Legal Literacy - Concept study legal theory at the philosophical level focuses on two schools of Legal Philosophy that are very influential in the world, especially Indonesia to this day, namely “Natural Law Theory” and “Legal Positivism Theory”. Various versions have been written by Legal Philosophy experts on Natural Law Theory or Natural Law. This study also follows Andrew Altman's version, from his book entitled Arguing About Law: An Introduction to Legal Philosophy (2001) which examines according to historical range (making a diachronic classification), namely “Traditional Natural Law Theory” and “Modern Natural Law Theory”.
Traditional Natural Law Theory
Two main supporters of this theory are St. Augustine and Thomas Aquinas. Both have the same perception of Natural Law, that “natural law is the highest obligation created by nature that can cancel everyone's obligations if it conflicts with morals or is immoral. There are three theses put forward by St. Augustine, namely:
- Natural Law is used as a standard to assess regulations set by the state called positive law as good or bad (that natural law providing standard should be used to evaluate positive laws as good or bad);
- Rules of positive law that conflict with principles of natural law are invalid. Such rulers are null and avoid and imposed no obligation to anyone (Rules of positive law that conflict with principles of natural law are invalid. Such rulers are null and avoid and imposed no obligation to anyone).
- St. Augustine made a declaration, a point rarely raised by the traditional view: that “an unjust law is not law (…St. Augustine gave a succinct statement of the traditional view: “a law that is no justice is not law”).
The Traditional Natural Law Theory of Thomas Aquinas constitutes a systematic, comprehensive, and continuously developed exposition of Legal Philosophy. The main thesis of Thomas Aquinas is described as follows:
- Its basic vision is that the universe is created by a single, eternal regulator who bestows a system of laws (It rests on his vision of the universe as governed by a single, self-consistent, and overarching system of law).
- The entire system is based on the direction and authority of the supreme lawgiver and judge, God (The entire system is under the direction and authority of the supreme lawgiver and judge, God).
- This legal system, in its hierarchy, is composed of eternal law, divine law, and natural law at the top, and human law at the bottom (Human law occupies the lower tier of this system. Above it are eternal law, divine law and natural law.).
- Eternal law consists of the principles established by God for action and for moving objects, enabling each object to perform its proper function in the overall order of the universe (Eternal law consists of those principles of action and motion that God implanted in things in order to enable each thing to perform its proper function in the over all order of the universe).
- Natural law consists of the specific principles of eternal law for humanity. These are principles that can be recognized by the power of our natural reason, and they guide us toward what is good for humans (Natural law consists of those principles of eternal law specific to human beings. Such principles are knowable by our natural powers of reason, and they guide us toward what is good for humans).
- Thus, it is good for humans to live peaceably with one another in society, and therefore natural law principles entail the prohibition of evil behaviors in society such as murder and theft (Thus, it is good for humans to live peaceably with one another in society, and so natural law principles entail the prohibition of actions such as murder and theft that harms society).
- The principles of natural law help us achieve the good that can be achieved in this world. However, the ultimate human good, eternal salvation, is beyond what can be achieved in this world. A type of law exists over and above natural law, guiding us to that ultimate goal; that is Divine Law (The principles of natural law help us reach the good, that is reachable in this world. Yet beyond this world there is the ultimate human good: eternal salvation. A type of law exists over and above natural law, guiding us to hat ultimate goal. That is devine law).
- According to Aquinas, the term human law refers to positive law consisting of regulations established by the leader of a political community (state) for the common good of its citizens. In some cases, for example, according to simple logic, it is deduced from the principles of natural law. For example, positive law against murder is logically determined by the natural law that generally prohibits a person from wrongfully harming another. Everyone will agree that murder is a form of wrongful harm; the law regarding murder is logically derived from the principles of natural law (Human law Aquinas’s term for positive law consist of rules framed by the head of the political community for the common good of it members. In some cases, such rules are simply logically deduced from natural law principles, For example, the positive law against murder is logically entailed by the more general law that prohibits a person from wrongfully harming someone else. Once we agree that murder is form wrongful harm, the law against murders logically follows from the natural law principle).
In a simplified version, Surya Prakash Sinha (1993) suggests that Thomas Aquinas created a hierarchy of law that places divine law at the highest (supreme) level. Aquinas's construction of thought is that the community of the universe was created by God's reason. Not all of God's Laws can be understood by humans.
The part that humans can understand manifests itself through eternal law, which is integrated with divine wisdom, and this Divine Law (Lex Divina) is established by God as found in the Holy Books. The principles of eternal law (lex aeterna) are expressed in natural law (lex naturale), and from the principles of natural law are derived all human laws (lex humana) called positive law formed by state power. Schematically, the hierarchy of law according to Thomas Aquinas appears as follows:
Indonesian literature describes Thomas Aquinas's (1225-1274) “Traditional Natural Law Theory” as Thomistic natural law theory, which is a fusion of the influence of Ancient Greek Natural Law Philosophy, the Stoics, and the theological thought of the Catholic Church (Scholastic Philosophy). In this theory, law is qualified into four categories with a hierarchy, namely:
- eternal law (lex aeterna), a law containing God's will in the sense that everything about the community of the universe is regulated by God's reason, which is difficult for the human mind to grasp. Only a small part of God's reason can be captured by humans through revelation;
- divine law (lex divina), a law declared by God through revelation that can be understood by human reason (intellect), partly derived from eternal law (lex aeterna);
- Natural law (lex naturalis), a small part of which comes from divine law captured by humans through revelation. In natural law (lex naturalis), there are two types of law: (1) primary natural law containing main principles, such as the principle that no one may violate the law, and (2) secondary natural law, which elaborates on the main principles;
- Human law (lex humana), also called positive law, which actually applies, consists of (1) positive law derived from God revealed to humans, found in the Holy Book, (2) positive law made by humans based on their reason. Specifically, secondary natural law is divided into two: (1) norms resulting from logical deduction, for example, no one may kill, no one may steal, (2) norms specifically produced called ius gentium, such as the right to private property. This description shows that Thomas Aquinas' category of natural law is indeed a depiction of a hierarchy of laws according to the traditional "Natural Law Theory." Natural law is positioned as the supreme law (higher) than positive law. Therefore, natural law is positioned as a rule of assessment, meaning that if positive law contradicts moral principles and justice, then that positive law is not law and may not be obeyed.
Modern Natural Law Theory
Andrew Altman mentions two main figures, namely Lon Fuller and Ronald Dworkin. Both are legal experts from the United States, although their opinions differ. The two main opponents' views of Modern Natural Law Theory are described and analyzed, as below.
First, Lon Fuller's concept of inner morality theory, known as the Father of the Revival of Natural Law, whose main thesis is identified as follows:
- A genuine legal system is essentially bound by certain moral principles, and these moral principles are referred to by Lon Fuller as the inner morality of law (... that any genuine system of law necessarily abides by certain moral principle. He calls these principles the inner morality of law).
- The inner morality of law, which are moral principles derived from the idea that law is an instrument for regulating and controlling human behavior as agents who have the ability to consider and choose (the principles that make up the inner morality of law; derives them from the idea that law is something intended to regulae and control … are addressed to humans as agents capable to deliberation and choice).
- Legal rules must be applied prospectively, not retroactively, because only with prospective application can humans as agents make choices in their behavior. Similarly, the rules of law must be relatively clear, allowing the applicable legal rules to be obeyed (...legal rules must be apllied propectively, rather than retroactively, because only prospective rules address humans as agents capable choice. Similarly, legal rules must be relatively clear in meaning, possible to comply with, adopted in accord with existing rules).
- Fuller acknowledged that among the basic ideas of Natural Law Theory, the following can be maintained: the necessity of associating positive law with morality, and that the connection is rooted in the nature of law itself, although the necessity of that relationship is not as strong as natural law thinkers who put forward postulates, unjust positive laws that contradict morality do not need to be obeyed. But according to Fuller, the possible fact is that a morally unjust legal system of positive law is not mandatory to obey (Fuller thus believes that the basic idea behind natural theory can be vindicated; there is a necessary connection between positive law and morality, and that connection stems from the nature of law itself. The necessary connection is not as strong as traditional natural law thinkers had postulated, for it is possible that particular positive laws are unjust and morally ought to be disobeyed).
- It is also warned more firmly that the inner morality does not guarantee that every genuine legal system is a just law, and if a law is seriously unjust from a fundamental moral point of view, the prima facie obligation to obey must be overridden, in other words, a law that is morally unjust fundamentally does not need to be obeyed (The inner morality of law does not guarantee that every genuine legal system is a just law. And if a law is seriously unjust, the prima facie obligation to obey it may be overridden. After all, a law might be so unjust that fundamental moral obligations require disobedience).
From the five main theses of the "Inner Morality Theory", the core concept of legal theory, according to Lon Fuller, is that every genuine legal system is always bound by certain moral principles, which are termed "inner morality". These moral principles are essentially the basis for the binding and respect of legal regulations. Even so, Fuller acknowledges that not all legal products of the authorities (positive law) in the form of legislation/regulations are consistent with the moral principles inherent in the "inner morality" of law. The legislation/regulations are clearly not morally good, but the positive law does not necessarily lose its validity (legitimacy), as claimed by adherents of traditional natural law theory. It is also noted that Fuller opens up another possibility that a legal product may not have legitimacy in terms of "inner morality", but can be justified according to social goals.
The Inner Morality Theory actually influences the application of law formation (legislation/regulation). This is, among other things, stated by Hilare MacCobrey and Nigel D. White. They stated, "Fuller's argument mainly concerns the requirements for forming norms in the context of obligatory morality. The target of his analysis is emphasized by Fuller on the formation of morally appropriate laws. The legal product essentially establishes minimum criteria for legislative or other legal activities that can be recognized, which Fuller expresses in the form of eight negative criteria. The eight negative criteria, legislation, and regulations that are morally appropriate, in English, are as follows:
- failure to establish rules at all, leading to absolute uncertainty (an error in forming regulations that contain absolute uncertainty);
- failure to make rules public to those required to observe them (an error in forming general regulations that require compliance only to the public);
- improper use of retroactive lawmaking (it is not good to form laws that apply retroactively or are enforced retroactively);
- failure to make comprehensible rules (an error in forming legal regulations that cannot be understood);
- impimproper making rule which contradict each other (it is not good to form legal regulations that contradict each other);
- making rules which impose requirements with which compliance is impossible (it is not permissible to form legal regulations by imposing requirements that are impossible to fulfill);
- changing rules too frequently that required conduct becomes wholly unclear (frequently changing regulations makes the required conduct completely unclear);
- discontinuity between the stated content of rules and their administration in practice (inconsistency between the content of regulations and their implementation in practice).
In the Indonesian context, the negative criteria of legislation according to Lon Fuller in letter (c), the validity or application of regulations retroactively, is constitutionally categorized as a form of human rights violation. The provisions of Article 28I paragraph (1) of the 1945 Constitution of the Republic of Indonesia stipulate, "... the right not to be prosecuted on the basis of retroactive law is a human right that cannot be reduced under any circumstances" (emphasis from the author). The qualification of absolute human rights is classified as non-derogated human rights. Thus, legal regulations must be applied prospectively or retrospectively, or known as the "principle of non-retroactivity."
Second, Concept Interpretive Theory (Interpretive Theory), by Donald Dworkin, has several main theses, namely:
- every legal product, whether legislation or regulation, must be interpretable and applicable through a moral approach;
- positive law must have moral integrity. Integrity may not guarantee the achievement of justice, but moral integrity guarantees a sufficient degree of morality that every legislation or regulation as a legal product avoids becoming a political product of the rulers;
- law is an expression of the philosophy of government; that philosophy consists of moral principles that establish the fundamental goals of government and the relationship between the government and individuals.
- these moral principles are the basis for the legitimacy of legal decisions, which also serve as guidelines for interpreting a legal regulation.
Andrew Altman argues that the argumentation of the Interpretive Theory is very strong. He says that it is important and necessary to link law and morality, but regarding its application, he rejects the approaches of Aquinas and Fuller. Andrew Altman, writes:
"Unlike Aaquinas’s traditional version of natural law theory, Dworkin does not hold that unjust rules are invalid as laws. Unlike Fuller version, Dworkin does not hold that the principles of legality are by themselves… sufficient to create a prrima facie moral obligation to obey the rules of any system of positive law. Dworkin seems agree with Fuller that obligation have some moral force: there is some moral reason to abide by such obligations.
But Dworkin locates the source of moral not merely in the principles of legality, but in integraty of law. In other words, for Dworkin the inner of morality of law not only of the principles of legality but also of the best moral principles that underlie the settled law”
[Unlike Aquinas, a proponent of the traditional natural law theory, Dworkin does not hold that unjust rules are invalid as laws. Unlike Fuller's version, Dworkin does not hold that the principles of legality are by themselves sufficient to create a prima facie moral obligation to obey the rules of a system of positive law.
Dworkin seems to agree with Fuller that legal obligations have moral force: there is some moral reason to adhere to these obligations. However, Dworkin places the source of moral force not merely in the principles of legality, but in the integrity of law. In other words, according to Dworkin, the “inner morality of law” is broader than Fuller's: it consists not only of the principles of legality, but also of the good moral principles underlying the existence of the law itself].
Dworkin's and Fuller's views show that the relationship between natural law and positive law was always actual until this century. The actualization of the modern natural law theory version (20th century) is evident in the 1948 Universal Declaration of Human Rights and the Declaration of the Rule of Law, International Jurists Conference, 1959 in New Delhi, and the Nuremberg Trials on World War II Crimes, prosecuting Nazi leaders such as Hermann Goering, Deputy of Adolf Hitler, concurrently Commander of the Nazi Air Force, which was qualified as a "serious violation of human rights" categorized as "extraordinary crime” (extraordinary crime). J.W. Harris (Law and Legal Science: An Inquiry into the Concept of Legal Rule and Legal System) notes that the placement of intuitionism as an epistemological understanding of the Natural Law School prioritizes intuitive reasoning rather than ratio.
Intuition was fully used in classical/ancient reasoning, while ratio is the dominance of modern reasoning as practiced by Legal Positivism. Behind that, Legal Realism actually developed a type of "new intuition" which it calls trained intuitive judgeship, which can be translated as "trained judge's intuition." Below is an analysis of the legal theory of Legal Positivism adherents.
Legal Positivism rejects the traditional Natural Law Theory thesis, with the postulate that "genuine law" is "just law", and "unjust law" is not law, so it does not have to be obeyed. Legal Positivism, furthermore, also rejects the modern Natural Law Theory thesis which absolutely links positive law with morality as argued by Lon Fuller and Donald Dworkin.
It should be noted that according to L.B. Curzon, Legal Positivism is used as a phrase generally used to refer to laws made by humans ("Divine positive law" which is law given to humans by God). This term is used to indicate Positivism, which indicates, namely:.
- the theory that a law is the command of sovereign or other recognized authority.
- the argument that there is no obvious or necessary link between law and moral.
- the contention that rational arguments cannot be used to support or deny moral judgment14.
Furthermore, Curzon, stated legal positivism, the phrase is widely used to refer to that jurisprudential analysis involving a scientific study of the body of rules, termed “laws”, without reference to extraneous matters such as social context, political, psychological background etc.. (Legal positivism is a broad expression referring to analytical jurisprudence including the scientific study of a set of rules called “laws”, without reference to matters outside the law, such as the background of social context, politics, psychology, ethics-morals, etc.).
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