The Rule of Law Theory and The response of Law scholars to Krabbe opinion on the Theory of the Rule of Law
Law Theory
According to the theory of the rule of law or Rechts-souvereiniteit, which has even the highest power in a country is the law itself.
Because both kings or rulers and people or citizens, even the state itself is all subject to the law. All attitudes, behavior and actions must be in accordance or according to law.
So according to the sovereign Krabbe it is law.
Source of Law
According to Krabbe, the source of the law is the sense of law that exists in society itself.
This legal sense in its simple form, so that which is still primitive or at a low level is called legal instinct. While in its broader form or in a higher level it is called legal awareness.
With his teachings like that, it can be said that Krabbe was in many ways influenced by the Historical school, that is, a school that developed after the French revolution. This historical school was spearheaded, among other things, by Von Savigny, who said that the law must grow in the society itself, based on the legal awareness that exists in that society. So it is not surprising that this school rejected the law codified by Napoleon, because it was a foreign law, namely Roman law.
So according to Krabbe the law did not arise from the will of the state, and he gave the law a separate personality. And that law applies regardless of the will of the state.
Now the problem is : how can the law apply to the state, while the law itself is independent of the state? In this case, Krabbe based his theory, that each individual has a sense of law and when that sense of law has developed into legal awareness. The sense of law exists in each individual in addition to other tastes, for example a sense of morality, a sense of beauty, a sense of greatness and so on.
So that legal awareness is one of the functions of the human soul, which reacts to human actions in relation to other humans in their social life.
Thus according to Krabbe, the law is an incarnation rather than a part of human feelings. Regarding many things humans express their feelings, so that people can distinguish the existence of various norms, and those norms are actually independent of our will, therefore we then inevitably issue reactions, to determine which is good, which is fair etc.
So with many of these things we cannot be indifferent. Thus, the source of the law lies in our feelings, and it turns out that the source and enforcement of the law is outside our will, or strictly outside the will of the state.
The response of Law scholars to Krabbe's opinion on the Theory of the Rule of Law
Perhaps there are those who cannot accept, and therefore objections are raised. This scholar is Prof.Mr.Dr. AAH. Struycken, with his famous book: "Het Staatsreacht van het koninkrijk der Nederlanden", published in 1928.
To Krabbe's opinion, Struycken said that Krabbe's opinion was weak. Because that sense of law cannot be used as a source of law, because that sense of law will always change at any time, and that sense of law will be different from one group with the sense of law from another group, especially from one human to another. another. The legal sense of A, for example, will not be the same as the legal sense of B.
Even the sense of law from person A at this time, for example, will probably be very different from the legal sense of person A itself in the next 5 years. Thus, there will be no general sense of law, so that sense of law cannot be used as a source of law, because if the law is based on the sense of law from each individual, there will be no general law, but the result will be anarchy.
Krabbe's opinion expressed in his book "Die Lehre Rechts-souveranitat", published in 1906, which was later sharply refuted by Struycken in his book:" Recht en Gezag, Een critische beschouwing van Krabbe's Moderne Staats-idee ", published in 1916, answered or even emphatically defended by Kranenburg, check out his book "Algemene Staatsleer", this book was published in 1937.
In this connection Kranenburg defended Krabbe's opinion which Struycken refuted, by suggesting the law of balance, or the postulate of balance.
According to Kranenburg, after an analytical empirical investigation was conducted, it turned out that in that society there were permanent provisions in the reaction of human legal consciousness.
Namely, that every person has an attitude or belief, that every person is equal to the right to receive profit or loss, or to justice and injustice, unless there are special conditions that determine otherwise. So according to Kranenburg Struycken's denial or criticism of Krabbe is not true.
Because Krabbe does not say that the sense of law or the legal awareness of each person is the same in all respects, but there is a common element, namely the existence of a permanent provision in the reaction of human legal consciousness. This is what causes a balance.
Think about it, in this case Kranenburg gave the following information: that positive law cannot be determined according to its own will by the government power, but there is a tendency to pay attention to the sense of law or legal awareness of the community.
Because if this is not the case, it means that the government is carrying out an action or exercising power inappropriately, there will always be a reaction of public legal awareness, because in that society there is always a permanent provision in its legal awareness reaction, this allows for actions with the same purpose.
The reaction can arise in a slow manner, in a habitual form, for example. Or in the form of jurisprudence. But it can also be quickly in the form of revolutionary law. This is what will weaken the power of the ruler.
And thus it is also an answer to Struycken's rebuttal. But presumably Kranenburg himself mistakenly accepted what Struycken said, because Struycken only said that legal consciousness could not be used as a source of law, because indeed in the human soul it does not only move legal awareness, there are still many things that move the soul. human.
This was indeed said by Kranenburg himself, and at the same time rejecting Krabbe's theory of the rule of law, on the grounds that because the legal consciousness, namely the awareness of people's law, in the ordinary sense of the word, is not the only force that moves in the human psyche, there are also powers. others that move. And it also depends on the balance of each of these forces, whether or not they are aware of the law, and these things have a close relationship with the character of the people.
Such is the development of theories of sovereignty, which in essence will seek a strong legal basis for the ruling power.
Even though the goal is the same, but all of them are very much influenced, even determined by the circumstances they experience, in essence how the state of the rulers at that time, and how people can receive the power that is in the ruler. So it was the people's efforts at the emergence of absolute king power, as a result of the teachings that developed in the medieval era and during the renaissance era.
In medieval times the rule of kings was based on the power of God, remember for example the teachings of Augustine and Thomas Aquinas. Only later did we get some progress on the teachings of Marsilius. However, it is precisely the teachings of Marsilius that give rise to absolute kings' power.
This situation will be strengthened by the teachings of the renaissance era.
Namely with the teachings of Niccolo Machiavelli and Jean Bodin. Niccolo Machiavelli teaches Staats-raison, while Jean Bodin teaches Staats-souvereiniteit.
So with this the king's power became even more absolute. The absurdity is such that the king can do anything, both in the worldly field and in the field of religion.
So it is not surprising that the people who are so oppressed by the king's arbitrary actions feel the need and even a necessity to find new bases for the king's power, so that the king's power can be limited, at least the king can no longer act arbitrarily. authority, and thus the rights of the people are guaranteed.
This effort had been started by the monarchomacons with Johannes Althusius as the pioneer, Althusius in his teachings no longer based the king's power on the will of God, but on the power of the people, the power that was in the people he obtained from an unwritten law, called natural law. nature. And the people handed over their power to the king in an agreement is called the submission agreement.
