independence on- Almost every university in Indonesia holds the Faculty of Law; – Faculty of Law (7 smester) taken within duration between 3.5 s / d 5 years; – Degree: Law Degree / Mister in the rechten (dutch dutch); – Up to 1984 Faculty of Law in Indonesia, still giving a bachelor degree (BcHk or SmHk) which then 2 years later became a Bachelor of Law (SH); – Two degree degrees still occur uniformity between several universities there are using MH (Master of Law), there are also using the second MHum (Master of Humanities) with the argument of law science including the family of the humanities sciences. – In the faculties of law in Indonesia, the majors are also divided according to the field of scholarship (civil, criminal, business law, international law etc.) are also divided based on the activities of one of them majoring practitioners – Up to today only Gajahmada University in cooperation with PERADI (Perhimpunan Advokat Indonesia) who holds a two-tier program with a law / advocate majors degree, and graduates in addition to obtaining a S2 certificate also obtains an Advocate License (Letter of Appointment) from PERADI. – In FH University of Indonesia in collaboration with Direjen HaKI Kemenkumham, graduate post graduate program, graduates other than obtaining Master's Degree, also Certificate of Legal Consultant of IPR from Directorate of IPR; – Now not only the state universities (UI, Unpad, Unair) that can organize notarial expertise education, even now not only some private universities can organize it, but the status of education is also raised to Strata Two (S2). – There was once a STHD (High School of Judges and Djaksa) whose graduates were prepared to fill the judge profession in the courts and the prosecutor's office. However, after the legal education in FH-FH began to stand and the system of recruitment of Judges and Prosecutors required Legal Scholar, then STHD began to disappear.

In the field of the Legal Profession: HAKIM – Supreme Court and Judge Court of Apeal, District Judge appointed by the President, special Supreme Court Justices with the approval of Congress and the Senate; – The judge's profession is appointed from an experienced lawyer (in selected state judges); ATTORNEY – The United States is a country with the highest density of lawyers in the world (an estimated 750,000 lawyers); – 27 of the 56 signatories of the United States Declaration of Independence in 1776 were lawyers, many American presidents with legal education background; – In the lawyer profession is not distinguished between barrister (litigator) and solicitor (consultant) all called attorney-at-law or lawyer; – Each state has its own rules of acceptance in the legal profession, rules concerning cases such as domicile, passing a state lawyer examination; – Being a member of a state bar association association is an obligated (integrated bar), after several years of practice in the state itself, may seek permission in another state; (Bar membership does not require only US Citizens); – To practice in federal court, must be a member of the federal bar association (federal bar). To become a member of the US Supreme Court Bar there should be a recommendation of 2 members explaining that the prospective member is professional enough and has good morale; – Most US lawyers have a single practice of opening their own law firms, but others are joining hundreds of law firms. – In law firms, members as owners are called partners, while younger lawyers are called associates; – In the Fee in handling cases, most US lawyers work on a contingent fee basis: attorney's fees are calculated from a percentage of decisions (or settlement payments), ranging from 25 to 50 percent; – Once a lawyer is looking for a client and a service payment system that contingent fee (succes fee) benefits the client (not a success not paid) makes the American society the most litigious society in the world. This also causes negatives for lawyers who actively seek clients as ambulance chasing for jobs by taking advantage of accidents or misfortunes of others.

Legal Profession in Indonesia


– Before any FH-FH, Judges are recruited from STHD graduates (High School Judges and Djaksa); – Before the Judge Refeormasi status as a civil servant, after the Judicial change into one roof in the hands of the Supreme Court, the profession of the Judge became acting state; – The Supreme Court is proposed by an independent state agency Judicial Commission (KY) to the DPR after being elected through a fit & proper test process submitted to the President as Head of State to be appointed as Supreme Court Justice; – Supreme Court Justices may come from career judges (high courts) may also come from non-careers filled by many academics &

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