The Benchmark of Freedom of Contract under Indonesian Treaty Law (Customary Law Perspective)

Abstract

The meaning of freedom of contract is based on different philosophical point of view from the aspects of the legal system, legal concept and legal history. The freedom of contract, implicitly stipulated in Article 1338 Paragraph (1) of the Civil Code is a western concept that is based on the notion of individualism. Indonesian people are communal-style that prioritizes the public interest rather than individual interests. The distinction raises the legal issue to analyze the meaning of Freedom of Contract under Indonesian Treaty Law. In essence, the objective of law is the rule that includes principles of law, values ​​(norms) and rules of concrete law. In addition to the rule, another important objective of legal science is the discovery of the law. By the discovery of the benchmark of freedom of contract under Indonesian law, from customary law perspective that is based on Pancasila, the legal protection for the parties can be protected in seeking justice to the courts. The discussion of problems is traced through the analysis of the legal system, legal concepts and legal history; the system in the colonial period, the system of customary law and Islamic law. The argumentation is explained because freedom of contract is implicitly stipulated in the treaty law in Article 1338 Paragraph (1) jo Article 1320 of the Civil Code. The particular concern in Indonesia is the colonial period which is designated as the year of codification, legal and historical concepts of freedom of contract concept in which also differs in each legal system. The benchmark of freedom of contract according to Indonesian law of the three pillars of Pancasila values ​​are the pillar of God, the pillar of humanity and the pillar of society (the pillar of community covering the values of nationalism, democracy and justice).The conclusion is that the meaning of freedom of contract in the treaty law of Indonesian is a responsible freedom; the order that is oriented to the values of God, humanity and society in the form of harmony, appropriateness and propriety as a legal framework of Pancasila so as to realize the fair justice.

Keywords: Freedom of contract, Customary law