by Dharma Na Gara

Criminal Law, Hukum Administrasi Negara, Hukum Perdata-Civil LawNovember 12, 20200 comments 0 Likes

Law and Justice

A. Law

Definition of Law

Law according to Mr. Soerojo Wignojodipoero in the book Introduction to Legal Studies states that law is:

The compilation of compelling living laws and regulations, contains an order, prohibition, or permission to do or not do something and with the intention of regulating involvement in life.

Satjipto Raharjo explained that law is a human work in the form of norms containing behavioral guidelines. Law is a reflection of the human will about how society should be nurtured and where it should be directed. Therefore, law contains first of all a record of the ideas chosen by the society in which it was created. These ideas are in the form of ideas about justice.

Sudikno Mertokusumo explained that law is a legal norm which is a provision or guideline on what should or must be done. In essence, the rule of law is the formulation of opinions or views on how someone should or must behave. As a guidance legal norm has characteristic of general and passive.

J.C.T. Simorangkir and Woerjono Sastropranoto explained that laws are coercive regulations made by authorized bodies, which determine human behavior in society, violations of these regulations result in punitive action being taken.

B. Judicature

Definition of Judicature

Judicature is the job of judges or court bodies. Judges and courts are bodies that are firmly charged with the task of examining complaints about tampering with rights (law) or examining lawsuits and these bodies issue legal decisions.

Judicature consists of fair and everything that is related to court. Court here is not defined solely as a body to judge, but as an abstract meaning, namely the matter of providing justice. Providing justice means that which is related to the duties of the judiciary bodies or judges in providing justice, namely giving the person concerned concretely to those who ask for justice, what is their right or what the law is. In other words, judicature is everything that is related to the duty of the judges in deciding cases, whether civil cases or criminal cases, to maintain or ensure compliance with material law. Judicature laws are more likely to settle cases through courts as their institutions, while judicature justice take more steps outside the court, such as by way of peace through arbitration institutions.

C. Law and Justice

Law is an institution to create justice in society. Legal experts differ widely in formulating justice.

Justice can indeed be formulated in a simple way as a benchmark used by experts in defining justice. The formulas include:

1. Justice from Hans Kelsen’s point of view

According to him, justice is a certain social order in an effort to seek truth that develops fertile. Justice includes justice for freedom, justice for peace, justice for democracy, justice for tolerance.

2. Herber Spenser

Everyone is free to decide what to do as long as he does not violate the same freedoms of others.

3. Justinian

Justice is a virtue that produces results, that everyone gets what is their rights.

4. Ulpian

Justice is a will that is permanent and perpetual to give everyone what is belong/deserve to each of them (Justitia est constans et perpetua voluntas ius ssum curique tribuendi).

5. Aristotle

Justice is a political policy whose rules form the basis of state regulations and these rules are a measure of what is right. People must control themselves from Pleonesia, that is to gain advantage for themselves by taking away what belongs to others, or rejecting what should be given to others.

D. Law as a protector of Rights

The law protects a person’s interests by allocating a power to him to act in the framework of those interests. This allocation of power is carried out in a measured manner, in the sense that its breadth and depth are determined. Such power is known as rights.

Rights not only contain elements of protection and interests but rights also contain elements of will. If a person owns a plot of land, then the law gives him rights in the sense that his interest in the land is protected. He has free to will with the land that he owns.

According to Fitzgerald, the characteristics of rights inherent in law are:

1. The right is attached to someone who is called the owner or subject of the right. He is also known as the person who has the title for the goods which are the target of rights.
2. The right is assigned to another person, namely becoming the holder of the obligation. Between rights and obligations there is a correlative relationship.
3. This right that is in someone obliges the other party to do (commission) or not to do (omission) an act. This right can be called the content of rights.
4. Commission or omission concerns something that can be called the object of rights.
5. Every right according to law has a title, which is a certain event on which why the right is attached to the owner.

The term right is also used in the sense of immunity from the jurisdiction of others. Just as power is the ability to change legal relations, this immunity is liberation from the existence of a legal relationship that can be changed by others. Immunity has the same position in relation to power as between freedom and rights in a narrow sense: immunity is liberation from the power of others, while freedom is liberation from the rights of others.

Rights can be grouped as follows:

1. Perfect rights and imperfect rights

Perfect rights are those that can be exercised through law as if necessarily through coercion by law. Imperfect rights are those that are recognized by law, but are not always exercised by the courts, such as rights that are limited by expired institutions.

2. Primary and additional rights

Primary rights are those that are extended by other rights. Additional rights are those that complement the main rights, such as land lease agreements that give additional rights to the main rights of the land owner.

3. Public rights and civil rights

Public rights are those that exist in general society, namely the state. Civil rights are those that exist in individuals, such as the right of a person to enjoy the goods they own.

4. Positive and negative rights

Positive rights demand positive actions from the party where the correlative obligation lies, such as the right to receive personal benefits.

6. Rights to own and Personal Rights

Rights to own relate to items owned by a person that are normally transferable. Personal rights relate to a person’s position which can never be transferred.

E. Obligations

Between rights and obligations have a very close relationship. Obligations are absolutely necessary for someone who wants his rights to be fulfilled. A person can claim his rights if he has completed his obligations.

Curzon classifies obligations into several groups, namely:

1. Absolute and relative obligations

Austin stated that an absolute obligation is one that does not have rights pair, such as an obligation directed to oneself, which is demanded by society in general; which is only addressed to the power (sovereign) in charge of it. Relative power is that which involves rights on the other hand.

2. Public and civil obligations

Public obligations are those that correlate with public rights, such as the obligation to comply with criminal law. Civil obligations are correlative to civil rights, such as obligations arising from an agreement.

3. Positive and negative obligations

Positive obligation requires positive actions such as the seller’s obligation to deliver goods to the buyer. A negative obligation is one that requires a party not to do something, such as a person’s obligation not to do something that disturbs a neighbor’s property.

4. Universal, general and special obligations

Universal obligations are addressed to all citizens, such as those arising from law. General obligations are addressed to a certain class of people, such as foreigners, parents (father, mother). Special obligations are those that arise from certain areas of law, such as obligations in contract law.

5. Primary and sanctioning obligations

Primary obligations are those that do not arise from acts that are against the law, such as the obligation of a person not to defame others, which in this case does not arise from violations of other previous obligations. Obligations that are sanctioned are those that arise solely from acts that are against the law, such as the obligation of the defendant to pay the lawsuit of another party who has won the case.

F. Responsibility in view of the Law

Responsibility is the result of an act. When someone does an action, that action will have an impact on other people, the impact or consequence must be borne by the person who did the action. Responsibility is sued because there is an error that can harm the rights and interests of others.

According to Roscoe Pound, there are three types of responsibilities, namely:

1. Liability for deliberate loss.
2. Liability for loss due to negligence and accidental.
3. Liability in certain cases for damages incurred not due to negligence and accidentally.

Accountability is a case of offense, if the injured party does not file a case, then there is no claim to be responsible. Submission of these cases can be pursued by court and can also be pursued by reconciliation with compensation.

G. Justice

1. Definition of Justice

Justice comes from the word just, according to the Indonesian Dictionary, just is not arbitrary, impartial[1]. Fair mainly implies that decisions and actions are based on objective norms, so they are not subjective, moreover arbitrary. Justice is basically a relative concept, everyone is not equal, fair according to one is not necessarily fair to others, when someone asserts that he is doing justice, it must be relevant to public order where a scale of justice is recognized. The scale of justice varies greatly from place to place, each scale is defined and fully determined by the community in accordance with the public order of that society. For most people justice is a general principle, that individuals should receive what they deserve[2].

Justice is a major virtue in social institutions as well as truth in systems of thought. A theory, however elegant and economic, must be rejected or revised if it is not true, so laws and institutions, no matter how efficient and neat it is, must be reformed or abolished if they are unfair. Everyone has an honor based on justice that the whole of society cannot even cancel it. On this basis justice is justified by the greater that others get. Justice does not allow the sacrifices imposed on the few to be aggravated by the Most of the benefits enjoyed by many. Therefore, in a just society the freedom of the citizen is considered established, the rights guaranteed by justice are not subject to political bargaining or social interest calculations[3].

In Indonesia, justice is described in Pancasila as the basis of the country, namely social justice for all Indonesian people. The values contained in the principle of social justice for all Indonesian people are based on and inspired by the principle of beliefs in God, Just and Civilized Humanity, Indonesian Unity, and Democracy led by philosophy wisdom in Deliberation / Representation. The fifth principle contains values which are the goals in life together. So, the fifth principle contains the values of justice that must be manifested in life together (social life). As for justice is based on and imbued with the essence of human justice, namely justice in the relationship between man and himself, human being with other humans, man with society, nation and state, as well as the relationship between man and his God[4].

A sense of justice is essentially the fruit of a human’s spiritual work. And, a human being is primarily individual or subjective. However, in social life for years, centuries, ages, each member of society has naturally, without thought, felt that the passions of each in the end must be reduced to give the other members of society a chance to feel pleasure also in living together in this world.

Thus, the sense of justice of each member of society, even though it is attached to each individual, generally already contains an element of mutual respect for each other’s interests so that it is appropriate that among the various feelings of justice from various elements of society there is a similarity in rhythm which allows for equality of existence as well as the fruit of that sense of justice[5].

If justice is interpreted as social happiness, then social happiness will be achieved if the needs of the social individual are met. Fair regulations are rules that can ensure the fulfillment of these needs. But it is inevitable the fact that one’s desire for happiness can conflict with the wishes of others. So, justice is the fulfillment of individual desires in a certain level. The greatest justice is the fulfillment of the wishes of as many people as possible[6]. But if justice is interpreted as legality. It is fair if a rule is applied to one case but not the same in another. Justice in the sense of legality is a quality that is not related to the content of positive rules, but with its implementation. According to legality, a statement that an individual’s action is fair or unfair means legal or illegal, that is, the action is in accordance with or not with valid legal norms to assess as part of a positive legal system. Only in this sense of legality can justice enter into the science of law[7].

Justice is a fair behavior, namely placing everything in its place or in accordance with its portion, fairness does not have to apply equally to everyone but the characteristic is subjective. Everything that has become the provisions of Allah must be fair, therefore Allah commands mankind to behave fairly, because fair is closer to piety. To receive justice at first it will feel heavy and unable to accept it, therefore to accept justice the key is sincerity, while to accept sincerity is also very hard at first, but if it is felt and submitted to Allah the God of the Universe, you will certainly be able to accept it, so that to carry out sincerity one must be patient and trust in God who orders everything[8].

So that not happen justice like the elephant story studied by blind researchers. Each researcher feels different parts of the legs, ears, tusks, so that each of them describes this in different ways as well as fat and strong, thin and pliable, smooth and hard. While the elephant itself the justice can never be fully recognized by any individual description[9].

So, the criteria of justice, like the criteria of truth, does not depend on the frequency with which the justification is made. Because humans are divided into many different nations, classes, religions, professions and so on, there are also many different ideas of justice. Too many to call one of them justice[10]. Likewise, the research of the blind people on the elephant mentioned above, each researcher feels a different part.

Because justice and truth as compass, thus the legal process runs objectively and rationally, rationally means that there are clear, logical and acceptable standards for anyone’s common sense. Objective, means that case resolution must follow normative procedures related to the problem being handled, not following the subjective will of the law enforcement party. That’s the criteria that must be applied to anyone indiscriminately. So that everyone benefits from the existence of laws that are truly objective, fair, rational. The wicked must be punished, the weak are not treated arbitrarily according to the orders of the strong. And, the strong people, there is no compromise, must be prosecuted if found to have broken the law. The law places everyone equal[11].

2. Justice according to the Philosopher

a. Plato

In the context of Plato’s doctrine of ideas, the idea of justice can be shown in relation to the idea of the state (polis), because the contemplation of the idea of the state (polis) produces an image in which laws and regulations hardly play no role at all[12]. According to Plato, justice is the emancipation and participation of citizens (polis) in the idea of goodness in the state and it is a philosophical consideration for a law.

b. Aristotle

Aristotle was a Greek philosopher who spoke quite clearly about justice. From his work Ethics Nichomachea can be seen his thoughts about justice. For Aristotle, virtue, namely obedience to the law (policy law at that time, written or unwritten) was justice. Aristotle distinguishes justice into two, namely:

• Distributive justice is justice that applies in public law, which focuses on the distribution, honorarium for wealth and other goods obtained by members of the public.
• Corrective justice, is justice related to correcting something wrong, providing compensation for the injured party or an appropriate punishment for the perpetrator of the crime. So compensation and sanctions are a corrective justice according to Aristotle[13].

More fully regarding justice according to Aristotle was put forward by Theo Huijbers, including:

1. Justice in the division of positions and public assets. This is where geometric similarity applies. For example, if a regent is twice as important than a subdistrict head, then the regent must receive twice as much honor as a subdistrict head. To equal importance is given equal, and unequal importance is given unequal.
2. Justice in buying and selling. According to him, the price of goods depends on the position of the party. This is now impossible to accept.
3. Justice as arithmetic equality in the private or public sphere. If a person steals, then he must be punished, regardless of the position of the person concerned. Now, if an official is legally proven to have committed corruption then that official must be punished, regardless of whether he is an official.
4. Justice in the field of legal interpretation. Because the law is general in nature, it does not cover all concrete issues, the judge must interpret it as if he himself were involved in the concrete event. According to Aristotle, the judge must have epikeia, which is “a sense of what is appropriate[14].

c. Friedrich Nietzsche

In his work entitled Menschlisches Allzumenschliches, he says that originally justice is the same power or force. Or justice is reward or respond and exchange on condition that the position of power or authority is roughly the same. So, for example, that originally revenge lies within the sphere of justice. It is an exchange[15].

d. Gustav Radbruch

Justice can be distinguished in several meanings:

• Justice as a prominent or virtue (Gerechtigkeit als Tugend), namely justice as a personal trait or quality (for example for a judge). Here is subjective justice, and justice as the nature or quality of human relations (for example, a fair price). Subjective justice is a stand or attitude, views and beliefs directed towards the realization of objective justice as primary justice. Meanwhile subjective justice is secondary. What is objective justice is less clear. Perhaps in Radbruch’s view, objective justice is justice in human relations.
• Justice according to the standard of positive law and justice according to the ideals of law (rechtsidee), or positive law and the ideals of law is the source of justice.
• The essence of justice is equality (Gleichheit). Here Radbruch follows Aristotle’s opinion of justice, namely commutative justice (for example between achievement and counter-achievement) and distributive justice (in the private and public spheres. Private: salaries are paid according to work performance, public: positions based on qualifications)[16].

e. John Stuart Mill and Bentham

Explaining justice is the greatest benefit or happiness to many people. So a small number of people or individuals can become victims for the sake of many people and that is still called “justice” as well[17].

f. Jacques Derrida

Derrida explained that justice is an experience of the impossible, an experience as “crossing” in a sense, an experience is something that opens a path, makes access and breaks down. Justice is an experience of aporia, which is a limit of things that can be experienced, for example, people are trapped in a dead end, or in other words, aporia of no access, dead ends means that someone cannot fully experience justice[18].

g. Notohamidjojo Notohamidjojo distinguishes justice into three, namely:

• Vindicative justice, is justice that imposes a sentence in accordance with the crime committed.
• Creative justice is justice that provides equal opportunities and freedom for everyone to create positively.
• Protective justice is justice that provides equal protection for everyone in society[19].

h. Widiartana Widiartana explained that in criminal law there are usually two kinds of justice, namely as follows:

1. Retributive justice is justice that focuses on the conviction of the perpetrator of a crime as retribution or reward for the crime he has committed.
2. Restorative justice is justice that focuses more on or focuses on repairing or restoring victims who have suffered as a result of the perpetrator’s crime. In other words, this justice is shown more to the victim than to the perpetrator. This is also a form of responsibility for the perpetrators without neglecting the interests of rehabilitation for the perpetrators. According to Widiartana, restorative justice in the criminal field is more in line with the principle of kinship in Pancasila (Pancasila is the basis of the state and basis of the philosophy of the Republic of Indonesia). It is fair that the perpetrator of the crime is convicted. For example, perpetrators of crimes in domestic crime, but it is also fairer if the victims are given recovery[20].

From the various definitions above, it is very clear that there are various understandings of the meaning of justice. There are those who associate justice with state political regulations, so that the measure of what is a right or not is always based on a measure determined by the state. There are those who see justice in the form of a willingness that is permanent and perpetual, to provide what is right for everyone. There are also those who see justice as a justification for the implementation of law, as opposed to arbitrariness.

Thus, there are also expressions about “justice” that place justice as something that must be sanctified, and exist not only in the courtroom, but everywhere, and must be cleaned of the filth of scandal and corruption. Among the above expressions, there are those who assert that there is no such thing as perfect “justice”, there is only the attainment of justice in a certain level[21].

[1] Eko Hadi Wiyono, Kamus Bahasa Indonesia Lengkap, Jakarta, Akar Media, 2007, p. 10.

[2] M. Agus Santoso, Hukum, Moral, dan Keadilan, Jakarta, Kencana Prenadamedia Group, 2012, p. 85.

[3] John Rawls, A Theory of justice Teori Keadilan Dasar-dasar Filsafat Politik untuk Mewujudkan Kesejahteraan Sosial dalam Negara, Yogyakarta, Pustaka Pelajar, 2011, p. 3-4.

[4] Kaelan, Pendidikan Kewarganegaraan untuk Perguruan Tinggi, Yogyakarta, Paradigma, 2007, p. 36.

[5] Wirjono Prodjodikoro, Asas-asas Hukum Pidana di Indonesia, Bandung, Refika Aditama, 2008, p. 18-19.

[6] Hans Kelsen dalam Jimly Asshiddiqie dan M. Ali Safa’at, Teori Hans Kelsen tentang Hukum, Jakarta, Konstitusi Press, 2012, p. 17.

[7] Ibid., p. 21.

[8] M. Agus Santoso, Op. cit., p. 87-88.

[9] Karen Leback, Teori-teori Keadilan Six Theories of Justice, Suplemen: Konsep Keadilan dalam Kristen, oleh Hans Kelsen, Bandung, Nusa Media, 1986, p. 1.

[10] Jimly Asshiddiqie dan M Ali Safa’at, Op. cit, p. 18.

[11] Dossy Iskandar Prasetyo dan Bernard L. Tanya, Hukum Etika dan Kekuasaan Yogyakarta, Genta Publishing, 2011, p. 111-112.

[12] Carl Joachim Friedrich, Filsafat Hukum Perspektif Historis, Bandung, Nusa Media, 2010, p. 19.

[13] Aristoteles dalam Theo Huijbers, Filsafat Hukum dalam Lintas Sejarah, Yogyakarta, Kanisius, 1984, p. 29.

[14] Ibid., p. 30.

[15] Friedrich Nietzsche, dalam Hyronimus Rhiti, Filsafat Hukum (dari Klasik sampai Postmodernisme), Edisi lengkap, Yogyakarta, Universitas Atma Jaya, 2011, p. 244.

[16] Ibid., p. 245.

[17] Ibid., p. 246.

[18] Derrida dalam Anthon F. Susanto, Ilmu Hukum-Non Sistematik, Fondasi Filsafat Pengembangan Ilmu Hukum Indonesia, Yogyakarta, Genta Publishing, 2010, p. 94

[19] Notohamidjojo, Soal-soal Pokok Filsafat Hukum, Jakarta, BPK Gunung Mulia, 1975, p. 53-54.

[20] G. Widiartana, Keadilan Restoratif pada Kebijakan Penanggulangan Kekerasan dalam Rumah Tangga dengan Hukum Pidana, Makalah Diskusi, Yogyakarta, Fakultas hukum UAJY, 2010, p. 5.

[21] Achmad Ali, Menguak Teori Hukum (Legal Theory) dan Teori Peradilan (Judicial Prudence) Termasuk Interprestasi Undang-undang (Legisprudence), vol 1 Pemahaman Awal, Jakarta, Prenadamedia Group, 2012, p. 221-222.