Can Law Be Defined?

IS IT POSSIBLE TO DEFINE LAW?

 

 

1. INTRODUCTION

In its efforts to express its efforts, studies, and results, every science always uses language as its tool. Language consists of words arranged into sentences. These words are then used as "Term", which is intended as a symbol whose meaning and content are guaranteed to be in accordance with what will be determined by the relevant science. In other words, "Term"In a science, it can only be understood by those who study the science in question.

The main thing that we are always faced with in understanding a particular branch of science is regarding a "definition" which is used to explain or describe "a concept" within the environment of a branch of science in question, where the definition can be completely different in content and meaning from the everyday content and meaning according to the understanding of lay people (people who are outside the science of science). In the concept of law, definition is not the only way to explain a concept.

In this understanding, terms and their definitions differ from one branch of science to another. The existence of terms imbued with such meaning within a branch of science allows the science in question to construct all the concepts within that science. These concepts are then expressed using their respective terminology, yet remain interconnected within a unified whole.

With this understanding, it is possible to construct other definitions and so on, thus creating a comprehensive understanding within the relevant science. However, we know that each science has its own distinct characteristics and patterns. In this regard, it is important to note that if another science uses a term, its use must first be examined, regarding what the relevant science means by that term. In this case, what needs to be considered is the meaning or concept given as the content of the term.

For example, in everyday language (not in the technical sense), the term “valid" can be used by more than one branch of science, but has different meanings. In the field of Social Sciences, the term "valid"intersects with empirical facts that apply in society. On the other hand, in the field of Legal Science, the term "valid"not related to the empirical world in social life, but related to the world of rules or norms"valid" is always synonymous with "required" or "required" or "forced"[1]

The meaning itself, by Bruggink in his work “Legal Reflections” (Reflections on Law) translated by Arief Sidharta[2], States that :

"Understanding is the thought-content (gedachteninhoud) that is evoked by a particular word when an object or person is given a name. Thus, the word is the name (linguistic sign) for the object or person (being interpreted). Understanding is what arises in our minds as the meaning of the word, considering the word's designation of a particular object or person.".

The understanding as stated above is important for jurists, juridical works for the most part consist of giving meaning to linguistic signs. In this case, it is further stated by Bruggink as seen in the scheme below:

 

 

Language Unit	Small	Wider	The widest
Tanda	Words or Terms	Sentence, Decision	Whole sentence or decision (description)
What is meant by	Object or Person	Circumstances, Things	Circumstances, Rights
Arts	Definition or Concept	Proposition, Opinion	Overall Proposition or Opinion

Source: Bruggink, 1999; 46

The above diagram provides an initial overview of the question regarding a "arts" or "term". In the field of legal science, the question of what the correct "meaning" or "term" is depends on the philosophical question of what people mean by the truth of something. If people want to answer that question, then we arrive at the field of truth theory.

2. DISCUSSION

In response to the question "can law be defined?" we first need to examine what a definition is (its scope and meaning). Next, we will explain what law is. Finally, we will outline the principles of law and its definition. These three aspects can be explained, respectively, as follows:

1. Definition (Scope and meaning)

For Science a “definition", is intended as a symbol whose meaning and content are guaranteed to be in accordance with what will be determined by the relevant science. This is intended to provide the limits (scope) of an understanding as precisely as possible, so that it is clear to everyone in every situation.

In each definition, a distinction is made between the content and the definition (begripsinhoud) and the scope of understanding or breadth of understanding (begripsomvang). The content of the meaning is called the intensity or connotation of the meaning. The scope of the meaning is called extension or denotation of the meaning. By extension we mean all objects or people that fall within that meaning[3].  

The relationship between the intensity and extension of meaning can be expressed in two propositions (vuistregel), namely:[4]

The first argumentIntensity determines extension. This theorem states that the content of a concept determines the breadth of its scope. Which objects or people are included in a concept depends on the totality of the characteristics that embody that concept.

The second argument, Intensity is inversely proportional to extension. This postulate states that the fewer intensions a concept contains, the less precisely the content of the concept is defined, and the more objects or people are included in the extension of the concept, thus broadening the scope of the concept. From this, it is concluded that the more intensions a concept contains, the more precisely the content of the concept is defined, and the fewer objects or people are included in the extension of the concept, thus narrowing the scope of the concept.

The two arguments above provide us with an understanding of a concept intended to provide or define the boundaries of a concept (term). This will make it clear to everyone in every situation how to use a term or definition within a concept.

In this connection, of course a definition must fulfill certain conditions stipulated in a definition, namely: [5]

1. Definition (consisting of words that embody the definition) must be clearer than definiens (words that must be defined)
2. Definitions cannot be negative
3. Definiemdum and Defien must be convertible

Apart from the above understanding, opinions can also be put forward from Ahmad Ali, which formulates a definition as follows:[6]

1. According to CP Chaplin (1993;127), "a boundary between two classes or two phenomena. For example, a form or figure can be said to have a good definition, if the form clearly stands out from its background, because it has a boundary that can be clearly and well defined."
2. Indonesian Encyclopedia, Volume 2 (1980;770), "Definition (Lat: definition). Explanation of the meaning or significance of a word or formulation of the limits of its meaning"

2. What is Legal Science?

In the study of legal science, the question that often arises is "is that law" or "What is actually meant by law?”. Such a question, departs from the classic adage of an ancient philosopher, Immanuel Kant, that :

"noch suchen die juristen eine definition zu ihrem begriffe von recht"

(no jurist is able to make a precise definition of law)

Due to the intense polemic about “what is actually meant by law”, Mr. Dr. I. Kisch, States that :[7]

"doordat het recht onwaarneerbaar is onstaat een moeilijkheid bij het vinden van een algemen bevredigende definitione"

(as a result of the law not being able to be perceived by the five senses, it is difficult to create a definition of law that can satisfy people in general)

The definition of "what is law" has been a long-running debate among jurists and legal scholars, dating back to the history of legal science and continuing to this day. This reminds us of the saying that: [8]

"quot hominess, tot sententiae" which means "as many as there are people, so many are there understandings"

The question of whether “jurisprudence” is a science may be considered a question of contradiction in terminis. However, such questions are still asked by many parties, and it turns out that their answers vary.[9]. Meuwissen as constituting by Peter Mahmud[10], stated that legal science has a character that is sui generis (only one of its kind) means that no other form of science can be compared with legal science. The position of law as sui generis applies at every level of legal science, namely legal dogmatics, legal theory, and legal philosophy.

In English, the science of law is called jurisprudence. The word "jurisprudence" in English does not have the same meaning as "jurisprudence" in French (theorie generale du droit) and Jurisprudence in Dutch (Rechtswetenswchap)is a judge's decision that has permanent legal force.[11]

In the narrow sense it is legal dogmatics or legal teachings (the legal system) whose task is to describe positive law, systematize positive law, and in certain cases also provide explanation. Thus, legal dogmatics is not value-free but is conditioned by values. Rechts wetenschap in a broad sense includes; legal dogmatics, legal theory (in the narrow sense) and legal philosophy.  

Legal theory (Dutch), It also has a narrow and broad meaning. In a narrow sense Legal theory, is a layer of legal science that lies between legal dogmatics and legal philosophy. Legal theory in this sense is the science of legal explanation (een verklarende wetenshap)[12]

The term above refers to the meaning of the science of law or the science that studies law or the science whose object of study is law. Satjipto Raharjo[13], formulate a list of problems that can be included in the objectives of studying legal science, namely:

1. Study the basic principles of law
2. Studying the formal legal system
3. Studying legal concepts and their functional meaning in society
4. Study thoughts about law throughout time
5. Learning about legal developments
6. If legal science is indeed called a science, what are the characteristics or properties of this science?

Other than that, Arief Sidharta[14] The objects of study of legal science include: First, is the applicable legal system, namely valid law and existing law. Therefore, legal science primarily examines or explains the correct and proper law, life under the law, and legal facts. Secondly,, is an authoritative text containing legal rules consisting of legislative products (laws in the broad sense), judges' decisions, unwritten laws and the works of legal scientists who are authoritative in their fields (doctrine)

Regarding the question "what is legal science" with a little reference from Bruggink we find that there are two opposing answers, both of which arise from different points of view (standpoint) in general scientific teachings which are based on scientific ideas or scientific ideals (wetenschapsideaal).

In simple terms, the two answers above are described in the following scheme:

	Positivistic View	Normative View
Core Realization	Subject-Object	Subjects
Types of Knowledge	Lens	Inter-Subjective
Attitude of Scientists	Observer/Viewer	Participant
Perspective	External	Internal
Theory of Truth	Correspondence Theory	Pragmatic Theory
Proposition	Only informative/Empirical	Normative and Evaluative
Method	Only sensory observation method	Also other methods
Moral	Non-cognitive	Cognitive
Legal-Moral Relationship	Separation between law and morals	Law and Morals are inseparable
Knowledge	Only Empirical Legal Sociology and Empirical Legal Theory in the narrow sense (the others include legal expertise)	Every legal theory in a broad sense can become a science.

Source: Bruggink, 1999; 184               

3. Law and Definition

Based on what has been described above, namely regarding the essence and nature of a definition, character, and existence of legal science, then regarding the question of whether it is possible to define law, we need to pay attention to the opinion put forward by Ahmad Ali[15], which states that:

“…there are two (2) factors that make it difficult to define law, namely internal legal factors and external legal factors. In general internalThe factors that make law difficult to define are, firstly, the abstract nature of law, even though its manifestation is in the form of law enforcement. Secondly, the matters covered by law are very broad. In addition to the two factors above, one other factor that also has a significant influence external namely difficulties in terms of words"

The two factors mentioned above indicate the difficulty in formulating a universally acceptable definition of law as an object of legal science. There are even legal experts who firmly refuse to provide a definition. The reason for this refusal, in the author's opinion, is because the term... Case law [16]cannot cover the entire material, and jurisprudence is not universal. Therefore, many legal writings or literature do not provide a prior formulation; they immediately provide a definition of jurisprudence with a fairly lengthy explanation.

Apart from that, there are also two (2) arguments or opinions expressed further by Ahmad Ali[17], namely, FirstThe general opinion in legal circles is that attempts to define law are not necessarily fruitless. While it is recognized that no jurist is capable of formulating law completely and comprehensively, the existence of a definition, particularly within legal circles, is undeniable. This means that, while it is difficult to standardize the definition of law, it cannot be said that law is impossible to define.

Secondly,, an opinion that is in line with the thoughts of Lon L. Fuleer (1902-1978), who stated that the law was created to provide a framework for social interaction ( a framework for social interaction) which seeks to make human behavior a regulation (as the enterprise of subjecting human conduct to the governance of rules). Therefore, Fuller offers his stance which rejects the definition of law (a nondefinition of law)

From the two opinions above, we can hopefully understand the definition of law itself. In reality, law can never be defined, or in other words, it is impossible for us to formulate a single definition of law that encompasses all demands and needs. Therefore, it is possible to formulate only a formulation of the meaning of law whose use is very specific and contextual.

 

3. CONCLUSION

Moving on from what is described and explained above, the question of "is it possible to define law" is something that...  contradiction in terminis. This means that, on the one hand, in reality, it will not be possible to formulate a precise understanding of law, but at the same time, it is also not impossible to formulate a definition of law. The problem is that whatever formulation of law is made, it must be placed within the perspective of legal science itself, which has a characteristic sui generis

 

Reading Sources:

Arief Sidharta, 1999, Reflections on Law, Publisher PT Citra Aditya Bakti, Bandung

_____, Characteristics of Legal Reasoning in the Indonesian Context, Dissertation, Postgraduate Program, Pajajaran University, Bandung

_____, Reflections on the Structure of Legal Science, Mandar Maju Bandung, 200, pp. 133-135

Achmad Ali, 2009, Uncovering Legal Theory and Judicial Prudence, Including Legislative Interpretation, Volume I, Initial Understanding, Kencana Prenada MediaGroup Publisher, Jakarta.

Marzuki M. Peter, 2009, Introduction to Legal Science, Publisher Kencana Prenada MediaGroup, Jakarta

Mohammad Koesnoe, 2010, Basis and Methods of Positive Legal Science, published by the Unair Publishing and Printing Center (AUP), Surabaya

Satjipto Raharjo, 2000, Legal Studies, Citra Aditya Bakti, Bandung