People Innovation Excellence


By SHIDARTA (January 2022)

The word “right” has an affinity for law. In fact, in German and Dutch, the words “right” and “law” do use the same terminology, namely Recht. Law is Recht im objectiven Sinne (law in an objective sense), while rights are Recht im subjectiven Sinne (law in a subjective sense). Every individual, in principle, must have had the freedom to do or not do something. That is the essence of rights, namely the space for the legal subject to behave.

The term “right,” which connotes freedom, does have the potential to create contradictions. The father of the Austrian constitution, Hans Kelsen, mentions rights as positive permissions. If we have rights, we have the right to do something that is generally prohibited. Up to this point, we understand that because everyone has such permissibility, in the end, such permission gives rise to non-freedom as well. This non-freedom comes because of the clash of liberties that raises the potential for conflict. A clash occurs when the ability to do something is carried out beyond the limit, which is often called the abuse of rights. Because humans are social creatures, humans naturally long to have as many friends as possible who can support their existence. Thus, conflict is avoided as much as possible so as not to damage the collectivity. Tolerance for the rights of others is demanded to maintain togetherness. This demand does not have to be forced by anyone and with power from anywhere because it is the instinct of every human being to do so. The golden rule says, “Don’t do to others what you don’t want others to do to you!” This principle is recognized by all religions and is seen as the main principle in morality.

Rights are often paired with obligations. The relationship between rights and obligations relates to the relationship between law and morals. Kelsen states that morality always prioritizes obligations, whereas law always prioritizes rights. Kelsen’s assertion is suitable for positioning rights in the field of civil law. Morality which tends to bombard the subject with obligations at a certain point may go too far so that it no longer takes into account the ability of ordinary people to accept the burden. This is where the law plays a role in providing a solid place for these rights so that they are not undermined in the name of morality through various obligations.

If we look at this issue from a legal perspective, religion should be a right recognized by law. The law must respect this right, including the right to have no religion. The law cannot impose sanctions on anyone who does not practice any religion.

Problems will arise when religion is identified with morality. If you are not religious, society will label you as having no moral commitments. Of course, this is a frivolous assumption, but this way of thinking is very common. People never think that morality does not always come from religion but can come from social and cultural dimensions. The morality that is present through local wisdom is not in a place that is parallel to the morality taught by religion. They believe that religious morality always has a higher position than non-religious morality.

This perspective is reflected, for example, when theories that place the validity of adat or customary law more decisively than Islamic law are under attack and are even referred to as the devil’s theory. Islamic law scholar Hazairin, for example, rejects the theory of Snouck Hurgronje and C. van Vollenhoven which says that the law that lives and applies to the indigenous people of Indonesia, regardless of the religion they follow, is adat-law. Islamic law will respond to adat-law and apply if and only if it is required by customary law. Then this theory was developed by Ter Haar. He says that adat-law emerges from adat-decisions. This view of Ter Haar is known as the teaching of decision (besslisingen leer). The word “devil” (Indonesian: “iblis”) is thought to have come from the mockery of Ter Haar’s teachings. Hazairin actually thinks otherwise that Islamic law plays a more important role in determining whether adat-law is valid or not. Adat-law only applies if it does not conflict with Islamic law. This polemic looks like it’s over on paper, but it’s not. This is evident from the use of adat-inheritance law, even though Islamic law applies in the same society. Since four decades ago, for example, conflicts over inheritance distribution using adat-inheritance law have accepted women as heirs as equal to male heirs. Religious courts have not yet accepted this viewpoint.

Let us return to our discussion of religious rights or religious obligations! The right to religion, in the end, will indeed become a religious obligation if we enter into the realm of morality, that having a religion is having a moral commitment. It is on this basis that suspicion of non-religious people becomes very strong in Indonesia.

The right to religion, in the end, will indeed become a religious obligation if we enter into the realm of morality, that having a religion is having a moral commitment. It is on this basis that suspicion of non-religious people becomes very strong in Indonesia.

The premises are very simple. Because religion teaches about the one and only God, if you don’t follow a religion, it means you don’t acknowledge the existence of God. Not acknowledging the existence of God is an atheist. If you are an atheist, then you have no moral commitment. Then, the predicate of having no religion is very easy to fall into the adherents of communist ideology—a scary label in Indonesia.

This difficult situation is a real problem faced by followers of beliefs outside the six [official] religions that are considered official. In many places, it is still common to find the followers of these beliefs choosing one of the six religions for reasons of administration needs.

If so, is embracing religion (officially from the state) a right, or has it become an obligation? (***)



Published at : Updated

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