The Sources of Constitutional Law and The Relation Between Other Disciplines

A.The Relationship between Constitutional Law and Other Disciplines

Studying Constitutional Law, we will study specifically related to state institutions, the functions of state institutions, state structures and others. In general, Constitutional Law studies or studies the state as its object, so Constitutional Law cannot be separated from several other sciences that both have the object of state studies because they are closely related such as State Science, State Administration Law and so on.

a.Relation between Constitutional Law and The General Theory Of State

According to Moh Kusnardi and Harmaily Ibrahim, The general theory of state serves as an introductory science to study constitutional law that applies in Indonesia as positive law. In studying the general theory of state, it cannot be used directly in practice, because the general theory of state studies the state in an abstract or theoretical sense, the general theory of state studies theories, basic notions and basic joints regarding the state. In contrast to studying constitutional law, it can be used directly because of its practical nature. For example, in carrying out decisions, the general theory of state is not concerned with how the law should be implemented, because state science is theoretical, while constitutional law can be used directly in practice, because of its practical nature.

b.Relationship between Constitutional Law and Political Science

J. Barent argues that the relationship between constitutional law and political science is that constitutional law is like a human skeleton, while political science is likened to the flesh that wraps the skeleton.21 As has been stated that constitutional law is the law governing the organization of the state and state institutions, while one of the definitions of political science is that political science studies the formation and distribution of power.

Constitutional law studies legal regulations governing the organization of state power, while political science studies power from the aspect of the behavior of power. Every legal product is the result of a political process or political decision because every law is essentially compiled and formed by political institutions, while constitutional law sees laws as legal products formed by state equipment that are authorized through procedures and procedures that have been determined by constitutional law.

The close relationship between law and political science gave birth to a new field of study, namely legal politics. The politics of law discusses how a law is drafted and passed through a political process, so that a law is not only a legal product but also a political product. A legal product because it is formed by an institution authorized to form laws, and a political product because it is the result of a political agreement from members of parliament who come from several political parties.

c.Relationship between Constitutional Law and State Administrative Law

Relationship between Constitutional Law and administrative law in a broad sense is part of constitutional law. Among legal experts there are different views on the relationship between constitutional law and state administrative law. The difference between constitutional law and state administrative law lies in the notions of "governance" and "administration".

Van Vollenhoven in his writing entitled Thorbeke en het Administratief said that constitutional law is the law of the state in a state of stop (silent, static), while state administrative law is the law of the state in a state of motion (work, dynamic). The point is that HTN studies the structure of institutions and their functions while HAN studies the implementation of the duties and functions of these state institutions.

B.Sources of Constitutional Law

a.Sources of Law in the Material Sense

The definition of legal sources in this material is always seen from the content or material regulated in the legislation, as for the content and material of the legislation to be made by the lawmaking body must be based on a single Constitution or Constitution of a country. Any legislation that is born and will be formed must not conflict with the basic norms of a country or conflict with higher laws. In Indonesia, the highest source of law is the 1945 Constitution of the Republic of Indonesia, thus every regulation that will be formed must not contradict the 1945 Constitution of the Republic of Indonesia and if it contradicts the material side, it can be canceled through judicial review.

b.Sources of Law in the Formal Sense

Formal sources of law are always associated with the process and Mechanism and authority in law making. This means whether The law was born and made by the institution for the formation of laws and regulations and has been in accordance with existing mechanisms and has contained the contents of the sources of Law recognized in Indonesia. There are seven formal sources of Constitutional Law in Indonesia, namely:

1.Constitution

According to Jimly Asshiddiqie, the constitution is the basic law, the basic norm, and at the same time the highest position in the state system. The constitution itself is divided into two, namely the constitution in the sense of written and unwritten constitution.

2.Legislation

Legislation according to Jimly Asshiddiqie, is a written regulation that contains legal norms that are binding for the public, established by legislators and regulators or implementing agencies that have delegated authority from the law to establish certain regulations.

3.Constitutional Customary Law

Customary constitutional law is the original law of the Indonesian people in the field of customary constitutional law. Examples: provisions regarding swapraja, indigenous state law alliances such as villages, gampong, and regarding religious courts.

4.Constitutional Convention

According to Bagir Manan, constitutional conventions or customary law are laws that grow in the practice of state administration to complement, perfect, and revive or dynamize the rules of statutory law or constitutional customary law.

5.Constitutional Jurisprudence

Jurisprudence is a collection of court decisions on constitutional issues, which after being arranged in an orderly manner gives the conclusion of the existence of certain legal provisions discovered or developed by the judicial body.

6.International Constitutional Treaties

constitutional international agreements consist of treaties that have been ratified, international agreements made by governments or executive agencies (executive agreements) with other governments that do not require ratification, which determine the aspects of constitutional law for each state bound in it, can be a source of formal state administration law.

7.Constitutional Doctrine

Constitutional doctrines are teachings about constitutional law that are discovered and developed in the world of science as a result of careful investigation and thinking based on applicable formal logic.