As a reaction to the strong influence of those in power behind the law, a critical voice arises that seeks to correct the notion that “what is legal is not necessarily moral”. Legally, the Constitutional Court has the authority to decide on the age limit for vice presidential candidates, but from an ethical perspective, it is seen as a form of violation. How can it happen so often that the law ignores ethics?
Ethics, as a philosophical reflection on good and bad actions, behaviors and decisions, bases its considerations on judgments regarding intent, means, purpose, context, outcomes/effects, choice of words, or subject consciousness.
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Therefore, the role of ethics is to sharpen the meaning of responsibility to be highly concerned with prevention, development, education, and internalization of values. Meanwhile, the law functions to organize responsibility through sanctions or punishment threats. The goal of the law is to maintain social order and ensure safety, fairness, and prosperity. Legal pressure is put on law enforcement by upholding rules and punishing offenders.
The problem is that laws can easily be changed according to the wishes of those who make them, while ethics cannot be changed so easily and must consider a sense of justice, respect for human dignity, honesty, solidarity, tolerance, customs, and cultural context. The weakness of ethics lies in its enforcement, as it relies only on social sanctions, conscience, and religion. However, religion cannot force compliance. Law is different from ethics because it is supported by legitimate authority to impose sanctions for violations. Therefore, law is considered more concrete than ethics thanks to legal certainty.
The arrogance of legal positivism
Legal certainty becomes a weapon to attack ethics which are considered abstract and weak in enforcement. Machiavelli in The Prince said, there is no law except force that can enforce it. Only then will rights and laws legitimize that power. Thus, the distance between law and force was erased.
Critically and sharply, he said that law is a name given a posteriori by the authorities for their forgetfulness: forgetting the origins of power. The origin of power is violence. Hobbes, with full realism, is even more convincing “A covenant without a sword is empty words” (Leviathan XVIII), meaning that there must be a strong ruler to enforce the law. This kind of legal pragmatism encourages the arrogance of legal positivism.
The arrogance of legal positivism makes Thrasymachus’ satire, which is actually a sharp criticism of the law when “law is nothing but the interest of the strong,” increasingly relevant.
The myth of legal positivism is the existence of legal certainty. Legal certainty is the belief that the law is a reality created perfectly. The law is understood as a “coherent corpus of rules ready to be applied by trained and skilled judges in syllogistic deduction to find the right answer to problems with certainty” (Tebbit, 2000: 25).
Politics cannot be separated from the intervention of forces in history: political parties, the military, the student movement, or the labor movement.
However, the legal reality is uncertain. Legal issues require a search for balance between principles, policies, and unspoken assumptions. That search for balance is uncertain. The evidence of this uncertainty is apparent in the various legal interpretations governing the same case. In cases of adultery, some are heavily punished, others are acquitted, or their cases are closed.
Principles of legal certainty are being neglected by some, not only due to the gap between theory and practice, but also because of the differences between written law and its interpretations. The interpretation of law, as a corpus of rules, can be applied to cases that contradict the adjusted rules, which are constantly changing and being discovered every day in all jurisdictions in Indonesia.
The certainty of the law contains claims of validity interpretations from various parties. According to Tebbit, the ideal legal certainty relies on legal formalism, which means less exploration of the spirit or substance of the law. As a result, ethics are ignored. This interpretation model considers other social factors irrelevant. Following rules after rules means eliminating the sense of justice in assessing specific cases. However, the uniqueness of a case must be found in the substance of its concrete situation, not in formal rules that can seemingly be adjusted to a case.
The root of the problem with all of these procedures lies in the judgments behind the reasoning that are often undisclosed or unconscious. Yet, personal judgments that precede legal decisions or judgments made before the reasoning process often have more influence.
Therefore, it is necessary to bring up the arguments hidden in rationalizations of judgment to the surface. The way to do it is to shift the focus of legal logic studies to the study of explicit and unconscious factors that actually have the most influence in selecting judges’ conclusions and decisions, such as politics, money, social relations, and personal interests (Tebbit, 200:29). Thus, the ideal of legal certainty based on legal formalism becomes the cause of ethics being neglected. The intensity of disregarding ethics by law or to what extent the law is willing to take ethics into account depends heavily on the pattern of their relationship.
Five patterns of ethical-legal relationships
These five patterns of relationship between ethics and law are based on the assumption that law is a political product.
According to Belgian philosopher Jean Ladrière, there are five patterns of relationship between ethics and law (1986): (i) ethics connects law to the ideal of social-political life. Real efforts are made to achieve ethical values but no matter how perfect the effort is, it can never match this ideal.
Adherents of natural law usually use this relationship pattern because ethics is considered the soul of positive law. Political life should reflect a life full of responsibility as outlined by political ethics.
Thinkers like Thomas Aquinas emphasize that “positive law essentially regulates living together to the extent that it is based on correct or straight reason (natural law), but if it deviates from clear reason, the law is considered unjust, so the nature of the law is no longer to create order, but rather to become the basis for violence (ST Q.93, Art.3). In this pattern of relationship, the law considers ethics as an ideal but abstract value, so its demands are considered to weaken the certainty of the law.
Also read: Finding Ethics in State Documents
(ii) Concrete historical journeys shape collective ethics and existence. The codification of positive law can shape collective ethics and existence. The realization of ethical values takes place in a struggle for power and authority, which is full of conflicting interests. The drive to realize ethics happens alongside the struggle through political parties, bureaucracy, law, and institutions colored by economic resource allocation. Positive law becomes a form of institutionalization of ethics as a good will that organizes responsibility.
The stakes in institutionalizing ethics involve who benefits or is harmed by laws or institutions. In this pattern of relationship, ethics are only considered when they become part of the practical political struggle aspiration by infiltrating agents of change in various political parties. For example, the Muhammadiyah cadre diaspora model spread across various parties and state institutions. The risk is that their ethical aspirations can be crushed by party machinery or bureaucracy machinery.
(iii) Ethical Voluntarism. This pattern of relationship places ethics as a value that cannot be fully realized by law. On the one hand, only in real political life can ethics have meaning. On the other hand, ethics is understood as something transcendent that cannot be reduced to law and politics. To ensure the continuity of ethics and law, it is only by applying the understanding of will as pure will that makes will identical to action.
Through politics, ethics becomes effective by being translated into law, state institutional regulations, and welfare/justice efforts.
The implications offer two choices: first, a continuous reformist approach, which means ethical values are manifested in concrete life, despite skepticism about its success; second, through a puritanical revolution (such as the Taliban in Afghanistan and all theocratic countries). There is a moral will that believes the enforcement of ethical values can be done by forcing all members of society.
(iv) Ethics are beyond politics but always critical. The dimension of ethics serves as an external assessment originating from an authority (intellectual, religious, customary, social organization). This authority is not an effective force because it does not have direct organs/channel to determine laws. This relationship pattern is similar to the prophetic role, in the sense that a prophet knows and can predict the importance of values but cannot do anything to influence the law as it is beyond politics. The relationship pattern of ethics and law is conflictual.
It appears that the current situation in Indonesia, where in response to violations in the Constitutional Court, many academics and religious figures are protesting and questioning the legitimacy basis of the 2024 Presidential Election, is taking place. The struggle of academics will only have an impact if they adopt the following fifth pattern of relationships.
Politics and law are linked to the interference of power in history. Therefore, ethics must be involved in politics. Politics cannot be separated from the interference of forces in history: political parties, military, student movements, or labor movements. That is why ethical concerns of intellectuals must be able to be socialized and become an inspiration for political struggles of these forces. These forces, as collective actions, will succeed by anchoring themselves on institutional mechanisms.
Ethics as one of the dimensions of history, as concrete ethics, is not just a form of action. Thus, dominant social interactions are directed towards power and morality (A Giddens, 1993), although the relationship between the two is ambiguous because power tends to determine legitimacy.
Therefore, ethics of land sharing with politics. Through politics, ethics become effective when translated into law, institutional regulations, and efforts towards prosperity/justice. However, ethics cannot be reduced to politics because what is in accordance with the law may not necessarily be in accordance with justice. Law is the result of negotiation and concession. Throughout history, politics has always used ethics only to obtain legitimacy.
Democracy, political ethics, and sources of law
Of the five relationship patterns above, only the third pattern, ethical voluntarism, which side of the puritan revolution is in conflict with Pancasila, is not in accordance with Bhinneka Tunggal Ika, because it only unilaterally enforces the ethical values of certain religions. The second and fifth relationship patterns are able to explain why rulers elected through the process of democracy can damage, even destroy democratic principles because of their interest in maintaining power (Hitler, Juan Peron, Fujimori, Hugo Chavez , Putin).
Law will ignore or even silence ethics. Therefore, the struggle of all competent citizens is to strive for the law to always be directed by political ethics, that is, to expand the scope of freedom and build institutions to be more fair (P Ricoeur, 1990). Thus, the nation will be spared from the tyranny of power in the name of the law.
HaryatmokoMember of the Indonesian Academy of Sciences (AIPI), Lecturer at Sanata Dharma University