Legal foundation is one of the most important sources of law that has been emphasized in several legal theories. In principle, a crime is defined as an action that violates the standards set by society. As a result, the state, acting on behalf of the community that is impacted, is granted the power to punish those who commit criminal acts according to the relevant laws. However, concepts regarding legal foundation are still heavily debated and intertwined with other legal principles, legal values, legal norms, legal theorems, and legal rules. In several pieces of literature, the discussion focus of scholars emphasizes differentiating legal foundations, legal norms, and legal rules. One such book was authored by Ronald Dworkin and Paul Scholten. This means that legal certainty and legal protection are two of the purposes. Both scholars distinguished between the foundations of law and the rule of law (rechtsregel) based on their content and application. The rule of law represents a more tangible concept that guides the application of rules in legal proceedings to resolve disputes. On the other hand, legal foundations are more abstract and indirectly influence the interpretation of existing rules. Legal protection is protection accommodated by law as an effort to restore or balance against violations of rights that occur. Furthermore, In its dissertation titled “Drie Beginselen van Het Contractenrecht,” Niewenhuis has explicitly elucidated the functional correlation between legal foundations, legal norms, and legal rules. These foundations are employed as fundamental elements of a system due to their significant influence on positive law.
The function of foundation, principles, and norms as a meta value and the meta values of a rule in achieving justice The term meta value, in essence, originated from the term „meta‟, which means „object‟, which means that the term meta determines the trust of a particular object. For example, meta-theory is the theory that exists another theory in its consideration, and meta-language is the language whereby another objectlanguage exists that is discussed. In other words, the term meta value points to the norms pertaining within a value being considered, and meta values point to the values being considered at a meta-value level. Thus, there exist several systematic steps towards the meta value itself. In relation to this subject, the process of categorizing meta values may be compared to the phases involved in establishing a structural norm, as explained by Hans Kelsen and Hans Nawiasky in the Studenbau Theory (stufenbau des rechts theorie). In order to comprehend the position of legal foundations, legal principles, values, norms, and legal regulations within a meta-value system, it is necessary to first grasp the notion of each individual component. In the context of legal foundations, various legal scholars have expressed their opinions on the subject. One such scholar is Bellefroud, who argues that legal foundations are essential principles derived from positive law. However, the field of law does not universally acknowledge these principles as rooted in general rules. Paul Scholaten has stated that legal foundations are fundamental thoughts embodied inside and behind the legal systems of each legislation, rule, and judicial decision. Based on the opinions of scholars, it can be ascertained that the position of legal foundations is, in principle, the basis of all legal rules. In other words, legal foundations are the meta values of each legal rule.
The historical development of unjust enrichment begins from the Greek philosophy, namely “The Moral to Nichmaquean” which is then developed during the time of Quintus Mucius Scaevola in the form of “one shall not be allowed to unjustly enrich himself at the expense of another” whereby Keener also elaborated this in an article published by the Harvard Law Review 1887. These fundamentals align with the principle of suum cuique tribune which teaches the concept of giving others what their rights retain. The principles of “one shall not be allowed to unjustly enrich himself at the expense of another” have been known since Justinian‟s Digest (6th Century AD), formulated within two texts for the Roman scholar Pomponius. In Digest, 12.6.14 states that “Nam hoc natura aequum est neminem cum alterius detriment fiery locupletiorem” which is freely translated to “For this is by nature fair that another‟s loss should enrich nobody”; and in Digest, 50.17.206 it writes “Iure naturae aequum est neminem cum alterius detriment et iniuria fiery locupletiorem” which is openly translated as “It is fair according to the law of nature that nobody should be enriched by loss and injustice to another”.
Author: Faizal Kurniawan
