JUSTICE AND MORALS
ARIZONA STATE UNIVERSITY
PHI 307 - PHILOSOPHY OF LAW
WEEK 6
A.
Law and Morals :
Law has many dimensions and facets, making it impossible to provide a definition of law
that can truly suffice reality. Although there is no perfect definition of the meaning of law,
the definitions of several scholars are still used as guidelines and limits to the study of law.
Although it is impossible to hold a complete limitation of what law is, Utrecht has tried to
make a limitation that is intended as a guide for people who want to study law.
According to Utrecht, law is a set of rules (commands and prohibitions) that manage the
order of a society and therefore must be obeyed by that society. Hans Kelsen defines law as
a rule as a system of rules regarding human behavior. Thus the law does not accumulate on
a single rule (rule) but a set of rules (rules) that have a unity so that it can be understood as
a system, the consequence is that it is impossible to understand the law if you only pay
attention to one rule. Another definition of law, conveyed by Sudikno Mertokusumo, who
defines law as a collection of rules or rules in a common life, the overall rules of behavior
that apply in common life, which can be enforced with a sanction. Law as a collection of
rules or rules has content that is general and normative, general because it applies to
everyone and normative because it determines what should be done, what should not be
done or must be done and how to carry out compliance with the rules.
1.
Moral Concept:
A person's personal politeness is determined by whether or not his morals are good. A
person who makes morals as one of the characteristics of his personality will be more
appreciated and respected by other people or the community around where he lives. In
addition, the social relationship of someone who has morals is better than someone who
does not uphold morals in his life. The word moral is a word that comes from the Latin
"mores", mores itself means customs or a way of life. According to Gunarsa (1986) in Asri
Budiningsih (2004: 24), "morals are basically a set of values of various kinds of behavior
that must be obeyed". Meanwhile, according to Shaffer in Asri Budiningsih (2004: 24),
"morals can be interpreted as norms and institutions that are able to regulate individual
behavior in living a relationship with society". Suseno in Sigit Muryono (2011: 69) states
that "the word moral always refers to the good and bad of humans as humans, so that the
moral field is the field of human life in terms of its goodness as humans". Meanwhile,
according to Haricahyono in Sigit Muryono (2011: 69), that "morals are defined by the
existence of conformity with the measure of good and bad behavior or character that has
been accepted by society". Based on the opinions of these experts, it can be said that morals
are a belief about the rules or teachings that are good and bad, right and wrong, worthy or
unworthy, appropriate or inappropriate sourced from religion, the advice of parents or wise
people, as well as the social environment and influence humans in their daily behavior
which is also a series of values and norms that influence human behavior able to regulate
individual behavior in undergoing a relationship with society in terms of its goodness as a
human being according to the measure of good and bad behavior that has been accepted by
society.
2.
Development of Moral Reasoning:
Kohlberg in Sigit Muryono (2011: 72) formulates the developmental process of moral
reasoning as a role transfer process, which is a developmental process that leads to a more
comprehensive, more differentiated and more balanced structure compared to the previous
structure. Kohlberg outlines the process of moral reasoning development as follows:
a.
The development of moral reasoning occurs in stages, each stage being the ability to
take over the role of others in social situations.
b.
In the process of developing moral reasoning, the school environment has a role, which
is to provide opportunities for role transfer.
c.
In this process the individual is active, that is, actively composing the structure of his
perception of his environment.
d.
The stages of moral reasoning and its development are the result of the interaction
between the structure of individual perceptions and the structure of existing
environmental symptoms.
e.
In that interaction, successive forms of equilibrium occur.
f.
That balance is referred to as the level of justice.
g.
If there is a change in the structure of symptoms both within the individual and in the
environment, an imbalance occurs.
h.
This situation of imbalance requires a new change in the structure of justice to an
optimal level of adjustment or a higher level of moral reasoning.
3.
Elements of Morality:
The quality of moral norms has been determined by several key elements, namely freedom,
responsibility and conscience. The higher the degree of freedom, responsibility, and purity
of conscience, the better the moral quality.
a.
Freedom
Freedom is an important element in moral norms. This is essential because moral norms are
autonomous. So there is always a choice (alternative) for humans to behave and behave
based on the values they believe in. Human freedom is divided into two major groups,
namely: a. Social Freedom; and b. Existential Freedom. Social freedom is freedom received
from others (fellow humans), which means it is heteronomous. Existential freedom is the
existence of a human ability to determine one's own attitude and behavior, which means it is
autonomous. Social freedom can be limited by physical limitations, psychological
limitations, and the existence of government / prohibition (normative).
b.
Responsibility
Freedom provides choices for humans to behave. Moral considerations will only have
meaning if humans are able and willing to take responsibility for the choices they make.
Moral considerations are only possible for people who can and want to take responsibility.
That is why we never hold insane people or minors accountable for their behavior, even
though we know that according to our morality, their behavior is unacceptable.
Responsibility can thus be defined as the fundamental willingness to carry out what is due.
Obligation is a burden that must be carried out. The definition of burden here is certainly in
a broad sense, not always with unpleasant connotations. Every form of responsibility always
demands accountability when the action has been completed. This accountability is an act of
providing an explanation that can be justified both morally and legally. This is what is
called accountability.
c.
Voice of the Heart
The inner voice is often referred to as conscience, which is an intuitive knowledge of moral
principles. Conscience comes directly from God and therefore cannot be mistaken. When
man faces a concrete situation that requires him to choose certain moral stances, it is the
conscience that is present at that moment. The inner voice is indeed the voice of truth, but it
is not identical with the essence of truth itself. This means that the conscience may be
wrong, but the error of the conscience is due to the ignorance of the owner of the
conscience, not because he is deliberately wrong. Three normative institutions propose their
norms (in the more abstract sense of values) to us. The first is society, including the
government, teachers, parents, peers and religious leaders. These normative institutions will
either implicitly or explicitly state what is good and not good according to them. The second
is ideology, including religion. Professional codes of ethics are also in this second category
of normative institutions. Third, is the personal superego. Such as the feeling of shame in a
person if he/she commits an unacceptable behavior.
In morals, in addition to the main elements, there are also certain standards in assessing
whether an action is good or bad, right or wrong, which we know as moral norms. Norms
are rules or rules that we use as benchmarks to judge something. Moral norms are rules or
rules that determine whether our behavior is good or bad from an ethnic point of view.
Four compelling reasons why studying moral and ethical norms is so important are:
1.
Human beings make various decisions, and there is a right or wrong way to do things.
2.
In order to enjoy a well-ordered social life, humans need agreed understandings,
principles and various procedural provisions concerning patterns of behavior.
3.
Due to the dynamics of human life with all its consequences, it is necessary to behave
based on the norms that exist in the prevailing ethical system, which was inherited, as
well as the current one, needs to be analyzed, reviewed.
4.
Concept of Moral Degradation:
Degradation is defined as a decrease in degree, rank, position. Degradation is a change that
leads to damage on earth. "Degradation is a decrease in quality or deterioration of position".
(Daryanto). This degradation is intended as a decrease in quality or moral destruction
(demoralization). Immanuel Kant argued, "morality is a matter of inner beliefs and attitudes
and not a matter of simply adjusting to rules from outside, whether it is the rule of state law,
religion, or customs". He went on to say that the criterion of a person's moral quality is his
loyalty to his own heart. Morality is the performance of duty out of respect for the law,
while the law itself is written in the human heart. In other words, morality is the
determination to follow what is in the heart as an absolute obligation. According to Dr.
Robert J. Havighurst in Sholeh (2005: 104), morality originates from the existence of a
value system, namely a spiritual object for a desired situation. Then the condition or internal
potential of a person's psyche to be able to do good things, in accordance with the desired
value values. Based on some of the opinions of the experts above, it can be concluded that
moral degradation is the decline in awareness of acting in accordance with applicable rules
as a result of a lack of awareness of obeying the law, while the law itself is written in the
human heart.
The definition of law can be grouped into two, namely law in the form of laws and law
in the sense of law enforcement implementation by law enforcement officials. Laws in the
form of legal products made by the state are made in order to run the wheels of government
to carry out the objectives of the establishment of a state. Law is always loaded with certain
values. When you start talking about values, you have also entered the activity of assessing
and choosing. This situation gives certain directions to the course of law in a country. Since
the position of the state in the modern sense, as discussed earlier, has become stronger, the
role of law has become important, namely as a means to implement state decisions.
Legitimacy is no longer sought through charisma or tradition (see Weber earlier), but
through what Weber calls legal rational. One aspect of legal rationality is that the law is
becoming increasingly formal and procedural with all the attendant consequences and
accoutrements. In short, law is becoming an increasingly accepted and used tool.
Law today is a modern law with formal, rational, systematic characteristics, applies
equally to people, procedural, run by the state bureaucracy, written, autonomous. Thus the
law is carried out by law enforcers who are formed to perform their duties in accordance
with their profession. Therefore, law enforcement in Indonesia is carried out by lawyers
who are specially educated to be experts in carrying out their functions for quality and
moral law enforcement.
Abdul Manan argued: Although a legal profession has expertise, skills, and is intelligent
and has a high intellectual in the field of law, but if it is not supported by solid moral
integrity, then everything that is owned will have no meaning at all. Therefore, the
intellectuality and professionalism possessed by the legal profession should be supported by
excellent moral integrity, because this is the thing that determines the success or failure of a
legal professional who carries out his duties.
Law and morals are related, a good law is a law that is based on morals, so that a law
has its spirit, both from the legal product and the spirit of law enforcement, so that the law
can be enforced in order to obtain justice, legal certainty, and benefits. The law provides
limits on how morals can be implemented with various law enforcement efforts not only
with threats / sanctions for those who violate.
The relationship between law and morals then K. Bertens said:
Just as there is a close relationship between morals and religion, so also between morals
and law. Let's start by looking at this relationship from a legal perspective: the law
needs morals. There are mainly two reasons for this. First, in imperial Rome there was
already the maxim Quid leges sine moribus? What are laws without morality? Laws
mean little if they are not imbued with morality. Without morality the law will be
empty. The quality of the law is largely determined by its moral quality. Therefore, the
law must always be measured against morals. Immoral laws cannot but be replaced,
when in a society moral consciousness reaches a sufficiently mature stage. Socrates was
a moral absolutist, who believed that upholding morals was the duty of philosophers
based on rational ideas and expertise in knowledge. Philosophy is objective truth, and to
prove the existence of objective truth, Socrates used practical methods. Socrates is
remembered for his idea that the ideal government should involve wise men who are
well prepared, and organize the good of society.
In addition, the law is enforced by the government bureaucracy which is formed to do
its job with the support of existing facilities and infrastructure. In addition, it is also
supported by standard procedures stipulated in laws and regulations, so that law
enforcement procedures are not necessarily always understood by the community. Law
becomes rational, law is carried out formally, procedurally, and supported by supporting
equipment. Thus, people still often think that the law is not always in favor of the
community or there is a view that there is no unity between law and morals.
It is in relation to morale that Murdoch argues:
Our understanding takes place in the light of "The Good". Therefore, on the one hand,
real understanding, which is already free from the bondage of selfish fantasies, itself
makes us aware of the pull of the "Good" that we "must obey", and on the other hand
the pull of the "Good" encourages us to see more correctly, with a "just and loving gaze
directed towards an individual reality".
Law enforcers who carry out law enforcement have been equipped with sufficient
education, special professional education and before carrying out their duties have sworn /
promised in accordance with their respective religions. Thus, in carrying out law
enforcement, law enforcers must be moral. In completing the moral law enforcement, the
rule of law also requires high moral values so that the law becomes humanist.
Society in modern times has undergone social changes, caused by various things
including the movement of people from villages to cities, increasingly diverse employment
opportunities, the rapid development of science and technology. Most people are now
individualistic so that the cultural roots that were once respected and upheld have faded,
eventually having an influence on behavior. In addition, community settlements have
changed, from living among neighbors to living in multi-storey houses, and so on. Such
changes in society affect the level of public legal awareness. For this reason, broad insight is
needed from legal officials and stakeholders to understand the legal values that live in
society so that legal praxis achieves its goals.
As described above, the essence of law according to Hart is a combination of two types
of rules, namely primary rules and secondary rules. This view is not only aimed at
correcting Austin's concept of law but also aimed at criticizing the theory of natural law
which assumes an absolute relationship between law and morality. In Hart's view, the
assertion that there is a necessary or absolute relationship between law and morality has
many important understandings but not all relationships are clear. Starting from this
ambiguity, Hart attempts to show and evaluate the reasons underlying this view. According
to him, none of the reasons put forward to show the absolute relationship is adequate
although he admits that some aspects of the arguments put forward have truth, in
accordance with some of the facts that can be found in the legal system.
Hart recognizes that law, justice and morality have a very close relationship. In fact, one
aspect of justice, administrative justice, and in the law of minimums, law and morality are
'absolutely' related. The administrative justice referred to here is none other than justice in
the application of the law. The application of punishment to a person is based solely on the
characteristics mentioned in the law. The law on murder, for example, states that a person
who intentionally takes the life of another person is sentenced to fifteen years, so from this
provision we will know which characteristics are relevant and irrelevant to the sentence
convicting the perpetrator of murder. The skin color and hair type of the perpetrator are
irrelevant; while the decision or intention of the person is relevant. If in deciding a
particular case the characteristics mentioned in the law are ignored, then the application of
punishment is considered unjust. Justice in the application of this law according to Hart has
an absolute relationship with the law. However, this absolute relationship only concerns the
administration of law and this type of justice can also occur in a legal system that is full of
unjust laws. Apart from legal administration, Hart also recognizes the important relationship
between law and morality in minimum natural law. Minimum natural law is none other than
Hart's own view of human nature which is different from classical natural law. According to
him, the most basic human nature is survival, because by surviving humans can fulfill other
life goals. To survive, in addition to requiring the availability of consumption materials,
humans also need rules that can maintain their common life. This is where morality and law
meet; these two rules, though different, both demand the same thing, namely the
preservation of human life together. However, this absolute relationship between law and
morality in minimum natural law, according to him, is not a logical absolute, but a "natural
absolute". It is called a natural absolute because the absoluteness of the relationship is based
on the natural conditions of human life itself. That is, as long as the conditions of human life
do not change, then law and morality will be absolutely related. Hart only recognizes the
absolute relationship of law and morality in the minimum of natural law and legal
administration, and it is, as mentioned, not a logical absolute as it has been considered so
far.
In The Concept of Law, Hart examines six other grounds on which to demonstrate the
absolute relationship between law and morality.
First, power and authority. The first point about the absolute relationship between law
and morality relates to the issue of power and authority. It is often said that a legal system
must rest on an understanding of moral obligation or rest on a moral conviction of the
system. A legal system, on this view, cannot be based solely on human power over other
human beings. In a legal system people who obey the law (pay taxes, for example) should
know that what they are doing is in line with their moral beliefs. In other words, there must
be congruence between legal obligations and moral obligations.
In Hart's view, the view that emphasizes the compatibility between legal obligations and
morality is inadequate. Hart agrees that a legal system cannot stand only on the basis of
people's power over others. Therefore, Hart rejects Austin's theory which understands the
essence of law as a command accompanied by threats. To be able to run reasonably a legal
system is not only based on power but also the voluntary acceptance of the people in the
system. However, according to Hart, the dichotomy between laws based only on power and
laws that are accepted as morally binding is not an exhaustive dichotomy. Not only is it
possible that most of those subject to the law do not view it as morally binding, Hart argues,
but it is also not true that those who do accept the system voluntarily necessarily believe
they are morally bound to do so. In other words, one's adherence to the law does not
automatically stem from moral views. A citizen's acceptance of the law may stem from
habit or a desire to act as others do, although Hart also recognizes that a legal system will be
more stable if people within the system accept the rules based on moral motivation. Thus,
even in this sense, there is no absolute relationship between law and morality.
Second, the influence of morality on law. Law and morality have an absolute
relationship because they have a reciprocal relationship. The morality of a society
influences the product of law and law influences the good and bad views of that society. If
this is what is meant by the absolute relationship between law and morality then Hart
wholeheartedly accepts it. Hart even goes so far as to argue that no positivist would deny
the fact that moral views can enter into law.
Third, interpretation. Hart recognizes that the application of law to vague cases will
involve certain considerations, considerations that indicate how the law should be. The
decisions judges make in a particular case, according to Hart, are not based on arbitrariness,
but are guided by principles, social policies, and moral beliefs; the law that is and the law
that ought to be are intertwined in legal interpretation. When interpreting statutes and
precedents, judges are not constrained by available alternatives and personal whims, or
mechanical deductions from rules whose meaning has been definitively determined. Very
often their choices are guided by the assumption that the purpose of the rule they are
interpreting is a reasonable one, such that it is not intended to produce injustice or violate
established moral principles.
However, Hart rejects the conclusion that because moral views are influential in legal
interpretation, the two are absolutely related. For this rebuttal Hart offers three reasons.
First, the standards by which the law is supposed to be interpreted are not all followed.
Second, the law should not necessarily refer to morality. According to Hart, words should
reflect the existence of several standards and moral standards are only one of them. For
example, it is possible for a judge to issue a ruling based on social goals. Third, the opinion
on the absoluteness of the relationship between law and morality also contains a proposal to
expand the meaning of law to include social standards, principles, and policies that are also
taken into consideration by judges in deciding a case.
Against this expansion of the meaning of law Hart raises two objections. First, all that
is involved in the process of deciding law can be expressed in other ways. We can say that
the existing law is not perfect and we must decide penumbra cases rationally by taking into
account social goals. Second, laying out the relationship between law and morality as
Dworkin proposes implies that all legal issues are issues of uncertainty as when facing the
case of penumbra. This view confirms that actual law has no primary element that can be
seen as the most likely meaning when defining law. The attempt to expand the meaning of
law to include social principles and policies, according to Hart, is more about people
thinking that legal decisions are mechanical and formal. Whereas in reality such cases are
very few.
Fourth, legal criticism. Another sense that may arise from the statement that law has an
absolute relationship with morality is that a good legal system must be in line with morality.
Hart also accepts this notion with some caveats. Hart argues that if what is meant by
morality here is the morality prevailing in a society then the legal system does not need to
conform fully to that morality. Then if by morality he means a general and enlightened
system of morality, then many legal systems operate without these elements. Thus, Hart
does not reject a legal system in line with morality, but he is of the view that not all legal
systems need to be in line with morality. Therefore, the relationship between the two is not
absolute.
Fifth, the principles of legality and fairness. For the law to be applied effectively, it
must be understood by all, known before it is enacted, prospective, applied equally to all,
applied impartially, and so on. For some, the existence of these elements suggests the
absoluteness of the relationship between law and morality or, as Lon Fuller put it, they
constitute the inner morality of law. But for Hart, they also exist in a legal system that is
morally evil. In other words, elements of justice such as the law must be understandable to
all, known before it is enacted, possible to enforce, and prospective, are not the morality of
law but the means by which law can be effectively applied. Even according to Hart, the
distinction between a good legal system, which is in line with morality and justice, and a
bad system is a false distinction, because according to him, a minimum level of justice is
clearly realized whenever human behavior is controlled by rules that are announced publicly
and judicially applied. But what Hart considers to be morality and justice in law is nothing
more than the procedural standards that most legal systems apply. Therefore, the fact that
there are elements of justice in law cannot be concluded that law has an absolute
relationship with morality.
Sixth, the validity of law and resistance. The final argument in favor of the thesis of the
unity of law and morality relates to defiance against evil laws. According to proponents of
natural law theory, legal positivism will prevent people from resisting laws that are validly
established but contrary to morals and justice. One of the contemporary legal thinkers Hart
mentions is Gustav Radbruch, one of the German legal theorists who aggressively preached
the interconnection of law and morality. A valid law, according to Radbruch, is only a law
that is in line with morality. Conversely, laws that contradict morality by themselves cannot
be called laws. The case cited by Radbruch is the law applied by the Nazi regime. After the
end of World War II, followed by the defeat of the Nazis, a series of trials were held in
Germany against Nazi officials and their followers. The question that arose at that time was,
how to determine the status of Nazi sympathizers who for reasons of obeying the law had
sacrificed many people because of their reports on the Nazi side. For Radbruch, the status of
such a person is clearly guilty of obeying the law in contradiction to morality. Therefore, he
must be punished. Thus, if one follows the opinion that law and morality are identical then
the act of punishing those who obey evil laws is very possible. While people who hold the
view that law and morality are separate, or at least not necessarily related, the act of
punishing Nazi sympathizers and critics of evil laws based on morality is not possible. How
does Hart respond to this argument?
According to Hart, the attempt to criticize bad law by identifying law with morality, by
stating that bad law is not law, is an attempt to obscure the issue at hand, namely the
problem of the nature of law and morality. According to him, to criticize an evil law, a law
promulgated by Hitler for example, we simply say that the law is still a law even though it is
too evil to be obeyed. This statement, Hart says, is a moral condemnation that everyone can
understand and is directly related to moral issues. On the other hand, if we formulate our
rejection of the evil law by declaring the evil law to be no law, then this statement will not
be believed. Hart's point with this statement is that the moral critique of the law can be
formulated simply and clearly without having to formulate it in vague and debatable
philosophical propositions. Stating that an evil law is not a law does not fit the facts of a
legal system. Laws, in fact, are both compatible and contradictory to morality. Giving legal
status only to laws that are in line with morality means eliminating other rules that have
strong characteristics as laws but are contrary to morality. According to Hart, this will make
the effort to recognize the law incomplete. In addition, Hart also wants to show that holding
the opinion that there is a separation of law and morality in no way prevents the
commitment to consider law based on morality. In The Concept of Law Hart further
explains the shortcomings of the view that identifies law with morality and shows the
superiority of his own concept of law that includes all laws, including laws that are contrary
to morality. Hart calls the view that only accepts laws that are in line with morality a
narrower concept of law while Hart and other positivists' concept of law he calls a broader
concept of law. Hart's argument for the separation of law and morality is, in part, based on
his description of the shortcomings of using this narrower concept of law.
The narrower concept of law has both theoretical and practical disadvantages.
Theoretically, a narrower concept of law only accepts laws that are in line with morality and
automatically excludes rules that are formally valid but contrary to morality. The narrower
concept of law, Hart continues, is nothing but a mistaken proposal to abandon the study of
morality of such rules (morally deviant rules) to be studied by other disciplines. Conversely,
if we use a broader concept of law we can accommodate the study of the characteristics of
morally evil laws, and society's reaction to them. What then is the practical utility of using a
broader concept of law? Hart argues that using a broader concept of law, which includes the
recognition of valid but evil laws, will lead people to understand that no matter how well
run a legal system is, it still has the possibility of being abused and therefore its provisions
must ultimately be subject to moral scrutiny.
For Hart, the most important issue related to the separation of law and morality is
perhaps the critique of law itself. Following the views of Bentham and Austin, Hart believes
that the identification between morality and law will lead to two possibilities: conservatism
and anarchism. On the one hand, if one equates law and morality then he will take the view
that the law, whatever form it takes, he will consider as a moral view. As a result, he can no
longer challenge or change it. On the other hand, he may ignore all laws that contradict his
personal moral views even if the cost of doing so is very high such as opposing laws that
protect the public interest for example. From the above description of the relationship
between law and morality, we can summarize several important things. First, Hart does not
reject the relationship between law and morality. Second, that what Hart asserts about the
separation of law and morality is actually an effort to show that the relationship between the
two is not absolute or necessary; the definition of law does not need to refer to morality.
Third, identifying law with morality according to Hart will lead to the blurring of efforts to
solve the problem of law and morality itself. In addition, equating law with morality
practically leads to two dangerous attitudes, namely conservatism and anarchism.
Conservatives will understand legal commands, whatever they are, to be moral commands.
Therefore, the law becomes closed, unable to be criticized. Meanwhile, anarchists will do
whatever they want with the law. If the law is not in line with their moral views then they
will oppose it even if it is not in line with their moral views to do so he must sacrifice the
interests of the general public. In short, Hart's insistence on separating law and morality is
precisely intended to make the law itself open to moral criticism.
The term moral comes from the Latin mos (plural mores) which means custom, habit.
Moral in terms is the values or norms that guide a person or group in regulating their
behavior. Meanwhile, morality is the nature of morals or the overall principles/pillars and
values relating to good and bad.
K. Bertens said that morality is a human characteristic that cannot be found in other
creatures below the human level. Because moral norms are agreed standards of behavior,
they can be used to measure the behavior of others. Therefore, moral norms are benchmarks
used by society to measure a person's goodness. Lawrence Kohlberg said that a person's
moral orientation on which his conscience is based is different for everyone. There are 4
moral orientations that Kohlberg put forward, namely:
1.
Normative orientation is maintaining rights and obligations and obeying standardized
rules.
2.
Honesty orientation emphasizes fairness with a focus on:
a)
freedom;
b)
similarities;
c)
exchange of rights;
d)
Deal.
3.
The utilitarianism orientation emphasizes the welfare and happiness consequences of
one's moral actions on others.
4.
Perfectionism orientation emphasizes achievement:
a)
dignity and autonomy;
b)
awareness and good motives;
c)
harmony with others.
Therefore, moral orientation will greatly affect a person's morality and moral judgment,
because the consideration of moral judgment is very important Morals are the result of a
reasoning process in which there is an effort to prioritize certain values based on moral
orientation and consideration of the consequences.
Mochtar Kususmaatmadja said "Good law is a law that is in accordance with the living
law in society, which of course also corresponds to or is a reflection of the values that
prevail in that society". The relationship between humans and the law is that at all times
humans are controlled by the law. The law interferes with human affairs before he is born
and still interferes after humans die. The law protects the seed in the mother's womb and
still protects the body of a dead person. The law applies to an individual when he is just
born, gives rights to parents, and places obligations on parents towards their children.
The rule of law as one of the social rules does not mean negating these other rules, even
between the rule of law and other rules are interconnected, one reinforcing the other,
although sometimes the rule of law is not appropriate or harmonious with these rules. Law
is nothing but a means for law organizers to mobilize ways of thinking and acting in the
framework of national goals (policy). In its existence, inherently, it has nothing to do with
"justice" and "truth" in the ultimate sense.
B.
Functions of Morals and Law in Human Life:
Morals and law have a very close relationship. An understanding of value and self-
assessment will bring implications to the issue of morality. Morality is identified with good
deeds and bad deeds (ethics), where the way to measure it is through the values contained in
these actions. While human actions so as not to harm others or society and can create order
and can maintain the integrity of society, laws are made that regulate the social relations of
society.
Basically, values, morals and laws have a function to serve humans. At least three
things can be stated Its explicit function in human life. First, it reminds people to do good
for themselves and others as part of society. It reminds people to pay attention to new
possibilities in life. Secondly, it draws attention to moral issues that people are not
responding to. This points to the moral dimension of the problems that society is facing. The
occurrence of chaos or disorder in society is always related to the lax application of morality
and law. Third, it can draw people's attention to symptoms of "emotional habituation". That
is, it can lead people to emotional factors so that people can be wrong or mistaken when
choosing something.
In addition, the function of morals and law is in order to control and regulate. Control
and regulation are carried out based on the legal system. The importance of the legal system
is as a protection for interests that have been protected by religious rules, rules of decency,
and rules of decency. Although these rules also try to organize and protect and guarantee the
interests of people in society, but not strong enough to protect and guarantee considering
there are interests that are not organized. To further protect the interests that have been
protected by the rules, a legal system is needed. The law that regulates people's lives and
actually applies in society is called positive law.
The term positive law is intended to mark the "differentiation" (difference) and the law
against other rules in society appears more clear, firm, and supported by sufficient
equipment to be followed by members of the community. The nature and regulation of the
law is coercive and requires a deeper purpose. The notion of force is not always imposed,
let alone by arbitrary action. Because the law is a concretization of the value system
prevailing in society, which needs to consider three important things, namely as a system of
norms, as a system of social control, and as social engineering (the power holder pioneers
the process of validation). Even when there is a dilemma in the law itself, which can be
caused by conflicts, both from legal institutions, legal infrastructure, If the legal culture in
society is even low, then everyone (society and legal apparatus) must restore it to the sense
of legal justice of the community, meaning that they must prioritize community morality.
C.
Morals, Morality, and Ethics :
1.
The Difference Between Ethics and Morals:
Ethics and morals are synonymous but in everyday usage there is a slight difference. Moral
or morality is used for the action being assessed, while ethics is used for the assessment of
existing value systems.
Moral consciousness is also related to conscience which in foreign languages is called
conscience, conscientia, gewissen, geweten, and Arabic is called qalb, fu'a d. Moral
consciousness includes three things, namely:
a.
A feeling of obligation or necessity to perform moral actions.
b.
Moral consciousness can also take the form of rational and objective, which is an action
that is generally accepted by society, as objective and universally applicable, meaning
that it can be agreed to apply at any time and place for everyone who is in a similar
situation.
c.
Moral consciousness can also come in the form of freedom.
Based on the above description, it can be concluded that morality refers more to a value
or system of life that is implemented or enforced by society. The value or system of life
is believed by the community to provide hope for the emergence of happiness and
tranquility. These values are related to feelings of obligation, rationality, general
applicability, and freedom. If these values have been ingrained in a person, it will form
his own moral awareness. Such a person will easily be able to perform an action without
having to be encouraged or coerced from outside.
There are similarities between ethics and morals. However, there are also differences,
namely ethics is more theoretical, while morals is more practical. According to the
philosopher's view, ethics looks at human behavior universally (generally), while morals
locally. Morals state the measure, ethics explains the measure. However, there are some
differences between ethics and morals. Firstly, in ethical discussions, to determine the value
of good or bad human actions using the benchmark of reason or ratio, while in moral
discussions the benchmark used is the norms that grow and develop and take place in
society.
There are some differences between ethics and morals. First, in ethical discussions, to
determine the value of good or bad human actions using the benchmark of reason or ratio,
while the moral benchmark used is the norms that grow and develop and take place in
society. Thus, ethics is more philosophical thinking and is in concepts, while morals are in
the realm of reality and appear in behaviors that develop in society.
Ethics and morals are synonymous but in everyday usage there is a slight difference.
Moral or morality is used for the action being assessed, while ethics is used for the
assessment of existing value systems. However, ethics, morals, morals, and morals are still
interconnected and need each other. The description above shows clearly that ethics, morals,
and morals come from the products of society's ratio and culture which are selectively
recognized as beneficial and good for human survival. Meanwhile, morals come from
revelation, which is a provision based on the guidance of the Qur'an and Hadith. In other
words, ethics, morals and morals come from humans while morals come from God.
2.
Relationship between Ethics and Morals:
Philosophy's view of the goal of ethics is to obtain an idea common to all human beings at
all times and places about the measure of good and bad behavior as far as it can be known
human mind. But in trying to achieve that goal, ethics experiences difficulties, because each
group in the world's view of good and bad has different measures (criteria). Experts can
immediately recognize that ethics relates to four things as follows. First, in terms of the
object of discussion, ethics seeks to discuss the actions performed by humans. Second, in
terms of its source, ethics comes from reason and philosophy. As a result of thought, ethics
is neither absolute nor universal. Third, in terms of its function, ethics serves as an assessor,
determinant, and determinant of an action will be considered good, bad, noble, honorable,
despicable, and so on. And fourth, in terms of its nature, ethics is relative, which can change
according to the demands of the times. With such characteristics, ethics is more of a science
that deals with efforts to determine the actions performed by humans to be said to be good
or bad.
In other words, ethics are rules or patterns of behavior produced by human reason.
Morals correspond to commonly accepted ideas about human actions, what is good and
what is reasonable. There are similarities between ethics and morals. However, there are
also differences, namely ethics is more theoretical, while morals is more practical.
According to the philosopher's view, ethics looks at human behavior universally (generally),
while morals locally. Morals state the measure, ethics explains the measure. However, there
are some differences between ethics and morals. Firstly, in ethical discussions, to determine
the value of good or bad human actions using the benchmark of reason or ratio, while in
moral discussions the benchmark used is the norms that grow and develop and take place in
society. Thus ethics is more philosophical thinking and is in concepts, while morals are in
the realm of reality and appear in the behavior that develops in society.
Ethics and morals are synonymous but in everyday usage there is a slight difference.
Moral or morality is used for the action being assessed, while ethics is used for the
assessment of existing value systems. However, ethics, morals, morals, and morals are still
interconnected relate and need. The description above shows clearly that ethics, morals and
morals come from the products of the ratio and culture of society which are selectively
recognized as beneficial and good for human survival. Meanwhile, morals come from
revelation, which is a provision based on the guidance of the Qur'an and Hadith. In other
words, ethics, morals and morals come from humans while morals come from God.
De Vos states that morals are all the rules, rules, or laws in the form of commands and
prohibitions, which regulate human behavior and the society in which humans live. Bertens
as described in the previous chapter says that morals are close to the word "ethics". The
word morals comes from the Latin mos, with its plural form mores which can be interpreted
as customs.
It is often said that morality is part of morality. Morality itself comes from the Latin
"moralis" which can be interpreted as an attitude, character, or a proper behavior. Long and
Sedley, in their book "The Hellenistic Philosophers Translations of the Principal Sources
with Philosophical Commentary" define morality as:
"the differentiation of intentions, decisions and actions between those that are
distinguished as proper and those that are improper."
Moving on from the understanding of morality and morality expressed by the experts
above, the author defines morality as an inner attitude or condition that is fully aware of
morals. The inner attitude, which is filled with ideas about morality, will create humans who
have morality. It can be likened, morality is a soybean and morality is a tofu. Morals and
morality are not the same, but it is morals that create morality.
3.
Determinants of Morality:
There is nothing in this world that does not have a cause. For example, when the formation
of a rechstaat legal state. Unlike the rule of law which started evolutionarily, rechstaat
started from the thought of undermining state absolutism, so that the occurrence of the
state's absolutism was not a cause revolution. Just like morality, it starts from something,
and it is also determined by a certain condition. Just as the rechtstaat is determined by
certain attitudes and goals, namely to break away from state absolutism, morality is also
determined by several factors that determine the emergence of morality. According to the
author, there are several determinants of morality, which are broadly divided into internal
factors and external factors.
a.
Internal Factors
The internal determinants of morality mean that morality originates from the individual
human being. This basic idea is similar to the concept of natural law presented by Thomas
Aquinas. According to him, natural law is a law that comes from natural values that are
already embedded in humans. Since Aquinas was a theologian, he stated that these values
came from God. In short, Aquinas stated that natural law is a law that comes from God and
these divine values have been implanted in the human mind to be discovered, not created.
But unlike morality, it is formed from the existence of moral values implanted by God in the
human mind.
Moral values are then determined by what and how humans live their lives. God does
instill moral values in the human mind, but humans must discover them for themselves in
the process. To find it, according to the author, the determining factor is related to what the
purpose of human life is.
Everything must start from a certain point, a conclusion is the same, it starts from a
concept. Therefore, often in studying law, we often find the term ex falso quodlibet which
means that the error of a concept will lead to a wrong conclusion. The concept itself
contains the nature of the concept (Ontology), the purpose of the concept (Axiology), and
finally where the concept comes from (epistemology). Morality is also a concept, so it must
fulfill these elements. Epistemologically, for example, it comes from God, Ontologically, it
contains moral values that God instilled in us human beings, therefore it must be good.
Finally, axiologically, it must have a good purpose. In short, the internal factor determining
morality is a purpose that exists in the human mind and actions.
The goal itself is divided into two, namely the goal of what a human wants. Humans
who have good desires will produce good morality. For example, someone who becomes a
judge with the desire to provide justice for all litigants will decide all court cases as fairly as
possible. The second goal is what one wants to achieve. For example, a judge who has the
desire to provide justice for everyone, has the ultimate goal of maintaining order in the life
of society and the nation. Because when justice has been achieved, justice will be realized in
society.
b.
External Factors:
Next, morality is not only determined by the existence of good intentions within humans, it
is also influenced by external factors. This concept is well illustrated by Thomas Hobbes in
his book "Leviathan". In his book, Hobbes describes humans as naturally free beings,
meaning that humans are free. Furthermore, Hobbes also states that humans are essentially
creatures who seek their own happiness (individuals), therefore humans can become wolves
for other humans. Then to overcome this, humans agree to give up some of their freedom to
form a social level that becomes a guideline regarding good and bad and what can be done
or not, this is what is called a social contract. This social contract then becomes the
foundation of a social community in running life. Those who do not behave according to the
agreement (social contract) will be considered bad behavior. Conversely, those who hold
the principles outlined in the social contract will be considered good. This continues until
the values of the social contract become a habit, then continues to become a moral standard,
until it becomes a morality.
The external factors that influence morality, on a large scale, can be seen in the concept
presented by Jermy Bentham regarding mala in se and mala in prohibita. Bentham said that
an act that is declared evil because it is basically evil and contrary to universal moral values
is called mala in se. While mala in prohibita is an act that is declared evil because the State
decides to criminalize it. For example, if an act is initially not an act that is contrary to
morality, then it is declared otherwise by the State, then the act will become an act that is far
from morality.
In short, the environment is one of the important factors determining morality. This
environment not only affects how the morality that has been formed internally in each
individual is applied, but it can also form new moral standards in addition to those that have
been formed previously.
1.
Elements of Morality:
How can we decide that a value we have in mind, or a value determined for us is one that
reflects morality? In the previous section, we talked about the factors that determine
morality, but we still haven't decided what exactly morality is. In this section, we will try to
find out what are the elements that make up morality by analyzing a debatable event at the
time of its occurrence.
The case of Theresa Ann Campo Pearson:
Theresa Ann Campo Pearson or publicly known as baby Theresa is a newborn who is
anencephalic. Baby Theresa was born in 1992 in Florida. Anenchepalic is sometimes
referred to as a baby without a brain, the designation is sufficient to describe the condition
of anencephalic sufferers even though it is not one hundred percent accurate. In
anencephalic, some important parts of the brain, namely the cerebrum and cerebellum, as
well as the upper part of the skull, are missing. However, there are still brainstem functions
and other functions that are not related to the cerebrum and cerebellum, such as breathing
and the beating of the heart that are still possible to function.
In America, most cases of anenchephaly are detected during pregnancy. Most will abort
the pregnancy upon learning that the fetus has anenchephaly. Only 300 per year in America,
fetuses that are not aborted (due to anenchephaly) have a chance of being born safely. And
the survivors usually die just a few days after birth.
Baby Theresa's case, though horrendous, would not have been so memorable if there
had not been a special request made by her parents. The request was to donate baby
Theresa's organs to other babies in need. The decision made by Theresa's parents was not
without careful consideration. Theresa's parents were aware of the fact that, even if
Theresa's baby was allowed to live, she would only die a few days later. In their minds, the
organs that Theresa's baby had should be transplanted to other babies, because it would be
more beneficial for them (other babies). This is also supported by the fact that every year in
America, there are at least 2000 babies who need organ transplants, and unfortunately, there
are never enough organs to fulfill that. But anyway, baby Theresa's organs were eventually
removed. At that time, the law in Florida did not allow organ donation when the donor was
still deceased. A few days later, Theresa's baby died, and other babies in need were unable
to receive organ transplants. In addition, because it was left too long, the organs owned by
baby Theresa were then too bad to be used for other babies who needed organ transplants.
The case of Theresa's baby became prominent in the print media. As a result, the
discourse of public discussions focused on debating this case. Their opinions are separate,
some agree with the ideas brought up by the parents of baby Theresa, some are against
them. The fact that baby Theresa's parents and the doctor who treated baby Theresa agreed
that the organ should be used for transplant before baby Theresa died was ignored by the
public. Instead of paying attention to this, the publi take into account the statements put
forward by experts. Some experts stated that, "it is very evil to use other people for the
benefit of other people". Others, "what these parents want to do is kill this dying baby, so
that the organs can be used for another baby, to me that is a horrendous proposition", others
say, "it is unethical to kill to save".
Was it really unethical to sacrifice Theresa's baby? In their defense, Theresa's parents
stated that, "if we can benefit others without hurting others, we will do so as we should.
Transplanting an organ will not hurt Theresa, therefore, we will do it". In response to the
idea presented by baby Theresa's parents, we might wonder whether or not the process
(organ transplant) would hurt Theresa. Even if so, the fact is that she will also die soon.
However, whatever it was, at least Theresa's parents were right about one thing: under these
tragic circumstances, staying alive would not have done the baby any good. Life will only
be enjoyed if we can be biologically active. For example, walking, interacting with others,
and so on. Inevitably, we can justify that living with only breathing and a beating heart is
futile. Therefore, letting Theresa live only to die a few days later, will not do her any good,
but only add to her suffering.
Next, what about one of the expert opinions that states, "it is cruel to use someone for
someone else's benefit". This is a good idea, but is it true that baby Theresa was taken
advantage of? First of all, we must recognize that the measure of whether or not we have
used another person has to do with whether or not we have abused their autonomy, their
personal ability to decide what to do with their lives based on what they want or value.
Usually taking advantage of others involves being manipulative, for example, when we're
friends with someone, only to benefit from them. Taking advantage of others also happens
when we force them to do something they don't want to do. Hence, this notion is actually
true, because basically taking advantage of others is wrong. But the question is, did we take
advantage of Theresa?
We can judge that taking Theresa's organs did not involve any tricks, lies, or
manipulation of her. Can we describe "using" in this sense as a significant moral
development from the existing moral standards? We could argue that, in essence, we are
still using Theresa for the benefit of others. But this logic is the same as when doctors
transplant organs from one person to another. Is this the same as "utilizing" in the sense
presented by the expert? It would be the same, if and only if we do things against Theresa's
wishes, this notion could be a reason to claim that we have abused the autonomous rights of
Theresa. But the truth is that Theresa is not an autonomous human being. She has no will
and cannot make decisions for herself.
When a person cannot make decisions for themselves, someone else (their guardian)
will decide things for them. Normally, there are two standards used to make this decision.
First, if they can say what they want, what is the thing they want most? Even if we ask this
question, it will have no bearing on whether or not we decide to take Theresa's organs for
donation. Because, no matter what her wishes are, Theresa will also die as soon as possible.
Next, if she could say what she wants, what would she say? This notion would be
helpful if we were dealing with someone who had a preference for what they wanted but
lacked or could not express it. But, tragically, Theresa has no preference for anything, and
will never have one. So we can't get a clue from her, even in our imagination. All that's left
is for us to figure out what's the best we can do for everyone.
The next argument the expert made in response to Theresa's case was, "It is wrong to
kill to save". Those who agree with the expert say that taking Theresa's organs in order to
transplant them into another baby is the same as killing Theresa, so it is wrong. But is this
really the case?
The prohibition to kill is a prohibition that exists in every standard of morality around
the world, but some people believe that there are some exceptions that can be justified as
grounds to kill. I would be surprised if there is a tradition that allows people to kill without
justifiable cause. This raises a fundamental question about the situation, namely, would
taking Theresa's life by harvesting her organs for the benefit of another baby, justify an
exception to the prohibition against killing? Normally it is wrong to kill another person, but
it is not always wrong.
Perhaps the best way to stop this debate is to assume that Theresa has died. This idea
may sound crazy and cruel, but have we forgotten that there is now a condition called "brain
death", and in many countries, such a condition can be used as a basis to declare someone
officially dead. Historically, when the idea of brain death was introduced, there was a lot of
opposition to the idea. Most of them argued that it is possible for a person to experience
brain death, but there are still many functioning organs in them, with the help of advanced
technology, a person experiencing this condition can still breathe, his heart can still beat,
and so on. But in the end, the idea of brain death was approved. The reason for the
acceptance of the idea is also very reasonable, namely that when someone has damage to
the brain so that the brain cannot function, there is no hope for him to live a life with a
consciousness, even a little. It is tantamount to death.
Theresa's condition cannot be said to be included in the condition of brain death.
However, we can in the future reformulation of what brain death actually means.
Anencephalics is a condition where a person does not have a cerebrum or cerebellum. Those
who experience this only have a very small chance of living with consciousness.
In the end, if we look at this case, be it the situation or the experts' opinions on whether
it is right or wrong to transplant Theresa's organs to another baby, it seems that the
arguments in favor of transplantation are much more reasonable than the arguments against
it.
A Reason
What can we learn from the case of Baby Theresa about what the natural elements of
morality are? First we can mark that in this case, the first point is that a moral decision is a
decision based on good reasons. The case of Theresa's baby, like many cases that might be
discussed when we talk about morality, is one that can stir our emotions. That feeling may
be one of the signs of moral seriousness and perhaps that seriousness is something we can
admire. But on the other hand, it could be a fence that prevents us from finding the real
reason. Usually, in cases like this, we will have a kind of thinking that "we just know the
truth", the result of which is that we don't consider arguments that are contrary to us that
could be true. In many cases, we cannot rely on our feelings. Our feelings can be very
irrational. They can be nothing more than things that are shaped by our prejudices, stigmas,
selfishness, or culture. Furthermore, everyone's feelings often tell us the opposite.
Therefore, if we want to find the truth of a matter, we must allow our feelings to be more
open, we must allow our feelings to go as far as they can to be taken into consideration even
against our opposing views. Morality is first and foremost about reason. The thing that
morality says is right is the thing that is right that is done, under any circumstances, that has
the best reason to be done.
An Impartial Consideration:
A good reason is always supported by an impartial judgment. What is required to have
impartial judgment is nothing more than a proscription against arbitrary treatment of others.
Impartiality is a rule that prohibits us from treating one person differently from another. It is
a consideration that puts each other's interests in proportion.
Good reason and impartial judgment are the main elements of morality. Morality is an
attempt to guide a person with the best reasons to do something that has a fair weight for
everyone's interests in it.
2.
Morality and Legality:
"Lon L. Fuller Invented a case, which he set in the year 4300, in which the nature of
law had a direct and perspicuous impact upon the reasoning of the judges and the
conclusion they reached. He was inspired by a real case that had come up in the
nineteenth century involving sailors marooned on a raft at sea. But Proffesor Fuller
modified the facts considerably, because he wanted to present the jurisprudential issues
in their clearest and starkest form" (Anthony D' Amato 1996: 1).
The case created by Lon L Fuller tells the story of Roger Whetmore and his group when
they were mining in a limestone cave. In the year 4299, they went to the cave to mine
limestone. Once there, they began to carry out mining activities in the cave. Unfortunately,
as they got deeper into the cave, a landslide suddenly occurred, resulting in their exit being
completely blocked. They were trapped there. Luckily, Roger Whetmore, while traveling to
the cave, left a trail along the way. Therefore when people realized that Roger and his group
were not coming back, they searched for and because of the trail which Roger left behind,
eventually found the location of Roger and his group.
At first, the local government sent an engineer to investigate what was preventing Roger
and his group from getting out of the cave. It was later discovered that there was a huge
mass of rubble blocking the exit from the cave where Roger and his group were. Knowing
this, the engineer, with the help of the local government, formed a special team to rescue
Roger and his group. The team consisted of workers, geologists, and engineers. In order to
rescue them, they built a tent around the location where Roger and his group were trapped.
However, it was not easy to free Roger and his group, it took a long time to free them.
What's more, the rescue effort was also marked by several landslides. One landslide even
killed ten workers who were part of the rescue team.
The rescue was not even successful until the twentieth day. However, on that day, a
communication device was created, to aid communication between the rescue team and
Roger Whetmore and his group. While communicating, Roger asked how long he thought it
would take to get them out of the cave, to which the engineer replied that it would take at
least another ten days. Then Roger said that with the lack of nutrition because there was
nothing to eat in the cave, Roger said that he and his group could not survive that long.
Then the communication was lost for eight hours, until it was finally reconnected. During
the connection, Roger Whetenmore asked the engineer if they could survive by eating the
flesh of one of their group. Then the engineer said yes and suddenly the communication was
cut off again.
A few days later, the rescue team finally managed to remove all the rubble. It was later
discovered that the survivors had previously killed and eaten Roger Whetmore's flesh while
still trapped in the cave. The survivors were then taken to the hospital for treatment first aid,
improved nutrition, and post-traumatic treatment. A few days later after they had recovered,
they were brought to court, to face trial for the murder charge against Roger Whetmore.
During the trial, the suspects recounted what happened when communication was lost.
They said that Whetmore was the one who had the idea to eat one of them, they also said
that Whetmore also determined the method used to choose who would be killed and eaten.
But then, Roger Whetmore told them to wait another week before they did so. Roger
Whetmore's group rejected Whetmore's words and ended up using Whetmore's method to
decide who to kill and eat, namely Roger Whetmore himself. After the trial, the group was
eventually sentenced to death and hanged. The irony is that they were saved to be killed
later on. Based on this case, the question arises, what is morally right to decide in this case?
Then what about the legality aspect if the decision that is considered moral is not in line
with the prevailing positive law?
Earlier we learned that morality is about the best reasons and impartial judgment in
making a decision. Legality, on the other hand, is the principle of preserving and ensuring
the certainty of the rule of law. From the Whetmore case for example, what is morally right
to decide, what is legally right to decide, and what if the two variables are combined? What
decisions might the judge make?
On the morality side, we are faced with two difficult choices, namely whether we will
acquit Roger Whetmore's colleagues of murder charges simply because they did it to
survive or we will agree with the judge's decision to hang them on the basis that, even if
they had justification to kill and eat Roger Whetmore, their actions were still wrong in the
eyes of the law. With that notion, we will end the debate by stating that the decision given
by the judge is not only in accordance with the existing legal rules (legality) but also has
moral value, because it is taken based on good reasons and impartial considerations. So how
is the law that contains the value of legality and morality?
Professor Ronald Dworkin is a philosopher who has greatly influenced jurists' thinking
on legality and morality. Dworkin is a student of H.L.A Hart who is famous for his concept
of core and pneumbra. Hart said that, if a rule is core, then the judge functions as the
mouthpiece of the law, while if the rule is pneumbra, then the judge is given discretion
whether he wants to apply the rule directly assuming that it is core or interpret the rule
because for him it is a pneumbra. This view is clearly criticized by Ronald Dworkin. For
Dworkin, in deciding a case, judges should decide it based on what is best for resolving the
case, regardless of what the rules say or what the social effects are. Hence, Dworkin makes
a clear distinction between what are called legal rules and legal principles. For example, his
opinion in the 1889 New York case of Riggs vs Palmer. In that case there was a dispute
about whether a person was still entitled to inherit from his grandfather, if he was caught
killing his grandfather in order to get the inheritance. The judge at the time said that:
"it is quite true that statutes regulating the making, proof and effect of wills, and the
devolution of property I literally construed and I their force and effect can in no way
and under no circumstances be controlled or modified, give this property to the
murderer. But all laws, as well as all contracts may be controlled in their operation and
effect by general, fundamental maxims by the common law. No one shall be permitted to
profit by his own fraud, or to take advantage by his own wtong, or to found any claim
upon his own iniquity, or to acquire property by his own crime."
The judge's opinion clearly shows that there is a fundamental difference in the
characteristics of legal rules and legal principles. The character of legal rules is to be
applied directly, and has a certainty. Meanwhile, the legal principle is a principles that
operate beneath the surface of legal rules. It functions as the pivot on which the legal rules
are built and as the driver even if the legal rules are no longer viable, as in the two cases
above.
In short, through this explanation we can say that legality and morality have an
inseparable relationship. Morality exists to form a rule and becomes a basic principle so that
a rule can work properly. Meanwhile, legality is the guardian so that morality is always
upheld through a rule that has binding force. It can be said, legality is part of legal rules,
while morality is part of legal principles.
D.
Law Moral:
Moral law in its most general sense is a guideline that brings order to the activities of human
beings to achieve their goal of happiness. It demands obedience in the same way that
guidance, recommendations, and permits demand obedience. It includes laws that apply
generally to everyone or groups of people, as well as personal orders given to one particular
person. This law contains rules and regulations that are permanent, such as: the obligation to
honor contracts or pledges: it also contains provisions that are temporary, such as: the
prohibition of gathering during an outbreak of infectious diseases, the obligation to visit
people/friends who are sick, and so on. (E Sumaryono 1995: 59). Moral law in a narrow
sense is a guideline of behavior that must be obeyed, is general and 'stable', so that it can
direct human activity towards the achievement of happiness in life (Karl H. Peschke 1987:
110).
