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Legal Protection Versus Legal Consciousness on Rights: the Changing Perspective in Law and Society Research

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Legal Protection Versus Legal Consciousness on Rights: the Changing Perspective in Law and Society Research Legal Protection versus Legal Consciousness on Rights: The Changing Perspective in Law and Society Research Muhammad Helmy Hakim2, Noryamin Aini1, Khoiruddin Nasution3 1Faculty of Sharia, Antasari State Islamic University, Indonesia 2Department of Legal Sciences, Syarif Hidayatullah State Islamic University, Indonesia 3Islmic Family Law, Sunan Kalijaga State Islamic University, Indonesia Keywords: Instrumental Law, Constitutive law, Legal Protection, Legal Consciousness, Rights, Litigation Abstract: The changing Perspective in Law and Society Research: From Legal Protection into Legal Consciousness Muhammad Helmy Hakim Abstract This article discusses the important role of historical, cultural, social, and attitudinal aspects in the study of law. There has been a shift from instrumental law to constitutive law. While instrumental law considers law beyond the social and cultural spheres, constitutive law integrally embraces law, politics, ideology, and action. Legal consciousness is an important asset for marginalised people who are at high risk of discriminative treatments in occupational and social life. Not only will they are legally aware of their rights and obligations at works, they will have adequate knowledge of where and how to name, blame, and claim in case mistreatment do occur. Legally proficient will allow them build legal protection which is not adequately provided by the authorized bodies. 1 INTRODUCTION inadequately deliver the burdens imposed on marginalised people because they accept the Nowadays, many countries in the world have authoritative discourse of law rather than inquiring established a complex system and structure of laws the compatibility of legal rules with their legal and institutions to protect the interest of the people, conception. particularly the marginalised ones in the employment The proponents of legal consciousness argue that sector. This legal protection model has a broader litigation is only one of the many avenues that significance and impact in legal theory. It also disputants have in their catalogue of choices. initiates, reflects and structures assumptions in Although the judiciary is believed to monopolize the dominant research paradigms in law and society. enforcement of legal norms, it is not the only source Even this model and its critique have been applied to of normative messages and legal practices in society. other areas of law in wider coverages. (Bumiller, Courts are not even the prominent institutions that 1987) handle the majority of legal conflicts and neither From the legal protection model perspective, the occupies the centre of legal life. On the contrary, only law is an authoritative and effective instrument that a minimal fraction of disputes that we can label as offers victims with a tool to force perpetrators to legal has entered the judiciary. From that number, it comply with legal rules. This model assumes that is really difficult to know how many are actually those who have suffered injuries will recognize their resolved through litigatious judiciary process. harms, and invoke the law through litigation or (Gomez, 2007) Over thirty years ago, Galanter et.al reconciliation. In brief, they assume that those in the pointed out that very few cases of dispute were protected class are able and convinced to bear these resolved through courts. (Bliss Cartwright, 1974) burdens. (Bumiller, 1987) This kind of strategy is (Galanter, 1975) This minimal resolution was even called as litigious policies, (Burke, 2002) or smaller than the number of cases the court was complaint-driven enforcement model, supposed to deal with, the fraction of which was ((Organization), 2001) where the enforcement relies much smaller than the actual cases of dispute. on individuals bringing their rights of action. (Galanter, 1983) (Galanter, 1986) (Galanter, 1987) However, strategies of equal protection may As a matter of fact, it is now trite to recapitulate that the modern justice system through aggressive 1012 Hakim, M., Aini, N. and Nasution, K. Legal Protection versus Legal Consciousness on Rights: The Changing Perspective in Law and Society Research. DOI: 10.5220/0009922110121018 In Proceedings of the 1st International Conference on Recent Innovations (ICRI 2018), pages 1012-1018 ISBN: 978-989-758-458-9 Copyright c 2020 by SCITEPRESS – Science and Technology Publications, Lda. All rights reserved Legal Protection versus Legal Consciousness on Rights: The Changing Perspective in Law and Society Research prosecution and legislation of punitive laws against law in studying society, they hold opposing views by batterers, has failed to respond adequately to crime in which law affects society: whether by imposing general, and to marginalised people in particular. external sanctions or by shaping internal meanings. (Hagel, 1977) Many researches showed that a strong However, subsequently, they are likely to fail to legal protection really makes a difference, but they notice the variety of ways in which society responds also displayed that even in the United States of to law, occasionally by ignoring, reconstructing, or America where legal protection is strong, the rights of using it in unusual and unanticipated ways. some victims are not afforded. (Report, 2001). These two perspectives, that is, the instrumental However, despite the widespread adoption and and constitutive, represent two basic views of the adaptation of legal protection, the implementation of dynamic relationship between law and society. such protection and its impact on victims have not Instrumentalist scholars, which see law as different been widely studied. In other words, this kind of from, and acting on society, focus on legal norms, research might be considered as the bottom-up legal rules, and legal actors. This separation has been approach, which is commonly defined in sociology of an attempt to make out the power of law as an law literature as the study of critical legal engineering tool for creating or supporting social consciousness. change. This study will provide a brief review of two On the other hand, instrumentalist tries to “... bodies of research concerning the interconnection and search for the conditions under which law is effective, intersection of law and social issues. First, this paper that is, when legislation or judicial decisions can be reviews the changing perspective of law and society counted on to guide behaviour or produce social research from an instrumental view of law to the view changes in desired and recommended ways.” of law as an integral part of society. This more (Kearns, 1995) In short, the instrumentalism expansive view of the role of law in society has led to emphasizes sharp distinction between legal standards the legal consciousness. Next, it reviews some of the on the one hand, and non-legal human activities, on innovative work of legal consciousness scholarship in the other. It then hypothesizes the effectiveness of the the study of law and society. In a broader aim, this legal standard upon society. paper will critically assess the adequacy of legal On the other hand, the constitutive perspective theory to protect, serve and deliver the interest of assumes that social life is run and operates orderly socially and economically disadvantaged people in through with the rule of law. In other words, “law fighting for their right and fortunes. shapes society from the inside out, by providing the principal categories that make social life seem natural, normal, cohesive, and coherent.” (Kearns, 2 INSTRUMENTAL AND 1995) CONSTITUTIVE PERSPECTIVES 3 SCHEINGOLD IS AGAINST There has been a shift in the law and society research THE INSTRUMENTALISM to comprehend the rule of law in post-modern epoch from instrumental to constitutive perspective To begin with, beyond the deficiency and the especially in the United States in the last forty advantage of instrumentalism, many social scholars decades. The former treats law as a separate entity contend against it. For instance, Scheingold argues and thus autonomous from society and social life, against the idea of instrumentalism which assumes while the latter identifies and recognizes the existence that legal standard with litigation and courts decisions of different competing forces that contribute in can result in an effective social change. (Scheingold, shaping social life and normative system. 2007) He proposes that declaration of rights from Constitutive perspective puts law in the courts has been the focus of a great number of law interconnection to, and embeddedness in different reformers. Effective declaration realizes these rights other fields to allow holistic consideration of law- which lead to equivalently meaningful change. Put in influencing cultural and social aspects. different words, “the myth of rights is directly related Sarat and Kearns introduced these two different to litigation, rights, and remedies with social change.” instrumental and constitutive perspectives in this area (Scheingold, 2007) The underlying ideology is that of socio-legal research. (Kearns, 1995) Although “the American political order indeed takes similar these two perspectives are in similar way favouring 1013 ICRI 2018 - International Conference Recent Innovation patterns of rights and obligations specified in the 4 BUMILLER REFUSES LEGAL Constitution.” (Scheingold, 2007) Different from sholars supporting the idea of PROTECTION MODEL instrumentalism in approaching law in practical arena, Scheingold proposes the legal paradigm which In opposition to Scheingold,
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