Between Law and Justice
By: REZA A.A Wattimena
The process of interpretation and application of legal formulas always invite a dilemma. If applied strictly in accordance with the existing formula, it is likely to violate a sense of justice in society. However, if interpreted too far from the legal section for adjustments to the sense of justice, the law becomes useless, because it no longer has the authority to be obeyed. The ideal law is the law that was at the point of balance between legal positivism (a strict interpretation by reference to the provisions of law), and sense of justice (morality and norms of a society which is considered as fair).
Problematic interpretation of the Law
Just as the texts of Scripture and philosophy, legal provisions were not a dead text, but a formula that needs to be interpreted in accordance with the changing world.Therefore, on the one hand, the law must be detailed enough to accommodate all aspects of human life that need to be regulated to prevent social harm (social lost). On the other side, the law need to be flexible enough to be interpreted by reference to the principles of justice which is higher than the provisions of the law itself. The failure of law enforcement cases related to corruption indicates a lack of legal authority (less detail in the application of legal formulas).While the case of the arrest of a 55-year-old grandmother after, she stole 3 cacao beans, really bother the sense of justice that exist in society (the law does not refer to the principles of justice).
Andang L. Binawan argued that law and justice are two different things, though not be separated. (Binawan, 2004) Justice is an ideal value that becomes the direction of human life. While the law is a human creation that since its formation process carried injustice. There are three things important enough to note in the process of legal interpretation. The first is about the impossibility to sit down as a free and equal subject to formulate legal provisions. The second is about the weakness of language in the articles of the law. And the third is about the space and time that separates the legislators from the people. (Binawan, 2004)
The legislators of the law were not free and equal. There are power relations that affect them. There is stronger legislators which have the ability to argue. He or she affects the law-making process significantly. There is also a weak legislators, he or she was not able fight for his constituent. On the other hand, the interests of political party, social class, the paradigm of the dominant discourse in society, and economic interests have significantly influenced the course of the legislation.
The second, according Binawan, legal language is human language, and human language since the beginning has always been reduction of reality. Language is a symbol to capture and convey meaning. In the process, direct language reduces the meaning of the symbols to the alphabet, which also means automatically reduces the actual meaning of justice to be accommodated in the language of law. Language and meaning are two different things, but can not be separated. The meaning is something much richer than the language. In the matter of legal interpretation, the justice is the value that wants to be accommodated in the language of law, but will never be identical.
The third, according Binawan, the legislators formulate the law in the context of a particular time and space. Often the context is different from the present context. There is distance of space and time far enough, which separates the legislators (assuming he wants to realize the ideals of justice) and the community as its affected by the law. Therefore, a definition of law is often no longer relevant to the situation. Law is not relevant is an unfair law. And unfair law is not law at all.
Where is the Justice?
In all this problematic interpretation of the law, where is justice? The good legislator is they who sensitive with all threes point that has been formulated by Binawan above. They are aware of the language barrier, the distance of space and time, and the impossibility to formulate ideal law. On these limitations, they think and act wisely. The same is true for people who work at law enforcement. They also need to realize, that the law is not something absolute, but rather something that already from the beginning need a human touch to achieve its purpose, namely justice.
In his book entitled The Force of Law, Jacques Derrida insists that justice is ‘something that will come’. (Derrida, 2004) Justice is a moment that need to be hoped and strived for. Justice is always a moment away from the grip of the law, though to realize justice, human needs the law.The legislators and law enforcement in Indonesia need to be aware of this, so that in doing their job, they have the courage to give a personal touch to ensure the realization of justice.
But we also have to realize, that human life is not a mathematical formula. So the balance between law and justice is more of an aspiration than a fact. Similarly, justice will never be perfectly realized in the real world, precisely because the human world is not an ideal world, but the real world. This fact can not break our spirit to fight for justice. Instead all efforts must be made to bring the law closer to the principle of justice. Justice is a moment that will come, as long as we, humans, willing to fight for it.***