Natural law thought

“An unjust law is no law”

Natural law is law that the norms come from God, from universe and from human reason. Therefore natural law is described as eternal law. Law never changes, never vanishes, and is applied by its own.

Natural law thought believes that right brings about the law, not vice versa. Positive law should be in line with morality, if not then that positive law would be invalid.

According to Thomas Aquinas, “Morality comes from natural law. (The highest level of law is determined by God).”

According to Fuller, “ Morality comes from the legal system itself. It is an internal part of the legal system (especially the principle of legality).”

According to Dworkin and Fuller, morality is decided, not discovered. It is not given.

LAW=NORMS (FAIRNESS AND JUSTICE VALUES)

There are two principles:

1.     Justice principle (God’s reason) – It is true and just because it is ordered by God

2.     Truth principle (Human’s reason) – It has been true and just, therefore God is willing to order it.

Justice consists of procedural justice (fairness) and substantive justice (the true justice).

According to St. Agustine (354-430), Metaphysics is the first philosophy as the initial science to know God and Philosophy is the underling of theology. Lex aeterna is the plan (disposition) from God for the whole universe. Lex naturalis is the persistent plan that is located inside human’s mind so everyone is able to grasp it.

There are three version of Natural law thought:

1.  Traditional version

According to Surya Prakash Sinha, divine law is not the same with lex divina. In his perspective, divine law is supreme because the whole universe is governed by divine reason. Not all of divine law is intelligible to human. The intelligible part reveals itself through eternal law. Principles of eternal law are revealed in natural law and from natural law are derived all human laws.

 According to Shidarta

2. Inner morality version

According to Lon Fuller (1902-1978), Positive law should be I line with morality. If not, it is still valid as long as it is not contradictory with “inner morality of law”

3.     Interpretive version

According to Ronald Dworkin, Positive law should be I line with morality. If not, it is still valid as long as it can be still morally interpreted. Law is not universally recognized as immanent natural law. So, law is the result of legal thinking constructions of legal practitioners. It’s a matter of interpretation.

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School of thoughts

Hello again! I’ve been recently taught about ‘school of thoughts’ and I’m going to share what these bloody thoughts are about. Don’t get on your nerves because it doesn’t as complicated as it sounds.

School of thought is different from research methods. Research methods are the methods that are used by the researcher to obtain the information for his research. Meanwhile school of thought is the way of thinking in philosophy. Get the different?

Now the matter is, is that important to learn? *yawn* Yes it is! When you learn something from only one perspective and blindly close your other perspectives just to make yourself confident and comfortable, you will lose your chance to gain more knowledge and mislead yourself into the dark of dumbness.

I’ll explain six school-of-thoughts:

1.     Natural law thought

2.     Legal positivism

3.     Historical school of law

4.     Utilitarianism

5.     Legal realism

6.     Sociological Jurisprudence

Each explanation will be posted on different posting J Enjoy! 

Philosophy of Law

Now we enter the main topic, which is Philosophy of Law.

What is philosophy of law? It is simply philosophy that is applied on law.

According to MR. Soetika, “Philosophy of law is seeking the essence of law; knowing what lies behind law; researching the principles of law as value consideration; giving deliberation and values and the explanation of the values; postulating the law to the very basic; trying to get the roots of law.”

According to Mahadi, “Philosophy of law is philosophy about law, philosophy about everything in the field of law to the roots deeply.”

According to Satjipto Raharjo, “Philosophy of law studies the fundamental questions of law; Philosophy of law undertakes legal materials from different perspectives; Science of positive law only deals with a particular legal order.”

According to Lili Rasjidi, “Philosophy of law is trying to make the ethics world as a background that isn’t touched by the five senses, turns into a normative science; Philosophy of law is trying to find the ideal law that is able to be the ‘legal basis ‘ and ‘ethics’ for the operation of a society system of positive law.”

According to Gustav Radbruch:

“ Philosophy of law contains three aspects:

1.   Aspect of Justice: justice is equality of rights for all people in court;

2.   Aspect of Purpose: finality, which is determining the substance of law, because the substance of law is indeed in line with the purpose of law that is wanted to achieve;

3.   Aspect of Legal certainty or legality: guaranteeing that law is able to serve as a rule that must be obeyed.”

According to Jan Gijssels and Mark Van Hoeke, philosophy of law has several studies:

1.     Ontology of Law

Study of the essence of law (The essence of democracy, relation between law and moral)

2.     Epistemology of Law

Study of legal knowledge (form of meta-philosophy)

3.     Axiology of Law

Study of determining the substances and values of law ( Such as eligibility, equality, justice, freedom, rights, etc)

4.     Logics of Law

5.     Ideology of Law

Study of idea

6.     Teleology of Law

Study of meaning and purpose of law

7.     Science of Law

Meta-theory of legal science

Source: http://kuliahhukum12.blogspot.com/p/memahami-filsafat-hukum.html

What is Philosophy?

We probably heard this word many times. I used to hear it and until several months ago (when i haven't taken philosophy class yet), I finally realize what this word actually means.

the word "Philosophy" comes from the Geek, philosophia. philos : to love, sophia : wisdom. so it literally means "love of wisdom". sounds sweet? it does! we learn philosophy means we learn to love <3<3

Philosophy is the pursuit of mental excellence. Why? How? First, let's take a look at the characteristics of philosophy,

1.    Holistic-Integralistic

Not partial. It sees everything comprehensively and integrates many branches of knowledge and science.

2.    Inclusive

Not exclusive. It learns everything in broadly covers.

3.    Synoptic

It sees the essence of science not only from the point of view of the science itself but also from contexts of other science.

4.    Radical (fundamental)

It learns deeply the essence to the root. It doesn’t easily accept the science is true. It learns to the basic of the knowledge.

5.    Speculative (not absolute)

The truth is temporary. It begins with speculative start point that can possibly be the end point. Like a circle we don’t know how to choose the right point to begin with. It’s all just speculation.

6.    Critical Reflective

It is critical to the values. It’s not only learns the symptoms but also what lies behind it.

There are two kinds of philosophy, Process and Product. Process is when philosophy is regarded as science that still processing. The existence as process is called Genetivus Objectivus. Meanwhile product is when philosophy becomes way of life. The existence has been fixed as product and called Genetivus Subjectivus. Whenever the process stops, it turns to be a product.

Thales (624-547 BC) was being asked what is difficult and he replied, ”To know oneself.” He believed that the origin of everything is water. Pythagoras (572-497 BC) answered the origin of everything is numbers. So as we can see, those first philosophers have many different ideas of the origin of everything and life itself. We can believe in one thing but we will never know for sure, is what we believe really the ultimate truth? :)

I love to quote from Heraclitus, he said,

“No man ever steps in the same river twice, for it’s not the same river and he’s no the same man.”

I found it really interesting. It is so deep. It emphasized the statement that the only thing constant is CHANGE, everything flows!

Object of philosophy:

-       Material: everything that exists or maybe possible

-       Formal: all characteristics -> profound contemplation

When we observe something, we (as the observers) have a gap to the object (observed). We also observe one thing differently depends on our point of views.  When we learn something exact, we don’t actually learn it objectively, it is the consensus inter-subjectively. There is no objective knowledge because the ultimate truth only comes from the object and the object itself doesn’t tell us anything but the symptoms we got from it. So it is not objective knowledge but consensus inter-subjective knowledge for it’s all just a matter of interpretation.

Branches of philosophy:

1.    Metaphysics/ ontology (discussing science of being)

- Teleologia (God’s being)

- Cosmologia (Universe’s being)

- Antropologia (Human’s being)

2.    Axiology (discussing values)

- Ethics (morality and behaviors)

- Aesthetics (beauty)

3.    Epistemology (philosophy of knowledge discussing from where and how, the characteristics and ways of knowledge)

- Philosophy of Science

- Methodology

- Logics

In every period, there is the main issue on each. The periodic time of western philosophy is divided into 4 periods:

1.    Ancient Greek Era – Cosmocentricism, the main issue is the Universe.

2.    Middle Age Era – Theocentricism, the main issue is the God or abstract supernatural.

3.    Modern Era – Anthropocentricism, the main issue is human.

4.    Contemporary Era – Logocentricsm, the main issue is logic.

Learning philosophy would also lead us to many theories and paradigms. What is paradigm? According to Thomas Kuhn (1922-1996): “Paradigm is universally recognized scientific achievements that for a time provide model problems and solutions to a community of practitioners.”

The sociological aspect really affects the changing of paradigm because if it is not universally recognized and accepted then the paradigm will change into a new one.

The current paradigm may not be the ultimate truth. We never know because life is flowing. What you believe right now, right here, may become wrong later and there. We hold on one paradigm, we take everything in according to normal. Suddenly anomalies occur and if the old theory cannot survive, it brings us to revolution into the new paradigm so on and on.

It doesn’t mean we’d better stop looking and seeking for the truth, it actually took us to constantly evolve and improve the quality and meaning of our life as a human being. So enjoy your coffee and grab the challenge! ;D

first words

This quote above is the perfect one to start this whole blogging thingy :)

Well, this blog is actually one of my projects for philosophy of law lecture. Our lecturer asked us to create a blog containing our whole lectures this far. So, I'd like to apologize if there are many mistakes of understanding philosophy itself. But, that is life, isn't it? We make mistake and learn from it to actualize ourselves :D

Gladly enjoy this blog and feel free to ask!