Hakim, Negara dan Pembuat Kebijakan, Sosiologi Hukum, Pertemuan 13

Summary

This lecture explores the role of judges (Hakim) as both enforcers of the law and policymakers within a modern state, linking sociological perspectives on law with judicial practices. The discussion delves into the evolution from substantive justice, where judges focused on moral and ethical considerations, to formal justice, where decisions are based on rigid rules and legal formality. The lecture examines how judges' backgrounds and the broader social and political environment influence their rulings, emphasizing the dynamic relationship between the judiciary and state policies in shaping societal justice and governance.

Takeaways

• 😀 The theme of the lecture focuses on the relationship between judges (Hakim) and policy makers, exploring how judges influence legal policies within the context of sociology of law, rather than pure legal law.
• 😀 Judges, as part of the democratic system, are expected to administer justice impartially, ensuring fairness and productivity in society, rather than merely punishing offenders.
• 😀 In the past, judges were seen as part of society with deep knowledge of customs and traditions, making decisions based on the substance of the case rather than formal regulations, as compared to today's formal legal system.
• 😀 The modern judiciary, as envisioned in the 18th century, operates under a formal and rational legal system, prioritizing substantive justice and the application of fixed rules.
• 😀 The distinction between substantive justice (focused on fairness) and formal justice (focused on adherence to legal procedures) has become prominent in modern judicial systems.
• 😀 The role of judges today involves not just applying formal laws but also considering the broader social and ethical implications of their decisions, acknowledging that law is not only about formal rules but also about societal justice.
• 😀 In Islamic law, for instance, judges once worked in more informal settings like marketplaces, where decisions were based on the specifics of each case and societal needs, rather than rigid formalities.
• 😀 The interaction between judges and their social environment plays a crucial role in shaping the judicial process. Judges are influenced by societal norms and expectations, which can sometimes lead to negotiations or ‘bargaining’ in legal decisions.
• 😀 Judges in modern legal systems are trained to uphold order and certainty in law, but this rigid training can sometimes hinder the dynamic and flexible application of justice, especially in rapidly evolving social contexts.
• 😀 Judges are not just neutral decision-makers but also potential policymakers. Their rulings can influence national policies, as seen in cases like the abolition of the Rintisan Sekolah Bertaraf Internasional (RSBI) program, where judges’ decisions prompted a change in national education policy.

Q & A

What is the main theme discussed in the lecture?

The main theme of the lecture is the relationship between judges (hakim) and the state, focusing on the role of judges in policymaking, and how their decisions influence both legal and social frameworks.

How does the lecturer define the role of judges in a democratic state?

Judges in a democratic state are considered an essential part of the judiciary, which is one of the three pillars of government (executive, legislative, and judiciary). They play a key role in ensuring justice is administered fairly and effectively.

What is the difference between substantive and formal justice, as discussed in the lecture?

Substantive justice refers to decisions based on the essence of fairness and the substantive merits of a case, while formal justice refers to decisions made based on strict legal rules and formal procedures.

What does the lecturer mean by 'fix rule of rational formal law'?

The 'fix rule of rational formal law' refers to a legal system where decisions are made strictly according to formalized rules, without considering the broader social context or ethical considerations. This is characteristic of modern judicial systems.

How did Max Weber's view of justice differ from modern legal systems?

Max Weber observed that traditional justice systems, such as those in Islamic societies, focused more on substantive justice and were less formal. In contrast, modern legal systems prioritize formal rationality, which often disconnects from social and ethical realities.

What does the lecturer suggest about the evolution of the judiciary?

The lecturer suggests that the judiciary has evolved from informal, sociologically-driven decisions towards a more structured and formalized approach, especially since the 18th century, where laws became more rational and rule-based.

Why does the lecturer emphasize the 'shadow of law' in judicial processes?

The 'shadow of law' concept highlights the idea that legal decisions often reflect not just formal legal standards but also the social, political, and cultural pressures surrounding the case, which can influence the final judgment.

What role does sociology of law play in understanding judicial decisions?

Sociology of law allows for a deeper understanding of how judicial decisions are influenced by social realities, providing insights into why certain rulings are made and how legal outcomes may vary depending on the social context.

How does the lecturer describe the relationship between judges and the state?

The relationship between judges and the state is described as interdependent; judges are crucial for the functioning of the state, and their decisions shape the state's policies and legal frameworks. Judges also hold the power to influence the state's legal direction.

Can judges be considered policymakers, according to the lecture?

Yes, the lecturer argues that judges can act as policymakers, as their rulings can lead to the creation of new legal principles or changes in existing laws, affecting broader social and political structures.