PHILOSOPHY OF LAW & ITS

APPLICATION
A collaborative learning project

This Photo by Unknown author is licensed under CC BY-SA.

Class schedule

• Friday, 14:30 - 17:00 WIB

• Online
• Class Liaison 1: Azhara Febrianti
• Class Liaison 2 : Hary Bagus Saman

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Lecturer’s Availability
• Cell phone / WA: +62 0817-806-293
• Email address: mariana@president.ac.id

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Class activity

• Class divided into 6-7 groups @ 5-6 members

• Each group 2 class presentations in 1 semester
• Each group 1 UTS + 1 UAS presentation in Philosophy of Law & Its
Application Symposium
• 2 guest lectures (Constitutional Court Judge; Supreme Court Judge;
Customs & Excise Official)
Learning plan

Week No Topic
1 Philosophy of Law - Introduction
2 Historical Development of Legal Philosophy – Overview: Group 1
3 Application of Legal Philosophy in Various Areas of the Science of Law Group 2
4 Various Schools of Thought: Natural Law Group 3
5 Positivism Group 4
6 Utilitarianism Group 5
7 Historical Jurisprudence Group 6
8 Mid-term Test: Research Proposal Symposium 1 (Groups 1-6)
9 Sociological Jurisprudence Group 1
10 Pragmatic Legal Realism Group 2
11 Contemporary Applications of the Philosophy of Law: Economic Approach to Law Group 3
12 Critical Legal Studies Group 4
13 Law as Tool of Social Reform and Development Group 5
14 The Problem of Justice Group 6
15 Ethics and Code of Ethics of the Legal Profession Guest Lecturer
16 Final Semester Exam: Research Proposal Symposium 2 (Groups 1-6)
Contents, form and format of group
presentation
• Contents:
• General context and historical background
• Main issues & leading figures
• Schools of thought, definitions, concepts
• Application of philosophy of law
• Form:
• Slide presentation
• Timing: 30 minutes of presentation + 60 minutes discussion – Q&A; 60
minutes additional lecture.
• Format:
• .ppt slides
• Submission by each group member after presentation on e-Campus
• Language: English
• Referencing & citations mandatory (Chicago Turabian Style)
 Attendance : 20%

Class / group activity

participation : 25%
Grading
Mid-term project: 25%

End-of term project: 30%

Class liaisons & Group Leaders

• Class Liaison 1: Azhara Febriyanti

• Class Liaison 2: Harry Bagus Saman
• Groups: Leader: Deputy Leader: Members:
1. Group 1 Azraf Febri
2. Group 2 Devina Larasati
3. Group 3 Febriana Eleny
4. Group 4 Imam Ryan
5. Group 5 Abel Yuki
6. Group 6 Rona Farandy
Groups
No. Group 1 Group 2 Group 3 Group 4 Group 5 Group 6
1 Andi Azraf Devina Febriana Imam Abel Rona

2 Febri Larasati (Lala) Eleny Ryan Yuki Farandy

3 Aafiyah Rachel Wiklave Tiara Tabita Azhara

4 Arfan Monika Eklesia Hafizhan Michael Zia
5 Fernando Regita Emilia Hugo Yuwanda Febrica
6 Maheswari Caroline Ahla Harry Giwangga Estevania
7 Komang Syifa Grace Yosua Firda Frisca
8 Theresia Juan Zhillan Naufal Fadhil Alif
Egi
What is philosophy?
• Logical, methodological, critical, intuitive and
reflective thinking about the essential nature of
things around us
• Philosophy begins with a question, and ends with a
question … (Prof. Dr. Widodo Dwi Putro)
 • Encourage philosophical reflection about law
• Offer insight into the philosophical aspects of law as it
Course is written, implemented and enforced in practice
objectives • Engage in discussion / raise critical questions about
the law and the achievement of its purposes in the
contemporary context
• Applicability of the philosophy of law in legal studies,
law development, law enforcement and the legal
profession.

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Natural Law

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What Is natural Law?
“… a law which is
founded on nature … a
law which is in
accordance with
nature.”

(Chand, 1994, p.33)

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 What is natural law?

• What is the nature of the world stuff? (Thales, 624-547 BCE)

• Aristotle, St. Thomas Aquinas, Stoic scholars, Cicero, and others:
natural law is nothing but right reason, reason in agreement with
nature, or man’s participation in divine wisdom.
• Natural law is equivalent to reasonableness; a reasonable man is
in unison with natural law, whereas an unreasonable man is at
discordance with natural law. (Chand, 1994, p. 36)

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 Aristotle (384-322 BCE)
• Rightly constituted laws should be the final sovereign; these laws
should be sovereign on every issue, except that personal [i.e.
executive[ rule should be permitted to prevail in those matters on
which the law was unable to make a general pronouncement.
(Aristotle, The Politics, transl. E. Barker (Oxford, 1946), Bk.1. 1252b.
See in See in Bodenheimer, Second Printing 1976, p.10)
o“A rule of justice is natural that has the same validity everywhere,
and does not depend on our accepting it or not. A rule is
conventional that in the first instance may be settled in one way or
the other indifferently, …” (Nicomachean Ethics, Bk. V.vii.,1. In the
Politics. See in Bodenheimer, Second Printing 1976, p.11)

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Stoics – Zeno (333-262 BCE)
• In Rome they developed a philosophical system based on nature
• The entire universe is governed by ‘reason’ and man’s reason is part of
the universal reason.
• Positive law must conform to the natural law.

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Cicero (106-43 BCE)
“True law is right reason in agreement with nature; it is of universal
application, unchanging and everlasting; it summons to duty by its
commands, and averts from wrongdoing by its prohibitions. … And
there will not be different laws at Rome and at Athens, or different
laws now and in the future, but one eternal and unchangeable law
will be valid for all nations at all times and there will be one master
and ruler, that is God, over us all, for he is the author of this law, its
promulgator, and its enforcing judge.”

(De Re Publica, transl.C.W. Keyes (Loeb Classical Library ed., 1928), Bk. III,xxii.
See in Bodenheimer, Second Printing 1976, p.13-14)

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Gaius (flourished 130–180 ce)
“All nations who are ruled by law and customs make use partly of
their own law, and partly of that which is common to all men. For
whatever law any people has established for itself is peculiar to
that State and is called the jus civile, as being the particular law of
that state. But whatever natural reason has established among
all men is equally observed by all mankind, and is called jus
gentium, because it is the law which all nations employ.”
(Gaius, Institutes, I.I.IK; Justinian’s Digest I.I.9. see in Bodenheimer,
Second Printing 1976, p. 15)

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Ulpian (170-228? CE)
Ulpian about natural law:

“ius istud non humani generis proprium, sed omnium animalium, quae in
terra, quae in mari nascuntur, avium quoq que commune est.” (This ius
does not just pertain to the human race but is common to all animals,
those born on the land and in the sea, but also birds.)

(Justinian, Digest 1.1.10.1 Ulpianus libro primo institutionum)

http://legalhistorysources.com/LisbonRights/RomanLawDeLegibus2.htm,
accessed on February 5, 2021

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 St. Agustine (354 – 430 CE)
• The union with God is the end of law.
• Nature misled and corrupted man.
• If human law is contrary to the law of God, it is to be disregarded.

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 St. Thomas Aquinas (1224/25-1275 CE) –
Summa theologica
• Eternal law: revealed through scripture, rational guidance of
creation on the part of God.
• Natural law: man’s share in the divine reason because man is
endowed with reason.
• Divine law: provided in the scriptures and religious books and
said to have descended from God.
• Human law: man-made law.
• An unjust law is no law. (St. Thomas Aquinas)
• If a human law does not follow the natural law, it is not a law but a
perversion of law.
(Chand, 1994, p.40)

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 The Rennaisance Period
• Rennaisance: the individual as an end into himself, critical,
sceptical, thirsty for knowledge and conscious of his power.
• Reformation: struggled for individual freedom of conscience.

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 Evolution of the classical law-of-nature
philosophy – First epoch
The process of emancipation from medieval theology and
feudalism – rise of Protestantism in religion, enlightened
absolutism in politics, of mercantilism in economics.
o Grotius, Hobbes, Spinoza, Pufendorf, and Wolff.
o The ultimate guaranty for the enforcement of natural law is to be
found in the wisdom and self-restraint of the ruler.

Bodenheimer, 1962, 2nd Printing, 1976, p.34

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 Second Epoch
• English Puritan Revolution (1649)
• Tendency toward free capitalism in economics and liberalism in
politics and philosophy
• Locke, Montesquieue
• Guarantee of natural rights of individuals by means of a
separation of powers, against undue encroachments by the
government.
• It had a profound impact on the political and constitutional
development of the United States of America.

Bodenheimer, 1962, 2nd Printing, 1976, p.34, 35.

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 Third epoch
• Strong belief in popular sovereignty and democracy.
• Natural law entrusted to the “general will” and the majority
decision of the people.
• Jean Jacques Rousseau
• It had a profound impact on the political and constitutional
development of France.

Bodenheimer, 1962, 2nd Printing, 1976, p. 35.

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Hugo Grotius (1583-1645)
• Dutch jurist and thinker.
• De Jure Belli ac Pacis (1623-25)
• Man has desire for society, for a peaceful life in common with
fellow men and in correspondence with the character of his
intellect.
• The Father of international law; he detached the science of law
from theology and religion, prepared the ground for secular,
rationalistic version of modern natural law.
“Natural law is so immutable that that it cannot be changed by
God Himself.”

Bodenheimer, 1962, 2nd Printing, 1976, p.34, 35.

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Hugo Grotius (1583-1645)
oThe principles of natural law:
(i) A priori – examining anything in relation to the rational and
social nature of man; and
(ii) A posteriori – examining the acceptance of these principles
among the nations.
o Pacta sunt servanda (Pacts must be respected) is the most fundamental
principle – the main foundation of international law.
o Respect for other people’s property and the institution of gains made from
it, i.e. payment of damages for any damage caused.
o The freedom of the seas as a principle of natural law.
o What is right and wrong depends on the nature of things and not
on a decree of God.

Chand, 1994, p. 40-43.

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Hobbes (1588-1679)
• De cive (1643) and Leviathan (1651)
• Man is intrinsically selfish, malicious, brutal and aggressive.
• In the state of nature – absence of organized government – each
man is a wolf to every other man (homo homini lupus), and in
atmosphere of hate, fear and mutual distrust, everybody is at war
with everybody (bellum omnium contra omnes).
• There are certain passions which incline men to peace (e.g. fear
of death, desires for things for commodious living, hope to obtain
them through industry) – therefore, reason suggests that men
would seek after peace.

Bodenheimer, Second Printing 1976, p.40

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 Hobbes: Fundamental laws of nature
1. Peace should be sought wherever it can be found.
2. The social contract: in a state of nature men entered into a
covenant with the ruler to keep order in the society upon the
condition that they would obey him absolutely. Once made,
such covenant is irrevocable.
3. Men must fulfill their promises which they make; injustice is
no other than non-performance of the covenant.

Chand, 1994, p. 43.44.

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 Hobbes (cont’d)
• The laws of nature are not binding upon men everywhere and at
all times.
• Government should abstain from regulating the lives of its
citizens, except in the most urgent matters.
• Discourages civil disobedience; but where resistance is
successful, the sovereign ceases to govern.
• The Church has no power over the sovereign.

Chand, 1994, p. 44.

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Samuel Pufendorf (1632-1694)
• German law professor
• Two sides of human nature:
• man is strongly motivated by self-love and egotism (Hobbes)
• there is a strong inclination in man to seek association with other men
and to live a peace3ful and sociable life in society (Grotius)
• Two fundamental principles of natural law:
• protect life and limb, protect one’s property.
• man should not disturb society
“That each should be zealous so to preserve himself that society
among men be not disturbed.” (Pufendorf)
(Elementa jurisprudentiae, transl. W.A. Oldfather, Oxford, 1931, Bk. II, see in
Bodenheimer, 2nd Printing, p. 37)

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John Locke (1632-1704)
• Due to the rise of absolute rulers throughout Europe there was a
great need for protecting individual liberty against governmental
encroachments.
• The main emphasis was on liberty.
• Lock assumed that the natural state of man was a state of perfect
freedom and a state of equality.
• Law of nature: all persons being equal and independent, on one
ought to harm another in his life, health, liberty, or possessions.
(Locke, of Civil Government. Everyman’s Library ed., 1924, Bk. II, ch. ii, sec.4
and 6. See in Bodenheimer, p. 45)

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John Locke (cont’d)
• Man has natural rights to anything with which he mixes his
personality, his labor.
• By his labor, a man projects his personality into the object of his
work.
• This right of property exits prior to and independent of any social
contract.

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Lock’s ideas
• Equality of men: all people are equal and hence no one has any
right to injure another in life, health, liberty of possession.
• Self-preservation and preservation of others is in accordance
with the law of nature.
• People should be restrained from injuring others.
• Nobody has an absolute arbitrary power over himself or over any
other to destroy his own life or take away the life or property of
another.
• The Ruler has no right to remain in power if he fails to protect the
lives, liberty and property of the people.
Chand, 1994, p.46.

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 Baron Charles Louis de Montesquieu (1689-
1755)
• Laws are “the necessary relations arising from the nature of
things.”(The Spirit of the Laws, transl.T. Nugent. New York: 1900,
see in Bodenheimer, p.48)
• Desire for peace is among the universal conditions of man’s
existence in society.
• He viewed law in general as “human reason” (see Eugen Ehrlich,
“Moents quieu and Sociological Jurisprudence”, 29 Harvard Law
Review 582. 1916. See in Bodenheimer, p.48)

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Montesquieu (cont’d)
• “Constant experience shows us that every man invested with
power is apt to abuse it, and to carry his authority as far as it will
go.”
• To prevent abuses, power should be checked by power.
• Separation of powers: legislative, executive and judicial powers.

Bodenheimer, p.49

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The philosophy of natural rights in the united
states
o The combination of Locke’s theory of natural law with
Montesquieu’s doctrine of separation of powers forms the
philosophical basis of the American system of government.
o Constitutional division of government into three independent
branches with a system of checks and balances (inspiration
from Montesquieu)
o Declaration of Independence, interpretation of certain clauses
of the Bill of Rights (esp. due process) by the Supreme Court
(influence of Lockian theory of natural rights).

o Bodenheimer, p.49.

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Jean Jacques Rousseau (1712-1778)
• A native of the Swiss city of Geneve.
• He firmly believed in the existence of “natural Rights”.
• In civil society, the individual is subject to no other individual, but
merely “to the general will” (volonté générale), i.e. the will of the
community
• Sovereignty is the exercise of the general will.
• He identifies ‘general will’ with the ‘common good.’
• Law must be general in character and equally applicable to all.
• Rousseau’s theory may easily lead to an absolute democracy, in
which the will of the majority is not subject to any limitations.
(Tocqueville: “tyranny of the majority.”)
• Rousseau’s ideas had great influence on the French Revolution and
on the French Republic during the 19th century and the first half of
the 20th century – parliamentary democracy.
Bodenheimer, p. 56.

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 Immanuel Kant (1724-1804)
• Man is a rational, free willing being, distinct from nature.
(Aristotle, Fichte, Hegel, Kant)
• Man being a part of nature, is subject to its laws but to the extent
that he is endowed with reason, he is distinct from nature and
capable of dominating it.
• Kant’s books: Critique of Pure Reason, Critique of Practical
Reason and Critique of the Power of Judgment.

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 Kant: Theory of Knowledge
• The ultimate aim of the individual should be a life of free will
(volition)
• Principles of man’s volition:
• First principle: Act in such a way that the maxim of your action could be
made the maxim of a general action. (the basis of Kant’s moral and legal
philosophy)
• Second principle: An action is right only if it can coexist with each and
every man’s free will according to the universal law.

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 Kant’s Ideas
• Autonomy of reason and will – emphasis on the individual
• Rule of law and not rule of men
• Natural law serves as a standard of comperasion, not as a
criterion of the validity of law.

Chand, 1994, p.47,48.

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 Critique of Natural Law:
David Hume (1711-1776)
• Human action is guided by certain values inspired by human
motives.
• He rejected reason as the guide of action.
• Moral sense is guided by pleasure and pain. (see later Bentham’s
full-fledged philosophy of utilitarianism)

Chand, 1994, p.49.

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Practical Achievements of the classical law-of-
nature school
• Prepared the ground for the legal order of modern civilization.
• Detected connection between law and the values of freedom and
equality. Rousseau: “force does not create right.”
• Helped destroy the medieval guilds and restriction upon trade and
industry.
• Aided in freeing landed property from feudal burdens.
• Created freedom of movement of vocational choice.
• Inaugurated an era or religious and spiritual freedom.
• Sought to achieve legal security for everybody and sponsored the
principle of equality before the law.
• Elaborated the general principles of international law.

Bodenheimer, p.57,58.

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 Philosophy of natural law
• Strong movement for legislation (in mid-18th century): discover
an ideal legal system, embody various rules and principles of
natural law in a code.
• Code of Frederick the Great of Prussia (Allgemeines Landrecht, 1794)
• Code Napoléon of 1804 (it is still law in France)
• Austria enacted a code in 1811
• German Civil Code of 1896
• Swiss Civil Code 1907

Bodenheimer, p.58-59.

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 The Revival of Natural Law
• Stammler (1856- 1938) – Neo-Kantian
• Notion of law:
• the concept of law- “Law is the inviolable and autocratic collective will.”
(Recthsfilosophie, 3rd ed. (Berlin, 1918), p.93, see in Bodenheimer, p.136)
• the idea of law – the realization of justice.

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Gustav Radbruch (1878-1949)
• German legal philosopher – neo-Kantian philosophy of values
• Prior to World War II he held a relativistic view of law and justice,
namely the idea of justice, expediency, legal certainty.
• In the case of an irreconcilable conflict between them, legal
certainty ought to prevail.
• After World War II he revised his former theories:
“Preference should be given to the rule of positive law, even when
the rule is unjust and contrary to the general welfare, unless the
violation of justice reaches so intolerable a degree that the rule
becomes in effect ‘lawless law’ and must therefore yield to justice.”
(Gesetzliches Unrecht und Übergesetzliches Recht, in Rechtsphilosophie, ed. E.
Wolf, 4th ed., Stuttgart, 1950, p.353. See in Bodenheimer, p.142)

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John Rawls (1921-2002)
• Professor of Harvard University
• Book: A Theory of Justice (1971)
• Society is a more or less self-sufficient association of persons; it is a
system of cooperation.
• Principles of social justice are necessary for making a rational choice.
• Practical rationality:
• Value
• Right and moral worth
• Relates to social systems and institutions
• As between liberty and need, liberty prevails; as between need and
utility, need prevails; and as between liberty and utility, liberty
prevails.
Chand, 1994, p.51-53.

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Lon L. Fuller (1902-1978)
• Law is an enterprise of subjecting human conduct to the
governance of rules.
• Law has two aspects of morality:
1. External – the “morality of aspiration” – ideals.
2. Internal – a procedural version of natural law.
• Immoral policy is bound in the end to impair the inner morality
and so the very quality of law.

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John Finnis (1940)
• Australian legal philosopher
• Natural law consists of two sets of principles:
1. Consisting of certain basic values; and
2. Requirement of practical reasonableness
• There are certain basic values or basic goods that human beings
follow or want to follow in their lives:
• Life
• Knowledge
• Play
• Aesthetic experience
• Sociability (friendship)
• Practical reasonableness
• Religion
• The focal meaning of law is “to see to coordinate for the
common good.”
Chand, 1994, p.54-57.

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 Concepts related to natural law
• Public policy
• Public morality
• Social justice

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Assessment of Natural Law
• Friedmann observes that natural law implies values. (Hook,
Sidney, Law and Philosophy – A Symposium, 1964, p.168. see in
Chand, 1994, p.59)
• Man is a creature endowed with the capacity of reasoning as well
as choosing an alternative course of action.
• “ Natural law is a call for the sovereignty of individual conscience.
The judge has to be find his way between two poles, that of
natural and and that of positivism, and he has to locate the
golden mean point in each case.” (Chand, 1994, p.63)

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 reference materials
• Shidarta, Aliran Hukum Kodrat. Jakarta: UPT PENERBITAN
UNIVERSITAS TARUMANEGARA, 2007.
• Stanford Encyclopedia of Philosophy.
https://plato.stanford.edu/entries/medieval-philosophy/#To1000

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Group Discussion - Introduction
• The Natural Law School of Thought (Hukum Kodrat, Hukum Alam)
teaches that law is universal and eternal.
• According to Friedmann, the history of natural law is a tale of the
search of mankind for absolute justice and its failure. The
understanding of natural law changes along with changes taking
place in society and political conditions. (Rasjidi, 1993, 9th print
2004, p.47)
• Natural law continues to play an important role in the
interpretation of laws. (Chand, 1994, p. 34)

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Application of the philosophy of law in court
decisions: natural v. positivistic approach

• Corbett v Corbett (otherwise Ashley): FD 1 Feb 1970

• Re Kevin (validity of marriage of transsexual) [2001] FamCA
1074
• Pergantian Kelamin (Penetapan No. 19/Pdt.P/2009/PN.Btg)

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 List of Selected reading materials:
1. Otje Salman, Filsafat Hukum (Perkembangan dan Dinamika
Masalah), Aditya Bakti, Bandung, 2009.
2. Lili Rasjidi, Ira Thania Rasjidi, Dasar-dasar Filsafat dan Teori
Hukum. Cetakan ke-9. Jakarta: PT. Citra Aditya Bakti, 2004.
3. Satjipto Rahardjo, Penegakan Hukum Progresif. Jakarta:
Kompas, 2010.
4. Soetandyo Wignjosoebroto, Jakarta: ELSAM & HUMA, 2002.
5. Shidarta, Karakteristik Penalaran Hukum dalam Konteks
Keindonesiaan. Bandung: CV. Utomo, 2006.
6. Widodo Dwi Putro, Kritik Terhadap Paradigma Positivisme
Hukum. Yogyakart:: Genta Publishing, 2011.

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 List of Selected reading materials (cont’d)
7. Yogi Sumakto, Kajian Kritis Terhadap Konstruktivisme Hukum dalam
Perkembangan Teori Murni Hukum Hans Kelsen dan Pancasila Qua
Grundnorm dalam Struktur Hierarkis Norm-norma Sistem Hukum
Indonesia. Disertasi. Program Doktor Ilmu Hukum, Fakultas Hukum
Universitas Indonesia, 2013.
8. Paul Scholten, Struktur Ilmu Hukum. Bandung: PT Alumni, 2005.
9. Mochtar Kusumaatmadja, Pengantar Ilmu Hukum, Bukut I. Bandung: PT
Alumni, 2009.
10. Hari Chand, Modern Jurisprudence. Kuala Lumpur: International Law
Book Services, 1994.
11. Edgar Bodenheimer, Jurisprudence - The Philosophy & Method of the
Law. Revised Edition, Second printing. Cambridge, Massachusetts:
HARVARD UNIVERSITY PRESS, 1976.
12. Roscoe Pound, An Introduction to the Philosophy of Law. New Haven and
London: YALE UNIVERSITY PRESS, 1982.
13. Apeldoorn, L.J. Van, Pengantar Ilmu Hukum, terjemahan Mr. Oetarid
Sadino. Jakarta: Pradnya Paramita, 1976.
14. Ronald Dworkin, Law’s Empire. Cambridge, Massachusetts: Harvard
University Press, 1986.

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15. M.D.A. Freeman, Lloyd’s Introduction to Jurisprudence,
Seventh Edition, London: SWEET & MAXWELL LTD, 2001.
16. Risalah Sidang Badan Penyelidik Usaha-usaha Persiapan
Kemerdekaan Indonesia (BPUPKI) Panitia Persiapan
Kemerdekaan Indonesia (PPKI), 29 Mei 1945 – 22 Agustus
1945, Tim Penyunting Saafroedin Bahar, Nannie Hudawati.
Jakarta: Sekretariat Negara Republik Indonesia, 1998.

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