LAW AND JUSTICE
ARIZONA STATE UNIVERSITY
PHI 307 - PHILOSOPHY OF LAW
WEEK 9
A.
Theories and Concepts of Justice in the Perspective of Legal Philosophy:
Talking about justice, there is certainly no definition that can be said to be the same. The
concept of justice is always interpreted with various definitions and is always based on the
background of the person who defines it.
Regarding this formulation of justice, there are two basic opinions that need to be
considered, as follows:
•
The view of the awami (lay opinion) which basically formulates that what is meant by
justice is the harmony between the use of rights and the implementation of obligations
is in line with the argument of the "balance of law", namely "the measure of rights and
obligations".
•
The view of legal experts (Purnadi Purbacaraka) basically formulates that justice is a
harmony between legal certainty and legal equality.
This fact is based on the proposition that "the measure of right is duty", which clearly
means the following:
•
The size of each person's rights depends on or is in line with the size of his or her
obligations, which means the following.
•
In a reasonable situation, it is not right for a person to have rights that are not aligned
with his or her obligations, nor is it right for a person to have obligations that are not
aligned with his or her rights.
•
No one can get his rights without fulfilling his obligations, either before or after, and
vice versa, no one can be charged with his obligations without getting his rights, either
before or after.
For example:
•
Every owner of an object or holder of property rights over an object must pay wealth
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tax on his or her object in a certain amount determined according to the price or value
of the object. The more expensive the price or value of the object, the more expensive
the tax that must be paid by the owner and vice versa.
•
An employee's wage is of course aligned with the weight of the
the job.
Philosophers' views on justice?
•
Plato, according to him, justice can only exist in laws and regulations made by experts
who specifically think about it. For this term of justice Plato uses the Greek word
"Dikaiosune" which means more broadly, which includes individual and social
morality. The explanation of the theme of justice is illustrated by the experience of a
rich merchant named Cephalus. This merchant emphasizes that great profits will be
made if we do not lie and cheat. Justice concerns the relationship between people and
others.
Plato was an abstract idealist thinker who recognized forces beyond human ability so
that irrational thinking entered his philosophy. Similarly, with the issue of justice, Plato
argued that justice is beyond the ability of ordinary humans. The source of injustice is
change in society. Society has principal elements that must be maintained, namely: a)
The identification of the destiny of the state with the destiny of its ruling class; special
attention to this class and its unity; and adherence to its unity, rigid rules for the
maintenance and education of this class, and strict supervision and collectivization of
the interests of its members.From these principal elements, other elements can be
derived, such as the following: a) The ruling class has a monopoly on all matters such
as military benefits and training, and the right to own weapons and receive all forms of
education, but it is not allowed to participate in economic activity, especially in the
pursuit of income, b) There must be censorship of all intellectual activity of the ruling
class, and constant propaganda aimed at homogenizing their thoughts. All innovations
in education, regulation and religion must be prevented or suppressed. c) The state must
be self-sufficient. The state must aim at economic autarchy, otherwise the rulers will be
dependent on the merchants, or the rulers themselves will become merchants. The first
alternative weakens their power, while the second will weaken the unity of the ruling
class and the stability of the state. To realize justice society must be restored to its
original structure, sheep to sheep, shepherds to shepherdesses. It is the duty of the state
to stop change. Thus justice is not about the relationship between individuals but the
relationship between individuals and the state. Justice is also metaphysically understood
to exist as a quality or function of superhuman beings, the nature of which cannot be
observed by humans. The consequence is that the realization of justice is relegated to
another world, beyond human experience; and the human reason essential to justice is
subject to God's immutable ways or God's unpredictable decisions. Plato thus revealed
that the leader of the State should be a superhuman, the king of philosophers.
•
Aristotle was the first philosopher to formulate the meaning of justice. He said that
justice is giving everyone what is rightfully theirs, fiat jutitia bereat mundus.
Furthermore, he divided justice into two forms, namely; first, distributive justice, which
is justice determined by lawmakers, the distribution of which contains services, rights,
and benefits for members of society according to the principle of proportional equality.
Second, corrective justice is justice that guarantees, supervises and maintains this
distribution against illegal attacks. The corrective function of justice is in principle
regulated by the judge and stabilizes the status quo by restoring the property of the
victim concerned or by compensating for his lost property. Or in other words,
distributive justice is justice based on the amount of merit given, while corrective
justice is justice based on equal rights regardless of the amount of merit given.
The decline of Athenian democracy, in the Peloponesian war and afterward, fed the
contemplation of justice that dominated the legal philosophy of Plato and Aristotle.
Both devoted much of their work to concrete definitions of justice and the relationship
between justice and positive law. Plato sought to derive his concept of justice from
inspiration, while Aristotle developed it from a scientific analysis of rational principles
against the backdrop of existing models of political society and law. Aristotle's
doctrines not only laid the foundations for legal theory, but also for western philosophy
in general. Aristotle's contribution to legal philosophy is his formulation of the problem
of justice, distinguishing between: "distributive" justice and "corrective" or "remedial"
justice which is the basis for all theoretical discussions of the subject matter.
Distributive justice refers to the distribution of goods and services to everyone
according to their position in society, and the equal treatment of equality before the law.
Corrective justice focuses on correcting what is wrong. If an offense is violated or a
wrong is committed, then corrective justice seeks to provide adequate compensation for
the injured party; if a crime has been committed, then appropriate punishment should be
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meted out to the perpetrator. However, injustice results in the disruption of established
or established "equality". Corrective justice is tasked with re-establishing that equality.
From this description, it appears that corrective justice is the domain of the judiciary
while distributive justice is the domain of the government. In Ethica Niconzachea, for
example, Aristotle sees justice between disputants as a basic prerequisite for good living
in the polis. To this end, he distinguishes three kinds of justice: distributive, restorative
and commutative. In particular, the principle of 'commutative justice' governs
transactions between parties involved in exchange or trade. For example: firstly, there
must be comparative equality between the goods exchanged, and secondly, there must
be mutuality; all goods exchanged must be comparable. It is for this purpose that money
is used, and in a sense becomes an intermediary. The number of shoes exchanged for a
house (or for a quantity of food) must thus be equivalent to the ratio of a house builder
to a shoemaker. Aristotle explained justice with the phrase "justice consists in treating
equals equally and unequalls unequally, in proportion to their inequality". Equal things
are treated equally, and unequal things are treated unequally, in proportion. Aristotle in
defining justice is strongly influenced by the element of ownership of certain objects.
Ideal justice in Aristotle's view is when all elements of society get an equal share of all
objects in nature. Human beings by Aristotle are seen as equal and have the same rights
over the ownership of an item (material). Aristotle's views on justice can be found in his
work Nichomachean Ethics, Politics, Rhetoric. This book is entirely devoted to justice
which, based on Aristotle's philosophy of law, should be considered as
at the core of his legal philosophy, "For the law can only be established in relation to
justice".
•
Ulpianus, who said that justice is the constant and continuous will to give to each
person what is due to him (Iustitia est constans et perpetua voluntas ius suum cuique
tribuendi).
•
Ustinian, who states that "justice is a policy that results in each person getting what is
his or her share".
•
Herbert Spenser, who stated that every man is free to determine what he will do,
provided he does not infringe upon the equal freedom of others".
•
Roscoe Pound, who sees the indicator of justice in the concrete results it can bring to
society. He saw that the results obtained should be the formulation of as many human
needs as possible with the least sacrifice.
•
Nelson, who stated that "There is no other meaning for justice but personal equality".
•
John Salmond, who states that the norm of justice determines the scope of individual
freedom in the pursuit of individual prosperity, thereby limiting individual freedom
within limits compatible with the welfare of mankind.
•
According to Hans Kelsen, justice is of course also used in law, in terms of
compatibility with positive law - especially compatibility with statutes. He considers
something just to express only the value of relative compatibility with a norm 'just' is
just another word for 'right'.
•
Jhon Rawls, Rawls' concept of justice is an attempt to synthesize liberalism and
socialism. So that conceptually Rawls explains justice as fairness, which contains the
principles, "that free and rational people who wish to develop their interests should
obtain an equal position at the time of starting and that is a condition that is necessary
for the development of justice" fundamental for them to enter the association they
desire".
John Rawls states that justice is basically the principle of rational policy applied to the
conception of the sum of the welfare of all groups in society. To achieve this justice, it
is rational for someone to impose the fulfillment of his desires in accordance with the
principle of utility, because it is done to increase the net benefit of satisfaction obtained
by members of his society. Inequalities must be regulated in such a way that they
benefit the weakest members of society the most. This happens if two conditions are
met. Firstly, the situation of inequality guarantees a maximum minorium for the
weakest people. This means that the situation of society must be such that the highest
possible profit is made for the small people. Secondly, inequality is tied to positions that
are open to everyone. This means that everyone is given equal opportunities in life.
Equality can lay down the principles of justice, because basically the law must be a
guide so that people can take a fair position while still paying attention to their
individual interests, and act proportionally according to their rights and not violate the
applicable law. Thus, justice is closely related to the rights and obligations of the parties
in implementing the agreement as a form of responsibility.There are two objectives of
the theory of justice according to John Rawls, namely: a. This theory wants to articulate
a series of general principles of justice that underlie and explain various moral decisions
that are truly considered in our particular circumstances. What he means by "moral
decisions" is a series of moral evaluations that we have made and that are likely to
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cause our social actions. Genuinely considered moral decisions refer to moral
evaluations that we make reflexively. b. Rawls wants to develop a theory of social
justice that is superior to utilitarianism. Rawls refers to it as "average" utilitarianism.
This means that social institutions social institutions are said to be just if they are
devoted to maximizing gains and utility. While average utilitarianism contains the view
that social institutions are just if they are only devoted to maximizing average per capita
gains. For both versions of utilitarianism, "benefit" is defined as the satisfaction or gain
that occurs through choices. Rawls says that the basic truth of his theory makes his view
superior to both versions of utilitarianism. His principles of justice are superior in
explaining ethical moral decisions on social justice.
Rawls' two principles of justice below are the solution to the main problem of justice. a.
Principle of greatest equal liberty. This principle includes:
1) Freedom to participate in political life (right to vote, right to run for election), 2)
Freedom of speech (including freedom of the press), 3) Freedom of belief (including
religious belief), 4) Freedom of person, and 5) The right to retain private property. b.
This second principle consists of two parts, namely the difference principle and the
principle of fair equality of opportunity. The essence of the first principle is that social
and economic differences should be organized so as to provide the greatest benefit to
those who are most disadvantaged. The term socio-economic differences in the
difference principle refers to inequalities in one's prospects for the basic elements of
well-being, income and authority. While the term most disadvantaged (least
advantaged) refers to those who have the least opportunity to achieve the prospects of
welfare, income and authority. Differences, therefore, demand the organization of the
structure of society so that the disparities in the prospects of obtaining the essentials of
welfare, income and authority are earmarked for the benefit of the disadvantaged. This
means that social justice must be fought for in two ways. The first is to correct and
improve the inequalities experienced by the weak by presenting social, economic and
political institutions that are fair and just empowering. Second, every rule must position
itself as a guide to develop policies to correct the injustices experienced by the weak.
B.
Justice in Philosophical Perspective Law:
Adherents of the Natural Law paradigm believe that the universe was created with the
principle of justice, hence the Stoicism of primary natural law norms that are general in
nature: Give to every man what is his due (unicuique suum tribuere), and do no harm
(neminem laedere). Cicero also stated that law and justice are not determined by human
opinion, but by nature.
Legal Positivism Paradigm, justice is seen as the goal of law. However, it is also fully
realized that the relativity of justice often obscures another important element, namely the
element of legal certainty. The adage that is always echoed is Suum jus, summa injuria;
summa lex, summa crux. It literally means that the harsh law will injure, unless justice can
help it.
In the legal paradigm of Utilitarianism, justice is viewed broadly. The only measure
of whether something is fair or not is how much it impacts human welfare. As for what is
considered beneficial and not beneficial, it is measured from an economic perspective.
The perspective on justice as formulated above, according to Satjipto Rahardjo, is that
justice reflects how a person sees human nature and how a person treats humans. Angkasa
further said that because justice is a measure that a person uses in giving to an object that is
outside the person. Given that the object being assessed is human, the measures given by
someone to another person cannot be separated from how that person provides a concept or
meaning about humans. If a person sees other people as noble beings, then the person's
treatment will also follow the assumption used as an ancestor and at the same time, the
person's treatment will also follow the assumption used as an ancestor will determine the
measure used in dealing with others. Thus, it can be said that the issue of justice cannot be
separated from the philosophy of man.
Apart from the various views on the concept of justice mentioned above, in this case the
author would like to share his opinion on how the concept of justice really is regardless of
the author's background. Justice is basically abstract in nature, and can only be felt with the
mind and mind and rationality of each individual/society. Justice is formless and cannot be
seen, but its implementation can be seen in the perspective of the search for justice that we
see every day. Justice also does not have a definite measure and measure of how "Fair" a
situation is. In simple terms, when is justice discussed and why? Basically, a person or
individual/society seeks justice when there is a perceived injustice or in other words, justice
arises when there is a perceived injustice.
However, beforehand it is necessary to know that every human being is basically born
with their own free will (in a broad sense), because the free will of each individual
eventually collides with the free will of other individuals, so that indirectly and
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unconsciously the free will of each individual is limited by the free will of other individuals
and vice versa. With various factors and reasons, conflicts arise in society either by each
individual trying to take the freedom of other individuals with certain goals and intentions.
Because of the taking of one's free will by others, there is an effort to seek justice. A
person/individual will not seek and know what justice is when there are no interests and
freedoms that are cheated or harmed. When there are no things that interfere with
our/human interests be it freedom (in a broad sense or limited freedom) then I don't think
the word "Justice" will appear.
Thus here I conclude that justice is a situation in which there is a balance between the
exercise of free will and the interests of each individual / individual society in the
implementation of social and state life. This opinion is more inclined to the concept of
justice according to Herbet Spenser (read above).
C.
Law and Justice in Philosophy Law:
The relationship between law and justice, although abstract in nature, seems to be only the
scope of philosophical study. However, the relevance of law and justice has always been
preserved. The historical trajectory of all schools of thought in the legal sciences has always
fought for justice, whether from any point of view of how to view the law, whether the law
is seen as an object, or the law is seen as part of the subject inherent in the person. It must
be recognized that all analysis, dismantling, deconstruction, and criticism of the law at the
implementative level are all bound by the desire to realize the law in its goal to achieve
justice.
That is why Aristotle's division of justice remains relevant to all actions to defend the
law in all its facets. Namely, the law in terms of forming laws is an official binding of
distributive justice (absolute; principa prima). Meanwhile, the work of judges who function
to maintain the basis of justice in legislation is required to be a court that enforces the law in
its form as cumutative justice (relative; principa secundaria). Both law and morals and
justice are abstract. Therefore, it is natural that there are multiple perceptions of the law in
its definition.
Even legal experts of the caliber of van Apeldoorn came to the conclusion that they did
not provide a single definition of the law. Apeldoorn only stated that the definition of law is
very difficult to make because it is impossible to make it in accordance with reality. In a
similar vein, Immanuel Kant argued 'Noch suchen die juristen eine definition zu ihrem
begriffe von recht", no jurist can precisely define law.
Nevertheless, it is still important to state the definition of law. At least as a basis for
providing initial understanding so that the nature of its distinction with other social sciences
can be identified. Such as sociology, anthropology, psychology, economics, politics, and so
on. On the basis of research conducted, Soerjono Soekanto identified at least ten meanings
of law as follows:
1.
Law as a science, namely knowledge that is systematically organized on the basis of the
power of thought;
2.
Law as a discipline is a system of teachings about the reality of the symptoms faced;
3.
Law as a rule, namely as a guideline or benchmark for appropriate and expected
behavior;
4.
Law as a legal system, namely the structure of the process of a set of legal rules that
apply at a certain time and place, and in written form;
5.
Law as an officer, namely individuals who are closely related to law enforcement;
6.
Law as a decision of the ruler, which is the result of a discretionary process;
7.
Law as a process of governance, namely the process of reciprocal relations between the
main elements of the state system;
8.
Law as steady or regular behavior;
9.
Law as a fabric of values, which is a fabric of abstract conceptions of what is
considered good and bad;
10.
Law as art (legal art);
11.
In describing the definition of law in this paper, it is also important to mention the
definition of law described by Muchtar Kusumatmadja;
12.
Its philosophical basis makes it important to elaborate on this opinion. Because
Kusumaatmadja managed to combine or in other words reconcile all schools of thought
in legal science so that the legal theory that had been defended by each school met in a
unified understanding as Kusumaatmadja called it "legal system";
13.
In complete, that the law is defined as the Unpad law school "Law and Developmet" is
a set of rules, principles of legal institutions, and any processes that bind its
enforceability.
The coverage of "rules, principles and institutions" in the definition of law is a
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definitional channel that summarizes the school of natural law as well as the positivistic
school of law. Meanwhile, the "processes that bind its enforceability" are none other than
the non-legal factors that are the center of study of the school of legal history and the school
of legal realism.
In addition to the definition of law according to Kusumaatmadja, it is also important to
describe the definition of law according to Achmad Ali, as stated in his book "Menguak
Tabir Hukum" after he quoted several experts' opinions on defining law.
Achmad Ali can be said to be quite complete in summarizing the understanding of law
from various experts, he summarized all the views of western thinkers, eastern thinkers to
Islamic thinkers and then in the end he arrived at the conclusion "a definition that can
articulate the law".
Achmad Ali views that what is meant as law is what is manifested in form, namely:
1.
Law as a rule (law as sollen);
2.
Law as reality (law as sein).
That the law as a reality is the most important thing but does not mean that the law as a
rule can be ignored, because the law as a reality still comes from the law as a rule. It's just
that more concretely the law as a rule is not only contained in positive law, but all social
rules that are recognized by the highest authority in society. Furthermore, Achmad Ali
argues that the law is:
"A set of rules or regulations arranged in a system that determines what can be done and
what should not be done by humans as citizens of the community in the life of the
community, which is sourced either from the community itself or from other sources,
which is recognized by the highest authority in the community, and is actually enforced
by the citizens of the community (as a whole) in their lives, and if the rules are violated,
it will provide authority for the highest authority to impose external sanctions".
Basically there is a similarity of view between Kusumaatmadja seeing the law in two
points of view, namely the law is seen as a rule or norm and the law is seen as enforceable
in reality. Das sein intended by Achmad Ali is actually what Kusumaatmadja understands as
"all processes that bind the power of the law". Law in reality is the same as all external
processes that affect the law that is carried out based on its provisions.
Of course, both the law in reality (law in action) and the law in the form of rules as
contained in the legislation (law in book), the ideal side to be achieved as the highest
achievement as an aspired law (ius conctituendum) is certainly the goal of law to achieve
justice.
The next question is, then where is the "law" located to achieve certainty and
expediency? The answer is certainly found in law as a rule and law as reality.
Therefore, both the purpose of law as certainty and the purpose of law in terms of
benefits are more suitable to be said as a process or path that must be followed to achieve
justice from the law itself.
It's just that the work of those in the field of philosophy, although always trying to find
a definition of the meaning of justice itself, their actions are solely to provide a description
of "justice in concreto".
In various literatures, there are various views of experts who try to provide a definition
of justice. Among them are Soerjono Koesoemo Sisworo, Suhrawardi K. Lubis, Thomas
Aquinas, Aristotle, Achmad Ali, and NE. Algra.
According to Soejono Koesoemo Sisworo "justice is an inner and outer balance that
provides the possibility and protection of the presence and development of truth, which has
a climate of tolerance and freedom." Meanwhile, according to Suhrawardi K. Lubis in his
book "Ethics of the Legal Profession", argues "that Fair or Justice is recognition and
balanced treatment between rights and obligations. If there is recognition and balanced
treatment between rights and obligations, naturally if we recognize the right to life, then we
should maintain the right to life by working hard, and the hard work we do does not also
cause harm to people, because other people also have the same rights. By recognizing the
life of others, we are automatically obliged to give others the opportunity to maintain their
individual rights."
Furthermore, Thomas Aquinas, a natural law philosopher, categorized justice into two,
namely:
1.
General justice, which is justice according to the will of the law that must be fulfilled in
the public interest.
2.
Special justice, which is justice based on the principle of equality or proportionality.
Much earlier Aristotle had also suggested justice. Aristotle described "justice is political
virtue, by the rules of the state is regulated and these rules the eterion of what is right."
Aristotle was actually the first to lay down two proportional divisions of justice which
are divided into distributive justice, commutative justice, and vendicative justice.
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First, distributive justice (justitia distributive) is justice that is proportionally applied in
the field of public law in general. Secondly, commutative justice is justice by equalizing
between achievement and counterproduction. Third, vendicative justice is justice in terms of
imposing punishment or compensation in criminal offenses. A person is considered fair if
he is sentenced to body punishment or a fine according to the amount of punishment that
has been determined for the criminal act he committed.
Meanwhile, in the Big Indonesian Dictionary the word fair has the meaning; not biased,
impartial, in favor of and sticking to the truth. Meanwhile, justice is the nature (action,
treatment, etc.) of being fair.
Achmad Ali sees justice in legal objectives only, that justice cannot be used as the only
legal goal. However, the value of justice is always subjective and abstract. Achmad Ali
agrees more if justice together with certainty and expediency are used as legal objectives in
priority, according to the case in concreto.
It seems that Achmad Ali's view in portraying the purpose of law is more dominant in
the teaching of the purpose of law in a casuistic manner.
With the abstract nature of justice, NE. Algra finally argued "that whether something is
fair (rechtvaarding), depends more on rechmatigheid (conformity with the law), the
personal view of an evaluator. It is better to say that it is not fair, but it is better to say that I
consider it fair. Seeing something as fair is primarily a personal opinion of value".
Law and justice are interrelated like two sides of a coin, law without justice is like a
body without a soul, while justice without law will be carried out in accordance with the
wishes or intuition that in making decisions has a broad scope of discretion and is not
related to regulatory devices.
D.
The Relationship between Law and Justice:
Summum Ius Summa Injuria/Summa Lex Summa Crux. Ultimate justice can mean ultimate
injustice. Thus, the law always aspires to justice, so long as it is also certain that in its
realization it will stop to realize real justice.
This is true, in qasu court decisions always leave injustice there. There are still some
people who feel that the judge's decision, which is obliged to decide for justice based on the
Almighty God by certain communities, sometimes considers that the judge's decision does
not fulfill a sense of justice for him. But it does not mean that there is a response or reaction
from legal participants who are subject to legal enforcement. We immediately conclude that
there is no point in law and justice and that there is no connection. This is because justice is
only something that is aspired to. Like the judgment of good and right, no one can describe
it as clearly as possible. Because, again, justice has been said from the beginning to be
abstract and indeed justice is only the ultimate goal. Undoubtedly humans are limited in
reaching it.
Even if someone says that justice can be achieved by conscience. That is also only
within the realm of the level of feelings and instincts that are tried to be commensurate with
the instincts of other people.
If so, isn't the law identified as legislation nothing but a sense of goodness, a sense of
righteousness, evil, and badness that is then imperatively enforced. Then there is the
building of commensurate, universal feelings and instincts through moral consensus of peer
understanding.
Thus, based on all these analogies, law and justice are inseparably linked. For adherents
of the positivistic school of law when they see the law as just a set of laws, then the question
that must be answered by these people: So where did the law come from so that it was born
into a set of rules, norms, provisions, until it became a set of laws? Is it enough to be born
from the ratio alone? Is it born from God's ratio that is revealed through human ratios (lex
humana) or is it born from mystical nature which is understood as a mystical experience
thanks to its ability to sort out good and bad?
All these questions are answered by saying that "it's moral" and what morals require is
definitely good. Goodness is automatically one thing with justice. Any work to concretize
law as synonymous with morals, law as synonymous with justice will be embodied in the
principles of law.
In this context, the third proposition of law in development as proposed by Mewissen
will become a unity for all theoretical abstractions of legal phenomena. The legal science,
legal theory, and legal philosophy are "central" to producing a large amount of justice
through a large number of legal principles in each field of law. Both the science of law,
legal theory and legal philosophy are "central" to producing a large amount of justice
through a large number of legal principles in each field of law.
Between the philosophy of law that is centered on justice then gives birth to a set of
legal theories, then at that level the theory of law and justice will reduce legal principles,
then create a number of provisions that are understood as legal rules.
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The legal principle in this "game" of morals and justice can be said to be a container
that is in the middle to seek public consensus so that the law is truly impartial, integral, to
achieve its justice side.
The relationship between law and justice can also be observed in every legal goal.
Starting from the legal objectives of ethical teachings, standard priority teachings, to
caseistic teachings. None of these teachings can escape from the legal objectives on the
justice side. It's just that it is complemented by other legal objectives such as certainty,
expediency, and predictibility.
Even if the legislators are consistent in detaching themselves from justice as one of the
objectives of the law, they are still required to formulate a legal theory with a dimension of
justice that can support the importance of certain laws institutionalized in state institutions.
Every legislation is always equipped with a consideration, regulate, and stipulate. It should
be noted that in the consideration, there are philosophical considerations that record the
purpose of law as justice for the formation of the Law.
Up to court judges and constitutional judges who function as law enforcement officials,
in their efforts to enforce the law, maintain the justice side of the law. Judges are also
required to prioritize justice in issuing their decisions. Judges are required to explore legal
values that live in society, so that the law remains consistent to always fight for justice.
The judge's effort to decide the case submitted to him when legal cases are to be
constatirized in the law invitation, then the legislation turns out to be insufficient to regulate
it. Judges in such a position can carry out legal interpretation and construction. Remember!
The judge's work here to interpret vague legal provisions is basically a job to accommodate
unwritten rules that are recognized in society, so that the achievement of justice for the
community is expected by the judge.
On that basis, it became a justification when Roland Dworkin popularized his legal
theory as "moral reading". Moral reading referred to by Dworkin, a lawsuit against
incomplete legislation. Legislation that has not been able to accommodate all primary legal
interests found in society. Therefore, it becomes the work of constitutional judges in this
case, to re-create the law from the scattered law outside, by adjusting it in the ground norm
as well as the constitutional norm.
Justice can only be understood if it is positioned as a state that the law seeks to realize.
The effort to realize justice in the law is a dynamic process that takes a lot of time. This
effort is often also dominated by forces that fight within the general framework of the
political order to actualize it. Justice in the legal mind, which is a struggle of humanity,
evolves according to the rhythm of time and space, from the past until now without stopping
and will continue. God's creatures consisting of spirit and body have the power of taste and
thinking, both of which are spiritual powers, where taste can function to control the
decisions of the mind to walk on moral values such as good and bad, because what can
determine good and bad is taste.
It is undeniable that in many ways a country like Indonesia applies Hegel's political
philosophy even though it does not have the full support of individuals. Individual rights
being set aside can of course be understood as the result of a struggle by the majority of
citizens or on the basis of the public interest. Finally, individual interests are put aside.
There is a problem of whether to prioritize the public interest or the interests of the
individual others. Assessing justice in a society is never possible without the bond between
one individual and another. Between the two there is a reciprocal relationship. The basis of
a judge in making a decision is "For the sake of justice based on the Almighty God". Thus,
in determining his decision, a judge first appeals to Allah Swt. in whose name a decision is
pronounced. He swears in the name of God Almighty. That is when his heart trembles. This
is a warning to everyone. The message of Rasululloh Muhammad Saw. to one of his
companions is as follows: "O Abu Hurairah, one hour of justice is better than decades of
worship, prayer, zakat, and fasting. O Abu Hurairah, one hour of lawlessness is more
painful and greater in the sight of Allah than sixty years of sinning". This is a beautiful
message that judges must understand, live by and practice. It is found that the ideal of
justice can regulate the balance of human interests in terms of legal certainty, welfare,
happiness, education, and others. Therefore, to emphasize the means to achieve justice, a
state must be able to formulate the concept of justice to be achieved both individual and
collective justice.
E.
A Philosophical Analysis of the Nature of Justice as the Ideals and Objectives of
Law
The discussion of legal objectives cannot be separated from the nature of the law of each
society that has characteristics or specificities due to the influence of philosophy that
transforms into the ideology of society or nation which also functions as a legal ideal.
From the theoretical basis stated above, it is clear that there are differences of opinion
from experts about the purpose of law, depending on the point of view of these experts, but
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all of them are inseparable from the background of the school of thought they embrace so
that various opinions are born which are of course colored by the flow and understanding
they embrace.
As for the purpose of law in general or the purpose of law universally, namely using the
principle of priority as the three basic values of law or as the purpose of law, respectively:
justice, expediency, and legal certainty as the foundation in achieving the expected legal
objectives.
In particular, each type of law has a specific purpose, for example criminal law certainly
has a specific purpose compared to civil law, as well as formal law has a specific purpose
when compared to material law, and so on.
If it is said that the purpose of law is at the same time justice, benefit, and legal
certainty, does this not cause problems in reality.
As is known, in reality there is often a clash between legal certainty and expediency, or
between justice and legal certainty, between justice and expediency. For example, in certain
legal cases, if the judge wants his decision to be fair (according to the perception of justice
adopted by the law, of course) for the plaintiff or defendant or for the defendant, the result is
often detrimental to the benefit of the wider community, on the contrary, if the benefit of the
wider community is satisfied, the feeling of justice for certain people must be sacrificed.
Therefore, how are justice, expediency, and legal certainty.
According to Prof. Muchsin, in essence the law is a tool or means to regulate and
maintain order in order to achieve a just society in organizing social welfare in the form of
regulations that are compelling and provide sanctions for those who violate them, whether it
is to regulate the community or government officials as rulers.
Prof. Muchsin also added that the basic concepts and objectives of the law only speak to
two problem contexts:
1.
The first context is justice, which concerns the community's need for a sense of justice
amidst the many dynamics and conflicts in the community.
2.
The second context is the aspect of legality concerning what is called positive law,
which is a rule established by a legitimate state power whose enforcement can be
enforced in the name of law.
The two contexts of the issue above often clash, where positive law does not fully
guarantee a sense of justice, and conversely a sense of justice often lacks legal certainty. To
find a middle ground, the compromise is how to make all positive laws exist and present
always a mirror of a sense of justice.
In addition, the nature of law also rests on the idea of justice and moral strength, the
idea of justice is never separated from its relation because talking about law, clearly or
vaguely, is always a discussion about justice as well.
Similar to what was stated by Prof. Muchsin, Theo Huijbers of the three objectives of
law (namely certainty, justice, and expediency) justice must occupy the first and main
position rather than certainty and expediency.
Furthermore, it explains and invites us to first look at positive law separately from the
principles of justice. If the law is separated from the norms of justice, there is a possibility
that the law enacted is an unjust law. And the question is whether unjust laws have the force
of law?
Furthermore, Theo Huijbers argues to know what the law actually understands what the
meaning of the law is, the law is to realize justice in human life together. This meaning is
achieved by the inclusion of the principles of justice in the rules of life together at that time.
The so-called positive law is a realization of the principle of justice.
A sense of justice in relation to the law is not only shared by the people, those in power
in a country should be aware of the need for justice because of this awareness political
rulers are trying their best to legitimize their actions as if they are in accordance with the
principles of justice.
Furthermore, Theo Huijbers argues that if the law is only seen as law if it does not
oppose justice, the consequence is that legal regulations that do not contain the concept of
justice are not true law.
While the law has the advantage of fulfilling the goal of certainty, it also has the
disadvantage of being inflexible, rigid and static. Writing is a restriction, and the restriction
of something that is abstract (restriction in the context of material) and dynamic (restriction
in the context of time) such as the value consciousness of society into a law will logically
lead to the consequence of lagging the substance of the law over the material that formed it
(community values).
A law does have a legal reform mechanism as an effort to minimize its inertia, but
everyone also knows that updating a law either through the legislative process or the
contextualization process by judges is not an easy thing to do. The legislative process is
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undeniably also a manifestation of the political struggle process, where producing a new
law will not be able to take place in a short time because it requires efforts to reach
agreement on groups with different visions and missions.
Therefore, at this time, the principle of priority that we must prioritize first is justice,
then expediency and finally legal certainty. Ideally, every legal decision, whether made by
judges, prosecutors, lawyers, or other legal apparatus, should strive for the three basic
values of law to be realized together, but if it is impossible, then justice, expediency, and
legal certainty must be prioritized.
With the application of this principle of priority, our legal system can remain upright to
avoid internal conflicts that could destroy it.
To achieve goals that can create peace, tranquility, and order in society, especially a
complex and pluralistic society like in Indonesia, then we should adhere to the principle of
casuistic priority when legal objectives are prioritized according to the case at hand in
society, so that in certain cases one of the three principles can be prioritized as long as it
does not disturb the peace and tranquility is the ultimate goal of the law itself.
