Postmodern Philosophy as a Form of Human Reaction to Legal Positivism Concerning the Criminal Justice System in Indonesia

The study of Philosophy of Law is developing rapidly from time to time as we know that there are many schools of Philosophy of Law that are believed and used in a particular place, time, and adherents. Philosophy of Law, nowadays a school growing very fast is Postmodern Philosophy of Law. The postmodern flow of legal philosophy as a reaction to the flow of Positivism Legal Philosophy. Postmodernism's thinking about law is that legal truth is not particular, absolute, and objective, but relative, plural, consensual. This thinking often raises the pros and cons among experts. Therefore, this study tries to increase the flow of postmodern philosophy as a form of human reaction to legal positivism concerning the criminal justice system in Indonesia. This study uses a qualitative approach with a literature review method. The results of the study indicate that the criminal law system in Indonesia is unable to accommodate the purpose of the law, namely justice, because the criminal law system in Indonesia always considers justice based on the fulfilment of written law in which everyone applies a rule of law that is ultimately the same. Therefore, the author expresses Postmodern Philosophy as a creative legal justice breakthrough that is heterogeneous or combines various elements in everyday human life such as social, legal, cultural, psychological, political, educational, etc.

The Moral Wrong of Colonialism: A Non-Instrumentalist Approach

Whether colonialism involves an intrinsic moral wrong or not happens to be an important question in contemporary political and legal philosophy. If colonialism is understood as a system that necessitates some form of intrinsic moral wrong then the process of epistemic decolonization can freely repeat the patterns of political relations prevailing in colonial regimes. However, understanding colonialism from a non-instrumentalist approach guides us to take a different path in the process of decolonization. This approach mandates for discontinuation of the wrongful political relation that was prevalent in colonial world. This article stands for a non-instrumentalist approach towards colonialism and regards the system of colonialism as intrinsic wrong. To that end, it challenges the predominant discourses that portray the wrong of colonialism from an instrumentalist approach. Moreover, it introduces new arguments to support Lea Ypi’s non-instrumentalist approach to the wrong of colonialism.

Examining the Agreement Object as Good Deeds from the Consequentialism and Deontology Perspective

<em>This study aimed to analyze the agreement object as good deeds from the legal philosophy perspective. Postulated to legal positivism, this rejects the deviation of the agreement on the good deed of transplanting organs or body tissues. The results compiled using normative legal research methods described the flow of consequentialism and deontology. These doctrines state that kidney transplant procedures conducted voluntarily based on humanity have benefited recipients and donors. Therefore, they increase the happiness level of both parties without leaving the concept of Kantian moral ethics.</em>

Does Law Matter?

Implicit in almost all of legal philosophy is the belief that law matters. But is that belief sound, and, if it is, then why, when, where, and how does law matter? Thus, exploring the conceptual, normative, and empirical dimensions of the proposition that law matters represents a cluster of questions that, if not the most important questions in legal philosophy, are certainly among the most important.

Legal philosophy and the study of legal reasoning

In this paper, I argue that legal philosophers ought to focus more on problems of legal reasoning. This is a field with many philosophically interesting questions to consider, but also, a field in which legal philosophers can contribute the most to the study and the practice of law. Neither legal practitioners nor legal scholars reason with the same care and precision as philosophers do. Against this background, I suggest that the following three types of questions regarding legal reasoning are especially worthy of serious consideration. The first is that of the relevance of the theory of reasons holism to legal reasoning. The second is the question of how to analyze (first-order) legal statements in a way that does not undermine the rationality of legal reasoning. And the third is the question of whether legal arguments are to be understood as deductive arguments, inductive arguments, or both, and if so how.

The most important problems of legal philosophy and the nature of law

The purpose of legal philosophy is frequently defined as the discovery or exploration of the nature of law. The nature of law is usually understood as a set of necessary properties of law. Such an identification of the purpose of legal philosophy raises some doubts. Irrespective of those doubts, I claim that that focusing exclusively on the nature of law may be detrimental to legal philosophy as a whole, as it may be an obstacle to the investigation of certain issues that seem important. Or, at least, not all fundamental problems of legal philosophy may be perceived as pertaining to the nature of the law. Two such problems are briefly discussed: (i) legal pluralism and (ii) certain new categories of non-human legal subjects, such as autonomous machines, environmental legal persons and animals. I argue that focusing on the nature of law does not help the exploration of those important topics.

Promoting the rule of rationality over positive law and legal thinking

The paper makes the following claims. First, the most important problem for contemporary legal philosophy is contrasting the morally disgusting state of the world. Second, qua jurisprudents, the problem must be dealt with indirectly. Third, the indirect way of dealing with the problem requires pursuing the goal of promoting the rule of reason, the dominance of rationality, over law and legal thinking. Fourth, such an overall goal is to be pursued by breaking it down into five more specific goals: namely, promoting the epistemic, methodological, conceptual, instrumental, and substantive rationality of law and/or legal thinking. Fifth, pretentious and idle ways of doing jurisprudence must be put aside.

Back to Hart

The essay addresses two different senses of important “problems” for contemporary legal philosophy. In the first case, the “problem” is having forgotten things we learned from H.L.A. Hart, and, partly as a result, encouraging pointless metaphysical inquiries in other directions that take us very far from questions about the nature of law and legal reasoning. In the second case, the “problem” is to attend more carefully to Hart’s views and his philosophical context to think about the problem of theoretical disagreement, and to understand the way in which later commentators have misunderstood his behaviorist (Rylean) analysis of “accepting a rule from an internal point of view.”

The Phenomenological Method in the Ethics and Legal Philosophy of the XX Century

This paper analyzes the essence of the phenomenological method as it is used in certain theories in ethics and legal philosophy. The purpose of the paper is to provide a full study of phenomenology to determine its place in modern philosophical thought. The paper used methods of the history of philosophy, especially method of rational reconstruction, and based on interpretation of the classical phenomenological texts (E. Husserl, E. Levinas, A. Reinach). The main result of the paper is the justification that the unity of logic, ontology and ethics became the ground of application of the phenomenological method in the field of legal and ethical knowledge. Therefore the ideas of E. Levinas’s ethical phenomenology were the basis for understanding ethics as the “first philosophy” in a phenomenological context. The main conclusion of this paper is that the ethical dimension of responsibility for the actions of the subject and their consequences expands the horizons of phenomenological reduction and allows us to reveal the essence of legal reality in a new way. The paper was carried out within the framework of the HSE research project “Ethics and Law: correlation and mechanisms of mutual influence”.

Ideological Concepts in ‘Formalism, Decisionism and Conservatism in Russian Law’ (2021) by Mikhail Antonov

The present review analyses key ideas of professor Mikhail Antonov’s 2021 book on formalism, decisionism and conservatism in Russian Law. This review essay is written in the form of an imaginary dialogue between the reviewer (a political philosopher) and the author (legal philosopher). Its main aim is to explore legal dimensions of Russia’s new ideology of conservatism. Divided into five sections, it covers five conceptual foundations of the book – sovereigntism, statism, collectivism, civilizationism and exceptionalism. This review essay also examines the links between the respective ideas of legal philosophy of Mikhail Antonov and an overview of arguments from the contemporary political and critical international theory, aiming to engage in a critical discussion with the author about Russia’s insecure collective identity.