ETHICS AND LEGAL PHILOSOPHY
ETHICS AND LEGAL PHILOSOPHY THE VIEW OF GENEALOGY THEORY ABOUT THE POWER AND ADMINISTRATION, CRITICS DISCONTINUITY
BETWEEN POLITICS AND REGULATION IN CORRUPTION ERADICATION (PERSPECTIVE FROM MICHEL FOUCAULT AND AVERROES)
Power is charming. People are willing to suffer for power. Similarly, they, Foucault and Averroes were willing to pursue the archives of the crazy, sexuality, especially prison and justice. They were also involved in various to movements, not for power, but for understanding the power. Power, classifying people into categories and relate it to the identity. Then, the certain truth norms are imposed which must be occupied and accepted. In Indonesia, for example, dualistic classifying between power and justice, harmonic and disharmonic, can be used to produce obedience and disciplinary. By these classification practices method (sorting tactics), dividing practices (normalization tactics) and self-subjectivication practices (disciplinary tactics). Sometimes, power and law impinge and implementation of ethics can be discontinuities or broken between politic and authority in one side and administrative in other side.
Nevertheless, it is impossible to pinpoint the time of the transition from structuralism to post-structuralism, Lemert notes that year 1966 is as the beginning of the post-structuralism, the reason is because in that year, Jaqques Derrida, the main novel of this approach, proclaimed the beginning of a new era of post-structuralism. Differ from structuralism. Especially those that follow the development of language science and seeing the individuals who are controlled by language structures, Derrida decreased the role of language only as writing that does not force its usage.
Derrida also look at social institutions not only as writing and therefore it cannot force the people. According to the present terms, Derrida was deconstructed language and social institutions. Except Derrida, another than important to thinkers of post-structuralism ideology are Michel Foucault. Post-structuralism approach’s inserts a variety of the order theory. Because these various theoretical inputs because it is difficult to be understood. The idea is just not to be adopted from other thinkers, but also changed and integrated into theoretical orientation itself which is unusual if you must ask about ethics.
Ethics is an influence of phenomenology, but it is rejected the idea concerning an autonomous actors. There are structuralism elements, but did not admit the formal rules that determination from the behavior models. Foucault adopted Nietzsche’s thinking about the relationship between powers and knowledge, but the relationship is more analyzed sociologically not legal philosophy perspective. These many theoretical inputs are being one of the reasons to classify it as post-structuralism thinkers. The influence of structuralism is more and more decrease among with his work progress, because the fact is more focused on micro-politics of power.
The micro-politics of power is, there are two methodologies used Foucault, namely, archaeological science and genealogy power. To understand how work these themes have appeared in Foucault's book which in titled Discipline and Punish. In the book, Foucault focused on the period between on the year 1757s and the 1830 s, where in this period, torturing to the prisoners have been replaced by controlling toward them based on the prison rules. New technology in the powers including on the prison use of powers more efficient, wiser and not only aimed to control the criminal activity, but also includes of supervision to the society as a whole.
The technology which make discipline the powers based on the military models. This technology introduced as three power micro instruments for making discipline which subsequently became basic of my research work patterns. Firstly, gradual observation in hierarchical observation where are ethics have ability whole of control with a single observation in locus of research. Secondly, ethics have an ability to make normal considerations from judgment and punishing the people who responses of the norms.
Thirdly, the examination to observe the subjects and making judgments against the people reviews about public policy. Averroes in the books tahafut al tahafut ( the in coherence of the in coherence) determinations have supreme in eternal, it is important that be eternal, have not change because subject in supreme of court is subject all form in the justice, ethics is universal, it is not composed of form and matter, it is subject of the form ( maudu` a li-l sura) and the form is substance inasmuch as it constitutes the subject and the compound (murakab).
In this context, researcher interested to knowledge creates this technology that uses a power and administration discontinuities. In this case, I can describe a concerning the structure of powers in genealogy that enable for elite and politician to make full opportunity to observe very large about power sources for the politics resources because it gives them opportunity to do. More importantly, the power will increase subjective because of political will control than law influences (value internalization). Here we see a clear on relationship between ethics and powers whereas Averroes more looks at knowledge and power as a basis of whole of society types, as a basis of disciplinary society which the up level is differ in accordance with three bases, these are Burhani, Jadali and Khatabi. Here is the lay of significance, when the politics of law can be used to unmask the technique of power.
Foucault was born in Poitiers, France, 1926. He comes from the medical community, her father, a surgeon, also brother and grandfather. Therefore, Foucault parents also wanted him to choose the same profession. But he was actually interested in the study of philosophy, history and psychology. But we can see that Foucault's thought is closely related to the medical field, especially psychopathology. After completing an education at Ecole Normale Superiore in 1946, he learnt the field of philosophy again until achieving a license in 1948. Two years later he obtained a license in the field of psychology. He also received a diploma in the field of psychopathology. He also got into politics and joined to French communist party until 1951.
Ibnu Rusyd whereas known as Averroes is an Islamic philosopher born by Abu Walid Muhammad bin Rusyd his grand father, Abu al Walid, is a judge chief in Cordoba whom born in Cordoba (Spain) in the 520 of the Islamic calendar (1128 M). He is from law enforcer family, his grandfather and father are famous judges in his own country and many to be influenced by Aristotheles thought, Ibnu Rusyd belief that the concept of happiness only can be achieved through actual mind and science. Further, Ibnu Rusyd had a notion that since born, human had brought a readiness to receive general knowledge until if he was beginning to learn, so this readiness is changed become an actual mind. This mind is always develop and increase until he can be in relation to mind which is not exist in the things and from these can take an inspiration spreading. The mind which reached a phase to receive an inspiration spreading is highest perfection, whereas a way which will guide for achieving it, that is development of all the knowledge and the increasing of the human perception.
Foucault and Averroes also gave considerable attention to the issue of powers and Culture. Foucault became the director of the French Cultural Center in Warsaw (Poland) and Hamburg (Germany). Foucault’s other works are The Birth of the Clinic, Archaeology of the Human Sciences, Disciplines and Punish, and the Trilogy of Sexuality History. Foucault die in 1984, at the age of 57 years because of AIDS but Averroes was born and grow up with family whom well respected a law and public service tradition, and died on 11th of December 1198 he died on the donkey and a pile of his great work books , Averroes makes an analogous declaration in the preface for his commentary about powers. He learned power and moral anthropology, because he knew that the nature of justice is in the essence of things ( tifaa ha- yushir a nim sta bi-itstim ha nim sta uth) which is a desire to imitate the nature. Averroes developed his argument to defend his view concerning the importance of philosophy and ethics about syariah or Islamic of law in acquiring and understanding of the kholifa or powers. Averroes has to combine all the theoretical and practical virtues and has an ability to teach as well as the usage of rhetorical mind tough and demonstrative reason. The ruler of the state must combine a quality of some powers or Imam. The kholifa must be:
1. Disposed naturally to learn theory and strategy in the state and law
2. He must be good in powers of information retention
3. He must be interested in all the o forms of theoretical investigation
4. He must love the truth and justice
5. He must not love the money and not ever to corruption
6. He must be brave, and always try to be good and honest
Genealogy-power is a regularity demolition tool arranged by the knowledge of power to the body of society which became a truth machine proponent. The idea of this demolition is absorbed from Nietzsche's method of genealogy. The genealogy principles adopted by Foucault's genealogy from Nietzsche, is a principle that emphasize, that every form of truth can be traced historically to the institution and the dominant discourse which creating it. Briefly, archaeology involved an empirical analysis to the discourse of history, while genealogy runs a series of critical analysis towards historical discourse and its relationship to issues that being an attention of contemporary world.
Authority, How to understand an authority for them (Foucault and Averroes)? The powers or authority cannot be obtained through violence and consent issues (Hobbes and John Locke). Power is not repressive (Freud) or power fighting (Machiavelli) and not also a domination function of a class based on the economic domination or manipulation of ideology (Marx). Meanwhile, in the history of feudalism the power grounded on the grounds and the result of discrimination in society, so, the mechanism of power lasted in upper-lower relationship, rulers and ruled. But the authority to understand the concept of power, beforehand, Normalizing power that is not only executed in disable, but also operated through social mechanisms built to ensure the health, knowledge or prosperity. Thus, Averroes see authority who is ideal in religion because he wants the politics combines between syariah and freedom must be thinking rationally. Authority must discontinuity from nation and religion. And finally, it will able to be a relationship between any worlds. State and religion are indeed always has a range which is difficult to be joined. Religion is assumed as a personally affairs not impersonal again which cannot be same with state affairs that must be arranged through a particular law in device. Thereby, in modern society, the establishment of a disciplined individual who is not only be done by the repressive institutions, but also in the social interaction and all of social activity forms. This issue assumes a redefinition the concept of power.
Power does not refer to a common system dominated by one group to the other, but on the diversity of power relations. Power is not an institution, and not a structure, nor a possessed strength, but it is the name given to a complex strategic situation in all community. The power is everywhere, not all power that including all of them, but the power comes from everywhere. The relation of power cannot be separated from the relationships that exist in the economic process, the spreading of knowledge, legal and justice or sexual intercourse. Power is a direct result of the separation, inequality and imbalance (discrimination). In the other words, power is the situation of the existence difference.
Foucault tried to make re-definition and re-conceptualization of power by showing the characteristics, namely: First, the power cannot be localized, Second, power is an order of discipline and connected to the network, Third, power is a circulated entity, Fourth, the power is not repressive but productive, Fifth, the power is inherent in the desire to known.
Idea of discontinuity and critics of discontinuity was written in my theses Post graduate (title: Ethics and Public Philosophy, Discontinuity Politic and Administration) , furthermore The conception of discontinuity in Legal philosophy calculates the existence of contradiction, rupture and discontinuity in history. In all of this research effort, more feel responsible for historical criticism, to create a new way for a deadlock of administration, administration used by rationality with never political practice influence but administration in nation or constitution. Where I looks that the individualization tactics (see the further discussion: framework ), in addition to creating an idealism corruption eradication buildings, such tactics are also very powerful in order to form an obedience system and uniformity of thinking systems and the behavior of democratize society. An obedience which was formed through the formation of the truths in organizing the body of regulatory of this society is an ambivalence whereas democratization growing up beside the corruption to possible too.
Archaeology-Knowledge, Statement (enonce) --- (liaison: enunciative modalities ) --- discursive (collect the statements). The device used by Foucault to indicate the existence of discontinuity in history is, what is called the enonce or statement. Principles are statements according to Foucault is, firstly, the statement should be based interpret on the archeological denial toward making special the great figures recorded in history. If this statement is operated in the text, so the reading, which are done, are completely avoid the big names politics which often reduces the important of tracking up and down the ideas. By this framework, Foucault, on a level with Barthes whom marked a death of author. Death in this context means generating the network of knowledge which sinking the individual in a structure of thought and the same analysis mode. The statement, thereby, is not subject unto big name and proper name in the text, but rather looking for a point of idea which is connected and arranged become a uniformity of mind in a number of texts on a particular historical phase. In the language of religion, this is what is called in Quran:` unzur ma fa la tanzur Qala Qala man` (see what is delivered, do not see any one who convey).
Secondly, the statement, thereby, is not a sentence, or daily conversation, it is a frame of mind that enable for individuals to write and speak to the subject matter and the same system of truth. As in the semiotic concept known as the term of parole (which explains the words and daily language) and language (which explains a language system used to explain the system uniformly in a power situation of knowledge). Statements, although not exactly same, have similarities with a language in the semiotic. Thirdly, thought regularity formations created by the power of knowledge held on the particular historical phase to establish a uniform of truth.
Archaeology definition is the process of working through historical archives (crazy people, prisons, sexuality, etc.) from various communities to explain the formation of discourse and discourse events that have resulted in the fields of knowledge and discourse formation of various in focus and object, the object archaeology is episteme:
Structure of thought as a way to give meaning to the world. Mechanism, isolating various of discourse in the structure underlying the terms is articulating thoughts and ideas, propositions and statement used to give meaning in the history of community.
Genealogy as a media for deconstruction, Definition is the process of analyzing and revealing the historical relationships among truth, knowledge and powers. Focusing this dissertation on issues of power, authority elite and institution KPK (Indonesian Commission for Corruption Eradication) shows how the subject's powers influence to suspect in justice. It questions to continue hypothesis of critics legal in socio politics mechanism, more related to the mechanisms power of non-discursive ways that sharpen how people view the world and How about ethics and legal philosophy with perspective in genealogy of powers? It is the system considers as power, but it cannot be owned, a function felt by public, but it cannot be recognized, except from the effects from investigation object of observation about legal-powers.
There are two objectives for disciplinary system through: firstly, making a power implementation which is cheaper from politics aspect than legal, secondly, from law and administrative aspect where to control form that disappeared from corruption existence so that those can be increased an obedience useful all of system elements. Discipline through panoptic is being an effective technique to reach a most intimate lived although without known come from particular subject. Starting from the suspicion towards the rolled history which is no one apart of the tactics of power that politics mechanisms in knowledge respectively reproduced and strengthen in the mind structure of society. Further, it will create a discourse about regime, that is regime SBY or post new eras (Orde Baru) which is being a main locus in arranging the regularity of the law, policy, and decision to the rule of law that located in the thought area of the society.
How are they (Foucault and Averroes) though about ethics discontinuity in Politics and Law on the genealogy approach? Then, it can be draw a bound between knowledge (see, discussion about archaeology-knowledge ), power (see, authority) and the deconstruction of the people who became a power matrices that produces some regularities (see, genealogy of powers) . From here, introduces a genealogy (Entstehung and Herkunft) as a tool for the regularity compiled by knowledge, power and deconstruction in legal society.
How about critics of discontinuity politics and administration in philosophy of legal see the authority of KPK in Indonesia? The main task of genealogy is doing a demolition to the power that success to subdue this regulation and 100% authority, in fact, it is created from regulation 2004, KPK never wrong chose the suspect and corruptor but it is formed based on the power entity that extended in an episteme in definite of powers. Thereby, genealogy of power theory is on deliberalization processes (internal truth).
Thereby, power is not assumed as deploying clear or hidden authorities in the social justice, but it is the game-phenomenon of truth in the in era of the regime. According to Foucault or Averroes which is closely related to obsession deployment and rationality dreams and regularity and productivity issue of public and individuals, thus, the obsession, researcher found relate combination two theories and though then, researcher find the hypothesis of knowledge and knowledgeable them been identification theory themselves as a part of a truth and consciousness of issue and powers syndrome.
Corruption will habit of society knowledge who have been opinion is true, the situation have been true if it is not include in one group again or the situation conditioned such a way, and then deliberately of the demarcation tactics of status – qua (qua- vadis ). Belah bamboo tactics ( cleave of bamboo tactics) one is enemy and another ones is crony, it is dualism can be interpreted as an attempt to destroy continue the tyranny of rationalism knowledge inside and to support on other side entering territory of most covert to one group and one mission desirable. Individuals then deliberately made as though no silent majority, but actually being conditioned to never reject the knowledge of the mechanisms of power that has been transformed into a truth in such a way.
At this point, I can be drove to a conclusion, that the formation and describe of the philosophy about court and justice taken to the discourse battle two strategies, by classification and by emphasizes ethics and with comparative strategy. In such a context, that according to genealogy perspective is committed to the dismantling of power relations, knowledge and power. No one offered any alternative way to become enlightened, because the task of genealogy in the framework in the idea has been created a history of the different modes by culture, human being are made subjects. My work has dealt with three modes of objectification which transform human beings into subjects. The first is the modes of inquiry which try to give themselves the status of ethics and legal philosophy in my country, in the second part of frame work, I have studied the genealogy of legal corruption of the subject mater research dividing practices the objects mater research is divided inside sought genealogy and ethics to study about legal philosophy especially how resolve many problem of regulation and philosophy in corruption bureaucracy.
The above expression tells the critics of second frame works is used as a reference by Averroes in organizing ideas. Basically all ideas are oriented to explored disciplinary patterns over the awareness of the subject and determination. The frame work is called identity of the subjects there are sown through the production of knowledge, or here in after called sorting tactics (classification practices). It is a term used by Foucault to explain the classification of subjects based tactics dual logic). And the last frame work, the subject of objectification, cleavage and normalization of consciousness, or here in after called normalization tactics (dividing practices). Foucault describes this as a tactic normalization political strategy used to perform the separation, normalization and institutionalization of the population in order to find the reliability and security in the social space.
Civilization developed with never naturally. Each space civilization has always had a strategy of discipline against own people. If the experience of two centuries was associate disciplinary prison in the one case of a corruption in Indonesia, we try one case in the early 2013s, the project of wisma athlete is brought all elites of Democrat party. At first, Angelina Sondach ( ex. miss Indonesia and Democrat elite party ), Andi Malarangeng ( Ministry of Young People and Sport ) and the last Anas Urbaningrum ( ex. Lead of Democrat Party ). The corruption scandals closed with the son of President ( Edi Baskoro Yodoyono or Ibas ) and turn down his charisma ( President SBY ), the project accepted by the public antipathy because in reality, the project was support to political campaign. Society generally is rejected the principle of true and justice. Firstly, because powered does not allow descendant restrictions. Secondly, for reasons of principle Javanese people live generally have a positive perception of the charisma at early and it was boring after known everything. Knowledge device is then held a tactic classification to sorting which plays a dualism between powers and legitimate, harmony and disharmony, supporting and destroying etc. More over, this is the phase in which each individual that provides a subjective self-consciousness to link the truth about harmony composition and well-being. Individuals not only immerse ideological awareness and positive perception of the legal court, but it is even worse, they generally forget to have the power and legitimate from public opinion in politics, and have new escalate in vote and candidacy later.
Gift giving, gratification, or corruption limitations is an attempt to explain the differences among the knowledge systems that are considered as normally a conspiracy theory for example, Foucault and Averroes about a suspects, it is found rationality that has a large enough desire to alienate what is considered a legal and social pathology. Effort is an attempt to clarify the limitations which the knowledge that is term of order and where knowledge the chaotic. On the other hand, this limitation also functioned of interesting thread clear demarcation between legal and powers. In the case of family planning, for example, the limitation is used to describe the boundaries of what is considered as the harmony and disharmony in the family system truth-knowledge legal society. Limitation does not seem too inadequate to explain how a knowledge structure thought to be dominant in politics and legal, for they, Foucault sustain the strategy of transgression taboo, in the context behavior of politic in Indonesia at the kiss and shaken hand of tradition it has not taboo again after ask for the blessing to the powers is tradition in java political culture.
Both connaisance and savoir refers to the meaning of knowledge, however connaisance used by Foucault to designate the meaning of the knowledge that has been structured in such a way by the formal disciplines. The savoir used by Foucault to designate the meaning of knowledge priors that nest on the structure of the local population. According to Foucault, the regularity of the savoir think is society, most capable of determining the truth of a system and the degree of discipline. While episteme is, the totality of a priory thought sublimed into the consciousness of individuals. Any person with any disciplinary background to acknowledge then herded to have a way of thinking, doing and speaking with reference to a uniform truth.
The research studies of Ethics and Legal Philosophy the View of Genealogy Theory about the Power and Administration, Critics Discontinuity between Politics and Regulation in Corruption Eradication have been devoted mostly to their case (Foucault and Averroes) especially comparative theory about legal ethics. We may divide these studies into those dealing with its legal philosophy and historical perspective. As a method of dismantling the power of the body, then it rejects the archaeological-genealogical framework is too oriented to the area of epistemology (changing the discourse of power shift to the power-state-subjects showed signs of epistemology rupture). As a scalpel, this framework can liberate people from the shackles of tyranny knowledge (to explore the most veiled reality though). In addition to legal studies, this research influence following other studies example socio-political, policy analysis and critic of legal historical perspective.
Briefing on the power-knowledge that operate at the local level micro-power, we can also include here hypothesis discontinuity between legal and powers with philosophy analysis. New concept to the power is essentially an individualized technology that links body, heart, mind, feelings, to perceive the meaning of truth is confirmed as single standard normality to legitimacy. Theory from Foucault's power is reminiscent of an order to take into account the reality, that power always breeds rejection. Then denial and resistance always entered in strategic considerations. It became part of the democratic process that can not be avoided. However, is a discussion of the legal philosophy foundations upon which the normative and positive law not Islamists ideologically base from Averroes for different opinion will impede mutual and critics dialog.
Studies which focus on Legal ethics Averroes ideas are not many and where there are such studies, they are mostly based on a specific book of Averroes especially Al-Da’awi, here we study the relevance of Foucault books in Genealogy. And finally, There are 3 goals through the formation reports: first, to make the exercise of power is cheaper in terms of the legal politics, the second, in terms of philosophy, is a form of control that corruption is not visible with describe regulation and decision in punishment the third , to maximize the utility of equal before the law because ethics and corruption in Indonesia had not closed again with supreme from KPK. Thus increasing compliance and usability of all elements of the system effects of this panoptic system causes on the prisoners an awareness which are always in the control or in a looking situation permanently. The system enables the control done regularly, but its effect in the awareness is a feeling which is controlled respectively. The surveillance can be done in discontinue. The perfect power shows that the actuality of implementation is no need anymore, but the effect can be tasted. And the own power object is precisely being a potential bringer of domination situation that enable to implementation.