Karya Ilmiah

DISERTASI (0117) - Konsep dan Asas Hukum Kekuasaan Diskresi Pemerintah

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The government‘s discretion is a concept under the rule of law state.
Practically, government‘s discretion creates a tension between reliance upon
legality principle and flexibility in exerting administration, which may violate or
even supersede legal rules. The comprehensive study of government‘s discretion,
therefore, is significant to both philosophical discourse and practical matter.
From positivism perspective, discretionary action may be qualified as a
violation of law or an abuse of power by the government official. Positivism gives
no room for government‘s discretion. In fact, government‘s discretion is needed to
ensure that under no circumstances is administrative action interrupted, including
action that is done in an exceptional situation, by which it may deviate principle
of legality. This dissertation, then, presents a broader conceptual spectrum to
perceive government‘s discretion more proportionately. In this dissertation, it is
natural law theory that gives room to government‘s discretion.
In this dissertation, it is argued that the use of discretion by the government
should be based on justice and equity, either in case of the absence of legal rules
or it might be against legal rules. In the Indonesian context, both principles,
justice and equity are inherent in the Pancasila, which is the idea of law of the
Republic of Indonesia.
As a result, this dissertation recommends that (1) the concept of
government‘s discretion be developed based on the natural law theory instead of
utilitarian perspective suggested by the positivists; (2) government‘s discretion be
based on virtue; and in Indonesian context, the government officials internalize
and adopt Pancasila values in order that their discretionary actions are justified
and valid.

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Ketersediaan

031170116

0117

Ruang Disertasi

Tersedia

Informasi Detail

Judul Seri

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No. Panggil

0117

Penerbit

Surabaya : Fakultas Hukum Unair., 2015

Deskripsi Fisik

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Bahasa

Indonesia

ISBN/ISSN

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Klasifikasi

NONE

Tipe Isi

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Tipe Media

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Tipe Pembawa

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Edisi

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Subjek

ILMU HUKUM

Info Detail Spesifik

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Pernyataan Tanggungjawab

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Versi lain/terkait

Lampiran Berkas

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