In the third and also the last part of my article, we will discuss the actual implementation of Kelsen's theory of law and why such theory matters. If you have read all of my previous related posts and you are still reading this post, I must first congratulate you for your persistence and patience. I hope this article would be useful to help you in understanding the basic characteristics of the law. 

In my opinion, the most important contribution of Kelsen's theory is the theory that the validity of the laws does not depend on their contents or the values represented by those contents but on: (i) how they were established (i.e. whether they were made based on a correct mechanism set out by higher norms), and (ii) the validity of the higher level's norms which enable those laws to be created. What are the implications? No matter how bad a law is drafted or no matter how ridiculous a law is, as long as the above requirements have been satisfied, a valid law is always a law and people should obey such law. 

Now, before you claim that I am a supporter of despotic governments who issue laws without any check and balance mechanism, please hold your tongue. If we know and understand that a valid law is still valid even though it is a very, very bad law, we must do our best to prevent such thing from occurring. Kelsen's theory is very useful here because it brings us to the cold reality, i.e., there is always a chance that a law is a bad law, and when such bad law is validly issued, it will become a valid bad law. Then, whether people like it or not, they would need to obey such bad law. 

Of course people can always disobey that law, but then they would live under the mercy of the officials who implement such law. While there are also mechanisms to review those bad laws in some countries, until a final and binding verdict is issued, those bad laws are still deemed to be valid, and there is no guarantee that the results would be in favor of those who oppose the enactment of such laws. 

The next important contribution from Kelsen's theory of law is the theory that essentially, law is the product of men, it is not created by divine powers or supreme intellects. While this concept has been already recognized under the positive theory of laws, Kelsen brings the concept to the next level. Again, this has a deep relationship with his concept about the validity of the law. By rejecting the theory that law is derived from specific values created by divine powers or morality, Kelsen established the concept that the validity of the law is not related to its content. I couldn't less agree. The reason is simple, we can easily assess whether a law is made through the correct mechanism but we can't asses the correctness of a moral or religious value that becomes the underlying principle of the law. Determining the validity of the law based on its values would be horrendous because we do not have a universally acceptable standard and people could always challenge the validity of the laws by too many reasons. 

There are also other consequences of Kelsen's theory. I know that some prominent legal scholars believe that laws should reflect the values of the society where the laws were enacted. To certain degree, that might be correct, but not always. Imagine the new Qanun in Aceh that permits stoning for adultery. You can see my related post here. The Qanun makers stated that the Qanun is issued in accordance with the cultural believe of the Aceh's society. Assuming that this is true, can we accept this kind of law as the right one? I would say no! And I believe that most people would say the same. According to Kelsen's theory, the Qanun is a valid law. But how about those who believe in the relationship between law and society. Would they have the same view about the validity of this absurd Qanun? Kelsen's theory enables us to have a scientific method in assessing the validity of the law and we should be grateful for that. 

Last, but not least, Kelsen's theory of law helps us to understand the nature of the hierarchy of laws which is very useful when we need to analyze different ranks of law and determine the validity of a law's provision. In Indonesia, Kelsen's concept has been implemented in Law No. 10/2004 on the Stipulation of Regulations where it states the basic hierarchy of Indonesian regulations and stipulates that the power of a regulation corresponds with its level in such hierarchy. There are a huge number of laws out there and there is always a possibility that some laws contravene other laws. 

This is especially right when we are dealing with the laws of a developing country where the laws are not well harmonized. Without a clear concept of the hierarchy of law, we would be confused in determining which law should be applied where there were two or more contradicting laws. By using the hierarchy of laws and the fact that this concept has been implemented in Indonesian regulations, we would have a solid basis in determining the applicability of valid laws in accordance with its level in the hierarchy, i.e. lower level laws cannot have provisions that contravene the provisions of the higher level laws. If such contravening provisions exist, the provisions of the lower level laws should be deemed as inapplicable. I encourage all lawyers to learn and to fully understand this concept as this is one of the basic skills in doing their job analyzing the regulations. 

We have discussed some important implementations of the Pure Theory of Law and I hope that the discussion can enlighten us with respect to the nature and function of law. In the end, law is the product and tool of men, and therefore, it is up to us to make a law that can bring the greater goods to the society. We also know the danger of having a valid bad laws and we must do our best to prevent such thing from ever happening. Therefore, in the future, I hope, that the drafting of laws could be done by professional legal drafters supported by greater participation of the society.

In the first part of my article, we have discussed the basic concepts of Hans Kelsen's Pure Theory of Law. In this second part, we will discuss the concept of Norms, and the relationship between efficacy and validity of the law.

Norms, the Hierarchy of Norms, and the Basic Norm 

A discussion on Kelsen's theory of law wouldn't be complete without discussing the Norms. As I've said previously, according to Kelsen, the law can be viewed as a specific social technique and as a norm. What is a norm? Kelsen describes norm as a rule expressing the fact that somebody ought to act in a certain way, without implying that "anybody" really wants the person to act that way. Further, Kelsen also defines norm as an impersonal and anonymous command (this is made by Kelsen to counter argue John Austin's definition of law, i.e. law as a command from a sovereign). 

From his definition, we can conclude three important concepts: (i) a norm is a rule that provide certain "guidelines" to its intended subject whereas such intended subject is ought to follow such "guidelines", (ii) a norm is neutral, it is not representing the will and interest of certain people or entity, and the most important thing is (iii) the validity of the norm is not related to the entity which stipulate such norm (that's why it is considered as an impersonal and anonymous command) but on the validity of the norm which gives authority to such entity. 

Following Kelsen's way of thinking, the validity of a norm (let us call it as Norm No. 1) shall be determined by the validity of the norm having the authority to create/establish Norm No. 1 (let us call this second norm as Norm No. 2) in accordance with the procedures stipulated by Norm No. 2. Logically, Norm No. 2 should have a higher level than Norm No. 1 and both should exist in the same order/system. If not, how can Norm No. 2 create and determine that Norm No. 1 is valid? Thus we've seen the birth of the Hierarchy of Norms. Pretty simple, eh? The process shall be repeated until we reach the highest level of the Hierarchy of Norms, where we will find the Basic Norm. What are the characteristics of the Basic Norm? 

Let me give you an example: Why we stick with the 1945 Constitution and consider it as the basis of all laws stipulated in Indonesia? It is not a sacred document created by God, in fact it is a document made by a bunch of people that we call as the Indonesian founding fathers, which was later amended by the Indonesian parliament. It was once replaced by another constitutions and then we returned to use it using a decree of a president which is obviously has a lower status than the constitution. Yet, we're still using the 1945 Constitution and we still believe that all regulations in Indonesia should not contravene the 1945 Constitution and that all regulations in Indonesia obtain their validity since the 1945 Constitution allows the stipulation of laws and regulations. Yes, 1945 Constitution can be considered as a Basic Norm, but is it valid because it corresponds with justice or the interest of all Indonesian people? Not necessarily. It was not even drafted by the entire Indonesian people, rather it was made by a committee whose most members were appointed by Japanese government. It is without doubt that some Indonesian people might have different views with the idea of such committee and the content of the 1945 Constitution. Even the drafters of the 1945 Constitution and its amendments could have different views among themselves when they draft the 1945 Constitution. 

So why? Why we still use the 1945 Constitution? The answer lies in Kelsen's theory, the 1945 Constitution is valid and becomes the source of all Indonesian laws because we assume that the 1945 Constitution is valid. That is the only logical explanation, the principle of legitimacy. That's why Kelsen acknowledged in his "General Theory of Law and State" that the Basic Norm of a legal order can be replaced by a revolution which include the so-called coup d'etat. 

Validity and Efficacy of the Law 

Before we move on, let me explain first the meaning of efficacy. Efficacy of the law means the effectiveness of such law with respect to its effect to the society, i.e. the degree to which the law is being actually complied by the society. It is common for us to see laws which are so ineffective that the existence of those laws mean nothing to the society, and other type of laws which are very effective and have a high rate of compliance. The main question is, can we consider a law that is not efficacious as a valid law? In Kelsen's opinion, consistent with his theory, the efficacy of the total legal order is a condition for the validity of the relevant Norms, but not the reason for their validity, because the validity of a Norm depends on whether it is created in a constitutional way or not (please refer to above discussion on the Hierarchy of Norms). Therefore, the degree of compliance of law does not affect the validity of such law. In other words, it is possible for us to have a valid law which has a low degree of compliance or no compliance at law. 

One example that I could think of would be the regulation that obliges companies that have trade business licenses (SIUP) to submit periodical reports to the Department of Trade. Based on my experience, the percentage of non-compliance for this particular obligation reaches 99.9999%. Pretty amazing! 

There is more to it. Kelsen also acknowledged that a law/norm wouldn't be valid anymore if the total legal system has lost its efficacy. Theoretically, this is correct. Suppose the current Indonesian legal system loses its efficacy, say because of a revolution, where the 1945 Constitution is entirely dismissed and replaced, and the government has been toppled up. Unless there is a new constitution having a transitional provision which says that the remaining laws remain to be valid, we would lose the legal basis to consider that such remaining laws are still valid. However, since the possibility of having such worst case scenario is very rare, we could stick to the basic principle of the Pure Theory of Law, i.e. the efficacy of the law does not affect the validity of such law. I believe that this is a very important concept having significant practical implications, and we shall further discuss such implementation in the last part of my post, where we shall also discuss the implementation of other parts of Kelsen's Pure Theory of Law.

Okay, I know that this blog is made for common readers, but I guess that writing a subject on legal theory and legal philosophy once in a while wouldn't do much harm. Besides, I cannot resist the temptation of writing this post. While Hans Kelsen is known as a prominent jurist and a worldwide respected legal scholar, he could also hold the first rank of the most misunderstood legal scholars of all time. There are so many critics to his legal theory (known as the "General Theory of Law" and the "Pure Theory of Law") that in some cases, his name and theory are recorded in law text books only for the sake of being criticized. Of course, this doesn't mean that his theory is less regarded than other legal theories since debating and criticizing are very usual in a well educated community. However, I feel that those critics are not the result of a correct understanding of Kelsen's theory. Instead, such critics were made on a false ground, a misunderstanding of Kelsen's real intention when he first declared his theory of law to the public. 

Personally, after reading Kelsen's book, "The General Theory of Law and State," it is very hard for me to understand the basis of the critics and attacks made toward his theory. In my opinion, Kelsen provides a solid basis for lawyers in understanding the law and its basic characteristics, i.e. law as a norm and as a specific technique for social organization. We'll take a look on these issues further (some will be discussed in Part 2). But, for the appetizer, let us discuss first some basic concepts of the General Theory of Law and the Pure Theory of Law. 

In my opinion, nothing can better describe Kelsen's theory of law than Kelsen's own words. Therefore, to ensure that my description of this theory could reflect Kelsen's original thought in the highest manner, I will stay as close as possible with the description made by Kelsen in "The General Theory of Law and State." Expect a little bit of copy and paste here. But don't worry, my personal comments will be made separately below.  

According to Kelsen, the General Theory of Law is a general theory of positive law and positive law is always the law of a defined community (such as the law of Indonesia, the law of the United States, etc). Kelsen claims that his general theory is made as a result of a comparative analysis of the different positive legal orders, furnishing the fundamental concepts by which the positive law of a definite legal community can be described. Further, the subject matters of a general theory of law is the legal norms, their elements, their interrelation, the legal order as a whole, its structure, the relationship between different legal orders and finally the unity of the law in the plurality of positive legal orders. 

This kind of theory must derive its concepts exclusively from the contents of positive legal norms and therefore must not be influenced by the motives or intentions of regulators or the interests of the individuals to which they are the subject of such law, unless these motives and interests are manifested in the material produced by the lawmaking process. In other words, the general theory of law is directed at a structural analysis of positive law rather than a psychological or economic explanation of its conditions, or a moral or political evaluation of its ends. 

Next, what is the Pure Theory of Law? According to Kelsen, the Pure Theory of Law means that such theory is being kept free from all the elements foreign to the specific method of a science whose only purpose is the cognition of law. Further, Kelsen argues that a science has to describe its object as it actually is, not to prescribe how it should be or should not be from the point of view of some specific value judgments. The latter is a problem of politics, and as such, concerns the art of government, an activity directed at values, not an object of science, which is directed at reality. The Pure Theory of Law considers its subject (law) not as a more or less imperfect copy of a transcendental idea. It does not try to comprehend the law as an offspring of justice. It sees the law not as the manifestation of a super human authority, but a specific social technique based on human experiences. Consequently, it seeks the basic of law, i.e. the reason of its validity, not in a meta-juristic principle, but in a juristic hypothesis, i.e. a Basic Norm, to be established by a logical analysis of actual juristic thinking. 

Referring to Kelsen's thought above, I can conclude that a general theory of law focuses only on the structure and content of the law. It analyzes the law as it is and it is neutral, i.e. it does not question and judge the values or ideas contained within a law which is not the concern of a general theory of law. I find this as enlightening, though I understand that some people may find this idea as distasteful, i.e. how can someone claims that a theory of law should be separated from value judgment, the idea of justice, the idea of good? Wouldn't this provide a theoretical support for a despotic ruler to establish laws in accordance with his own wish and interest, without any accountability and any check and balance mechanism? 

To tell you the truth, the answers are quite easy. First, a theory of law which depends on value judgment to analyze the law's validity will not work simply because it is impossible to determine a value than can be universally accepted by each and every men. As an example, who can perfectly define the term "Justice"? Even the great John Rawls with his magnum opus "A Theory of Justice," a book that has been prepared by him for more than 20 years, can't provide the perfected idea of justice to which every scholars would agree. The question of justice has been asked even by Socrates and Plato more than 2,400 years ago, and yet we have not resolved such question until today. 

There is also a greater reason why Kelsen made such separation. As noted above, Kelsen defines law as a specific social technique made by men, and that definition, in my opinion, becomes the core of the structure of Kelsen's theory. To cut it short, Kelsen's theory is methodological (which is in accordance with Kelsen's ambition to establish a scientific theory of law). As such, Kelsen's theory deals with the method of establishing and operating the law, not the background of why such law was made on the first place. 

As a logical consequence of this theory, the existence and validity of the law are no longer attached to morality, justice, religion, history, etc. Rather, a law would be deemed valid if it is created in accordance with the mechanism set out within a legal order/system (Kelsen believes that a law should be established in a coherent legal order/system, i.e. a positive legal order) and derived from a systematic hierarchy of norms, i.e. a law/norm's validity is determined by the validity of the law/norm having a higher level than such norm (this goes on until we reach the hypothetical Basic Norm (Grundnorm) which will be discussed further below). 

It is also worth to note that while Kelsen makes such separation in his theory, it doesn't mean that he doesn't care about the value judgment of law. He understand that whether you like it or not, every law in this world must be based on certain value and thus such law can be good or bad, just or unjust. We can't deny that fact. However, Kelsen views this value judgment issues as not an issue of legal theory, but more a philosophical question or political science issue and should be answered by philosophers and political scientists. I would add that economists and sociologists would also be helpful in answering these value judgment questions. For clarification purpose, while I do make a differentiation between the General Theory of Law and the Pure Theory of Law, they are actually inseparable, i.e. Kelsen's theory of law is a general legal theory purified from any non legal elements. This concludes Part 1 from my planned 3 Parts of Post. In the second part, we will discuss the concept of Norms and the relationship between the efficacy and validity of the law.