Philosophical Thought of Natural Law, Positive Law, and Utilitarianism

Case study of Law

Chairman of the Panel of Judges Saifuddin Zuhri at the Jakarta Corruption Court, on Wednesday, March 31, 2021, decided that the Director of PT Multicon Indrajaya Terminal (MIT) Hiendra Soenjoto was sentenced to three years in prison plus a fine of Rp. 100 million, subsidiary to 4 months in prison. He was proven to have bribed the former Secretary of the Supreme Court, Nurhadi and his son-in-law, Rezky Herbiyono, for Rp. 35,726 billion. From wisdom and on the fulfillment of a sense of justice, the Judge argued that his decision was based on a subsidiary indictment of Article 13 of Law No. 31 of 1999 as amended by Law No. 20 of 2001 concerning the Eradication of Criminal Acts of Corruption in Article 64 paragraph (1) of the Criminal Code. The judge said that what was aggravating the defendant was that he had been convicted, did not admit his actions, did not speak frankly and did not support the government's program to eradicate corruption.

Answer:

However, are these processes and decisions appropriate in accordance with the sense of justice? What about the views of the Philosophical Thought of Natural Law, Positive Law, and Utilitarianism regarding this case?

1. Natural Law Analysis

As we all know that the School of Natural Law is the oldest school in the history of human thought about law. This school is of the view that in addition to positive law (law that applies in society) which is man-made, there are other laws, namely laws that come from God. Law is law that comes from God.

The analysis:

As a result of not admitting guilt and having been punished, the convict will get additional law from God. This law is hell for not confessing his sins. As the teachings of Thomas Aquinas (1225-1274), that:

a. lex aeterna already exists in the holy verse and becomes the basis for punishing corruptors.

b. lex devina which gives confidence to judges to add additional burden to convicts due to harming other servants of God.

c. The lex naturalis and lex positivists decided that the convict should be expelled from the religion unless he repented and admitted his guilt and conveyed all the truth of the corruption case.

2. Positive Law Stream

Positive law or legal positivism is a law that focuses on legal certainty. Therefore, in the realm of criminal law, legal positivism is known as the term: there is no crime without statutory provisions. Therefore, the verdict given is the usual verdict. Except for using the concept of Legal Realism as championed by the judges who have succeeded in maintaining the law, Bismar Siregar and Adi Andojo who dared to get out of the confines of legal positivism and made innovative breakthroughs by making progressive decisions and in accordance with the sense of justice in society. The concept of progressive law is also fully held by Artijo Alkostar who always increases the prison term for all convicted corruption.

3. Utilitarianism

Since we get knowledge about Utilitarianism, we know that Utilitarianism is also often called Utilism. Utilitarianism is a legal school that places benefit as the main goal of law. The benefit referred to in this flow is happiness (happiness). Utilitarianism views whether a law is good or bad or fair depending on whether the law gives happiness to humans or not. Happiness is sought so that it can be enjoyed by as many individuals as possible in society (the greatest happiness for the greatest number of people).

From the legal cases that we have received, the legal decisions cannot be said to meet the teachings of utilitarianism before fulfilling the following conditions:

a. Are people happy with the decision? because the law must make people happy.

b. Are the people of the state (employees) working in the corrupted field happy with the judge's decision? because those who have worked hard but have to accept the harsh legal reality that there is a criminal act of corruption that is intertwined with their work.

However, if we follow Jeremy Bentham's teachings, it is based on hedonistic utilitarianism. So we must strengthen prevention in corruption. This prevention can only happen if we use the ICAC concept (the Corruption Eradication Commission in Hong Kong, which is a model for the world). The deterrence is to whitewash the cases of police and military officials and ask for their help in arresting all corruption suspects.