Pramudya A Oktavinanda
The title of this blog post is the main question generated by people who believe that there are certain laws which are derived from God or basic moral principles. Thus, these laws would have a holy status and will be perfect and remain unchanged for eternity.
Unfortunately for them, the answer is no. There is no such thing as a holy law and there is no record that a law can be applied without any changes within the past 2,000 years. Law is a social fact and is always evolving. That’s the reality.
By social fact, I mean that the basic validity of the law is solely determined by social acceptance, namely that the people within a territory, including their legal officials, accept from their internal point of view that a norm has valid authoritative power as a law.
How can we know that such acceptance exists? First, we can see such acceptance from how legal officials (such as judges) express the normative aspect of such rules within their opinions/statements. For example, they say that judges ought to adhere to certain norms in deciding cases, that it is the right thing to do, etc.
Second, we can also see the acceptance of such norm through critical evaluation, meaning that judges who accept such rules criticize others, even themselves, for failing to conform to the norm. Not only do deviations from the norm produce criticism, but such criticism is deemed to be legitimate and made with good reason.
Based on the above standards, no holy law would exist simply because it is holy or derived from the sky. All “holy” laws receive their holiness status because people treat them as such. And if people cease to treat them as a holy law, such law would also cease to become holy — and lose its authoritativeness.
This understanding is very important. In any part of this world, we can say that no laws receive their authoritative status automatically. In modern world, there is certain exhaustive process (ultimately through democracy) that must be done before certain norm can be regarded as a law and enforced by the state/legal officials.
This might include election of officials by the people, promulgation of the laws by the legislators via voting process, and enforcement of the laws by legal officials (including interpretation of the laws by judges). It is a complex yet necessary process since laws affect how people behave in their day-to-day life.
However, there is also a twist here. Since law is a social practice, people who believe that certain laws should be treated as holy may gain power through the democratic process. I do not know and cannot predict whether they might ever win, at least in Indonesia, but that should always be taken into our consideration whenever we go to the general election.
Next on eternally unchanged laws: if they do exist, there would be no need for interpretation. There would be no exception to the law unless the law says that it can be exempted. More importantly, it will also contradict the practices that have been done by various legal officials and scholars in implementing the law for centuries.
There are two examples of this: first, the classical Islamic laws on slavery. Some people claim that slavery is entirely prohibited by Islamic law. This is mistaken. Various archaic sources indicate clearly that slavery was a usual practice even hundreds of years after the birth of Islam. You can have sex with your slaves and you are not permitted to release them if your debts exceed your assets.
Islamic law encourages people to free their slaves, but it does not say that slavery is a prohibited action that will send the owners to hell. Surely if we say that the law should be unchanged, this practice of slavery should also stay provided that you treat your slaves nicely.
Second is the law on divorce. In classical Islamic law, men can divorce their wives directly without any interference from the court. Yet, Indonesian Islamic law limits such absolute right. A divorce by men will only be valid when the religious court has decided so. Interestingly, the Indonesian Islamic scholars use the sources from Shia schools to back up their opinion.
The two issues above are just small samples of an even bigger discrepancy between theory and practice. This is a deep theoretical challenge upon those who believe that the law should be applied as it is for eternity. If you accept that the law is perfect, how can you justify any changes to such law?
In short, making the claim for an eternal law is easy, but when you face the actual cases in real life, you will soon realize that such law is merely an illusion.