Showing posts with label Jurisprudence. Show all posts
Showing posts with label Jurisprudence. Show all posts
  • Do Judges Play by the Rules? - A Reply to ''Playing by The Rules''

    Jurisprudence and legal interpretation are two themes that are dear to me. As such, I was quite ecstatic  when I received a copy of a book chapter titled: "Playing by the rules: the search for legal grounds in homosexuality cases - Indonesia, Lebanon, Egypt, Senegal" from Sam Ardi last week, especially because the front page mentions the terms "positivist" and "realism" in law and the chapter itself seems to discuss the role of interpretation in dealing with concrete legal problems. While the paper is indeed interesting and informative for a descriptive work on how different jurisdictions interpret their laws on homosexuality cases, I find that the core analysis lacks a coherent theme from jurisprudential and social science perspectives and this will be the focus of my comments today.
  • Desperately Seeking Legal Certainty

    The title of this post reflects my curiosity with lawyers (by lawyers I mean all people who have received formal legal education) who desperately seek legal certainty. Their usual argument is: legal uncertainties will lead to unfairness and arbitrariness within the society, which obviously is bad. However, I must say that there is a fundamental flaw in this argument since legal certainty too can also produce unfair and arbitrary result. Most of the time, law is a political product rather than an absolute principle, and thus there is no guarantee that the process is clean from any competing interests, where one group would be the winner on the expense of others. In other words, both legal certainty and uncertainty are neutral concepts, they can be good and bad at the same times depending on how we view its purpose and effect to the society.

    Maybe the problem lies with the definition of legal certainty itself. Does this mean that the law should be predictable? Or does it mean that the law should be formal and rigid, that there is a general standard applicable for every cases and that it should be enforced without any exception? Answering this issue is indeed a herculean task but I'll try to describe my basic points in this post to start the discussion.

    First, we should move to a famous Antitrust Case in the Supreme Court of the United States, Leegin Creative Leather Product, Inc. v. PSKS, Inc. This was a case for vertical price fixing, where Leegin, a leather goods and accessories manufacturer imposed a minimum fixed price for its products that must be complied by its retailers. One of its retailers, PSKS, refused to comply with such minimum price and as result, Leegin ceased to sell its products to PSKS imposing a huge amount of losses to PSKS. PSKS then argued that Leegin has entered into an agreement with his retailers, including PSKS, that restrained trade or commerce (basically restricting competition) and therefore it should be deemed violating the Sherman Act (the Antitrust Law of the United States).

    For more than 100 years, the precedent in the United States concerning vertical price fixing is that it is a per se illegal agreement, meaning whatever the reasoning for entering into such agreement, such agreement will be deemed as anti competitive and therefore illegal. However the majority opinion in the Supreme Court reverse such long standing precedent as instead declare the rule as a rule of reason, meaning that such agreement will only be illegal if there is a solid evidence that such agreement is unreasonable and causes anti competitive behavior which adversely affect the welfare of the society.

    This is a very interesting case for many reasons. First, the decision was full with economic analysis (something that is quite rare on the Supreme Court level). Two, the decision rejected the application of per se rule for this type of case (which is the usual formalistic way of legal reasoning) on the basis that while such per se rule lowers the administrative costs for future cases (i.e. since every similar contract should be deemed illegal, it can be expected that all courts in the United States will give similar treatment without having to go to a lengthy process caused by the use of rule of reason), it can also produce inefficient results since in the view of the majority, the existence of vertical price fixing can also produce pro-competitive results in certain conditions (such as promoting competition between manufacturers while maintaining price in the level of retailers).

    The dissenting itself argued that while there might be certain positive economics effects of vertical price fixing, this is not something unknown back in 1911. If the past justices believed that such positive elements can not justify the legality of the arrangement, how could the current justices defy such reasoning? If there is no significant change in the conditions related to the case, the stare decisis rule (i.e. that a court precedent should be binding against future cases which have similar conditions and elements) should still be applicable and therefore the court should not reverse the precedent. This will ultimately jeopardize legal certainty created by stare decisis rule. As you can see, both groups of justices provide interesting points with respect to legal certainty versus legal flexibility (which is supported by economic reasoning).

    Another experience that I had with my Judicial Decision Making course is also interesting to be shared here. As justices in the Supreme Court of Delaware, we handle various cases related to mergers and takeovers of publicly listed corporations. The issues are complex, ranging from shareholders rights for appraisal for their shares in a merger transaction, conflict of interests between shareholders and directors, and fiduciary duty of directors toward corporations. We work on the basis of clean slate doctrine (so we can build our own business law doctrine) and we also build our own set of precedents to be used for future cases.

    Only in three weeks and 6 cases, I could easily see how difficult it is to build a consistent approach to the various issues that we face. When we think we have already considered everything, the next new cases show that the principle that we used in the previous case cannot be applied consistently or it will bring a perverse result, either to the corporation or to the shareholders, etc. To certain extent, we need to revise the precedent that we have established previously in order to accommodate the cases.

    Take as a case, the doctrine of business judgment, that directors should not be liable to the shareholders in case they can show that they have done their job with good faith and with a reasonable care. Seems easy to translate in practice, but in reality it is not. When can we say that the directors have acted to the best extent of their capabilities? Who can evaluate the performance of the directors? The court? But the court is not a business expert, and putting too much standard might not be a good solution if the ones who create such standard do not have sufficient capacity. So again I face a dilemma, picking certainty versus uncertainty.

    If only all legal issues are white and black, maybe seeking legal certainty would not be a desperate issue. But in reality, we live in a gray world. Forcing certainty to everything tends not to solve the problem. On the other hand, having an exact rule will reduce administrative costs (as stated in Leegin case), but on the other hand, it does not mean that it is clean from other type of costs, in fact it can also produce inefficient results. The key question is, how can we strive for a balance?

    One of the interesting point of the US legal system is how they divide their laws into two major groups. The common law and the statutory law. The statutory law resembles the civil legal system that we use in our country where everything is regulated by statutes and we tend to answer any legal issues on the basis of the provisions of such statutes. Meanwhile, the common law also use statutes as the basis (other than using judge made law), however statutory provisions that fall under the common law group tend to be more general and somewhat ambiguous, which most or the time are further elaborated by the judges in the court. The US Antitrust Law and the Securities Laws are two good examples of this common law type where the provisions are simple and open to many interpretations by the court.

    Obviously the level of certainty in this type of common law statutes is lower than the statutes in the statutory law group. I can confirm this at least from my experience dealing with US securities laws and antitrust law issues. You can make various arguments with the issues such as what constitutes securities, what constitutes public offering, what constitutes a rule of reason case, etc. Compared this with Indonesian securities laws and antitrust laws where it is more certain in terms of definition and concepts. Even for the Delaware General Corporate Law which is quite exhaustive, we can have a heated debate concerning what provisions should be considered as a default rule (i.e. can be waived by parties through a contract like in Indonesian contract law) and what provisions should be considered as a mandatory rule absent express provisions in the body of the law.

    Maybe this is a good time to evaluate to what extent we should have certainty in our legal system, whether everything should be regulated precisely so that there is no room for flexibility for the sake of securing certainty. We should also see to what extent the court can be a more productive asset in our legal system by giving them bigger flexibility in solving certain type of cases (such as in corporate and securities laws). 

    Furthermore, instead of trying to regulate everything within the provisions of a law, maybe it would be a good idea to instead create a more flexible regulation accompanied with a governing value that should be used whenever we want to interpret and enforce the provisions of such regulation. One good example is the normative principle of law and economics where law should be designed to promote efficiency and maximize the welfare of the society (though other people might also have different values). I believe that answering this issue would contribute significantly to the development of our legal scholarship and I would be interested to elaborate more my ideas on this subject in a more formal way.
  • On Why Ignorance of the Law Can't Be a Good Defense or Should It be?

    All first year law students in any part of the world should know this principle: ignorantia legis neminem excusat or simply saying, you will not be able to defense your illegal act in front of the court on the basis that you don't know the law. This might be a simple principle, but there is a deep meaning here and I had a very nice discussion with Prof. Anup Malani this morning regarding this matter.

    Try to consider this. Suppose you're attending a class of a "killer" professor. Most of the time, he only mumblings aimlessly. Then, on the final examination day, you suddenly realize that the questions presented do not contain a single thing that has been taught in the class. It's completely different and you stare blankly at the exam paper. What do you feel? That it isn't fair? That it seems like the professor is cheating the student? Well if you think so, I would completely agree. This is not fair at all. In fact, if I were you, I will definitely report the professor to the higher ups and ask him to be removed since this is so unprofessional.

    But if you think it through, wouldn't you find the similarities between the case above and the legal principle that we are now discussing? With so many regulations issued each year, in reality we've already drowned in regulations (and the parliament is still thinking about issuing new regulations each year?). No human being, even the best lawyer in the world, can know and fully understand the entire law in a single country. And yet, with all of these facts, there would be no excuses for all citizens to say that since they don't know the law, they should be exempted  from legal liabilities in case they mistakenly violate a law. How can that even be possible?

    Apparently, there is a good economic reasoning for this certain principle and that is the fact that the cost of faking your ignorance of the law is so cheap (as easy as I say: "I don't know") that opening the possibilities of exempting people out of ignorance would be a major disaster for legal enforcement. Of course, this is not a perfect solution. When the laws aren't as many as nowadays and when the laws are usually still in line with basic common sense, adhering the non ignorance principle would be a good choice. But the case would be different with the current development in legal system.

    One of the issues that was discussed today is the fact that there are a lot of new laws in the United States that criminalize acts without any mens rea element. Mens rea basically means the intent to violate the law or the "guilty mind". In other words, you can be criminalized for doing certain acts even when you do not have any intention to conduct such act. Let us take an example, suppose that there is a local law that restricts people to put their cars on the road sideways in certain hours. Say that the regional parliament members have their own reasoning and it is common for the people there to put their car on the road sideways. Wouldn't you be surprised when one day you are being fined for putting your car in the sideways without any warning whatsoever and you can't defense yourself on the basis that you don't know about that law?

    What was considered as a good legal principle can be turned into a giant mess. Try the regional regulations in Indonesia. It's very hard to access any information about these laws, there are plenty of them, and each person, including companies, are expected to comply with all of the requirements set out under these regional laws. It does not work that way and a legal system that works like that is no different than legalized burglary.

    Having said that, I have to admit that finding the right balance is difficult. On one side, we do not want to provide huge incentives to people to violate the law. On the other hand, we can't let government officials do as they please without proper restriction or we will end up with high cost economy in many part of our lives. Some suggestions would be: (i) with respect to criminalization, the government should be careful in not creating too many new criminal acts, it sends the wrong signal and it increases inefficiency in state management; (ii) even if we need to criminalize, adding the element of mens rea would be helpful in reducing unnecessary violation; and (iii) socialization of new laws is imperative and it would be better if the Government can introduce those kind of laws gradually. Remember the introduction of seat belt rule?                    

  • 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.
  • Why the Pure Theory of Law Matters: Understanding the Misunderstood Kelsen (Part 2)

    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? 

    According to Kelsen, the Basic Norm, unlike any other Norms, is not created in a legal procedure by a law creating organ. It is not -as a positive legal norm is- valid because it is created in a certain way by a legal act, but it is valid because it is presupposed to be valid because without this presupposition, no human act could be interpreted as a legal, especially as a norm-creating act. Among all other concepts that were introduced in the Pure Theory of Law, the Basic Norm is the most controversial one, especially with respect to the presupposition of the existence and validity of the Basic Norm. For some scholars, such presupposition defeats the entire purpose of the Pure Theory of Law to create a scientific legal theory. How could a scientific legal theory explain that the validity of the Basic Norm, which is basically the ultimate source of validity of all other Norms, thus acting as the core of the Pure Theory of Law, depends on a presupposition? I can understand their critics, but in this case, the presupposition should be correct. 

    Citing Kelsen's own words: "The whole function of this Basic Norm is to confer law-creating power on the act of the first legislator and on all the other acts based on the first act. To interpret these acts of human beings as legal acts and their products as binding Norms, and that means to interpret the empirical material which presents itself as law as such, is possible only on the condition that the Basic Norm is presupposed as a valid Norm." Okay, the words might be confusing, but what are the truly meaning of these words? 

    As mentioned in Part 1, apart from characterizing the law as a norm, the Pure Theory of Law also characterizes the law as a specific technique for social organization. The Pure Theory of Law also rejects any attempt to establish a relationship between the validity of the law and any value which may be reflected within such law. A law might be unjust or just, but being an unjust law doesn't necessarily means that such law is invalid. As a logical consequence, when we reach the Basic Norm level, the only way for us to conclude that the entire legal system is valid is by presupposing the validity of the Basic Norm. We need to remember that the Pure Theory of Law is always about the positive laws, laws made by men. Basic Norm as the ultimate Norm which enable all derivative Norms to be considered valid is derived from social facts and such Basic Norm becomes valid, because we assume it as a valid 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.
  • Why the Pure Theory of Law Matters: Understanding the Misunderstood Kelsen (Part 1)

    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. 

    What is 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. 

    My Notes on Kelsen's Theory of Law 

    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.

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