It has been a while since Pramudya Octavy had reacted to my article. I should thank him for his reflective and interesting review. However, I will attempt to respond to some questions he had in his defence of Hart’s Legal Positivism. First of all, I will begin with his question, asking whether the people I mentioned and I myself consider legal positivism as a legal theory or as an interpretation method. Second, I will show that his Law and Economics method will fail as long as the judicial power is not strong enough to uphold any form of legal certainty.
What did they and I refer to?
Pramudya asks, “[D]id Imam and the people he mentioned in his article discuss legal positivism as a legal theory or as a method of legal interpretation?” He also points out, “From my reading, the critics to legal positivism made by the people in his post seem to be confused because they mix up legal positivism with rigid textualism. The idea that judges and lawyers should see beyond the text of the law is not an idea rejected by legal positivism.”
Honestly, I had never asked myself whether they, or I, considered “legal positivism” as a legal theory or as a legal interpretation method, but if one really wants to know the answer, she/he should dig out the articles of those people. What I criticized in my own article is the tendency of some scholars to take a theoretical position against “legal positivism” without first delving into the actual practices of the authority. As Pramudya writes on Hart’s theory, “rather than making a normative argument, […] Hart is making a practical argument, namely, the division is made based on his assessment of judges practices in the real world.” “Legal positivism” can thus be determined from the social fact that some kind of rules is (1) applied by a certain authority; and (2) can be verified as valid rules.
How does one know whether there is a tendency to “legal positivism”, if one does not ponder the validity of any (legal) rule? In fact, the anti-positivist tendency will exactly sweep away the discussion, as every opinion can be deemed as “the valid one” anyway.
First question: whose authority?
From the above-mentioned point of view, Pramudya has taken a good path by noting that “[T]he authority of the law simply lies in the fact that most of us accept such law as an authoritative source but it does not necessarily mean that we have a primary moral duty to obey the law and disregard any other moral reasoning.”
However, he should also notice that this remark will raise the most important question on this matter. He says that the source of the authority of law “simply lies in the fact that most of us accept such law as an authoritative source”. It seems to be a simple notion, but is it truly that simple?
I wonder whether Pramudya also borne in mind who “most of us” actually is and how that “most of us” will acknowledge certain rules as authoritative. It will lead us to the following question: whose authority will actually be a source of legal authority?
In the classical debate on this matter there will be competing state authorities. There are two models to settle the rivalry hitherto: (1) the trias-politica model; and (2) the checks-and-balances model. It is beyond the scope of this article to discuss both models. What I want to say here is that one must look on the real action of existing authorities in order to understand how law actually works.
With regard to the Indonesian law, there are fortunately sufficient academic sources to mull over the political authority which show the relatively weak power of Indonesian judicial branch, for example Dan Lev: 1986 (Islamic courts in Indonesia: a study in the political bases of legal institutions), Dan Lev: 2000 (Legal Evolution and Political Authority in Indonesia), Bedner: 2001 (Administrative Courts in Indonesia: State Reform or Image Building), Pompe: 2005 (The Indonesian Supreme Court: A Study of Institutional Collapse), and Indrayana: 2008 (Indonesian Constitutional Reform 1999-2002: An Evaluation of Constitution-Making in Transition). If the judicial branch is politically weak, then who will care for its decisions?
Second question: how are the “social facts” determined? (or should I use “should be” instead of “are” here?)
While the first question is mainly related to the authority or actor who applies the law, the second question asks how a certain authority will determine particular rules as the “social facts”. How would they do it? Most, if not all, of authorities will get its power from a certain political source. In other words, it will keep up its political mandate to legitimate its power, so that the parliament members (who make laws), or a president (who signs decrees), will refer to their voters or to some kind of assignment (for example delegation) from another authority. In sum, they have their power, because they are elected or trusted to do so.
How about judges? It might be true that some elements of her/his power is also based on the mandate by laws, or the trust given by disputing parties before they bring their case to the court. However, if we look at how the court works, the judicial power is in fact respected (read: powerful), because its decision is widely accepted by public. A judge cannot simply refer to the political source of its power, because it is not her/his voters or superior, but it is herself/himself who is considered as “the one who knows” to resolve a particular conflict between multiple parties. In fact, she/he is expected not only to know the law, but also “to do justice”. However, would her/his decision also always be accepted by those parties and… “most of us”?
In my opinion, this factor (the public acceptance) leads to many discussions about legal interpretation, not only on how a judge actually applies a particular rule, but also on how a judge should resolve a particular case in a democratic society. As long as I know, there is an on-going debate on this, for example the protracted discussion on the interpretive and pragmatic approaches. Related to this matter, I believe law students are familiar with the view of Posner, Dworkin, Kronman, Beatty, Barak, etc. All of these scholars have tried to explain, criticize, or explore how a judge should handle a case.
Be that as it may, the salient question here is whether the “social facts” are plausible. Is it due to its political authority or because of the truth in it? One can have an unending debate and take different positions on this, but like what Pramudya admits about the need of data: “For me, the fact that Indonesian judges are strict textualists (again, if the assumption is correct since we need more data) does not have any correlation with legal positivism”, the conclusion will be speculative unless she/he has first examined the implementation of a particular rule. In other words, I will prefer to look at the everyday legal practices by pondering judicial decisions, execution practices, and the actual effects of the law to the society, instead of upholding my own position based on my belief alone. Hence, I would like to encourage Pramudya to use, let’s say, these “socio-legal approaches” along with his belief on “Law and Economics”. As he self correctly writes: “At the highest level, we are dealing with social facts, not normative issues.”