The Principles of Good Legislation Forming: A Critical Review

This study aims to examine and analyze the fundamentality of the principles of good legislation forming. This study uses normative legal research with historical, conceptual, and statute approaches. The collection of legal materials is carried out using a literature study technique. The collected legal material is then qualitatively analyzed to describe the problem and answer study purposes. The results show that the principles of law are the spirit or soul of the law. The law will exist and grow in society, only and if the law is rooted in the principles of law. Meanwhile, legislation means written regulations containing generally binding legal norms. So that the principles of good legislation forming are principles of law that provide guidelines and guidance for formulating the contents of regulations. Therefore, it is recommended for legal academics to have a construction of thought based on the principles of law. In addition, the Government must ensure every legal academic’s competence when making academic manuscripts of draft legislation. In this case, the law-based state must achieve social justice for Indonesia’s people.


INTRODUCTION
The law-based state is a concept that has been considered ideal since the early 19 th century until now (Zaini, 2020). Therefore, one by one, especially for the newly independent countries, they chose and proclaimed a law-based state. On the other hand, each of these countries also proclaimed a form of law-based state based on their version of choice: a republican, constitutional monarchy, or other forms (Davies, 2014).
The law-based state is a country that organizes its governance based on the principles of law and democracy (Bachmid, 2020). Apart from that, the lawbased state always upholds human values as a universal conception of human rights (Begem et al., 2019). Even further, the law-based state must uphold ethical and moral values in the implementation of its government.
Meanwhile, a state that develops principles of law will enact the law as supremacy, commander, and highest command in organizing the state and government. This conception is also contained in Article 1 of the 1945 Constitution, which regulates that: "(1) Indonesia is a Unitary State in the form of a Republic. (2) Sovereignty is in the hands of the people and is implemented according to this Constitution. (3) Indonesia is a law-based state." PENDAHULUAN Negara hukum merupakan konsep yang dianggap ideal sejak awal abad ke-19 hingga sekarang. Oleh karena itu, satu demi satu, khususnya bagi negara-negara yang baru merdeka memilih dan memproklamasikan negara hukum. Di sisi lain, masing-masing negara tersebut juga mencanangkan bentuk negara hukum berdasarkan versi pilihan mereka: republik, monarki konstitusional, atau bentuk lainnya.
(3) Negara Indonesia adalah negara hukum." If the 1945 Constitution affirms this, it can be formally understood that Indonesia is a law-based state with a democratic government: sovereignty is in the hands of the people. Therefore, in organizing state governance, the government must comply with the people's will as the will of the law.
Meanwhile, people elected as state organizers based on general elections' results are only executors of legal functions (Sukmariningsih, 2014). In addition, those who fill these positions do not have free or arbitrary will. In this case, they must carry out the will of the law well based on their legal authority.
In administering the law-based state, executors of legal functions must use the law as a normative instrument in organizing state governance. These normative instruments may consist of positive law (codification) principles and/or customary law principles (Nugroho, 2020). On the other hand, so that executors are not arbitrary or abuse their authority in organizing state governance, the law is formed and regulated in legislation.
States adhering to the positive law principles enact the legislation (written regulations) as a means of law to regulate the life of the state, government, and society, which are interconnected (Aditya, 2019). These linkages and meeting point underlies the importance of the principles of good legislation forming: motivation, process, and purpose. Thus, the legislation is transformed into idealized value concepts (summum bonum) and is applied in the life of the state, government, and society (Nelken, 2020).
On the other hand, legislation in a law-based state cannot be made but must be formed. In this case, the formation is carried out if and only when needed, required, and there is urgency for the state, government, and society. Because of the urgency, the motivation for forming will be based on serving legal needs. In contrast, if legislation is made, it will follow the maker's interests.
Meanwhile, the legislation forming in Indonesia is regulated in Law No. 12 of 2011, which has been amended more than once (Law No. 15 of 2019 for the first amendment; Law No. 13 of 2022 for the second amendment). In contrast, it will have fatal consequences against both formal and material legislation that has been formed, but its formation is not based on Law No. 12 of 2011.
Dalam pembentukan peraturan perundangundangan, semua negara tanpa terkecuali di Indonesia tentunya memperhatikan asas-asas hukum: generalis dan spesialis. Selain itu, asas hukum juga harus sesuai dengan materi muatan dan norma hukum dalam peraturan contents and legal norms in the formed legislation. The syllogism is essential, so everything in it becomes clear: reference of law principles, the content it regulates, and the legal norms it formulates.
Theoretically, it has become a doctrine in legal studies regarding the existence of structural stratification in law, which is arranged systematically at three levels: principles of law, legal norms, and legal rules. Such systematics is not just mere sequences but shows an understanding that the principles of law are the philosophical basis of legal norms and rules. Therefore, the principles of law are called the Ratio Legis of law, also known as Reason Detroit of legal rules.
Meanwhile, the principle of forming legislation is fundamental because it is a causality for the existence of legal norms, which is one of the ethical and philosophical values that animate a legal society (Qamar & Rezah, 2022). Furthermore, legal norms become the basis for providing the enforceable power of a legal rule to ensure the achievement of the purpose of law desired by all people in society.
Based on the description above, this study aims to examine and analyze the fundamentality of the principles of good legislation forming.

METHOD
This study uses normative legal research with historical, conceptual, and statute approaches (Qamar & Rezah, 2020). The legal materials used in this study include legislation, books and scientific law articles, and online materials discussing legislation forming. The collection of legal materials is carried out using a literature study technique. The collected legal material is then qualitatively analyzed to describe the problem and answer study purposes (Sampara & Husen, 2016). Rahardjo (2006) said it is not an exaggeration if the principles of law are interpreted as the heart of the legislation. It is called that because the principles of law are fundamental and general for the presence of legal regulation. With the principles of law, the law is not just a collection of regulations but contains values and ethical demands. Mertokusumo (2005), citing Bellefroid's opinion, argues that the principle of general law is the fundamental norm that is spelled out from positive law and which is not considered by legal studies to come from more general rules. The principle of general law is the deposition of positive law in society (Rokilah & Sulasno, 2021). perundang-undangan yang dibentuk. Silogisme itu penting, agar segala hal yang terkandung di dalamnya menjadi jelas: rujukan asas-asas hukum, materi muatan yang diaturnya, serta norma hukum yang dirumuskannya.
Sudikno further said that principles of law should not be assessed as concrete legal norms. In contrast, principles of law need to be assessed as general principles or guidelines for applicable law. Therefore, practical or positive law forming must be oriented toward the principles of law.
It can even be said that the principle of law is the tendency required by the decency view of society towards law (Purwendah, 2019). In addition, it is the general characteristic of society with all its limitations as a habit of daily life. Therefore, the view of social decency requires that what is prohibited should not be performed.
Based on the above views, it can be formulated that principles of law are not concrete legal rules. Principles of law are basic thoughts behind every legal system and are embodied in concrete legislation and judge decisions. Therefore, the general characteristics of principles of law can always be sought and found in legislation and judges' decisions.
Principles of law are concrete regulatory backgrounds and general or abstract characters. Generally, principles of law are not included in the form of written regulations or are not included as articles in legislation. However, sometimes in other contexts, this principle is regulated in legislation.
Suppose concrete regulations can be applied directly to the legal incident. In that case, the principles of law should only be applied indirectly, as principles of law can always be sought and found in legislation and judges' decisions.
On the other hand, the principles of law are part of people's mental life. In every principle of law, humans see an ideal they want to achieve. Generally, the principles of law move dynamically, following the legal rules. Meanwhile, legal rules will change following the development of society. Therefore, other views consider that the principles of law are also influenced by time and place.
Principles of law generally have two functions: the function of the law and the function of legal studies (Julyano & Sulistyawan, 2019). The function of the principle of law is based on the formulation by legislators and judges (which are legitimate and binding for all people). In contrast, Mertokusumo (2005) said that the principle function of legal studies is only regulatory and explicative (as a summary, not normative, and does not include positive law).
Principles of law can be viewed from the principles of general law and the principles of a special law. The principles of general law are related to all fields of law: Lebih lanjut Sudikno mengatakan bahwa asas-asas hukum tidak boleh dinilai sebagai norma hukum yang konkrit. Sebaliknya, asas hukum perlu dinilai sebagai asas atau pedoman umum bagi hukum yang berlaku. Oleh karena itu, pembentukan hukum praktis atau positif harus berorientasi pada asas-asas hukum.
Asas hukum dapat dilihat dari asas hukum umum dan asas hukum khusus. Asas hukum umum berkaitan dengan semua bidang hukum: asas restitutio the principle of restitutio in integrum, the principle of lex posterior derogat legi priori, and the other principles of general law. The principle of restitutio in integrum is interpreted as the principle of recovery in its original state (for example, the condition of the victim of rape and the party who was harmed by default). In contrast, the principles of a special law are related to a narrower field: civil law, criminal law, and other fields of law. The principle of a special law is also generally an elaboration of the principles of general law: the principle of pacta sunt servanda, the principle of consensuality, and the principle of presumption of innocence.
In this regard, it can be understood that the principles of law are the spirit or soul of the law. The law will exist and grow in society, only and if the law is rooted in the principles of law. The principles of law are like a spring that always gives off water and is ready to be utilized by humans according to their needs. This presupposition can be understood by stating that one principle of law can present various legal norms and rules.
Principles of law are not law but fundamental values or principles of value or norm. Principles of law are values most deeply rooted in the living niches of a human community (Mustofa, 2020). Principles of law become the estuary and source of the presence of legal norms. Scholten (2003) has also said that principles of law (rechtsbeginsel) are not legal rules (rechtsregel). The legal principle has a very general nature, so it is impossible to call it a legal rule. Therefore, applying the principles of law only occurs if more content of concrete or material is formed in legislation first. So it is evident that one principle of law can present many legal norms.
In contrast, Bruggink (2015) says that legal rules as a form of a statement (uitspraak). The meaning of a legal rule is indicated by the term the rule of law (rechtsnorm) or pandect. With the term pandect as legal rules, the statement applies that not only what is written has the meaning of legal rules, but also what is unwritten.
From the description above, it can be understood that there are different views between Scholten and Bruggink regarding the principles of law. Scholten believes that applying the principles of law must be preceded by positivity. In contrast, Bruggink views that the principles of law have taken root because they are in harmony with the existence of pandect in human life.
The terminology mentioned above shows the diversity proposed by several legal experts. This diversity does not need to be opposed by one another but can be used as material for further analysis about why there are various expert thoughts on the term.
In practice, the term legislation is commonly used in various ways. For example, laws are used interchangeably with regulations. The term laws are also included in the term regulations. In this regard, Ranggawidjaja (1998) stated that the terms laws and legislation come from the term wettelijke regels, while state regulations are a translation of staatsregeling. Syarief (1987) uses the term laws, arguing that it is efficient because it is short. This term has also been used in the 1949 Provisional Constitution of the Republic of the United States of Indonesia, with the formulation of federal laws.
The term legislation is used by several experts: Attamimi, Manan, Soemantri, and several others experts. According to Attamimi (1990), although it comes from the term wettelijke regels or wettelijke regeling, the term legislation is not absolute because the term has more to do with the type or form of regulation. Therefore, it is not fatal if the term laws are used in other contexts. Manan (1992) stated that what is meant by legislation is generally binding rules of conduct. Its formation can contain provisions regarding rights, obligations, functions, status, and/or order. Different from this opinion, Asshiddiqie (2021) argued that legislation is all written regulations with types arranged in a hierarchy. In this case, all legal products formed by state institutions are based on the authority of their respective functions. Asshiddiqie (2010) further stated that legislation also includes all sets of lower-level regulations to carry out the provisions contained in higher-level regulations. This application is a consequence of adherence to the separation of powers doctrine. Lubis (1995) briefly formulated the notion of legislation as the process of forming state regulations. Natabaya (2006) said that generally, experts in Constitutional Law and Administrative Law in Indonesia are of the view that legislation is as written regulations formed/made by authorized institutions/ untuk menafsirkan peraturan perundang-undangan oleh Tak menggunakan istilah wet in materialele zin, Burkhadt Krems menggunakan istilah staatliche rechtssetzung, dan Philip M. Hadjon menggunakan istilah regelgeving.
Lubis secara singkat merumuskan pengertian peraturan perundang-undangan sebagai proses pembentukan peraturan negara. Natabaya mengatakan, secara umum para ahli Hukum Tata Negara dan Hukum Tata Negara di Indonesia berpendapat bahwa peraturan perundang-undangan adalah sebagai peraturan tertulis officials (both at the national and regional levels), whose contents are generally binding. From the explanation of the provisions above, it can be understood that legislation consists of several elements, including: 1. Written regulations; 2. Containing generally binding legal norms; 3. Made or enacted and issued by authorized State institutions or officials; and 4. Through a procedure established in Legislation.

The Principles of Legislation Forming
According to Attamimi (1990), the principles of good legislation forming are principles of law that provide guidelines and guidance for the formulation of the contents of regulations: appropriate form and arrangement, use of the properly formed method, and following predetermined formation procedures. Attamimi further put forward Van der Vlies' view that beginselen van behoorlijke regelgeving or the principles of good legislation forming divided into formal and material principles.
Formal principles in forming legislation consist of five principles. First, the principle of a clear purpose (het beginsel van een duidelijke doelstelling) covers three things in its formation: the accuracy of the location of legislation within the general government policy framework, having specific purposes, and the purposes of the parts of the legislation. For example, forming legislation must include philosophical considerations as the basis for general government policy objectives. Furthermore, there should be no contradictions or conflicts in carrying out these purposes.
Second, the principle of the competent State institution or official (het beginsel van het juiste orgaan) affirms their respective authorities in forming legislation based on their scope.
Third, the principle of necessity (het beginsel van noodzakelijkheid) in forming legislation emphasizes the existence of alternatives to solve a government problem. This principle relates to the government's legitimacy in carrying out government functions. For yang dibentuk/dibuat oleh lembaga/pejabat yang berwenang (baik di tingkat nasional maupun daerah), yang isinya bersifat mengikat secara umum.
Fourth, the principle of enforceability (het beginsel van uitvoerbaarheid) is intended to enforce legislation that is formed because there is no point in forming legislation that cannot be enforced.
Fifth, the principle of consensus (het beginsel van de consensus) departs from the idea that forming legislation, in essence, must be seen as the first step to achieving purposes mutually agreed upon by the Government and the people.
Material principles in forming legislation also consist of five principles. First, the principle of clarity of terminology and correct systematics (het beginsel van duidelijke terminologie en duidelijke systematiek) implies that every legislation that has been formed must be understandable by all the people. In this case, all people can understand the words used and the alignment of regulations based on the hierarchy of legislation.
Second, the principle of recognisability (het beginsel van de kenbaarheid) is intended so that all the people recognize the legislation that has been formed. Furthermore, if the people recognize the legislation, they will retain its purpose as regulation.
Third, the principle of equality before the law (het beginsel van de rechtsgelijkheid) emphasizes that it is a mistake if legislation is only intended for certain persons or groups. This condition will also result in unequal treatment and arbitrariness against others before the law. Therefore, equality before the law must be the basis of legislation forming.
Fourth, the principle of legal certainty (het beginsel van rechtszekerheids) based on the written regulations system is interpreted as a provision that will guarantee someone to be able to do something or vice versa in the life of society, nation, and state. Likewise, for the Government to take action, it must be according to the provisions of the applicable legislation.
Fifth, the principle of individual-based law enforcement (het beginsel van de individuele rechtsbedeling) implies that legislation that has been formed can be implemented in people's lives. In addition, the application of this principle can also be seen in the judge's decision which charges the article based on the accused's actions.
Asas-asas pembentuk peraturan perundangundangan di atas merupakan asas-asas hukum yang studies from several experts. The formal and material principles above can also be used as benchmarks for conducting reviews in forming the legislation. Although Hamid Attamimi agrees with Van der Vlies, he also proposes an Indonesian characteristic in forming the legislation. In this case, the principles of law are conformable with several aspects: legal ideals, fundamental state norms, the state constitution, the law-based state, and government based on a constitutional system.

CONCLUSIONS AND SUGGESTIONS
Based on the results and discussion above, it can be concluded that the principles of law are the spirit or soul of the law. The law will exist and grow in society, only and if the law is rooted in the principles of law. Meanwhile, legislation means written regulations containing generally binding legal norms. So that the principles of good legislation forming are principles of law that provide guidelines and guidance for formulating the contents of regulations. Based on the description of these conclusions, it is recommended for legal academics to have a construction of thought based on the principles of law. In addition, the Government must ensure every legal academic's competence when making academic manuscripts of draft legislation. In this case, the law-based state must achieve social justice for Indonesia's people. bersifat umum yang dihasilkan dari kajian teoritis dari beberapa ahli. Asas formil dan asas materiil di atas juga dapat dijadikan tolok ukur untuk melakukan pengujian dalam pembentukan peraturan perundang-undangan. Meski Hamid Attamimi sependapat dengan Van der Vlies, ia juga mengusulkan ciri khas ke-Indonesia-an dalam membentuk peraturan perundang-undangan. Dalam hal ini, asas hukum disesuaikan dengan beberapa aspek: cita hukum, norma dasar negara, konstitusi negara, negara hukum, dan pemerintahan berdasarkan sistem ketatanegaraan.