





































THE IMPLEMENTATION OF  THE PRINCIPLES OF GOOD MAKING 
RULES IN MAKING REGIONAL REGULATIONS 

 
Efik Yusdiansyah, Asyhar Hidayat, and Fabian Fadhly 

Faculty of Law Universitas Islam Bandung 
efikyusdiansyah.unisba@gmail.com 

 
Abstract  
The governmental affairs carried out by the regional government are regulated by 
Regional Regulations. This has resulted in regional regulations increasingly having a 
strategic position in the life of the nation and state, this has the consequence of carrying 
out government affairs that can be good if the formation of local regulations is done 
well and backfire if done improperly. To be good at making local regulations, it must 
pay attention to the principles of making local regulations. This paper try to explain 
what principles can be applied in making local regulations in Indonesia? The formation 
of regional regulations to be able to apply properly must pay attention to the principles 
which are referred to by Law 23/14 as the principle of law that grows and develops in 
society. 
Keywords: Local Government, Regulations, and Principles. 
 
Introduction 

The word application in the title above implies the imposition or subject of 
practice. Whereas the principles of the legislation are interpreted as a basis or something 
that becomes the foundation of thought in making written decisions issued by the 
competent authority which contains rules of general binding behavior. The principles of 
making laws and regulations are ethical values that live and develop in the environment 
of legislators that serve as a guide for legislators to carry out their functions and as well 
as a touchstone for judges in conducting Judicial review, and seen from the form there 
are written and some are not written still abstract in nature and can be explored in the 
practice of community life (Moelyono, 1988). 

Whereas the regional regulation as regulated in Article 236 of Law Number 23 
the Year 2014 concerning Regional Government is formed by the DPRD with the 
agreement of the Regional Head in the context of carrying out regional autonomy and 
co-administration tasks.Thus the limits of the title stated are the imposition or subject of 
practicing something become the foundation of thinking both written and unwritten, 
including abstract ones and must be explored in the life of the community in making 
written decisions issued by the Regional Head and the Regional People's Representative 
Council which contains rules of conduct in carrying out publicly binding household 
affairs. 

Local Government which is a sub-system of the national government 
administration system has the authority to regulate and manage its households. The 
authority to manage and manage this household contains 3 (three) main things, i.e.: 

1. assigning tasks and authorities to settle something that has been delegated to the 
local government; 

2. giving trust and authority to think, take initiative, and determine their ways of 
completing the task; 

3. to think, take initiative, and make decisions, involving the community both 
directly and through the Regional House of Representatives (Retnami, 2000). 

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The three things that cause the term decentralization in the administration of 
government in Indonesia are often interpreted as a means of implementing regional 
autonomy. Hans Kelsen argues that decentralization is one form of state organization, 
therefore decentralization is closely related to the understanding of the state. According 
to Hans Kelsen, the state is a legal order (Kelsen, 1973). Thus decentralization concerns 
the legal system in a country. Decentralization as a basis for organizational structure can 
be found in the form of a unitary state or a federal state. 

The simultaneous formation of an autonomous region is the birth of an 
autonomous status based on the aspirations and objective conditions of the people 
residing in a particular region. This aspiration was realized with the implementation of 
decentralization. Decentralization is also called autonomy, because autonomy is given 
to the community and not to the region or regional government (Hoessein, 2001). 

Decentralization is intended to improve services to the community and the 
implementation of development evenly throughout the territory of Indonesia. The 
Central Government or the upper level Regional Government may no longer interfere in 
the administration of functions that have been submitted to the regions, except in the 
form of guidance, coordination and supervision. Thus decentralization is transformed 
into an autonomous region, as a legal community unit that is authorized to regulate and 
manage government affairs according to their own initiatives based on community 
aspirations, while regional autonomy is the authority to regulate and manage local 
government affairs according to their own initiatives based on community aspirations, 
in accordance with regulations current regulation.  

The governmental affairs carried out by the regional government are regulated 
by Regional Regulations. This has resulted in regional regulations increasingly having a 
strategic position in the life of the nation and state or in other words the role of regional 
regulations in carrying out government affairs is very large. The strategic position of 
regional regulations in carrying out government affairs can be good if the formation of 
regional regulations is done well and backfires if done poorly. In order to be good in 
making regional regulations, it must pay attention to the principles of making local 
regulations, among others regulated in Article 237 of Law 23/14 which must be guided 
by the provisions of laws and regulations and legal principles that grow and develop in 
society. With this background, this paper tries to explain what principles can be applied 
in making local regulations in Indonesia? 

 
Discussion 

One who put forward the rule of law is Paul Scholten, by distinguishing the 
levels of elements of the rule of law. Elements that are considered important are called 
principles, and their derivatives are called aspects. The main elements (principle) of the 
state of law understood Scholten, are (a) there is a right of citizens to the state, which 
contains two aspects; first, individual rights are in principle outside the authority of the 
state; secondly, the limitation of the right is only with the provisions of the law, in the 
form of generally accepted regulations; (b) there is a separation of powers. Scholten, by 
following Montesquieu put forward three state powers that must be separated from each 
other, namely the power of lawmakers, the power of implementing laws, and the power 
of judging (Scholten, 1949). 

Scholten (1949) criticized the views of Montesquieu, who regarded the judge as 
the sole implementer in the application of the law. According to him this view has been 
abandoned, by giving an example of the United States system, which determines that 

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the President is also the executor of the law. In addition, the Supreme Court, in addition 
to its duties to adjudicate, also has the authority to supervise the law. Based on the 
description above, it can be concluded that the concept of the rule of law or the state is 
based on the law (rechtsstaat or the rule of law), which contains the principles of 
legality, the principle of separation (distribution) of power, and the principle of an 
independent judicial power; all of which aim to control the state or government from the 
possibility of arbitrary behavior, or abuse of power (Azhari, 1992).   

The principle of the rule of law is always supported by the teachings of the 
people's sovereignty. This was stated by Sjahran Basah (1986) that the rule of law and 
people's sovereignty are a harmonious integral duet that gave birth to monodualism.In a 
sovereign state of people and based on law (democratic rule of law) (Manan and 
Magnar, 1993), implies that power is limited by law and at the same time states that law 
is supreme compared to all existing instruments of power (Manan, 1994). In other 
words, the state places law as the basis of its power and administration Such power in 
all its forms is exercised under the rule of law, In other words, the state which places the 
law as the basis of its power and the implementation of that power in all its forms is 
carried out under the rule of law (Attamimi, 1992). 

This democratic rule of law in carrying out the functions that exist in the state 
uses the dispersal of power. Both horizontal and vertical dispersal. Vertical transmission 
of power breeds decentralization of power. The relationship between decentralization 
and democratic rule of law is stated by Yamin (1992): “In a democratic state structure, it 
is necessary to divide the power of the central government itself (horizontal) and the 
division of power between the center and the regions. The principle of democracy and 
decentralization is contrary to the principle that wants to gather everything at the center 
of government”. 

The above opinion shows that regional autonomy and decentralization are part of 
a state that embraces democracy, because without autonomy and decentralization the 
state is no longer democracy but can become autocracy (Guruh, 1999).Decentralized 
system by giving autonomy rights to Regions in carrying out government is more an 
impetus to form a democratic government in which all people are responsible (Manan, 
1974). 

In this connection, Moh. Hatta states:  
“According to the people's sovereignty, the right of the people to determine their 
fate lies not only in the head of state government, but also in every place, in cities, 
in villages and in regions…… In such cases, every part or the people have 
autonomy (make and carry out their own rules) and zelfbestuur (carry out 
regulations made by the higher Councils).… .. Such a situation is very important, 
because the needs of every place in one state are not the same, other” (Mahmud, 
1999). 
Autonomy must be one of the joint structures of democratic governance, meaning 

that in democracies a government is demanded to have the right to autonomy. The 
existence of such Regional Government also perfects a characteristic of the rule of law 
(Guruh, 1999). 

Further stated: 
"Because the sovereignty of the Indonesian people is one and not fragmented, the 
sovereignty carried out by the regional people is essentially nothing but 
incarnation rather than the point. The actions of the regional people must not 
contradict the principles that have been established as the general guidelines of the 

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state. In other words, the actions of the people in the area which are contrary to 
the objectives of the state are null and void, not containing even a little legitimate 
power in them" (Hatta, 1980). 
The existence of decentralization can also be seen as part of the realization of the 

rule of law, this is because the principle of decentralization also contains the intention of 
limiting power to the Central Government, while the existence of such restrictions is 
one of the characteristics of the rule of law. Among the characteristics of the classical 
rule of law there are 3 (three) things relating to the limitation of power, namely the 
existence of the Constitution as a written regulation governing the relationship between 
the government and its citizens; the existence of power distribution (machtenscheiding) 
which specifically guarantees an independent judicial power; and the existence of 
state/government power distribution (spreiding van de staatsmacht) (Manan, 1994). 

These characteristics clearly require restrictions on government power, which are 
usually set forth in the constitution. The Constitution or the Basic Law is a tool to limit 
the power in the country can be proven from the content of material which is always 
contained or regulated therein (Soemantri, 1988).The separation of state / government 
power (spreiding van de staatsmacht) as an effort to limit government or state power is 
closely related to households. Submission or letting or acknowledging as government 
affairs are regulated and managed as regional domestic affairs, implies that the Center 
limits (limits) its power to not regulate and manage such government affairs again 
(Manan, 1994). 

The legal form used to regulate and manage local affairs is a Regional Regulation. 
Regional regulations as part of the legislation have the following elements: 

1. Written decisions, meaning to follow certain standard formats such as there is a 
title, opening, content, and closing; 

2. issued by authorized institutions/officials, the authority of state institutions or 
officials to make laws and regulations is obtained through two ways, namely 
attribution and delegation. The authority of attribution occurs if the constitution 
or law creates new authority to a body with its own power and its own 
responsibility to form laws and regulations, whereas delegation is the transfer or 
handover of authority to form legislation from the original authority that gives 
the delegation to the one who receives the delegation by responsibility for 
exercising that authority upon those who receive the delegation. Attribution 
dandelegation of laws and regulations, the contents of the material can be broad, 
can also be narrow. Extensive material occurs if the attribution or delegation 
only designates the organ or body of the attribution or delegation by not 
determining the limits of the material it makes, so that the material to be 
arranged is submitted to the discretion of receiving the attribution or delegation. 
Narrow material occurs when the attribution or delegation is determined at the 
same time between the organ that is authorized to make it with the material 
content that must be arranged; 

3. it contains rules of conduct, these rules of conduct can take the form of orders, 
prohibitions, permits, and dispensations; 

4. general binding, meaning not identifying certain individuals. If we follow Bagir 
Manan's opinion, what is meant by binding public does not mean binding all 
people or groups of people who are not certain, but it is sufficient not to identify 
certain individuals, meaning that even if the regulation is only binding for 

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certain groups, it means binding public. If this is related to the DPRD Standing 
Orders then these rules can be classified as general binding (Manan, 1992). 
For legislation to function in accordance with its objectives, in making laws and 

regulations must pay attention to the basis or a good basis of law and regulation. Bagir 
Manan states that there are four bases or foundations for legislation to apply properly, 
namely: 

1. Juridical foundation, 
2. sociological foundation, 
3. philosophical foundation, 
4. foundation of design techniques. 
5. Political foundation. 

Juridical foundation is the legal basis which is the basis for making a statutory 
regulation. The legal basis for making a statutory regulation, is not only seen from the 
basic aspects of the issuance law, but also needs to know the legal basis of the author's 
authority, the procedures for its formation, and the basis of its legal logic (Lubis, 1995). 
Juridical foundation is very important in making laws and regulations because it will 
show: 

1. officials or institutions authorized to make or form these laws and regulations. 
With the knowledge of the official or institution authorized to make a statutory 
regulation, then if there is a statutory regulation made by an official or 
institution other than what has been determined, then the legislation is null and 
void (nietig van recthswege). Considered to never exist, all the consequences are 
null and void. 

2. The form or type of legislation with the material that must be regulated in it, 
especially if it has been determined by legislation that is of a higher level or 
equivalent. If there is a mismatch between the basic regulations and the laws and 
regulations that are to be formed, or there is a discrepancy between the types of 
laws and regulations, the resulting laws and regulations can be canceled 
(vernietigbaar). 

3. Certain procedures or procedures. If these procedures are not followed, then the 
laws and regulations may be null and void, or do not / do not yet have binding 
legal force. For example, each Regional Regulation must include the sentence 
"... with the approval of the DPRD," so if there are Regional Regulations that do 
not include the sentence then null and void. Another example is that each law 
must be promulgated in the official gazette as the only way to have binding 
power. As long as the legislation has not been carried out, the law is not binding. 

4. There is a juridical consequence, that the laws and regulations that are intended 
to be made must not conflict with the basic regulations or higher levels. Every 
statutory regulation may not contain rules that contradict the Constitution, and 
so on (Manan, 1994). In this connection Hans Kelsen states that every rule of 
law must be based on a higher level rule. According to Zevenberger every rule 
of law must meet the conditions of its formation. While Logemann states that 
the rule of law is binding if it shows a compulsory or coercive relationship 
between a condition and its consequences (Soekanto, 1989). 

In some literatures, the legal basis for the formation of laws and regulations is divided 
into two kinds: 

1. The formal juridical basis, namely the legal norms which form the basis of 
authority (bevoegheid) to issue legislation. This foundation refers to the 

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institution or agency authorized to make it. For example Article 5 Paragraph (1) 
of the 1945 Constitution the first amendment is the legal basis for the DPR to 
make laws. 

2. The legal juridical foundation, namely the legal norms that requires a matter 
whose material is regulated in a specific statutory regulation. This material 
juridical basis refers to material content which should be regulated in a statutory 
regulation. For example Articles 24 and 25 of the 1945 Constitution are the legal 
basis (material juridical basis) for the making of Law No. 14 of 1985 concerning 
the Principles of Judicial Power. 
While the sociological foundation is a foundation that reflects the reality that 

lives in society or cultural values that apply in society. Reflecting the reality that lives in 
the community, it does not mean that the products of the laws and regulations produced 
are merely recording the instantaneous situation (hospitalization moment), but must also 
be able to accommodate trends and community expectations. Legislation that only 
confirms the reality, is not only considered static and conservative, but can also paralyze 
the role of law itself, which should be expected to direct the development of society. 

With this sociological basis, the products of laws and regulations made are not a 
pile of enforced legal rules, but legal norms that are accepted by the community in a 
natural, spontaneous manner, and even become something that is awaited by their 
presence. not so much need institutional direction in its application (Manan, 
1994).Philosophical foundation is the view, ideas or ideals of law (recthsidee), where a 
statutory regulation as far as possible is imbued with noble values in the form of ethical, 
aesthetic, and moral values that are adopted in community relations. These high values 
are certainly expected to continue to exist and be able to guide people's behavior.These 
values are left in the community, so that every formation of a law or regulation must be 
able to catch it every time it will form a law or legislation. But sometimes the value 
system has been systematically summarized in a summary both in the form of 
philosophical theories and in official philosophical doctrines, such as Pancasila. 

In Indonesia, Pancasila are values that are systematically set out in an official 
philosophical doctrine. It contains the crystallization of the noble values of Indonesian 
culture which has lasted for centuries. Not surprisingly, Pancasila is used as the nation's 
life view, the nation's foundation, and the source of all sources of Indonesian law.As the 
nation's view of life, Pancasila provides direction on the patterns of behavior, 
awareness, self-control, and even moral ideals that include the psyche and character that 
reflects the culture of the Indonesian nation. As the basis of the state, Pancasila has 
shown its role since the founding of this republic, where the Pancasila has become a 
guideline for the founding fathers in realizing an independent Indonesia. Meanwhile, as 
a source of law, Pancasila means that all applicable laws that will be enacted must be 
sourced from Pancasila. The legal norms governed in Indonesian laws and regulations 
reflect the values contained in Pancasila, or at least do not conflict with the precepts in 
Pancasila (Lubis, 1995). 

Whereas the basis of design technique is the foundation which has to do with 
procedures or procedures for making laws and regulations. Bagir Manan (1992) believes 
that good laws and regulations can also occur because the formulation is unclear so that 
the ambiguous meaning, purpose, and purpose are unclear, or the formulation can be 
interpreted in various interpretative meanings, or inconsistencies in using terminology, 
or the system is not good, the language is convoluted so difficult to understand. 

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The problem of obscurity, allowing various interpretations, difficult to 
understand, the use of inconsistent terms, is not something that can be ignored in 
making laws and regulations. These things are related to the techniques of drafting 
legislation. 
In connection with the design aspects, Bagir Manan divides the two stages of drafting 
the laws and regulations, namely the stage of preparing the academic paper and the 
design stage.In the academic preparation stage discussed academic responsibility for a 
draft draft law. The main function of an academic paper is academic responsibility, so 
an academic text does not need to have been arranged in chapters, articles, verses, and 
so on. The most important thing is the academic analysis of various aspects of the laws 
and regulations that will be designed. It is at this stage that studies of philosophical, 
juridical and sociological foundation are needed in depth. If necessary before the 
preparation of the academic paper, it is preceded by scientific research and studies. 

While the design phase includes procedural aspects and design writing. 
Procedural aspects in the form of management matters such as permission for 
initiatives, the formation of interdepartmental committees, and others. Whereas the 
writing of a design is the pouring of ideas of academic texts or other materials into 
normative language and structure, or usually called the stage of normativisation. 

The political foundation is the political policy line that forms the basis for 
further policy and direction in the management of the state government. There are 
several principles that must be considered in the technical design by Van der Vlies 
divided into two principles, namely the formal principle and the material principle. For 
Indonesia according to A. Hamid S. Attamimi is as follows: 

1. Formal principles, including: 
a. The principle of clear purpose; 
b. The principle of the need for regulation; 
c. The principle of the right organ or institution; 
d. The right content material principle; 
e. The principle can be implemented; 
f. The principle can be recognized. 

2. Material principles, including: 
a. The principle is in accordance with the ideals of the law and fundamental 

norms of the country; 
b. The Principle in accordance with the basic laws of the country; 
c. The principle is in accordance with the principles of the state based on law; 

and  
d. The Principle in accordance with the principles of government based on the 

constitutional system. 
In addition to this, of course we must pay attention to the rules of interpretation. 

Karl Larenz argues that there are legal-ethical measures for establishing law and 
interpreting the law carried out by legislators and judges (Atmadja, 1996). These are 
general principles consisting of proportionality, subsidiary principles, and proper 
principles.The Principle of Proportionality states that judges in interpreting a legal 
provision must hold a balance between individual and collective interests, between 
rights and obligations, and a balance between materialism and spirituality. The 
subsidiary principle contains the principle that the interpretation of the conditions is 
only if the regulation is not clear. Whereas the principle should state that interpretation 

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is carried out by adhering to the principle of morality meaning that an interpretation 
must not conflict with religious norms, decency and other social norms. 

It must be realized that autonomy in autonomy does not mean that regions can 
make laws and regulations that are independent of the national legal system. This brings 
the consequence that Regional Regulations are subsystems of national legislation so that 
the principle of legislation must remain in force.The principle of lower laws and 
regulations must not conflict with the higher ones, but the central government must also 
understand that functions that have been delegated to the regions should not be 
withdrawn so that they are regulated in the types of national level regulations unless 
they are not implemented by the region. These signs must be understood by the central 
and regional governments, because spaning is not uncommon between the central and 
regional governments because of differences in understanding of these rules. The center 
for reasons of higher statutory regulations or public interest makes regulations whose 
material turns out to have been delegated and becomes a matter for regional households, 
regions based on delegation do not follow the rules set by the center. 
In addition, according to Irawan Soejito (1969), the characteristics of good legislation 
are: 

1. Made with short sentences, but solid and made carefully and clearly; 
2. Easily understood in depth by the people; 
3. Contains rules that are simple, easy to understand and appropriate;  
4. Not complicated and well accepted in society. 

The characteristics of good legislation according to Irawan Soejito above, seem to be 
more directed to the technique of making laws and regulations than the process of 
forming or making laws and regulations. If the characteristics of good legislation 
according to Irawan Soejito are related to those stated by Bagir Manan above, then the 
characteristics stated by Irawan Soejito are part of the technical elements of the design 
of the legislative regulations Bagir Manan. The technical elements of drafting 
legislation must be considered technical matters including: 

1. the points of thought are poured into regulations which are regulatory (regeling), 
not predetermined (beschikking), and as far as possible regulate matters for 
future events, which are packaged using statement sentences; 

2. the formulation must be clear the meaning, purpose, and purpose; style of 
language must be dense (conceise) and easy (simple), ambiguous or can be 
interpreted variously (interpretive), but also not obscured (obscurity), too broad 
(overbulkiness), long length (longwindedness), or excessive (redundancy) which 
can be confusing (entanglement), and not overlapping, and is not metaphoric and 
hypothetical; 

3. the term must be consistent, as far as possible is absolute and not relative, and 
not be debatable (argumentaris); 

4. the system is organized (orderliness) with proper use of punctuation. 
This applies in the making of regional regulations and even Law 23/14 states 

that there are legal principles that grow and develop in society, with limitations as long 
as they do not conflict with the principles of the Unitary Republic of Indonesia. Thus at 
least every regional regulation formation must be in line with the principles of: a. clarity 
of purpose, b. the right institution or organ, c. match between type and material content, 
d. can be implemented, e. usefulness and usefulness, f. clarity of the formula, and g. 
openness. In addition, the content of local regulations contains the principles of 
protection, humanity, nationality, kinship, literacy, monastic monarchy, justice, equality 

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in law and government, order and legal certainty and / or balance, harmony and 
harmony. 
 
Conclusion 

The formation of regional regulations in order to be able to apply properly must 
pay attention to the principles which are referred to by Law 23/14 as the principle of law 
that grows and develops in society. In general, this principle can be divided into two 
principles, namely the principle of formation of regional regulations and the principle of 
the contents of regional regulations. Besides that, in the formation of regional 
regulations, it should also pay attention to the principles of a unitary state which should 
not be violated by autonomy, namely: a. the principle of uniformity means that certain 
fields must be guaranteed to be carried out uniformly, for example in terms of law 
enforcement, b. The same service principles such as payroll for the same group are paid 
the same, and c. there is no autonomy without supervision. 
 
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