Achmad Shiva’ul Haq Asjach
Scholar ID, Sinta ID, Scopus ID, WoS ID
In modern
constitutional studies, nomocracy and democracy are two fundamental concepts
that serve as the basis for state governance. Nomocracy derives from the word nomos,
meaning law, and cratos, meaning power; thus, nomocracy is understood as
the sovereignty of law or governance based on law. Meanwhile, democracy derives
from the word demos, meaning people, and cratos, meaning power;
hence, democracy is understood as the sovereignty of the people or governance
rooted in the will of the people. These two concepts are closely
interconnected, as modern states are generally built upon the principle of a
democratic rule of law (Asshiddiqie, 2010).
Nomocracy places
law as the highest authority in the state. Within this concept, all state
administration must be subject to law and must not be exercised arbitrarily.
Law functions as an instrument for limiting power so that the government does
not act beyond its authority. Therefore, in a state that adheres to the
principle of nomocracy, every governmental action must have a clear legal basis
and be constitutionally accountable (Dicey, 1959). This concept emerged as a
reaction to absolute power systems that placed rulers above the law.
On the other
hand, democracy places the people as the highest holders of sovereignty in the
state. Governmental power originates from the people and must be exercised for
the benefit of the people. Democracy is realized through mechanisms such as
general elections, public participation, freedom of expression, and oversight
of government administration. In a democratic system, citizens have the right
to determine the direction of state policy and to freely choose their leaders
(Held, 2006).
The relationship
between nomocracy and democracy is essentially complementary. Democracy without
nomocracy may lead to the tyranny of the majority. In such conditions,
political decisions are based solely on majority votes without regard to
principles of justice and the protection of human rights. Conversely, nomocracy
without democracy may result in a legalistic authoritarian regime. The
government may formally implement the law, but such law is enacted without
public participation and is merely used to maintain power. Therefore, modern
states require a balance between the sovereignty of law and the sovereignty of
the people so that power can be exercised fairly and democratically.
In the
Indonesian context, the relationship between nomocracy and democracy is clearly
reflected in the 1945 Constitution of the Republic of Indonesia. The principle
of nomocracy is affirmed in Article 1 paragraph (3) of the 1945 Constitution,
which states that “Indonesia is a state based on law.” This provision indicates
that all aspects of state administration must be based on law and the
constitution. No authority stands above the law, including state institutions
and government officials.
Meanwhile, the
principle of democracy is affirmed in Article 1 paragraph (2) of the 1945
Constitution, which states that “Sovereignty is in the hands of the people and
is implemented according to the Constitution.” This provision shows that the
people are the source of state legitimacy; however, the exercise of popular
sovereignty must still be carried out in accordance with law and the
constitution. Thus, the 1945 Constitution not only establishes democracy as a
fundamental principle but also constrains it through law to prevent the abuse
of power.
Following the
amendments to the 1945 Constitution after the Reform era, the relationship
between nomocracy and democracy has been further strengthened through various
constitutional mechanisms. For instance, the introduction of direct general
elections as a form of democratic implementation, as well as the establishment
of the Constitutional Court as the guardian of the constitution and the
principle of the rule of law. In addition, the guarantee of human rights in
Chapter XA of the 1945 Constitution demonstrates that Indonesian democracy must
operate in harmony with the legal protection of citizens’ rights (MD, 2011).
Nevertheless,
the practical relationship between nomocracy and democracy in Indonesia still
faces various challenges. In several cases, procedural democracy tends to be
more dominant than the substantive principles of the rule of law. Money
politics, corruption, oligarchy, and abuse of power indicate that democracy has
not yet fully operated based on principles of legal justice. On the other hand,
law enforcement is also sometimes influenced by political interests, meaning
that the principle of nomocracy has not been optimally implemented. This
demonstrates that the relationship between law and democracy still requires
strengthening within Indonesia’s constitutional practice.
In my view,
nomocracy and democracy are both equally important in constitutional life and
cannot be separated from one another. Democracy is necessary so that state
power has legitimacy from the people, while nomocracy is needed to ensure that
the exercise of such power remains within legal boundaries and is not abused.
The two must operate in balance, as democracy without law may lead to chaos and
the tyranny of the majority, whereas law without democracy may turn into an
instrument for legitimizing authoritarian power.
However, if one
must be chosen as the most fundamental, I argue that nomocracy, or the
sovereignty of law, holds a very important position as the primary foundation
of state governance. This is because democracy can only function properly when
there is a just legal system and a strong constitution. Without the supremacy
of law, democracy can be manipulated by political elites and majority forces.
Law serves as an instrument to protect citizens’ rights, maintain justice, and
ensure that democracy does not operate arbitrarily.
Nevertheless, an
ideal nomocracy must still be built upon democratic principles and respect for
human rights. Therefore, the relationship between nomocracy and democracy
should not be understood as two opposing concepts, but rather as two main
pillars that mutually support each other in realizing a democratic rule of law
that is just, constitutional, and civilized.
References
Asshiddiqie, J.
(2010). Constitution and constitutionalism in Indonesia. Jakarta: Sinar
Grafika.
Dicey, A. V.
(1959). Introduction to the study of the law of the constitution.
London: Macmillan.
Held, D. (2006).
Models of democracy (3rd ed.). Stanford: Stanford University Press.
MD, M. M.
(2011). Building legal politics, enforcing the constitution. Jakarta:
Rajawali Pers.
Marzuki, P. M.
(2017). Introduction to legal studies. Jakarta: Kencana.
Thaib, D.
(2011). Theory and constitutional law. Jakarta: Rajawali Pers.
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