Monday, October 12, 2009

Why the Pure Theory of Law Matters: Understanding the Misunderstood Kelsen (Part 3)

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.

The Validity of Law and the Problem of Bad Laws

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.

Have you ever counted the amount of bad laws in Indonesia? One good example would be Law No. 24/2009 on the Flag, the Language, the National Emblem, and the National Anthem. You could see my discussion on this law here. This law has caused tremendous problems and uproars among the businessmen and lawyers due to its ambiguity and ridiculous requirements in drafting private agreements. But can we say that this is not a valid law, simply because it is stupid? No, we can't! We have to live with it until the law is amended or it has been judicially reviewed by the Constitutional Court.

That's why we should always be mindful to the fact that laws are made by politicians where many interests were intertwined. It is true that the first drafts might be made by professionals legal drafters, but as soon as those drafts go to the parliament's commissions, we can only hope that they make the right judgment and decision (though we clearly know that they fail to do so in many instances).

If you ask me, I'm not a supporter of the principle that laws should be made by ordinary common people through the parliament. The fact that these laws were made through democratic process (if we can call this absurd process as democratic) does not necessarily means that the end results would be good. Laws should be made by professionals based on a thorough research among the people. So that the Government can find or at least assess the true needs of the society and stipulate laws that can accommodate such needs. Specific values should be diminished and the Government should focus on stipulating laws that bring the greater good to the society, that could be easily understood by the people and that could be implemented effectively. Looks like an utopia, eh?

Law as a Product of Men

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.

The Hierarchy of Laws

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.


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