Achmad Shiva’ul Haq Asjach
Scholar ID, Sinta ID, Scopus ID, WoS ID
The concept of
the rule of law constitutes one of the fundamental pillars of modern
constitutional systems. The rule of law positions law as the highest foundation
in the exercise of state power, meaning that all governmental actions must be
subject to law. In its development, the theory of the rule of law has undergone
a long and dynamic evolution, ranging from classical formulations to modern
conceptions that emphasize the protection of human rights, democracy, and
social justice. Differences in historical backgrounds and legal traditions have
given rise to various theories of the rule of law, each with its own distinct
characteristics.
One of the
earliest developed theories of the rule of law is the concept of rechtsstaat,
which emerged within the Continental European legal tradition. This concept was
influenced by the thought of Immanuel Kant and Friedrich Julius Stahl.
According to Stahl, the rule of law state contains several key elements, namely
the protection of human rights, the separation of powers, governance based on
statutory law, and the existence of an administrative court system
(Asshiddiqie, 2010). Within this framework, law is positioned as an instrument
for limiting state power in order to prevent the government from acting
arbitrarily toward its citizens. The state does not merely exercise power but
is also obliged to guarantee the rights of the people through an orderly legal
system.
In addition to rechtsstaat,
the concept of the rule of law also developed from the Anglo-Saxon legal
tradition and was popularized by A.V. Dicey. The rule of law emphasizes
three fundamental principles, namely the supremacy of law, equality before the
law, and the protection of individual rights through an independent judiciary
(Dicey, 1959). In contrast to rechtsstaat, which is more administrative
in nature, the rule of law places greater emphasis on safeguarding
individual freedoms from governmental arbitrariness. Within this system, law
must not be used as an instrument of power, but rather as a means of protecting
society.
The development
of the modern state subsequently gave rise to the concept of the welfare state.
In this concept, the state is not only responsible for maintaining legal order
but also actively involved in realizing the social welfare of society. The state
is granted authority to intervene in economic affairs, education, health, and
social welfare in order to achieve social justice for all citizens (MD, 2011).
This concept emerged as a critique of the classical rule-of-law state, which
was considered to overly restrict the role of the state, thereby contributing
to social inequality as a result of capitalist dominance.
In addition, the
concept of the democratic rule of law has also developed, integrating
the principles of the rule of law with constitutional democracy. Within this
concept, law is not only understood as a formal set of rules but must also
reflect democratic values, public participation, and the protection of human
rights. Jimly Asshiddiqie explains that the democratic rule of law places the
constitution as the highest law while simultaneously ensuring mechanisms for
the oversight of state power (Asshiddiqie, 2010). This concept has been widely
adopted in modern states, including Indonesia following the 1998 Reform era.
Although
theories of the rule of law are intended to idealistically limit state power
and protect citizens’ rights, in practice there are various critiques of these
theories. The first critique is directed at the rechtsstaat concept,
which is considered overly formalistic and legalistic. The state often focuses
solely on compliance with legal procedures without paying attention to
substantive justice. As a result, law may be used as an instrument to
legitimize power even when it is morally unjust. In some authoritarian regimes,
governments continue to use legislation as the basis for repressive actions,
making the state appear lawful but not democratic.
The second
critique is directed at the rule of law concept, which is considered to
place excessive emphasis on individual freedom while paying insufficient
attention to social inequality. In liberal state practice, economic freedom
often leads to disparities between the wealthy and the poor. The state tends to
limit its intervention in the market, resulting in weak social protection.
Therefore, the concept of the welfare state emerged as a corrective response to
these weaknesses.
Meanwhile, the
welfare state concept is also not free from criticism. An excessively large
role of the state in social and economic life has the potential to generate
bureaucratic inefficiency, corruption, and waste of public resources. In
addition, overly extensive state intervention may reduce individual freedom and
create public dependency on the government. In several developing countries,
the welfare state model is also difficult to implement optimally due to budget
constraints and weak governance.
From my
perspective, the most relevant and justifiable theory of the rule of law in the
contemporary era is the concept of the democratic rule of law. This is
because it is able to integrate the supremacy of law, democracy, human rights
protection, and the principle of social justice in a balanced manner. The
democratic rule of law does not merely position law as a formal rule system,
but also ensures that law is democratically enacted and implemented for the
benefit of the people. In the Indonesian context, this concept aligns with the
values of Pancasila and the 1945 Constitution of the Republic of Indonesia,
which emphasize constitutional democracy and respect for human rights.
Conversely, the
theory of the rule of law that I least agree with is the concept of a formal
rule of law that is overly legalistic. In my view, law should not be understood
merely as a set of written rules without considering substantive justice. In
modern constitutional practice, law is often influenced by political interests
and power; therefore, if the state relies solely on formal legality, the
potential for legal abuse becomes increasingly significant. For this reason,
the rule of law must always be balanced with principles of democracy, ethics,
and human rights protection so that law can truly serve as an instrument of
justice for society.
Thus, theories
of the rule of law continue to evolve in accordance with societal needs and the
dynamics of modern constitutionalism. The rule of law can no longer be
understood purely in a formal sense as governance based solely on statutory
law, but must also guarantee democracy, social justice, and the protection of
human rights. Therefore, the greatest challenge of the rule of law today lies
in ensuring that law does not merely function as an instrument of power, but
truly becomes a means to realize justice and social welfare.
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.
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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