18 J.L. Pol'y & Globalization 1 (2013)

handle is hein.journals/jawpglob18 and id is 1 raw text is: 



Journal of Law, Policy and Globalization                                                       www iste.org
ISSN 2224-3240 (Paper) ISSN 2224-3259 (Online)                                                           t
Vol.18, 2013                                                                                         IISt

                          Disputes between Law and Justice

                               Widodo Dwi Putro and Oki Hajiansyah Wahab
     1. Lecturer at the Faculty of Law, University of Mataram
     2. Ph.D Student at Diponegoro University, Asociated Researcher PKKPHAM
     E-mail of the corresponding author: widodo.fhunram()gmail.com~paman mao 4yahoo.com

Abstract
The consequence of identifying justice with law is that seeking justice becomes constrained and it becomes
limited only to the formulation of law. Although it is possible to approach justice from the 'legal-formal' aspect,
justice cannot be reduced to law. Once justice is reduced to law, seeking justice outside the legal system ceases.
The assumption that justice is identical to law is misleading, as justice is assumed to be inherent in the law itself.
On the other hand, it is dangerous to make a distinct separation between law and justice. Law obtains its validity
through its positive form, which is derived from the sovereign authority. The implication of this is that law is the
law itself, altogether separate from justice, whereby an emphasis is placed only on its formal manifestation.
However, law is not justice. Law is a calculable element, while justice is incalculable in concrete terms. Law is a
tool for approaching justice. Therefore, law cannot possibly surpass justice, because assuming that law surpasses
justice would be as stating that the tool colonizes its objective.
Keywords: law, justice, tools, goals.

I.   Introduction
1.1 Background
         There is interesting anecdote, the conversation between High Justice Learned Hand and High Justice
Oliver Wendell Homes. After lunch together and Holmes get up with the dog car. From random opportunity and
background, Hand run and come afterward with the spirit, he shouts: Do justice, Sir, do justice! Holmes asks
the coachman to stop and answer from the window: That's not my job. It's my job to apply the law'1.
         In Latin glossary/vocabulary, was known the difference between term ius (justice) and lex (law);
but often identically justice with law, whereas law not identical withjustice. Special laboratory to show that law
not identical withjustice is the family of Indra Azwan which along 19 years tortured because he saw the collider
of his child free from law trap. On the verdict of High Court Military Surabaya, the collider whom also
policeman officer free from charge because the case was claimed expired2 which went through 12 years since hit
and run case in 1993 until the court was opened in 2008. Whereas on the court, the policeman officer proven to
be judicature valid and convince, did a crime that caused by default, gave occasion to someone be dead.
         In hit and run case, the judge must not be the funnel of the law. The expired concept must not be
implemented on the case that full with manipulation. Of course all the people know status and position influence
the maintenance of the law. Especially if involved the policeman officer that must be investigating officer on that
case. Law always has the lack of gape and need interpretation to get closer into justice. It reminds us on the
profile of Goddess of Themis who like to coquet and deceitful like describable by Francis Bacon on Essays of
Counsels Civil and Moral: of Judicature.
    Judges ought to be more learned than witty, more reverend than plausible, and more advised than confident.
    Above all things, integrity is their portion and proper virtue. Cursed (saith the law) is he that removeth the
    landmark. The mislayer of a mere-stone is to blame. But it is the unjust judge that is the capital remover of
    the landmarks, when he defineth amiss of lands and property. One foul sentence doth more hurt than many
    foul examples. For these do but corrupt the stream, the other corrupteth the fountain. So saith Solomon,
    'Fons turbatus, et vena corrupta, estjustus cadens in causa sua coram adversario. ' A righteous man losing
    his case is like a troubledfountain or a corrupt spring.) There is no worse torture than the torture of laws.,3
         In a juridical-formal, the victim family can't bring lawsuit to the court because of the expired case and
also the adjudication has the force of permanent law. But for Indra Azwan who never experienced law high
education, it being strange and sprag. Imagine, along 19 years the justice that he wants never realized. Indra

1 Harry T. Edwards, Judicial Norms: A Judge's Perspectives, in John N. Drobak (ed.), Norms and the Law, New York:
Cambridge University Press, 2006, p. 236
2 Expired break time are: (a) infraction (after past/over 1 year); (b) crime that has been threatened by fine punishment, prison
under 3 years (after past/over 6 years); (c) crime that has been threatened by prison above 3 years (after past/over 12 years);
(d) crime that has been threatened deadly punishment or lifelong imprisonment (after past/over 18 years). In hit and run case,
judge verdict give priority to certainty, but sacrifice justice
3Louis Jacques Blom Cooper, The Language of The Law: an Anthology of Legal Prose, London: Bodley Head, 1965, p. 3-4.
Acces from dari http://www.authorama.com/essays-of-francis-ba-con-56.html

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