The hardcore line the Bush’s administration utilized as moral justification for the war in Iraq was “Absence of evidence is not Evidence of absence”. It is surprising to understand that public international law, criminal law, and civil law in general has been adhering to this principle for hundreds of years. I always believe that the law cannot keep pace with crimes and violations. This is the grand weakness of the so called codification style of legal formation. In civil law countries, we so often encounter these classical issues, especially for those countries which adhere strongly to legalism and codification as the principle of lawmaking.
The core idea of law is to line down clear playing grounds/rules so that when certain suspects are being convicted, there are justifiable grounds to do so. The technical term for this is legality principle or in latin phrase nullum delictum. However, we also understand that in order to provide clear rules/laws, it takes time. The grand debate within lawmaking framework is whether we should codify the existing living norms in societies or we modify the norms in accordance with certain set of moral values. In other words should “law be the tool of social engineering” or “the reflection of moral values and judgments of living society”? Now you see, even in a more subtle discussion, we encounter new questions, which society, what society, how do we identify what people deem as morally acceptable? In reality we have different segment of societies with different, sometimes opposing, values. Another question is: if law should be the tool of social engineering, who has the right to set the moral values? Is it not equally immoral if someone or a group of people orchestrate the moral values which apply to the rest of the world irrespective of whether the substance of the law is morally acceptable eventually? In a more legalist term, which one should be given more weight? The substance of the law or procedure of the law? Hans Nawiasky postulated the former through his nomodynamics theory. I contested to this really. What s the point of having majestic physical library while there are no books inside? What s the point having too much procedure if the substance of the law does not accomodate/reflect moral values of people legally bound by it.
In the end of the day, i believe these entire quandaries boil down into one question can we assert absence of evidence as the evidence of absence. The reason why Hans nawiasky postulated the above legal theory might be because there are fears as to how difficult it is to assess the absence of evidence of moral values. He then assumed that the absence of evidence should be evidence of absence. If the law should reflect moral judgment (substance wise), it would be extremely difficult for the law maker to consider at what point should be enact a law that is legally binding to everyone. Therefore, lawmaker always assume when procedure (formal requirements) are satisfied, so is the content of the law. In practice, one you are elected as Member of Parliament, you have the right to pass certain laws irrespective of the true representation of society moral values. The current legal system accentuates so much on procedural aspects for the law. I dearly miss the concept of court of equity in the old day which was separated from the court of law. At the same time, i also understand the lawmaker’s position that it court of equity requires absolutely people with integrity to represent the moral values of society.
Now you may ask, why the heck is this piece all about? I am telling you now that the philosophical debate here affects each walk of our daily lives. The generally accepted norm of the absence of evidence is not evidence of absence is built on the philosophical ground of law as a formal/procedural tool. We all understand, and in fact this is a conventional wisdom which applies to supposedly the most democratic country in the world US, that parliament is so wrapped up with money and vested interest. Parliament members need to spend a lot of money for their political campaign. If you update yourself with Indonesian politics, we would understand that legislative political campaign is all about the money. This is true even in the case of presidential campaign, including the US’ presidential campaign. We are faced with the truth that Obama’s plan to spend less then USD 70 million simply is irrational. Hence, companies with all the money, become the most important donators. Since companies are economics creature (benefits), they donate for a purpose, lobbying the government to protect their vested interests. Can the president-elect betray companies’ interest? It is extremely difficult to run as corporations’ antagonistic president. Even if the president has the guts to, the president may reconsider such decision once he encounters the fact that he has to run for two terms period. If he betrays the corporations’ interest, he most likely will be not elected in the next term. This affects our daily lives. Consider labour rights now. Labour rights such as minimum wage, safety procedure, and health welfare are cost for corporations. Their lobbies revolve heavily around suppressing labour activities to demand the government to provide better protection. If your family members are labours the formal accentuation of the law will definitely affect your life.
Here are other examples: Criminalization on abortion, euthanasia and charity money to beggars in the street. It affects your civil liberties. In Jakarta, for instance, the local government now criminalizes the compassion for giving small change to beggars. I am not arguing this criminalization is wrong, i am arguing that the reason for this criminalization is wrong. The government does not consider the moral values of society in dealing with poverty. It considers and in fact Indonesian legal system allows this since it fulfills the formal requirements of lawmaking.
In the end of the day, i believe that the grand philosophical debate in terms of lawmaking affect many aspects of our daily walks of life. The absence of evidence is not evidence of absence. The fact that lawmaker cannot prove the moral justification for certain laws does not mean there is no justification. We condone this principle in the name of national security, efficiency in law making, and keeping law in pace, if not outpace, crimes and violations. I am not against that, i am against the idea that we fail to exhaust all possible alternatives to achieve national security, law making efficiency, and keeping the law in pace. We should probably rethink now. Probably!
