Friday, July 20, 2007

The influence of Positivism in Law Thought (Studies Against Positivism Law School Analytical John Austin)

By: Firdaus Arifin
Writer: Lecturer Constitutional Law Section and Secretary of Constitutional Studies Center Faculty of Law, University of Pasundan, Bandung, West Java, Indonesian.
Published by: Indonesia Constitutional Law 2006.

Opinion stating that the mother of all kinds of philosophy of science is an argument that almost accepted by all circles. This is proven by the close relationship between the specific knowledge with a specific philosophy, such as legal philosophy that gave birth to the science of law and so on.

Philosophy of law is a reflection of the theoretical (intellectual) of the oldest law, and may be said to be the mother of all theoretical reflection on the law. [1] Philosophy of law is a philosophy or a part of the philosophy that directs (focuses) reflections of law or legal symptoms.

As a reflection of philosophical, legal philosophy is not intended to question the positive law [2] certain, but the law reflects the law as keumumannya or so (as such law). Philosophy of law to disclose the nature of law by finding the deepest foundation of existence of law as far as could be reached by human reason. [3]

When referring to the history of western thought, as mentioned by Scheltens [4], the philosophy is the oldest form of rational thinking that is understanding and can account for himself. Covering virtually all areas of human thought, which is a whole which could hardly be distinguished. In the development of knowledge and methods to realize their own objects, even self mengabsolutkan, which gradually broke away from philosophy. Scheltens further mentioned that scientists berputus charcoal with philosophy, philosophy was considered unnecessary, not useful and can not be accounted for. Fascinated by their own successes and methods arena of clarity and resolve their own field studies, and then delete the philosophy, the belief that from now on the results of science must be replaced and to ignore philosophy.

Trend of thought as described above, has the support of the idea of three stages of August Comte. [5] According to the history of human thought evolved in three stages; theological stage (mystical) where humans solve problems by asking for help to God or the gods, who did not affordable by the five senses; philosophical point which at this stage the nature of things is the last statement of all; and positivist stage, a stage where the facts can be observed with the senses is the only object of human knowledge. In the final stage of this world and the world God has abandoned philosophy.

This simple writing is not intended to address these issues, only to find the answer to how the influence of positivism in legal thought, especially the study of analytical positivism of John Austin.

Philosophy of law to find the essence of the law, which investigate the law as a consideration Siwak F values [6]. Where law ends of science, philosophy of law therein began, he studied the questions are not answered in the science [7].
Talk about the flow of positivism, that this genre is as old as philosophy. However, rapidly emerging in the 19th century, when empiricism dominates thinking. Positivism was born and developed under the auspices of empiricism [8]. This means that between empiricism and positivism can not be separated.
Positivism is one of the flow in the philosophy (theory) that the law assumes that the legal theory is only concerned with positive law. Science of law does not address whether the positive law is good or bad, nor discuss the effectiveness of law in society [9].

In the flow of legal positivism are two sub-streams are:
Legal flow analysis, first proposed by is John Austin. The flow of pure positive law, spearheaded by Hans Kelsen. In this paper, as stated earlier, focusing on the flow of positive law analytically by John Austin. Positivism which pioneered John Austin, who was named Analytical Judisprudence, very close to the school of public law. Austin uses analytical methods alone. Through analysis of the legal systems of some Austin wants to arrive at a general idea about the law.

Based on the empirical method alone, Austin came to the understanding of the State, which he said is absolutely true. State viewed as a reality taken for granted by people in certain areas. States arise and be maintained, so most have the habit of subordinates to obey the government. If the habit is not stopped then there is another country. There are various reasons to obey the government. There are those who obey so they cling to the prejudice that the government always to be obeyed. While other reasons for fear of chaos, when the state changed. All this is confirmed in the experience. Values are not disputed. No doubt also that the ruling is the only source of law. On top of that legal ruling was not found. Austin revealed that each of the positive law determined directly or indirectly by a person or a group of authoritative people for a member or members of a sovereign political community, in which the building is the highest law. With this provision does not deny the existence Austin norms of divine law, moral norms and international law. Dipastikannya course, that all these principles are not able to confirm or nullify the law in a country [10].
The flow of positive law that defines analytical law as "a command of the Lawgiver" (order from forming law or authorities), namely: a command from those who hold supreme power or sovereignty held. Law is considered as a logical system, and is still closed (close logical system). Law explicitly separated from the moral, so from the matters relating to justice, and not based on the consideration or assessment of good or evil.

Next John Austin's legal share of:
1. Law of God's creation, and
2. Laws made by humans, which consists of;
a. law in the strict sense is also called positive law, consisting of:
- Laws made by the authorities, such as the Constitution Act, government regulation and others.
- Composed of law or made by individual people, who used to exercise the rights granted to him. For example: the right guardian for people who are under guardianship, the right curator of the agency / person in curatele.
b. law in the sense that is not true, the law that does not meet the legal requirements. This type of law is not created or determined by the authority / authorities sovereign entity. For example: the provisions made associations or certain agencies in the field of sports, students and so on.

There are four important elements according to John Austin called the law, namely:
a. command
b. sanctions
c. obligations
d. sovereignty

The four elements are related to each other can be explained as follows:
Elements of this command means that one party wants someone else to do his will, those who governed would suffer if the order is not executed or obeyed. The order was a distinction obligations to the ruled, and the latter can only be done if the ruling is a sovereign party. And who has that sovereignty can be a person or group of people (a souvereign person, or a body of persons souvereign).

John Austin thought the fruit was set out in the second famous book, namely: The Province of Jurisprudence Determined and Lecture on Jurisprudence. [11]
The flow of analytical legal positivism which was pioneered by John Austin is at about the 19th century and the first part of the 20th century, apparently in control of Western legal thought, which also is based on Greek philosophy. Quite clear where the role of the flow of the analytical positivism, especially those that the application of the ruling made by the authorities. With the identification of the application of law applied by law will ensure that each individual can know with certainty what actions are permissible and what actions should not be done. Even then negarapun will act firmly and consistently in accordance with what has been defined and decided, in carrying out justice according to the provisions of the state. Similarly, the application of the law by its provisions and the rules that have been made there must be carried out in accordance with everything that has been set.

Austin was the first who explicitly separating between positive law with the law aspire, in other words, he separated unequivocally between the moral law and religion. Legal science deals only with positive law, not membahasa relationship between positive law with the moral and religious. Regardless of good or bad law, accepted or not by the public.

The essence of all law is a command (command), which is made by the sovereign authority, addressed to the ruled, accompanied by sanctions if the order was violated. All positive law is a command. Command of the sovereign or the sovereign or the command of command of law-giver.
Sovereign is not bound either by the rules of her own making, nor by principles derived from the (moral and religious). Issue of sovereignty is one element of positive law is to be pre-legal (not legal but political affairs or sociology) and should be regarded as something existing in reality [12].

But besides the benefits of existing and proposed by the flow of Analytical Positivism is already, of course there are some weaknesses of his teachings about the lack of appropriate and contrary to various parties, especially the people who live and dwell in this period. When viewed as fundamental, then the very basic weaknesses in the flow of Analytical Positivism is precisely with the identification of law and the law. Because if one considers the real, that no matter how bad the rules and regulations that exist, so long as such rules and regulations have become a law must be applied in society and also directly judge will be bound by laws that set.

Legislation also has weaknesses / deficiencies, as proposed by Bagir Manan that:
1. Legislation is not flexible. Not easy to adapt to society. The formation of legislation takes time and certain procedures while mesyarakat change continues even may be very fast. Resulting in the gap between laws and regulations with the community.
2. Legislation was never equipped to meet all legal events or lawsuits, and this led to what is commonly called the legal vacuum (Bagir Manan. 1992:8)

In relation to the identification of law and a law so strongly made by the authorities and the government, then in the end may be of Legal and Law are misused by certain parties who will control the country in absolute and absolute accordance with the wishes existing at that time. Where then in the state authorities can use the legal provisions and legislation to give legitimacy to their actions true, which according to the legal sense of community that action is an immoral act and the criminal and cruel. So then everything will all provisions and orders issued by the authorities could be used as personal legal provisions and regulations in force in their society, and then the individuals who are in the public sphere will be in a position of dilemma, where one side of law and regulations the ruler can not be maintained consistently, if the provisions of law and legislation itself is used as a tool to oppress the injustice.

Opinion stating that if the law had been available, codified or fragmentary tools will be enough legislation to create a reliable action against any violation or to protect the interests of the community. Less noticed and recognized, that the rule of law is considered close to the requirements of justice must be satisfied that the law should be able to reflect the demands of public conscience, especially their feelings of justice.
There has been a shift in the principles and conceptions of state law to state law that put the laws made by the government as a measure of truth. In the law like this every government action that is not fair given the justification to act laws through the use of attribution, so the legal authority as a means of justification is placed with the positivist character - instrumentalistik.

In the Austin school said that the law is considered as a logical system, remains and is closed (closed logical system). With a fixed and closed nature of these laws, the laws at that time did not accept the development of any party even if the development comes from the public sphere in the country, the legal consequences are not familiar with dispensations and deviations that are considered by local communities are not in accordance with prevailing custom. As we know that every law must always be obeyed, because the law sometimes even grant a dispensation for the occurrence of deviations along the stipulation does not, or not a crime or offense. Especially in legal terms it is private (especially in terms of making the agreement between the parties), that the law is made usually depends on the agreement between both parties as long as not contrary to public order, decency and propriety. Thus, the main problem is how to try to get the community citizens can fully comply with the provisions put to the law without coercion or violence. So simply speaking, that is to be undertaken are the rules that nature writing, either, authority staff and facilities adequate, although actually it can not be said to be a simple thing.

Of teaching from Austin who says about the law in the sense that is not true, namely that the law does not meet the legal requirements, that the provisions are clearly visible, although the law here could have been created or determined not by the authority / authorities sovereign body, but still the existence of these laws are not ultimately approved by the authorities. Because the concept is clear that the law is classified as a law in the sense that is not true. Thus, still teaching from Austin are not able to provide a place for the community, based on habits that have long held that the possibility was formed to be a rule that is more respected in the community who have become powerless. As is well known that from living with humans who then make contact and interact with each other, so that the law would be created. Neither the state nor the law of human life arising from the heart because of the desire of each individual to obtain the order. However, this concept does not appear on the teaching of analytical positivism. With the law in the sense that absolutely, positively consequences flow from the analytical positivism, because the meaning of the laws made by humans could be a form of command and absolute terms that come from the ruler becomes a necessity for individuals to run with like or do not like or want and do not want. Communities are required to run with all my heart that the possibility for the formation of an authoritarian regime of the country who subscribe to this doctrine will be created very easily.

In closing the above description can be concluded that the flow of positive law which has an analytic of power flow shared by many legal thinkers in the West in the 19th century and early 20th century. the success of this flow seen in the form of legal certainty really guaranteed in each state who subscribes. However, from these teachings that have developed on the concept of Western thinkers, the doctrine-ajran of positive law which is also analytically has many weaknesses here and there. The main point of weakness, that the flow of positive law which tends to make the analytical power of a ruler to establish an absolute rule. This is because of four important elements of the teachings of John Austin to be called laws, of which consists of commands, sanctions, obligations and sovereignty. So that the four essential elements of the law makes mebentuk rulers legal provisions and the law becomes an absolute decision must be implemented without providing the opportunity for other parties to provide input to develop and grow from within their own community. All provisions of law and the laws that formed into a command and obligations to be executed and obeyed, then have a binding sanctions law executors be directly tied to it. Then the last that all provisions of law makers and law in this case is the ruling party can only be accomplished if the ruling party as the ruling party is a sovereign party. Of these provisions can be analyzed that the authorities or the government of a sovereign as forming the legal provisions and the law needs to be really no more, because obviously a State that has pemeritahan themselves, the people themselves and the region itself must have a something (in this case can be called the State) are considered sovereign or to have their own sovereignty, and also actually to have the sovereignty that is part of a country that can not be separated, then sovereignty is already part of the form of government and political system in the country itself.

Achmad Roestandi, Responsibility Philosophy of Law, Armico-Bandung, 1992.
Bagir Manan And Kuntana Magnar, Some Problems Indonesia Constitutional Law, Alumni, Bandung, 1993.
Arif Bernard Sidhartha, Reflections About the Structure of Legal Studies (a study of philosophical cornerstone and the nature of legal scholarship as a basis LMU development of national jurisprudence Indonesia), Bandung Mandar Maju, 2000.
Hendry P. Panggabean, MA Function in Everyday Practice, Pustaka Sinar Harapan, Jakarta, 2001.
J.J. H. Bruggink, Arif language Sidhartha Rather, Reflections About Law, Citra Aditya Bakti, Bandung, 1999.
Lili Rasjidi, Basics of Philosophy of Law, Citra Aditya Bakti, Bandung, 1999.
Lili Rasjidi, Philosophy of Law Is Law, Youth Rosdakarya, Bandung, 1991.
M. Solly Lubis, Politics And Law In the Era of Reform, Mandar Maju, Bandung, 2000.
Moh. Mahfud MD, Political Law In Indonesia, LP3ES, Indonesia, 1998.
Ridwan, The influence of positivism in Legal Thought (Critical Study of Flow-Positivism Legalism Law), Master of Law Journal, Vol.2 No.1 February 2000.
Theo Huijbers, Philosophy of Law in track history, Canisius, Yogyakarta, 1997.
[1] Lili Rasjidi, in Bernard Arif Sidhartha, Reflections About the Structure of Legal Studies (a study of philosophical cornerstone and the nature of science as a basis for legal LMU development of national jurisprudence Indonesia), Bandung Mandar Maju, 2000, hlm.119.
[2] is a positive law is the translation of positum ius in Latin, literally means the law specified (gesteld recht). Thus, positive law is the law established by humans, because it was in the old expression called stellig recht. See J.J. H. Bruggink, Arif language Sidhartha Rather, Reflections About Law, Citra Aditya Bakti, Bandung, 1999, p. 142.
[3] Ibid
[4] Scheltens, in Ridwan, The influence of positivism in Legal Thought (Critical Study of Flow-Positivism Legalism Law), Master of Law Journal, Vol.2 No.1 February 2000, pp. 41.
[5] Ibid, p. 42.
[6] SOETIKNO, in Lili Rasjidi, Basics of Philosophy of Law, Citra Aditya Bakti, Bandung, 1999, hlm.1.
[7] Lili Rasjidi, ibid, hlm.3.
[8] Muh. Bagir Shadr, quoted by Ridwan, Op cit. pp. 56.
[9] Achmad Roestandi, Responsibility Philosophy of Law. Armico-Bandung, 1992. pp. 79.
[10] Quoted from Theo Huijbers, Philosophy of Law in track history, Canisius, Yogyakarta, 1997. pp. 137-138.
[11] Quoted from: Lili Rasjid; op cit; pp. 42-44
[12] Quoted from Achmad Roestandi, Op cit. pp. 81

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