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All Journal Indonesia Law Review (ILREV) Jurnal Hukum dan Pembangunan
Bello, Petrus CKL
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Law, Crime, Criminology & Criminal Justice

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THE CONTROVERSY ABOUT THE ESSENCE OF LAW: A DISPUTE BETWEEN HART AND DWORKIN Bello, Petrus CKL
Indonesia Law Review Vol. 2, No. 1
Publisher : UI Scholars Hub

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Does the law merely contain rules? Or does it also include morality? The debate between H.L.A. Hart and Ronald Dworkin revolved around this very issue. Hart considered the law is nothing more than a set of rules whereas Dworkin believed that the law contains not only the rules but also principles which are morality and justice. This paper is trying to explore the issue of the relationship of law and morality in the context of this debate between Hart and Dworkin. The debate itself is very significant in the study of law. Following their arguments we can learn a lot about how the law should be understood and practiced. By listening to their whole debate we will also know that Hart’s positivistic thought and Dworkin’s tendency towards the natural law are not mutually negating. Hart Positivism is not anti-morality. It is precisely through positivism which he defended Hart aims at safeguarding the law by morality; whereas Dworkin has shown what had previously forgotten by the legal positivistic way of thinking, that is moral principles are integral parts of the law.
TEORI KESETARAAN SUMBER DAYA DWORKIN DALAM KERANGKA KEADILAN DISTRIBUTIF DAN IMPLIKASINYA TERHADAP KONSTITUSI NEGARA KESEJAHTERAAN Bello, Petrus CKL
Jurnal Hukum & Pembangunan Vol. 52, No. 2
Publisher : UI Scholars Hub

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According to Dworkin, the equality that must be pursued by a government is equality of resources, not equality of welfare, as emphasized by utilitarianism in its various versions. According to him, the concept of resource equality is superior in interpreting abstract ideas about human equality. First, the concept of resource equity avoids ambiguity in understanding distributive justice and, second, avoids divisions that contradict our intuition about justice, two problems that plague the formulation of welfare equality. Equality of resources is proposed by Dworkin in the framework of distributive justice. According to Dworkin, it is in this equality of resources between the principles of equality and personal responsibility that often conflict can be reconciled, of course, by finding other concepts that satisfactorily fulfill both, for example the concept of insurance. Distributive justice presupposes that there is a theory of freedom, although in this theory of resource equity the dangers of freedom and equality will conflict but the theory of freedom will eliminate that danger. The problem is that the political economy policies of a country are not only dictated by the Constitution but also by the free market system, in which the people buy and sell their products and work. Of course the results are not the same for all. Then how does the Constitution of the Indonesian Welfare State guarantee equality? Because the people cannot be responsible (cannot fully vote) and determine their place in the economy, nor are they responsible for their talents, good and bad luck in life. Meanwhile, if the government takes the extreme position of wanting to distribute welfare equally regardless of the people's choice for their work, then the government here is tantamount to failing to respect the responsibility of the people to make something in their lives.
PANDANGAN JOHN FINNIS MENGENAI HUKUM YANG TIDAK ADIL Bello, Petrus CKL
Jurnal Hukum & Pembangunan
Publisher : UI Scholars Hub

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Contemporary natural law thinker John Finnis in his book Natural Law and Natural Right published in 1980 differentiates between legal obligations and moral obligations. According to Finnis, legal obligations cannot change, while moral obligations can change, in the sense that when it comes to unjust laws, only the moral obligation to obey the unjust law is extinguished, while the legal obligation to obey the unjust law remains and is binding. For Finnis, natural law theory does not focus on the view that the law is wrong or against moral principles that cannot be called law (lex injusta non est lex), but focuses on the common good, and formulates how the legal system can strive for it. Although we do not have a moral obligation to obey unjust laws, in certain situations we still have a moral obligation to obey unjust laws to keep the legal system as a whole stable. The distinction or separation of legal obligations and moral obligations made by Finnis is weak in its relevance to unjust laws, as pointed out by his critics, namely Robert Alexy and Seow Hon Tan.
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