[HAN] FAKTOR ASPEK TEORITIK PART 2

Summary

The transcript discusses the evolution of law, focusing on the expansion from written statutes to the inclusion of unwritten law. It critiques the idea of legislation as the only source of law and explores how unwritten laws, influenced by ethical and moral values, play a role in assessing legal actions. The debate over incorporating unwritten law into government practices is highlighted, with examples of how government actions differ from individual interactions, especially in maintaining order. The importance of distinguishing between personal and governmental legal expectations is emphasized throughout the discourse.

Takeaways

• 😀 The third factor of the meeting focuses on the expansion of the meaning of law, moving from just written law to include unwritten law.
• 😀 The concept of law has evolved to include unwritten laws created by state institutions or legislative bodies, which are now considered sacred and demand obedience.
• 😀 The flow of legism (from Dutch) assumes that outside the law, there is no law, with the formulation of laws often representing the interests of specific groups rather than reflecting justice or equality.
• 😀 The process of desacralizing the law challenges the notion that law is sacred and emphasizes that ethical values such as truth, justice, and propriety exist beyond written laws.
• 😀 Unwritten law, which was once guided by society's members, was not initially considered a part of formal legal frameworks, despite being recognized as important ethical values.
• 😀 There is controversy around including unwritten laws as a criterion for determining unlawful acts, with some arguing it could lead to confusion or complicate legal matters.
• 😀 Positivists argue that law should be strictly defined and not influenced by moral considerations, making them resistant to including unwritten law in legal analysis.
• 😀 Jurisprudence supports the idea that unwritten legal norms should not be used to challenge government actions, as they are only applicable in social interactions between citizens.
• 😀 A key point in the discussion is the distinction between government and individuals, with the government needing legal treatment different from that of private citizens in performing public functions.
• 😀 Sudargo Gautama argues that inappropriate actions in social interactions for individuals are not always inappropriate for the government, which must sometimes act more harshly (e.g., police duties) to maintain order and security.

Q & A

What is the main focus of the discussion in this transcript?

The main focus is on the expansion of the meaning of law, particularly the inclusion of unwritten law alongside written statutes, and the challenges and perspectives related to this shift.

How is unwritten law described in the transcript?

Unwritten law is described as the ethical norms and values that have historically been recognized by society but were not initially included in formal written law. These norms were considered to reflect the morality and propriety of society.

What is the problem with incorporating unwritten law into official legal frameworks?

The issue is that some people believe that including unwritten law complicates legal matters, brings moral debates into the law, and could lead to confusion and chaos. This is particularly a concern when applied to government actions.

What perspective does the transcript offer regarding positivism in law?

Positivism in law is presented as a viewpoint that rejects the inclusion of moral or unwritten norms into the legal system, focusing only on written statutes and legal formalities.

Why is the government’s application of unwritten law treated differently from that of an individual?

The government’s application of unwritten law is treated differently because government actions involve maintaining public order and security, which require a different set of legal considerations compared to an individual’s actions in social interactions.

What example does Sudargo Gautama give to illustrate the difference between government and individual actions?

Sudargo Gautama compares the actions of police officers to those of ordinary citizens. Police officers may act harshly in their duties to maintain order and security, which would be inappropriate for a regular person but acceptable for a government official in their role.

How does the concept of desacralization of law fit into the discussion?

The desacralization of law refers to the process of eliminating the notion that the law is a sacred entity that must be followed without question. The discussion explores how this shift opens the door to including unwritten ethical values in legal frameworks.

What is the general reaction to the idea of including unwritten law in legal systems?

There is a split opinion: some disagree, believing it complicates the law, while others agree, seeing the inclusion of unwritten norms as necessary to reflect the broader ethical values of society.

What does the transcript suggest about the relationship between law and morality?

The transcript suggests that the law cannot be completely divorced from morality, as there are values like truth, justice, and propriety that exist outside written statutes, and these values play a role in determining lawful and unlawful actions.

What is the underlying issue with government actions in relation to unwritten law?

The underlying issue is that while the government must adhere to legal frameworks, its actions should also consider ethical norms and the potential impact of those actions on society’s perception of justice and propriety, especially in cases where formal laws might not cover specific situations.