Minggu, 05 Juni 2011

The analysis of Hans Kelsen's theory Essence And relation with Pancasila as Grundsnorm

The analysis of Hans Kelsen's theory Essence And relation with Pancasila as Grundnorm / Staatfundamental Norm / Rechtsidee In the state of the Indonesian Legal

By Turiman Fachturahman Nur
Associated circuitry there is a question that we need to ask, namely:
1. What exactly Han Kelsen's theory?
We know, that most writers or reviewer Indonesian law classifies the positivism of Hans Kelsen, but there are other writers, such as Prof. Dr Ahmad Ali,SH MS, Hans Kelsen classify into separate streams, namely a pure legal doctrine. Why is it called a pure legal doctrine? because the proposed theory is Hans Kelsen's theory of pure law, namely the theory of positive law. He is a general theory of positive law, not about the order of a special law, he is not the theory of common law, not an interpretation of the norms of a particular national or international law, but he presents a theory of interpretation.
Pure legal theory that seeks to answer the question what the law and how it is there, not how should exist. It is the science of law (jurisprudence), not the politics of law. So why is it called the legal theory of "pure" because it only explains the law and trying to clean up the object description (ontology) of all the things that are not pertinent to the law, meaning that the goal of pure legal theory is clear from the jurisprudence of foreign elements or non- law, this is the foundation epistemology or methodological basis of the theory. So basically Hans Kelsen wants to avoid "syncretism methodology" that would obscure the essence of law and abolish the limits - limits set him by the nature of the principal explan.
Question what exactly is the essence of the theory of Hans Kelsen by Friedman are as follows:
First, the aim of a theory of law, as of any science, is to reduce chaos and multiplicify to unity (The purpose of legal theory, like any science, is to reduce confusion and increase the unity)
Second, legal theory is science, not volitions, It is a knowledge of what the law is, not of what the law not to be. (Legal theory is, and not the will. It is the knowledge of existing law, and not about the law there should be).
Third, The Law is a normative not a natural science (science of law is normative, and not a natural science)
Fourth, the legal theory as a theory of norms is not Concerned with the effectiveness of legal norms. (Legal theory as a theory about the norm - the norm, not dealing with the issue of effectiveness of norms - the norms of law).
Fifth, A Theory of law is formal, a theory of the way of ordering changing contents in a specific way. (One theory about the nature of formal law, is a theory about how to change settings and content - change according to the specific path or pattern) Sixth, the relations og patticular legal theory to a system of positive law or That is possible to the actual law. (The relationship between legal theory with a particular system of positive law is the same as the relationship between law and the laws that may exist).

2. How many concepts of Hans Kelsen Dogma theoretically?
In the academic core courses Hans Kelsen in fact there are three teaching concepts, namely:
a. Pure Legal Subjects
b. The doctrine of Grundnorm
c. The doctrine of Stufentheorie
How Pure Legal's teachings? In summary it can be said of Hans Kelsen wants to clean up the legal knowledge of the elements of non-legal elements, such as historical, moral, sociological, political, and so forth. Hans Kelsen for example, refused to be part of the discussion of justice issues in the science of law. For Hans Kelsen, justice is a matter of ideology is irrational, Hans Kelsen only want to accept the law as it is, namely in the form of regulation - regulation that created and recognized by the state.

3.How to Grundnorm teachings?
Next question how the doctrine of Grundnorm? Grundnorm is the parent who gave birth to the rules - the rule of law in a certain order of the legal system. So, between grundnorm exist in the legal order of A is not necessarily the same as the rule of law Grundnorm B. Grundnorm like the fuel that drive the entire legal system. Grundnorm has a function as the basis for why the law is adhered to and accountable for the law.

4. How Stufenbautheorie teachings?
Stufenbautheorie further how teaching? by Hans Kelsen entirely legal rules derived from the basic norms that are at the top of the pyramid, and further down the more diverse and spread. Basic norms and the more abstract top-down is more concrete. In that process, what the original form of something that "should" turn into something that "can do".
5. What are similarities between the teachings of Hans Kelsen pure law with John Austin?
According to Curzon, is because:
a. second - both want to separate law from morality, and so forth.
b. second - both are also using formal analysis; second - both the positive law only recognizes as one - the only law.
c..second - both see the essence of law "in terms of an ultimate concept'
d.second - both focused attention on the structure and function of the state.
Based on the three concepts of Hans Kelsen doctrine, then that needs to be elaborated associated with this study (Metha theoretical) is a doctrine, and doctrine of Stufenbautheorie Grundnorm, why this is so because the two concepts is often referred to teachings by the Indonesian legal penstudi when linked with the teaching of concepts Grundnorm Legal philosophy, especially when describing the Pancasila as Grundnorm and on the other hand is associated with the theory of teaching Stufenbautheorie legal hirarcy forming a hierarchical structure of the pyramid.
6. How do the views of Hans Kelsen on Norm System legal?
In the book entitled "Hans Kelsen's General Theory of Law and State, 1945 Hans Kelsen suggests there are two systems of norms, namely the system of static norms (nomostatics) and dynamic system of norms (nomodynamics). Statics norm system (nomostatics) is a system that looks at the "contents" of a norm, where a general norm is pulled into specific norms, or norms that can be drawn specifically from a general norm. Withdrawals from the norm - the special norms of a general norm, in the sense that general norms specified become the norm - the special norms in terms of "content" it. According to the author's withdrawal from the parameters using the "matter charges"

7. What is Meant Norma The dynamical system?
The norm is a dynamic system (monodynamik)? Dynamic system of norms is the norm that looks at the validity of a norm or from the formation and losses. According to Hans Kelsen, norms that tiered levels and multi - layered in a hierarchical structure, which under the prevailing norms, sources, and based on a higher norm, and so on until finally "regressus" was stopped at one of the highest norm called basic norm (Grundnorm) which can not be traced again who create it, or whence. Basic norms or often called Grundnorm, basic or fundamental norm of this norm is a norm highest validity without merit and not based on a higher norm, but the entry into force are "pre supposed," that is determined in advance by the public.
8. How to view Hans Kelsen About Legal Norms, Sign In which of the systems Categories norm?
Hans Kelsen says, that the legal norms, including norms that dynamical system (nomodynamics) Why? because the law is always formed and removed by the institution - an institution or authority - authority that is authorized to shape, so in this case we do not see these norms in terms of content, but in terms of validity or constituent. That law is valid (valid) if made by the competent institution or authority to shape and based on a higher norm, so that this norm is lower (inferior) can be shaped by the norms of a higher (superior), and the law is tiered - ladder and multi - layered to form a hierarchy.

9. What Stufenbautheory That Actually Mean?
Associated with the hierarchical rule of law, then Hans Kelsen expresses a doctrine (dogma) that Stufenbautheory. The question is what is meant Stufenbautheory it really? Hans Kelsen put forward his theory about the level of legal norms (stufentheorie) or the authors call the theory of "pertingkatan legal norms", Hans Kelsen argued that legal norms were tiered - level and multi - layered in a hierarchical governance structure, in which a lower prevailing norms, sourced and, based on the higher norms, norms of higher force, sourced and based on a higher norm, and so on up to a norm that can not be traced further and are hypothetical and fictitious, ie Basic Norm (Grundnorm) Where inspiration.

10.For The Hirarcy Theory (Stufenttheory) Legal Norms Hans Kelsen?
If we analyze the exposure of Mary Indrati Soeprapto he stated:
"Theory of Hans Kelsen levels of legal norms was inspired by a student named Adolf Merkl who explaind that a legal norm that always has two faces (das Doppelte Rechsantlizt). According to Adolf Merkl, a legal norm to the source and, based on the above norm, but he's also a basic down and become a resource for the legal norms under which a legal norm that has a validity period (rechtskracht) because of the relatively validity of a legal norm that depends on the legal norms that are above it, so that if the above is the legal norm revoked or removed, then the legal norms which are below it also knocked out or erased. "
Based on the theory that Adolf Merkl, in Hans Kelsen's theory the norm level is also proposed that a legal norm is always based on and rooted in the norms above, but under the rule of law is also a source and a basis for a lower norm thereof. This in the case of tree / hierarchical system of norms, the norms of the highest (the basic norm), it became a place dependent norms - norms underneath so that if the new norm is changed, it will become corrupted system of norms which are below.
11. How to view Hans Kelsen Norma structure above in Relation to Institutions Structure formation?
In discussing the structure of the norm of Hans Kelsen problem we are faced with a norm structure theory proposed by Benjamin Akzin written in his book entitled The Law, State, and International Legal Order, Akzin Benjamin explained that the establishment of public law norms that differ from the norm formation - Private legal norms, why? because if we look at the structure of the norm (Norm Structure), the Public Law that is above the law Privat, while when seen from the structure of the institution (Institutional Structure), the Public Authorities located on Population.
In the case of establishment, the norm - the norm is established by Public law institutions - institutions state (Ruler of State / Deputy-representative of the people) or also called supra-structure so that in this case it was obvious that the norm - the rule of law which created institutions - institutions of this country have a position higher than the norm - the legal norms established by society or also called infra-structure, because of norms - norms of public law that established by state institutions, in fact its formation should be more careful, why, because the norm - the norm public law on the side of its formation must obey the principle of formation and regulation - the invitation, on the other side should be able to fulfill the will and the wishes of the community, as opposed to the establishment of private law norms. Norma - Private law norms that are usually always in accordance with the will necessary community because of this private law shaped by society concerned with the agreement - an agreement or transaction - transactions that are civil, so that people can feel for yourself whether norms - norms that law or not in accordance with necerssary will of the community.
12. Levels Who is Developing Norm Theory (Stufentheory) Hans Kelsen Order Into State?
This theory evolved into the realm of Constitutional Law after being developed by his disciple Hans Nawiasky in his book entitled Allgemeine Rechtslehre pointed out that according to the theory of Hans Kelsen a legal norm from any country are always multi - layered and tiered - levels which are below the accepted norm, groundless, and based on the higher norms, higher prevailing norms apply, unfounded, and based on a higher norm again, arriving at a norm of the highest-called Basic Norm, But Hans Nawiasky also argued that apart from the norm that multi - layered and hierarchy of legal norms of a country that is also a group - groups. Hans Nawiasky group norms - norms of law in a country into four major groups comprising:
First Team: Staatfundalmentalnorm (Fundamental Norms of State)
Group II: Staatgrundgesetz (Basic Rules of Principal Country)
Group III: Formel Gesetz (Law - Law "Formal")
Group IV: Verordnung & Autonome Satzung (Atuaran Executor & autonomous rule).

13. How Grouping Norma Law Of Hans Nawiasky If Applied Into The Indonesian Constitutional Law By The Law Reviewer?
To answer this question we always connect with the view in a speech anniversary Notonagoro Air University Langga 10 November 1955, according to the views Notonagoro highest legal norm and is the first group is Staatfundamental Norm Notonagoro translated by the term "State Fundamental Rule of Goods", followed by Juniarto, in his book entitled History of constitution of the Republic of Indonesia, referred to as "Norma First" whereas by A Hamid S. Attamimi referred to by the term "State Fundamental Norms"
Fundamental norms of the State which is the highest norm in a country this is not the norm established by a supreme norm in this country is a norm that is not formed by a higher norm, but the pre-supposed or specified in advance by the community in a country and is a norm that became a place dependent norm - below the legal norm. It is said that the supreme norm was not formed even higher, because if it was the highest norms established by a higher norm, the norm is a norm that is not the highest.

14, What view of Hans Nawiasky Content From Staatfundamentalnorm?
According to Hans Nawiasky is the norm that are the basis of the formation of the constitution or the constitution of a country (Staatsvervassung), including the norms change. Norm Staatfundamental essence is the law of a requirement for entry into force of a constitutional or statutory - the basic law. Questions in Indonesia Staatfundamental what Norm? If we are referring to Carl Schmitt's view about the Constitution, that is a decision or consensus about the nature and form a political union (Gesammtenscheidung uber eine Art und Form einer politischen Einheit), which was agreed by a nation.
To understand which, according to Hans Staatfundamental Nawiasky Norm is the norm that are the basis of the formation of the constitution or laws - the basic laws of a country, then an administrative law approach used is historical juridical approach, based on this approach, the constitutional history of the Assembly together PPKI BPUPKI on August 18, 1945 received unanimous Constitution - Constitution of the Republic of Indonesia. Bung Karno as chairman of the hearing, said: "With this master - the master as well. Constitution - Constitution of the Republic of Indonesia and the transition rules have been legally defined.
Constitution - Constitution of the Republic of Indonesia in 1945 which decided on August 18, 1945 means the legally established normative also staatfundamental Norm, why? because in the fourth paragraf summed up the position of Pancasila, the state as a text which reads:
"...... The national independence of Indonesia was formulated in a Constitution - Constitution of State of Indonesia which was formed in a state structure which sovereignty People's Republic of Indonesia, which based on the Belief in God Almighty, just and civilized humanity, the unity of Indonesia, led by the populist wisdom in deliberation / representation, and with the realization of a social justice for all Indonesian people.
"Why is not referred to as the term Grundnorm Hans Kelsen? Because in the Hans in the Theory of the State of Nawiasky call Norma was not called Staatsgrundnorm, but Norm Staatsfundamental term, meaning it has a tendency to Grundnorm unchanged or are fixed, while the norm in a country that State is subject to change at any time - because of the rebellions, coups, and so forth. Hans Nawiasky opinion is rendered as follows: "Norma was the highest in the country, but should not be called Staatgrundnorm Staatfundamental Norm, a fundamental norm of the state. The idea is that because of an order of norms Grundnorm basically unchanging, whereas the highest norms of a country may change - change by the rebellion, coup d'etat, Putsch , Anschluss, and so forth "
According to the author this time can also be called Grundnorm Pancasila, because there is an agreement not to modify the 1945 opening of a historical, or historical and juridical been declared by Sukarno in a speech to the stairs; 17-8 -1961, among others, said:
"Declaration of idenpendence we are written in the Constitution - Constitution of 1945 and the Opening, binding to some of the principles of the Indonesian nation itself and let the entire world what principles - principles we were. Declaration of Independence we are Opening Act - Act of 1945, provides guidelines - specific guidelines for filling our national independence, to carry out our state, is to know our purpose in developing the nation to be faithful to the inner voice of our people live in the heart "

Then stated that the Proclamation of 17 - 8-1945 close relations with the Preamble - Constitution of 1945 as confirmed by President Sukarno in a speech 17 - 8-1961, said: "Therefore, the Proclamation and the Constitution - Constitution of 1945 is a 'manifestation' of the soul which we have deep content - which, one of our Darstellung have our deepest inner self. August 17, 1945 sparked the exit of the Declaration of Independence along one basis Independence. Proclamation of August 17, 1945 is actually a Proclamation of Independence and the Declaration of Indenpendence. For us, the script and Opening Act Proclamation - Constitution of 1945 is one. For us, the script and Opening Act Proclamation - Constitution of 1945 can not be separated one from another. For us, the script and Opening Act Proclamation - Constitution of 1945 was the loro-loroning atunggal. For us, the Proclamation of Indenpendence also contains the Declaration of Indenpendence. Other nations, has only just Proclamation of independence. We have the Proclamation of independence and the Declaration of Independence at the same time! So that's why I emphasize that we Proclamation can not be separated from the Declaration of Independence in the form of our Constitution - Constitution of 1945 with the opening of it. "
15. How Grudnorm concept in Indonesia?
Based on the above explanation, it is clear that the Five Principles contained in the opening paragraph IV 1945 and incorporated as well as Norm Staatfundamental Grundnorm based on theory or theories of Hans Kelsen Hans Nawiasky, but in the realm of legal theory in the Indonesian Pancasila as well placed as the ideal law (Rechtidee) questions that need to be asked is What is Rechtidee? Ought to understand that idea Law (Rechtidee) needs to be distinguished from the understanding or our concept of law (Rechtbegriff), according to A Hamid.S. Attamimi, that the ideals of law is in our dreams, while understanding or concept of law is a fact of life associated with the value we want (wertbezogene), with the aim to serve the values that we want to achieve (eine Wertezu dienen). And in understanding or our concept of law lies, that is the fact that the law aims to achieve value - the value of law, achieve legal. With the aim of realizing ideals of law that existed at the idea, feeling, copyright and our thoughts into reality.

17. Is the understanding that legal ideals real?
To answer this question, we referring to the view Stamler Rudolf (1856-1939), a philosopher who homage to neo Kantian law, argued that the goal is the construction of the law think it is imperative for the law directs to the ideals - ideals that the community desired. Cita law serves as a guiding star (Leitstern) for the achievement of ideals - ideals of society. Although an end point that can not be achieved, but the ideals of law to benefit because it contains two sides: a legal goal we can test positive law applicable, and to the ideals of law we may direct the positive law as an attempt by coercive sanctions to something that is fair, therefore, according to Stammler, justice is the business or direct the actions of positive law to the ideals of law. Thus, a just law is positive law has a goal-directed nature of the law to achieve the goal - the goal of society, while Gustav Radbruch (1879-1949) a philosopher of law but also homage to Neo-Kantian schools of Baden or the School of West Germany - power, asserting that the ideals of law not only serves as a benchmark that is regulative, which test whether a positive law is just or unjust, it also serves as a basis which is a constitutive, ie determining that the ideals of law, the laws would lose their meaning as if the law the law does not realize the value of justice

18. Are Relationships Between Five Principles embodied in the Pancasila idea Law and Legal Norms embodied in the Highest?
As Gustav Radbruch view, that the law serves as a basic goal that is constitutive but also have a regulatory function that determines whether a positive law that can realize the foundation of law purposes, namely (1) of legal certainty (Rechtmatigheid), justice (Justice) and realize the benefits ( Doelmatigheid) or conflict of those three things together in a practical level, according to the authors ideally three things are met in realizing the ideals of Pancasila as the law, but if there is a conflict, then the purpose of the law, namely benefit that must be advanced, while the view of legal positivism, the rule of law is ultimate goal and it became the issue when state law only in shaping the pursuit of legal certainty, while the ideals of Pancasila as the law should make it three goals in a synergistic law in accordance with the objectives of the exposed opening of the 1945 Constitution.
19. How to view Hans Kelsen Doctrine Of Sides Philosophy of Science and Philosophy of Law And Legal Theory By The Penstudi Law In Indonesia?

Sidhartha give an interesting presentation with a title in a Misnomer Essays in Legal Positivism Nomenclature and reasoning presented in the book Research Methods Law, issued by Constellation and Reflection Indonesia ,Yayasan Obor, Jakarta, July 2009 edited by Sulistyowati Irianto and Shidarta: "Hans Kelsen's view that the law of the elements should purify non-law was not born from empty space, but influenced the philosophy of science. A stream, including the theory of pure law of Hans Kelsen, born from a strong philosophical and not the ideas - ideas that respond to conditions or instantaneous particular issue. Because it before elaborating the thought of Hans Kelsen, it helps keep track of Hans Kelsen epistemology of the "purification of law" with the probe into the area of Philosophy of Science. " .
The question is if the epistemology of Hans Kelsen to probe into the area of Philosophy of Sciences signed at the level where the path? “Purification of the interests of Sciences, took place in the history of the two lines. On the first point, giving priority to the ability of humans who consider the ratio of pure knowledge can be obtained through the human ratio. The first point was pioneered by Plato which emphasizes the role of intuition. Plato thought that true knowledge is knowledge not a single change - change, namely the knowledge that captures the idea - an idea. priori knowledge of human nature, has adhered to the ratio itself, then the human task is to recall what became a priory in rasionnya, that idea - idea. For that humans must be constantly clear knowledge of the elements - elements that change - change in order to penetrate the nature of reality or an idea - an idea. Track this rationality reveals itself again in modern philosophy, appearing philosophers like Rene Descartes, Malebrache, Spinoza, Leibniz, and the Wolff. They assume that true knowledge can be obtained in the ratio itself and generated a priori nature of the statement - a statement a logical, analytical, and matimatis ". On the opposite lane or the second line, emphasis on the role of experience and empirical observation of objects of knowledge are therefore asposteriori. At this point Aristotle standing majoring abstraction. According to Aristotle, true knowledge is the result of empirical observation. Knowledge is asposteriori. So the task is to observe the human element - the element to change - change and make abstraction of the elements - the element that changes - modify and perform abstract element - the element is, thus acquired is of particular abstraction universal.Untuk do even this man should cleanse themselves from the elements - elements that change - change. Path is a place of empiricism in modern philosophy of mind dai support from Hobbes, Locke, Berkeley, and Hume, who was standing in this line. These philosophers saejati assume that knowledge can be obtained through observation of sensory evidence. "

Based on the two paths of knowledge in the acquisition of the knowledge base according to the author they are different, the first path through the method of deduction and the second path through the method of induction, but both are the same - the same opinion that a pure theory can be obtained by way of cleaning the knowledge of encouragement - encouragement and interests - the interests of human beings (subjectivity). According to the authors, although the acquisition of the knowledge base of the two different but really are not things need to be confronted by dikhotomis faced, why? Because the structure of divine law in the proposition there are two structures, namely the legal structure that is written or called a paragraph - paragraph kauliyah and legal structures that are not written or called the verses kauniyah and second structures when included in the construction of law is something inseparable but distinguishable. This means that the idea - the idea of both the real and empirical problems are connected to each other only in terms of epistemology, there are two patterns of the first approach if penstudi law depart from theoretical construct and then look at the empirical level is then called to obtain the deduction and scientific truth or perform the verification, whereas if the law depart from the construction penstudi empirical facts and then analyzed with the construction of this theory came to be called induction and to acquire scientific truth, the empirical data should also structured based on the chosen method of data analysis and performed data validation.
20. How to Critique of Hans Kelsen's theory?
Based on above exposure it can be exposed to criticism of the theory of Hans Kelsen, namely:
First, the Thought of Hans Kelsen is "purely normative" since long ago has many attractive penstudi jurists and law, as being present when the philosophy of law which is still dominated by the flow of natural law was too busy to talk mainstram speculative ontological and debate about what the meaning of fairness, eligibility / benefits and finally offer an alternative paradigm of positivism is but the current reality of normative legal settlement further away from the concrete problem, because being pursued only legal certainty, and it proves that the law in actual empirical level is not free of values, hence the need for legal analysis of the double paradigmatic , the synergy between natural law paradigm with the paradigm pospositivisme rationally based morality.

Second, Cleaning or refining the law of non-legal elements (an epistemology) is final and absolute basis for Kelsen. Many people call Hans Kelsen as a foundation stone of theory and science of self-discipline menjadisuatu law (autonomus dicipline). Hans Kelsen epistemological foundation is what until now invite debate, including within the legal penstudi, because Kelsen rejected the validity of norms when tested from something that is not the norm. Kelsen of understanding of the consequences of thinking gave birth to the theory of norm levels (stufen desrecht) that are arranged in a hierarchy of legal norms and the theory of this tiered system influenced legislation in many countries, including Indonesia, where the norm is the source for the preparation of high norms - norms underneath.
Third, Hans Kelsen is relatively successful when explaining a hierarchical system of legal norms emerging positif. The problem when he reached the top of the hierarchy system, which was named Grundnorm (basic norms).
Written by : Mr Turiman Fachturahman Nur. Lecturel Faculty of Law Tanjungpura University, emailqitriancenter@yahoo.co.id and contact person + 628125695414 West Borneo.
Ahmad Ali, Menguak Tabir Hukum, CV Candra Pratama, Ujung Pandang, 2009
Curzon, LB, Jurisprudence,M&E Handbook, 1979
Friedmen, Wolfgang, 1953. Legal Theory. London. Stevens & Sons
Hans Kelsen, Teori Hukum Murni, Dasar-Dasar Ilmu Hukum Normatif yang diterjemahkan dari Buku Pure Theory of Law (Berkely University of California Press, 1978) oleh Raisul Mutaqqien, Agustus, Penerbit, Nusa Media, Bandung, 2008

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