Philosophy comes from the Greek "Philosophia". Philo means "love", "Sophia" means wisdom. Philosophy is often referred to as the mother of knowledge. Because man is a rational creature. Man wants to know everything that he does not understand, and philosophy is the science of the results of the mind. Therefore, from that until now today philosophy still exists.

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1.      Introduction to Ancient Greek Law

Ancient Greece was the Greek civilisation belonging to a period of Greek history. It lasted from the archaic period of the 8th – 6th centuries B.C. to the end of antiquity. The archaic period was the name for the time from 620 to 480 B.C., while antiquity was the period in history before the Middle Ages.

The law is a system of rules that a particular community recognise to regulate members as it enforces authority by penalties such as death. There are three stages that most legal system progresses go through. Firstly, a prelegal society, where there is no established regulations and punishments. Secondly, a protolegal society, which has rules and procedures but unlike laws the rules are based on social standards in the community. Thirdly, a legal society, laws are put into place with certain consequences for each crime.

During the Prelegal society of Ancient Greece about 1200 – 900 B.C., there were no official laws or punishments. For instance, when someone was murdered, friends and family of victim could kill murderer. By the seventh century B.C., laws were beginning to set in place as the communities changed into a protolegal society and to a legal society. In the 620 B.C., there was the first law placed in Greece, it established immediate exile as the penalty for homicide. This was part of the Tort Laws, which were laws that occurred when someone harms you or your property directly. There were also Family Laws to regulate behaviour of citizens. These laws included allowances for marriage, adoption, inheritance, and women’s rights, which were very little at the time. Penalties were not set but instead enforced by the head of the family. Also Public Laws, which concerned how public services and functions should be conducted. Then lastly, there were Procedural Laws. These were guidelines that told judges how to enforce the laws.

Specific penalties were for specific crimes. These laws were enforced and created by lawgivers. These Lawgivers were appointed officials whose only job was to laws. So that they were unbiased they couldn’t be a part government decisions, they were considered political outsiders.

Draco was the first appointed Lawgiver of Greece, as he created the first known law of Ancient Greece. His punishments were said to be very cruel and he attempted to place death as the punishment for all crime. Solon took over because he was unbiased and he had support from all the various political parties, unlike Draco. He kept only a few laws along with changing and creating many of the laws in areas such as family and tort laws. In order for laws to be carried out, there had to be some kind of system to prove someone guilty.

Ancient Greek Courts were created but they were not run in a professional manner like today. Inside the court, there was an audience (jurors), litigants (like lawyers by amateurs), and a judge. The litigants would state their arguments with a judge present, and then the audience would vote the sentence. As society advanced so did the systems, Areopagus was the first court and is the most ancient homicide court in Greece, it dealt mainly with homicide. There were 4 courts were created, firstly, Prytaneion, which is the tried cases of death caused by an animal or inanimate object. Secondly, Palladion, which dealt with cases of involuntary homicide and killing of non – citizens. Thirdly, Delphinion, which is tried cases of justifiable homicide. Lastly, Phreatto, which is tried those who, while in banishment for involuntary homicide, were charged with murder or intent to harm.

So as time went on, the systems changed, but for Ancient Greek Laws, these are the main topics that are covered to understand the basics of the system and people involved. 

At the time of Greece was the foundation or the essence of philosophy, which took a cosmological approach that is the rules of logic or rules of human reason to achieve the goal of human life, which is involved in sharing the rules of competing a little with the rules of reason. Important figures that live in this era, among others: Anaximander, Herakleitos, Parmenides, Socrates, Plato, and Aristotle.

Anaximander, Herakleitos, Parmenides believe in the necessity of this nature. Therefore, there is a need for order and justice that can only be obtained with nomos that are not rooted in gods but logos (ratios). Anaximander believes that the necessity of nature and life is less understood by humans. But it is clear to him that the regularity of living together must be adapted to natural necessities. When this happens, justice arises. Herakleitos he argues that human life must be in accordance with natural order, but in human life it has been combined with notions derived from logos. Parmenides argues that logos guides the flow of nature, so that nature and life get a clear and permanent order.

Socrates argues that the purpose of human life is eudaimonia, which in Aristotelian ethics, is the condition of human flourishing or of living well. Socrates defended that belief even though he ended up having to face the death sentence because the rain had incited young people. Moreover, the law of the authorities (state law) must be obeyed, whether the law has objective truth or not.

Plato wrote Politeia and Nomo book. The book Politeia describes a state that is fair that in a state there are groups and what is meant by justice is if each group does what is in accordance with its place and task. While in the book Nomoi, Plato explains about the instructions for the formation of the legal system. According to Plato, the applicable regulations must be written in the legislation, because if not deviations from fair laws are difficult to avoid.

2.      Ancient Roman law

When you’re trying to figure out the way in which Roman law evolved, it’s very long period of time. And probably the single most important break is the end of the Republic after the death of Caesar and the rise of Augustus, which spanned basically just before and just after the birth of Christ.

How this influence things? There two ways. One of them is a public law matter and the other is as a private law matter. If you’re dealing with the public law matter, the changes are very large. A Roman Republic is res publica. It means that those affairs, the word res can either mean a tangible thing or a set of social affairs, which belong to the public should be decided by public at large. And so you see a very large role that’s given to two classes, one the Senate, which is a term we use for our upper house this day, and then to the Publicians which become the House of Representatives. The theory was representing different individual groups in slightly different ways, there would be a clash in the set of checks and balances between these two parties so that you could be reasonable confident that no one person could take charge. Much of Rome was governed by two councils, not one. So what you did is one executive could give a check against the other. And what you saw was a political system which obviously would have many weaknesses in practice, but at least was alert to the dangers of arbitrary power. When you get to the Empire, all that starts to disappear. When it comes to the private laws, the continuity across the Republican and the Empire is almost complete. If you go back and you start to read Gaius and so forth, what he does is he basically identifies two classes of scholars who differ from one another: The Sabinians and the Proculeans, one of the being more concerned with substance and the other being more concerned with form as a way of organising a situation. So what he then does is he presents essentially 20 or 30 disputes between the two schools on how it is these scholars would resolve a problem. But essentially what happen is when you do Roman private law, you spend some time on the evolution of legal documents but you don’t pinpoint or tie it to the political changes in the larger system. So the continuity between the time of the twelve tables and the time of Justinian of 1,000 years on the private law subject is increasing sophistication, as well as their major statues. But, the lex Aquilia, which is thought to be the single most important statute on the law of torts, is adopted roughly around 287 B.C. early in the Republic and they’re  construing it for all it’s worth 400 years later. Obviously, the change between the Republic and the Empire does not have much to do with what’s going on in that very difficult statutory construction.

3.      The medieval

In medieval countries is already a state that is ambiguous. This dualism is caused by the existence of two kinds of rights which form the basis of the formation of the state, namely:

  1. The king's right to fulfill the so-called Rex
  2. People's rights are called Regnum

The medieval type of state was feudalistic based on absolute individual rights. This cannot be separated from the right of the king who used to change hands to the aristocracy due to his many services to the kingdom or king, usually in wars against rebels or raising royal taxes taken from the people. And as a reward, usually the king gives all rights to land to the nobility.

In addition to feudality, the medieval type of state according to Padmo Wahjono was Standenstaat, a state which was based on layers (interests) in society, such as church aristocrats, city folk and others.

From the theories of statehood in the middle ages, according to Padmo Wahjono gave rise to two streams. First, the teaching which is a continuation of the absolute nature of Roman times (Caesarismus). This understanding was expressed among others by Machiavelli. Machiavelli's writings are more practical state of science than theories about the state. He is a realist in state science. The state exists for its own interests and should pursue their own goals and interests and should pursue their own goals and interests in a manner deemed appropriate. People call this Machiavelli teaching the doctrine of "the interests of the state", because the interests of the state are made the highest measure for human actionsThe teachings of Machiavelli deal a lot in the field of politics (real politics), whereas in the juridical field by Jean Bodin in his teachings about sovereignty. Second, the teachings of the moarchomachen which are based on the teachings of the people's sovereignty before being turned into absolutism by transcending lex regia ulpianus, monarchomachen flow or the flow of absolute anti-king (anti-royalist) actually appear in religious circles (calvinisten) who oppose the absolute power of the king which sometimes even sometimes sometimes breaking religious laws. From this, Althusius's teachings were born, monochomachic, that is, the people as a whole could fight against arbitrary kings who surpassed the laws, even killed them. But only supervisors are entitled or must act to implement this, while each citizen is only entitled to hold passive resistance.

There are three factors that determine state thinking in this century. First, the development of Christian Religion. Second, the development of Roman Civil Law. Third, the Crusades. At the time of the Crusades, there was a development of thought towards the state system which was grouped into Canonists and Legists supported the Pope's power. Thus, the King actually did not have the original power and also the King was subject to the Pope. In other words, the authority of the Church is higher than the authority of the kingdom. The Legists are followers of the King. They have the conviction that it is the King who is the representative of God, even that the State came before the Church. Therefore, the highest authority in the world must be in the hands of the King.

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Famous scholars in this century are Augustine and Thomas Aquinas. Augustine was the greatest Christian thinker in the first centuries. In his view, truth is not found first in the minds of theoretical minds as taught by philosophers. Augustine said that the right way to know God is through the Scriptures. In his view, truth is not found first in the mindset of theoretical reason as taught by philosophers. People who do not accept this teaching, he said, are easily lost from the right path. However, philosophy can be used to explain and confirm the truth found in faith.

Thomas Aquinas began to distinguish between laws derived from revelation and laws reached by the human mind itselfThe law that is derived from revelation is called the positive divine law (ius divinum positivum, a law that is known based on the activity of reason, among others). First there are natural laws (ius naturale), then also the laws of the nations (ius gentium), and finally the positive human laws (ius positivum humanum). He was influenced by Aristotle's thought, "The duty of the State to fulfill the physical interests of humans, those interests need to be dealt with so that humans can be at peace and achieve their ideals, namely eternal glory and spiritual life or guidance of the Church."

3.      New Era

The most famous legal philosopher in the seventeenth century was Thomas Hobbes (1588-1679) deciding the natural law tradition which contained a lot of controversy. He often uses the term "natural rights" (law of nature) and right reason. However, the first for him is the freedom that each person has to use his own power according to his own will, for the preservation of his own nature, which means his own life.

4.      The Present

Modern times based on human logic are very important in the development of law, but it is felt that legal philosophy is considered less developed as a result of the existing codification movement, which at first people paid less attention to issues of justice.

Here are short information about philosophy of western law in the present times:

  1. Changes are different from the 20th century, because of economic technical influences, World Wars I and II are also due to lifestyles, art forms, types of music, ways of thinking, heterogeneity and quantity more prominent than quality.
  2. Greater professionalism. When Descartes, Kant, Hegel could still master most of the sciences, in the 20th century it was no longer possible. 20th century philosophers specialized in mathematics, physics, psychology, sociology, economics, bringing a unique way of thinking and attention to specific things as well.
  3. In addition to new streams of vitalism, phenomenology, existentialism, language analysis, as well as neo-neo, for example neothomism (the Catholic world), neokantianism in Germany, nehegelianism outside Germany (England).
  4. The countries that led the western philosophy of the 20th Century were France, Britain and Germany.
  5. Many thinkers of the 20th Century stressed the theme of language in a broad sense (symbols, structures between people as a dialogue, the structure of the communication process as language, the structure of all reality and culture as a text that must be interpreted)
  6. 20th Century Logocentrism. Western philosophy of the 20th century is not only called "logocentric" because language is considered the most important object, but also language is considered the most important subject of thought. Humans are decentralized and their roles are taken over by language. Humans are still a reality because humans are the subject of language. However, this was denied. Humans are no longer seen as subjects of language, subjects of thought, subjects of action, and historical centres. It is said that humans do not speak for themselves, it is more talked about namely by the structure of language, social, economic, political structure and so on.

Reference:

Russel, Bertrant. A History of Western Philosophy, London, 1947.

Duignan, Brian. Eudaimonia, 2019. Cited from https://www.britannica.com/topic/eudaimonia.

Fuller, B.A.G (Ph.D). History of Greek Philosophy, New York, 1923.

D.F.Scheltens. Pengantar Filsafat Hukum, translation by Bakri Siregar, Erlangga, Jakarta, 1984

Cohen, Morris R. and Felix S. Cohen. Readings in Jurisprudence and Legal Philosophy, Little,

            Brown, and Company, 1951.

Baracchi, Claudia. Aristotle’s Ethics as First Philosophy, New York, 2008.

Sutiksno. Filsafat Hukum, Pradnya Paramita, Jakarta, 2003.

Rasjidi, Lili. Dasar-dasar Filsafat Hukum, Citra Aditya Bakti, Bandung, 1990.

Anshori, Abdul Ghofur. Filsafat Hukum, Sejarah, Aliran, dan Pemaknaan, Gajah

            Mada University Press, Yogyakarta, 2006.