Law Science in the Perspective of Modern Science
A. INTRODUCTION
Science is developing so fast. This is possible, because it shakes off the way people seek knowledge as something that is very sacred in theological view, the science of law is a part of study that never stops along with technological and human advances in people’s lives so that views on the science of law are often collides with existing circumstances where the study is more integral and not on a separate part of science.
Law within the scope of science has become a debate among legal scholars, this has led legal scholars to divide legal science as part of social science. As a first step in an effort to answer the question of what is law?, we must first fix the notion of legal science. In English, legal science is known as ” legal science ” . lawin English there are two different meanings, the first is a set of prescriptions about what should be done in achieving justice and the second, is a rule of behavior aimed at creating social order [1] .
The first meaning in Latin is called ius , in French droit, in Dutch recht, in German it is also called Recht , while in Indonesian it is called Hukum. Meanwhile, in the second meaning, in Latin it is called Lex, in French it is loi, in Dutch it is wet, in German it is Gesetz , while in Indonesian it is called UU [2] . The word law in English actually comes from the word song, namely rules made by Anglo-Saxon kings that have been codified [3] . Songturns out to be in the line lex and not ius. If this is followed, the term legal science will mean knowledge of statutory rules. This will occur incompatibility of meaning contained in the science itself.
In order to avoid such things in English legal science is properly called Jurisprudence. Meanwhile, the word Jurisprudence comes from two Latin words, namely iusris which means law and prudentia which means wisdom or knowledge. Thus, Jurisprudence means legal knowledge.
It can be seen from an etymological point of view that Robert L Hayman does not exaggerate the notion of law in this case Jurisprudence broadly as everything that is theoretical about law [4] . Here it can be seen that the science of law is a field of science that stands alone which can then be integrated with other sciences as an application in other sciences. As an independent science, the object of research from the science of law is the law itself, bearing in mind that the study of law is not an empirical study, Gijssels and van Hoecke say that the science of law ( jurisprudence) is a science that is systematically and organized about legal phenomena, power structures, norms, rights and obligations. [5]
Jurisprudence is a scientific discipline that is sui generis [6] . So the study is not included in the field of study that is empirical or evaluative. Jurisprudence is not merely the study of law, but more than that, namely the study of something related to law in general. Hari Chand aptly compares law students and medical students studying their respective fields [7]. he stated that medical students who were to study human anatomy had to study the head, ears, eyes and all the parts of the body and the structure, relationships and functions of each. it is the same as a law student who will study the substance of law, must learn legal concepts, legal principles, the structure and function of the law itself. He further stated that besides studying the human body as a whole, a medical student also needs to study external factors that affect the body, for example heat, cold, water, germs, viruses, insects and others. The same is true for law students, namely studying external factors that influence the law, including social, political, cultural, economic factors and values contained in other fields of science.
Legal science looks at law from two aspects; namely law as a system of values and law as social rules. In studying law is to understand the intrinsic conditions of the rule of law. This is what distinguishes law from other disciplines that have legal studies. These other disciplines look at law from the outside. Social studies of law place law as a social phenomenon. Meanwhile, evaluative studies link law with ethics and morality.
Modern legal science begins its steps in the midst of the dominance of experts in the field of law who study it as a form of social development so that the foundations of legal science are neglected. This is the object of study by the author, because now many legal scholars consider legal studies to be in the order of study. legislation (legislative law ) is not in the order of jurisprudence , this is because empirical studies are included in the science of law as a basis for study.
B. THE PROBLEM
Based on the movements of society and the development of science, technology continues to change rapidly, therefore law must be able to adapt to these developments, so naturally law as a field of science can provide guidance for a legal scholar who is now involved and enters the realm of integrated legal science with other sciences. This has led many legal scholars to think more practically and no longer think as legal scientists.
By referring to the statement above, the author tries to examine the problem of legal science which is the center of debate among legal scholars themselves with the problem ” What is the Perspective of Law as One of the Modern Sciences “.
C. THEORETICAL
Before we discuss what and how law as a field of science is, of course we have to look at how the experts view that law. When questioning about what (the nature of) law is, in fact it has also entered the realm of legal philosophy. This question actually can also be answered by legal science, but the answer is not satisfactory. This, among other things, can be based on Van Apeldoorn’s opinion which, among other things, states that the science of law only gives one-sided answers, because the science of law only looks at mere legal phenomena [8]. He does not see the law, he only sees what can be seen with the five senses, not seeing the world of law that cannot be seen, which is hidden in it, thus the rules of law as a value judgment lie outside the view of the Science of Law Norms (rules) of law does not belong to the realm of reality (Sein), but resides in the world of values (Sollen and Mogen), so that legal norms are not the world of legal research.
According to Utrecht: “Philosophy of Law provides answers to questions such as: What is law really? (problem: the existence and purpose of law). Why is it that we obey the law? (problem: the application of the law). Is justice the measure of the good and bad of the law? (problem: legal justice). These are questions that are actually also answered by the science of law. But for many people it is not satisfying. Jurisprudence as an empirical science only sees law as a symptom, that is, it accepts law as a mere “gegebenheit” . Legal philosophy wants to see law as a rule in the sense of the word “ethisch wardeoordeel” [9] .
The scope of Legal Philosophy, among others, can be seen from the formulation of the notion of Legal Philosophy. Observing the existence of various varied formulations, it cannot be said that the scope of Legal Philosophy is standard and stagnant, but on the contrary flexible and developing. However, the starting point remains the same, namely the nature of the most profound or essential law.
Development lies in the nature of law which can be seen from various perspectives, including regarding the purpose of law, justice, the basis for binding the law, or why the law is obeyed and so on. The development of the scope of Legal Philosophy can be identified with the premise that the scope of Legal Philosophy has shifted to the limits of the scope made or agreed upon as a matter of Legal Philosophy by past philosophers. For example, the basic issues that were of concern to the philosophy of law in the past were limited to the purpose of law (especially the issue of justice), the relationship between natural law and positive law, the relationship between the state and law, and so on.
At present the object of study or scope of study of Philosophy of Law is not only a matter of legal objectives, but every problem that is fundamental in nature related to legal issues. In other words, today’s Legal Philosophy is no longer the Philosophy of Law of philosophers as in the past, but is also the result of the thoughts of jurists (theorists and practitioners) who in their daily tasks face many problems related to social justice in society. .
Berkaitan dengan hal tersebut Friedmann menyatakan sebagai berikut.“Before the nineteenth century, legal theory was essentially a by product of philosophy, religion, ethics, or politic. The great legal thinkers were primarily philoshopers, churhmen, politicians. The decisive shift from the philpshoper’s or politician’s to the lawyer’s legal philosophy is of fairly recent date. It follows period of great developments in juristic research, technique and professional training. The new era of legal philosophy arises mainly from the confrontation of the professional lawyer, in his legal work, with problems of social justice”[10].
Socrates, who conducted a dialogue with Thrasymachus (Sofinsft), argued that when measuring what is good and what is bad, beautiful and ugly, entitled and illegitimate, it should not be left solely to individuals or to those who have power or unjust rulers, but objective measures should be sought to assess it. The question of justice is not only useful for those who are strong, but that justice should apply to all people [11] .
Plato has also discussed almost all the problems covered in the Philosophy of Law. For him justice (justice), is the right action, can not be identified with only adherence to the rule of law. Justice is a characteristic of human nature that coordinates and limits the various elements of humans against their environment in order to enable humans in their wholeness to function properly. Plato also argued that law is a reasonable thought (reason thought, logismos) which is formulated in state decisions. He rejects the notion that the authority of law rests solely on the will of the governing power [ 12] .
Aristotle never formally defined law. He discusses law in various contexts. In another way Aristotle says that “Law is a kind of order and good law is good order, reason is not influenced by passions, Aristotle also rejects the view of the Sophists that law is just a confession. However, he also admits that law is often just an expression of the will of a particular class and emphasizes the role of the middle class as a stabilizing factor [13] .
In the world of thinking about law, at this time there is also the opinion that human reason can no longer be seen as an incarnation of God’s ratio. Human ratio regardless of Divine order. And this independent human ratio is the only source of law. Elements of human logic is an important element in the formation of law.
In this case, 4 (four) types of law are distinguished, namely, first, Lex aeterna ( eternal law), an expression of the rational rules of the universe from God; secondly, Lex divina (divine law ) , which guides humans towards their supernatural goals, God’s law is revealed through the scriptures; third, Lex naturalis ( natural law ), guiding humans towards their natural goals, the result of human participation in a cosmic form; fourth, Lex human (human law, human law), regulates the relationship between humans in a certain society within the framework of special demands in that society (according to the conditions of the society concerned) [14] .
By Thomas Kuhn defines: “…Recognized scientific achievements that for a time provide model problems and solutions to a community of practitioners” [15] . Meanwhile, according to Liek Wilardjo formulates: “As a model that is used by scientists in their scientific activities to determine the types of problems that need to be worked on, and with what method and through what procedures the cultivation must be carried out” [16 ] . Another according to Angkasa: “Fundamental Views from a Community of Scientists Regarding Models That Indicate the Fundamental Issues, Theories and Methods for Solving them”. [17]
So that in the development of legal science as a knowledge, there are many theories that spur thoughts about law, Hans Kelsen in Pure Law Theory [18]says that a positive legal theory is a general legal theory, not a presentation or implementation of specific legal rules. By comparing all phenomena in the name of law, he tries to reveal the essence of law itself, determine its structure and the characteristics of its forms, independent of the content of the changes it undergoes at different times and among different people or nations. In this way he derives the fundamental principles by which every legal rule can be understood. As a theory, its sole purpose is to know the subject. So to answer the question of what the law is, not what it should be like. The latter question is part of the political field,
Hans Kelsen also says that pure “purity”, in order to avoid recognizing positive law from all extraneous elements, delimits this subject and recognition must remain clear in two directions: the specific science of law, the principles of which are usually called jurisprudence, must be distinguished from the philosophy of justice , on the one hand, and from sociology, or the cognition of social reality, on the other [19] .
The science of law shows a normative interpretation of its object only by understanding the behavior of humans who are members of a society which is the content of and determined by legal norms. The science of law explains the legal norms created by acts of human behavior and must be applied and obeyed by these actions, thereby explaining the normative relationship between the facts established by those norms [20 ] .
According to Hegel, the separation of “law that exists” and “law that should exist” in no way underestimates the importance of values in law, as also explained in the works of Austin and Kelsen, this separation places the two in completely different fields [21] . .
In this case the science of law in search of a more modern form uses the positivism model, this can be seen when Hans Kelsen in Reine Rechtslehre says that law is a logical arrangement of laws and regulations that apply in one particular place and law is the science of With these rules, the essence of Hans Kelsen’s theory is:
- The aim of a theory of law, as of any science, is to reduce chaos and multiciplity to unity.
- Legal theory is science, not volition. It is knowladge of what the law is, not what the law. The law is a normative not a natural science.
- Legal thery as a theory of norms is not concerned with the effectiveness of legal norms.
- A theory of law is formal, a theory of the way of ordingring, changing contents in a specific way.[22]
In the twentieth century, the study of law underwent many changes from its basic domain as a science, this happened with the emergence of the sociological school of jurisprudence pioneered by Roscoe Pound (1911) [23] . Pound proposed the idea of a legal study that also pays attention to social effects. from the working of the law. The study of law cannot be limited only to the logical study of the legal regulations in its application, but also the consequences that arise for society.
Flows and movements out of the realm of positive law then experienced quite striking progress. Alan Hunt called this development a ” socialogical movement in law.” Hunt’s book with the same title begins with the sentence ” the 20th century has produced a movement towards the sociologically oriented study of law. The study of law can no longer be regarded as the exclusive preserve of legal professionals, whether practitioners or academics. There has emerged a sociological movement in law which has had as its common and explicit goal the assault on legal exclucivism….. ” [24] .
In my opinion, the study of law must really be based on the subject and object as well as the purpose of law itself before exiting and integrating with other sciences, so that the view of law as a science still stands in accordance with the corridors of law itself. Because the law does not mean that it has to be a burden in society but as an art ( art of law ) to regulate society and law is not just a sanction that must be obeyed by society so that according to the authors of the law in general it can be said as ” a manifestation of human behavior individually and not society in general ”. Or more specifically the law can be said is “the repetition of human behavior that is incorporated/integrated with other humans that forms a society with norms that individually already exist, and is formed in a sacred rule and is obeyed by sanctions in the form of punishment and morals, whether coercive or not. [25]
D. DISCUSSION
1. Perspective of Legal Studies
Legal science has the characteristics of being a prescriptive and applied science. As a prescriptive science, jurisprudence studies the purpose of law, the values of justice, the validity of legal rules, legal concepts and legal norms. As an applied science, jurisprudence establishes standard procedures, provisions, guidelines for implementing the rule of law.
The prescriptive nature of legal science is something substantial in legal science. It will not be possible to learn by other disciplines whose object is also law. An initial step from the substance of this legal science is a discussion about the meaning of law in social life. In this case the science of law does not only place law as a social activity that is only viewed from the outside; rather it enters into something more essential, namely the intrinsic side of the law. In any such conversation, of course, it will answer the question why laws are needed when there are already other social norms. What is desired by the presence of law. In such discussions, legal science will question what is the purpose of law. In such a case what is actually is opposite to what should be. In the conversation, answers will be sought that will bridge the gap between the two realities.
The next issue which is a condition sine qua non in law is a matter of justice. Regarding this problem, it is necessary to remember the views of Gustav Radbruch who correctly stated that the ideal of law is nothing other than achieving justice ” Est autem jus a justitia, sicut a matre sua ergo prius fuit justitia quam jus” [26] .The issue of justice is not a classical mathematical problem, but rather a problem that has developed along with human society and intellectual civilization. The form of justice may change but the essence of justice is always present in human life in social life. Hans Kelsen’s view that separates justice from law is unacceptable because it contradicts the very nature of law. Thus raises a question about managing the justice. So this is where the prescriptive science of law emerges.
To understand the validity of the rule of law, many problems arise in human life, because humans are members of society and at the same time beings who have personality. As a member of society his behavior must be regulated. And if society lays down rules that emphasize order, then it will hinder the personal development of its members. On the other hand, everyone tends to uphold their interests while violating the rights of others if necessary.
To learn legal concepts means to learn things that originally existed in the mind that were presented to be something real. The concept of law, form law or legal construction are things that are very much needed in social life. The existence of the concept of property rights, for example, is something that is very essential in social life. Such a concept does not occur suddenly, but undergoes a long thought process. With the discovery of such concepts, inevitably followed by the rules that accompany it.
Studying legal norms is essential in the science of law. Studying law without studying legal norms is the same as studying medicine without studying the human body. Therefore the science of law is a normative science, this cannot be denied and this is indeed the case. Thus there is no reason for a legal scholar to still consider law as a normative science.
The nature of law as an applied science is a consequence of its prescriptive nature. An incorrect application will affect something that is substantial. A goal that is correct but in practice is not in accordance with what is to be achieved will result in meaninglessness. Bearing in mind this, in setting standard procedures or methods, one must rely on something substantial. In this case the science of law will examine the possibilities in setting these standards.
Based on the scientific nature of law science can be divided into three layers, in their book Jan Gijssels and Mark van Hoecke divide the three layers namely rechtsdogmatiek (Legal Dogma), rechtsteorie (Legal theory) and rechtsfilosie (Legal Philosophy) [27] . In terms of the purity of the science of law as a science, from the three divisions it can be seen that two of them (legal dogma and legal theory) are pure legal science and have not been integrated with other sciences while legal philosophy has been integrated with other sciences because in it will learn many things that cross with other sciences. Therefore the science of law has two aspects, namely practical aspects and theoretical aspects.
2. Law as Modern Science
In present terms to denote a particular paradigm that dominates science at a given time. Prior to the existence of this paradigm, it was preceded by separate and unorganized activities that initiated the formation of a science (pre-paradigmatic).
Starting from Kuhn’s ideas about paradigms in the context of the development of science as mentioned above, the following is the paradigm (science) of law, which seems to also play a role in the development of law. Starting from the notion of natural law which was challenged by later legal views (the rational natural law paradigm), the science of law has then developed in the form of a distinctive scientific revolution.
However, there is a difference with the paradigm found in the (exact) natural sciences, where the presence of a new paradigm tends to subvert the old paradigm. In the paradigm of social science (including law), the presence of a new paradigm in front of the old paradigm does not always cause the collapse of the old paradigm. The existing paradigms only compete with each other, and have implications for strengthening or weakening each other.
Natural law provides a moral basis for law, something that cannot be separated from law as long as law is applied to humans. This potential for natural law results in natural law always appearing to meet the needs of the times when legal life requires moral and ethical considerations. The implication is that natural law is embodied in the constitution and state laws.
The historical legal paradigm which is based on Volksgeist is not identical in that the soul of the nation of every citizen of that nation produces law. The source of law is the spirit of the nation which lives and works within each individual to produce positive law. According to Savigny, this does not happen by conscious use of reason, but grows and develops within the nation’s consciousness which cannot be seen with the five senses.
By Bentham, the theory is analogically applied to the field of law. The good and bad of the law must be measured by the good and bad consequences produced by the application of the law. A new legal provision can be considered good, if the consequences resulting from its application are goodness, maximum happiness and reduced suffering. Conversely, it is considered bad if its application produces unfair consequences, losses and only increases suffering.
Thus, the utilitarian paradigm is a paradigm that lays the economic foundations for legal thought. The main principle of their thinking is regarding the purpose and evaluation of law. The purpose of law is the greatest welfare for the majority of the people or for all the people, and the evaluation of law is carried out based on the consequences resulting from the process of applying the law. Based on that orientation, the contents of the law are provisions regarding arrangements for the creation of state welfare.
Talking about justice feels like an obligation when talking about legal philosophy, bearing in mind that one of the goals of law is justice and this is one of the most discussed legal goals throughout the history of legal philosophy.
Understanding the notion of justice is not that difficult because there are several simple formulations that can answer the notion of justice. But to understand the meaning of justice is not as easy as reading texts on the notion of justice given by experts, because when talking about meaning it means moving at a philosophical level which requires in-depth contemplation to the deepest essence.
Adherents of the Natural Law paradigm believe that the universe was created with the principle of justice, so that they are known, among others, as Stoicism, the general primary natural law norm which states: Give everyone what is due (unicuique suum tribuere), and don’t harm someone ( neminem laedere). . Cicero also stated that law and justice are not determined by human opinion, but by nature.
Paradigm of Legal Positivism, 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 [28] . Literally the expression means that a harsh law will hurt, unless justice can help it.
In the legal paradigm of Utiliranianism, justice is seen broadly. The only measure to measure something is fair or not is how big the impact is on human welfare (human welfare). As for what is considered useful and not useful, it is measured from an economic perspective.
Through a holistic approach to the science of law, the science of law can carry out its development as a science that is more complete and not integrated into other sciences which will later result in the development of the science of law itself, therefore this paradigm will certainly change the map of law. and legal studies that have so far guided us in every study of law that is better in terms of scientific principles.
E. CLOSING
The development of the science of law is currently progressing very fast in line with the development of science and technology, so that every law graduate must be able to adjust his knowledge to be able to keep up with these developments. However, this has changed by leaving the original characteristics of the knowledge he studied.
The science of law is an independent science and should be able to work independently in accordance with pure legal concepts and produce laws that are in accordance with the development of a more modern society. Therefore, the science of law must return to its main concept as a pure legal science.
The approaches used in understanding the science of law as a modern knowledge are by returning the science of law to its existence as a body of knowledge which will be studied and studied accordingly.
