The Concept of Justice Under the Pure Law Of

Home , Hans Kelsen

THE CONCEPT OF JUSTICE UNDER THE PURE LAW OF

HANS KELSEN IN RELEVANCE TO LAW ENFORCEMENT IN

INDONESIA

Summary of Dissertation

By:

Arry Mth. Soekowathy R.

STUDENT NUMBER: 04/1592/PS

POST-GRADUATE SCHOOL

GADJAH MADA UNIVERSITY

2012

Acknowledgements

Dear gentlemen the members of the examination team, Dear ladies and gentlemen the elders, Dear father, mother, friends, family, relatives and ladies and gentlemen as well, Assalamu'alaikum wr. wb. May I with humility express my best wishes and appreciation for the presence of Ladies and Gentlemen who have the pleasure to attend this open examination to defend the dissertation in this beloved campus. I ask for your blessing and prayer, Ladies and Gentlemen, in order that I am granted with spacious thinking and smoothness in this open examination. I also hope that your blessing and prayer will be useful good deeds. Hopefully, my dissertation contributes to the development of philosophy. This dissertation is a form of my love for our beloved alma mater. Thanks to my wife and my children who enthusiastically provide me support to complete my dissertation, Dorina Windyastuti, Zafir Tiurmila Thiara, Zhulfa Sukma Wikan, Zhuba Aqsa Agastya, Zhabatin Ningga Gupita, Zhasmita Khalisa Bastin and Widi Atmaja Azza. Finally, let me both personally and on behalf of the family, to express the endless gratitude to Ladies and Gentlemen who have been present in this respectable forum.

Yogyakarta, November 2012

The Tim of Promotors and Examiners

Prof. Dr. Soejadi HR, SH, SU

Prof. Dr. H. Lasiyo, MA., MM

Prof. Dr. H. Abdul Ghofur Anshori, SH, MH

Prof. Dr. Siswanto

Dr.Ali Mudhofir

Dr. Arqom Kuswanjono

Prof. Dr. Joko Suryo

Dr. Muh. Thereupon

Dr. Shamsuddin Muhtasyar

THE CONCEPT OF JUSTICE UNDER THE PURE LAW OF

HANS KELSEN IN RELEVANCE TO LAW ENFORCEMENT IN

INDONESIA

Today law development is very rapid, legal issues are also increasingly

complex, many issues are manipulated, modified in a systematic way so that

law can be manipulated by the legal authorities, the ruling power, the money

controllers that are able to pay a lot of money to settle the case with it. The

cases scattered in both the Old Order era and the New Order era were hard to

stop because they have piled up, the high number of previous cases that were

never solved and then new problems appear, the ones which tend to be

associated with political content. The truth of law and justice can be

manipulated through the "ordered crimes" by the ruling power or a system that

develops and applies in the legal system developing in the community

(Warsito, 2001:15). Humans seek truth and justice as a spiritual need, even

though they only gain relative truth and justice but humans remain troubled and

disappointed since they feel that justice has been already divorced.

The administration of justice should use the generally accepted legal

principle by using the principle: Presumption of Innocence and the

Presumption of Guilt meaning that it uses two different tracks of law, through

the presumption of innocence, a person should not be discredited before proven

guilty through the evidence. The purposes of law generally are to realize and

actualize legal justice and legal content determined by ethical beliefs, whether

a case is fair or not (Apeldoorn, 1945:102). Legal issues become apparent if the

legal officers perform well and meet, obey the rules that have been

standardized, so that there is no diversion of rules and law that have been

systematically standardized, meaning that using legal unification and

codification both in Continental systems and Anglo-saxon systems. The Legal

underpinning becomes clear and positive to be executed in order to create legal

certainty (doelmatigheid) and legal justice (rechtmatigheid) (Utomo, 2001: 1).

Hans Kelsen is a leading philosophical thinker whose live full of

colorful twists and challenges in his day. According to Pound, Kelsen is the

most prominent jurist of the 20th century. His legal theories were built with a

solid and clear logic foundation. Hans Kelsen was born in Prague (Czech) on

October 11, 1881 from a middle class German-speaking Jewish family. When

he was 3, his family moved to Vienna (Austrian). He obtained his doctorate in

law at the University of Vienna in 1906 at the age of 25 years. A year earlier

(1905), he had written a work that was a bit odd for the law community

concerning state sciences according to Dante Aleghieri, an Italian philosopher

and poet, the author of Divina Comedia (die staatslehre des Dante Aleghieri).

Kelsen had much interest in many other fields such as philosophy, literature,

and even mathematics and science. Later, interest in these broad fields affected

his entire life and works. He had ever attended a seminar in 1908 from Georg

Jelllinek, an expert in constitutional law at the University of Heidelberg

Germany (Steward, 1990: 273).

Because of his Jewish background, it was a bit difficult for him to be

accepted to teach in Vienna so that he had to convert to Catholic (in fact,

Catholic remained unable to help to close his Jewish blood during the reign of

Nazi Germany). By writing down his work as a condition of teaching

(habilitationschrift) about "fundamental issues in constitutional law

(hauptprobleme der staatsrechtlehre.) In 1911, he began teaching the

philosophy of law and public law courses in Vienna. His work with 700 pages

thick - hauptprobleme dere staatsrechtlehre - above was his first major work.

During the World War I Kelsen, while teaching, was also an adviser of military

and governmental agencies. (Ian Steward, of Kelsen, 1990, 302)

After the World War I, in 1919, Kelsen was appointed as a full

professor in Vienna and during the next 10 years he concentrated on teaching

and research. Many of his students here then stood out as famous jurists among

of them were Adolf Merckl, Alfred Verdross, Felif Kaufmann, Alf Ross,

Charless Eisenmann etc.. They together formed a group called Vienna School

(wiener schule). Kelsen also socialized with the influential intellectuals, they

were Otto Bauer, Max Adler, and Joseph Schumpeter. Year 1919 was also an

important period for him because Kelsen was entrusted to design the

Constitution or the new Constitution of Austria. The basic principles of

Kelsen’s ideas within the Constitution has not been replaced until now. One

important point in it is the formation of Constitutional Court which was then

established in Indonesia nearly 90 years later. He became the Judge of the

Constitution in 1921. Under his leadership, the Constitutional Court had ever

made an inferior court decision which disapproved government rules

concerning permission to marry again in the Austrian-Catholic religion. But

eventually the Christian Socialist Party won the case so that he was thrown out

of the court in 1930. (Steward, 1990:308).

Due to the controversy above, Kelsen decided to move and taught at the

University of Cologne (Germany) concerning international law and legal

philosophy in which he served as a dean for 2 years. Here, Kelsen deepened his

theories about the relationship of national law and international law as well as

the concept of sovereignty. Hitler came to power and the Nazi soldiers’

marching shoes started echoing sweeping across Germany. Kelsen’s situation

changed rapidly and he along with his wife and his two daughters lift a suitcase

to Geneva, Switzerland in 1933. Here, Kelsen worked at the Institute

Universitaire des Hautes Etudes International. The first difficulty he had was to

teach in French language while remaining concerned at the Nazi forces that

began to eagerly expand outside Germany. This was Kelsen’s productive

period. He wrote down various topics: the transformation of international law

into national law, revising the Charter of the League of Nations and in 1934

publishing a paper on Techniques and International Procedural Law and the

famous monumental work 'pure legal doctrine' (reine rechtslehre) covering the

main points of his mind in the field of International Law.

Besides Geneva, he also taught at the University of Prague but he had to

leave, again due to the growing anti-Semitic sentiment/anti-Jew among

students, which often mocked him. The World War II broke out and the

possibility that Switzerland would involve was high. Kelsen decided to move

to a new continent (USA) in 1940 which was safer for Jews. At Harvard Law

School, Kelsen began lecturing in 1940 and 1942. His friend, a renowned

scholar Roscoe Pound, who considered Kelsen the world wide most powerful

jurist, supported him to be a visiting professor at the University of California,

Berkeley, Department of Political Science. In Berkeley, Kelsen found the right

environment to develop his ideas, especially the field of international law. In

this productive period , books entitled Peace Through Law (1944) and the

General Theory of Law and State (1945) were also published. In order to

prosecute the officials of war, he became an the advisor for War Crimes

Commission of the United Nations which led to the formation of the War

Crime Trial in Nurenbergm(Steward, 1990:320).

The relationship between the maintenance of peace and international

cooperation really became his concern. Kelsen wrote about the Security

Council, what and how it functions, the organizational status and its

membership requirements. His works then culminated in the publication of the

monumental book entitled "The Law of the United Nations" (1950). Even

though he had retired, he remained productive, and in 1952 Kelsen still wrote

the book Principles of International Law. Invitations came from all over the

world for him to give lectures. Kelsen received 11 titles of Doctorate Honoris

Causa and countless awards from every corner of the academic world. When

celebrating his 90th birthday, Hans Kelsen Institute was founded in Vienna.

Hans Kelsen died in Berkeley on 19 April 1973 at the age of 92 years. He left

nearly 400 papers. Some of his works has been translated into 24 languages.

Kelsen’s influence sfelt so far are in the common law theory (pure legal

theory), critical legal positivism (constitutional law and international law),

philosophy of law (issues of justice and natural law), sociology (causality and

retribution relationship), political theory (democracy and socialism) and

ideological criticism. According to Hans Kelsen, law must be cleared from the

non-juridical elements such as sociological, political, historical, and even

ethical values. Such thought is the one which then is called as pure legal theory

(reine rechlehre). So, law is a category of must (sollens kategorie) not factual

category (sains kategorie). He assumes law as a necessity that regulates

humans’ behavior as rational beings. Pure legal theory may be seen as very

thorough development of the positivism school. Kelsen rejected ideological

doctrine and only accepted the law as the way it is in the form of existing

regulations. This legal theory is a theory of Positive Law. Kelsen attempted to

question and answer the question of what the law is and not how the law

should be, hence according to Hans Kelsen justice as commonly questioned

should be excluded from the law science. Justice is an ideological concept that

is a rational ideal. Opinions stating that there was no justice are in fact unable

to provide a clear boundary, causing a contradictory situation. However, justice

can not be separated from humans’ will and action. Justice can not be the

subject of science. When viewed from the view point of rational knowledge

there are only interests left. Therefore, there is only the conflict of interests.

The fundamentals of Kelsen’s theoretical basic ideas are as follows:

first, the objective of the theories concerning law, as well as any science is to

reduce confusion and to increase unity (unity) and second, the theory of law is

a science, not a will, desire. Justice is knowledge about the existing law not the

law that should exist; third, law sciences is a normative science a not natural

sciences; fourth, as a formal theory of the law is formal, a theory about how to

set from the changing side according to the specific way or manner, and the

sixth, the relationship between legal theory with a system of particular positive

law is the possible law and the law that applies.

Pure legal theory initiated by Kelsen, according to him is the theory of

pure law (reine rechtslehre). According to Kelsen, the pure legal theory is the

theory of Positive Law. Law sciences are the normative science as stated by

Kelsen many times. Such law is solely within the world of sollen. The

characteristics of norms are that they are hypothetical in nature. Kelsen was

born not by natural processes but by the will of humans’ common sense. This

will and common sense spawn a statement that serves as a basic assumption or

introduction. Logical differences between das sein and das sollen and the

impossibility according to the common sense to trace origin of something from

the field of "sein" to the field of "sollen" or otherwise are an important basis of

rechtslehre reine teachings. Reine rechtslehre is the doctrines of what happens

in the universe. They argue that any symptoms in the universe occur according

to society norms, the norms of retaliation (vergeldingsnorm). Good behavior

deserves an award while bad behavior deserves punishment. According to the

teachings of pure legal theory there is a possibility that the principles of

causality are derived from the retaliation norms. At first, humans explained any

event in the universe caused by the will of something supernatural (gods) and

then people were given the explanation that the events in the universe were

caused not by the will of the gods but due to the law of causality (Kelsen,

2007: 34).

The milestone of Kelsen‘s most important theory is reflected from the

theory or doctrine of pure law which in Germany is called reine rechtsslehre

and in English is called pure theory of law. It is being debated endlessly and

criticized by the opponents from various camps.

These teachings of pure law were born when he stayed in Vienna. The

heyday of modern thought in Vienna that produced many world-class thinkers.

One of the characteristics of Viennese modernism is how it summarizes the

understanding upon culture in a broader sense through science. Kelsen felt

comfortable with this Vienna circle because of most Jewish familes’

background that had assimilated.

His principal ideas in theories of pure law are as follows:

1. Law is a special method to control humans’ behavior through means of

coercion

2. Legal theories are theories concerning norms. The subject of positive law

is an ought-order (sollensordnung). So, the legal system means the

building structure of legal norms not social reality. In this case, Kelsen is

in contrary to the teachings of sociological jurisprudence

3. The theory is posivis in which legal norms are the meaning of the humans’

will. In contrast to the teachings of natural law assuming law as the

supernatural product or the product resulted from humans’ intelligence.

Hence, the essence of the task of teaching the law is to determine the will

of the constitutional/ legal maker as much as possible.

4. The existence of the separation between what the 'actual' and the 'should'

(das sein das sollen). There is a dualism between facts and values, reality

and desire. Here, Kelsen rejects the legitimacy of the law based on its

applicable power. Rather, legitimacy of law is based on an assumption

upon the availability of a basic norm (grundnorm). The applicable power

in society is not a basis for the validity of the law but merely a requirement

for the science of law. Moral values are relative in nature compared to the

theories of pure law.

5. Theories of pure law yield strict separation between jurisprudence and

political jurisprudence (legal policy). Their pure nature is also evident in

the separation of the Positive Law and normative systems, particularly

morality. The focus of the jurisprudence is how we recognize the law

while the focus of the political law is the creation of law.

6. Separating Positive Law from jurisprudence, legal norms ruling and

propositions of descriptive norms (called rechtssatze). Armed with a

normative proposition, lawyers can describe a legal situation or

circumstance but they can not create legal norms.

7. The existence of a dual legal perspective which is the opposition relativity

between the establishment and enforcement of law (Kelsen, 2007:218).

All can be summed up with the word 'double function' of theories of

pure law. On one hand, these theories are a form of epistemology. On the other

hand, these theories present a critical dispute with the conventional legal

theories which according to Kelsen they change Positive Law into ideological

law by disguising so that they look as if they are a juridical construction.

Kelsen calls it ideological criticism, because people say the legal doctrine legal

as a legal theory tree with branches of law and sociology. The first phase of

Kelsen thought is a constructive phase. His early works are the phase of

building construction of his theories which are heavily influenced by the

philosophy and he applies the theories skillfully to the jurisprudence. The next

phase inserts his theories within various writings. He concocted the

methodology of his pure theories with the aspects of meta-theory as a

constitutive element. Then expanding by focusing on issues of international

law and his interest in the problems of social philosophy. The success of pure

theories can be seen on their elegant pure and consistent solution, in solving

issues in constitutional law which at that time remained unsolved (Kelsen,

2007:27).

Actually, the teachings/ school of legal theories have significant

importance which belongs to our interest in the philosophy of the state, which

will be used as the foundation of the thought, especially the teachings of

natural law that do not only consist of theories, but also inspire political and

legal development. The natural law as the ideal aspiration influences the

applicability of the Positive Law. especially the teachings of natural law which is not merely a theory, but also often inspires political developments and laws. Natural law as an ideal aspiration influences the enactment of Positive Law.

The relationship of natural law (lex naturalist) and Positive Law, according to

Aristotle: natural law is higher than positive law. The function of natural law is to complete the inadequacy of Positive Law (Soetikno, 1973:10-11).

Positive Law only provides rules that apply in general: Positive law provisions cannot calculate all the exceptions that may occur in each state. This can cause an unwanted injustice. So we can conclude an opinion from Aristotle’s thought that the nature of natural law is revolutionary towards the positive law. Natural law brings feasibility and softens a general provision contained in each act provision, taking into account particular circumstances of each matter, but it does not mean that what is considered fair according to propriety is unfair under the act, but the propriety of giving perfection towards what is fair according to the law.

For those who does not realize it, will not understand how the development of law in society. For anyone who obstructs the possibility of law improvement in general. Yet this cogitation is indispensable in the development of society.

In addition, we can see that the right thought according to science can also bring a result that is not right in society. It turns out that the ideology above is aiming to bad direction and other things which may not be good when the scientific value

and practical significance to the development of our civilization has no rapprochement when being viewed later.

Due to this, then in the realm among law philosophers recognizes the importance of law philosophy ideology above for the development of the nature of mind, because the ideology is able to lay critical new foundations to conduct an investigation about the nature of man and society.

Law philosophy should be able to understand and solve problems that arise in the practice of law to the roots. Philosophy of law must endeavor to achieve its objectives by seeking everywhere the existence of every form as the embodiment of law and establish the place of these forms in society. The purposes must begin with an inquiry about the law institutions from the past and those at present time, therefore there are some symptoms of laws that "clash" with each other in life, which confronts the law with another law and one of the symptoms is selected to occupy the first place, each other is depending on the circumstances. Of this should be taken foundations for the theory of law philosophy (Stamler, 1994: 33).

Seen from the point of philosophy, philosophy of law is not free to choose what method should be used. Therefore the system of law philosophy which is willing to put aside every irrational experience is incompatible for a good law philosophy, which sees its duty as: development of ideas about justice in social of human life.

A law philosophy that sees its duties: to think abstractly by using forms of thoughts and images purely on law institutions that exist at a particular time and place to consider this as an eternal being. This assumption is not true, because it is only philosophical and slightly legal in nature.

Law philosophy is the search for justice with intelligence and with the help of all the science of society. Human is given the ability to attain knowledge and understanding of the law with their intelligence consideration, because of the ability to think abstractly and logically, then human can develop thoughts which has the same relation and conclusions with natural relationship of the order of the world, because human and nature have a feeling bounded to each other based on a strong moral code.

Mankind in their life generally craves something true and good and beautiful, this is in association with the values of truth, goodness and beauty. All of those three are considered supreme triad idea that underlies human considerations (Gie,

1993:26).

Truth

Human consideration of every matter in their live.

Goodness Beauty

Truth is generally associated with thought and basic matters in logic, knowledge, scientific knowledge, and is also related in considerations, application and human experiences. Disputes arising in the search for truth are:

1. What size the truth is

2. What is the relationship between the truth and reality.

3. What kind of truth that will be applied to

4. The foundation of the truth of what the deliberations and reasoning

5. What the moral aspects are of the moral to be selected

Goodness is usually associated with human desires in action of which problems associated with something good, good will, good life, a good society and how the worship is good. Everyone has always longed for a good life related to basic life needs such as: knowledge, happiness, honor, love, joy and pleasure. Goodness will continue with the ideas of justice, freedom, equality, to foster the application of good life. The unbalance of kindness will revolve around these issues: a. General theory of good and evil b. Theories of how good morality is c. Theory and distribution of all kinds of goodness for mankind d. The theory of the relationship between goodness and knowledge, wisdom (Gie,

1993: 36).

The beauty of the human as a harmony of life needs to be built to achieve the realization and actualization of beauty. The beauty is generally related to the enjoyment of which is an essential element in the world of aesthetics. The beauty gives human some kind of pleasant feeling, therein related issues of: a. Harmony, harmony b. incredible unbalanced harmony , disharmony c. Color types, uniform

d. The properties of pleasure e. vastness characteristics, not understandable (Gie, 1998:25).

Although it is so, the justification of emotional function with a rationale is released from the principle so far as the justification is an ultimate goal issue that is not a mean to achieve further goals. If such statement about the final goal comes in the form of propositions or norms of justice, the ultimate goal always relies on purely subjective judgment and therefore is relative to the value. This occurs without saying that there are many subjective judgments to value, completely different each other and is not able to be confronted. Of course this does not mean that every individual has their own value system. In fact, many individuals agree in their assessment of the value. A positive value system that is not a creation which has the nature of the likeability of an individual without other individual, but is always the result of the interplay between individuals within a particular group, whether in the family, tribe, class, caste, or profession. Every system of values, especially moral system and central ideas of justice, is a social phenomenon, a product of a society, and therefore differs according to the properties in the community where the system appears. The fact that there are certain values that are generally accepted in a particular society is not at all contrary to the subjective character and relative assessments of the value of it.

That many people agree in their assessment of the value is not evidence that the assessment is correct. Just like the fact that most people believe, or once believed, that the sun moves around the earth's orbit or ever, are not evidence of the truth of

this idea. Justice criteria, such as the criterion of truth do not depend on the frequency of assessment making about the reality or judgments about human value. By the background of human is divided into many nations, class, religion, profession and so on, which is often different from each other, there are many different ideas about justice ; too many until we are able to talk simply about

"justice".

Justice as fairness is an example of what the writer calls as the theory of contract.

Now maybe there is an objection to the term "contract" and related expressions, but the writer thinks this will go well. Many words have swerved connotations which were initially tended to blur. The term "utility" and "utilitarianism" without exception. Those terms it also has many meanings exploited by critics; yet quite clear to those who slap to study utilitarian doctrine. The same thing also happens to the term "contract" which is applied to moral theories. As has been revealed by the writer, to understand it we must remember that the writer implies a certain level of abstraction.

In particular, the content of an agreement is not to enter the existing community or use an existing form of government, but to accept certain moral principles. In addition, the action triggered purely hypothetical: a contract view that states certain principles will be received in a clear initial situation.

The conclusion is that justice as fairness is not a complete contract theory.

Because it is clear that the idea of a contract can be extended to the choices of the entire ethical system, that is, to a system that includes the principles of all the virtues and not merely justice. Now, most writers would only judge the principles

of justice and other matters closely related; the writer will not attempt to discuss the virtues systematically. If justice as fairness goes well, the next step is to discuss general view expressed by the term of " the truth as fairness." But this broader theory also fails to include all moral relations, because it only includes our relationships with others and disregard how we behave towards other animals and nature. The writer does not deny that the view of the contract gives a way to address these critical issues, and the writers must put them aside. We must recognize the limited scope of justice as fairness and common view types of it refers to. The extent to which conclusions must be revised as other issues cannot be decided in advance (Rawls, 2006: 19).

Conclusion

Based on the ideas of Hans Kelsen interpreted by any interpretation of prominent figures and analysis so as to obtain ideas as ingredients of all analysis and transcendental abstractions, it will take various aspects to color the thought of

Hans Kelsen. Hans Kelsen gives various normative law basic, the theoretical principles to embody justice in law and politics. This work represents the greatest works of Hans Kelsen thought to realize core values: What is justice? What

Containing justice is, law, and politics issues, philosophy issues and science issues. Justice issues associated with law, political, and philosophical problems of science issues. Hans Kelsen expresses a variety of efforts in search for answer and question of what is justice? Starting from the idea, past prominent figures

including Plato and Aristotle, a collection of doctrines in Bible to the latest thoughts from the past until present. Exploration of the thought is to build an ideal understanding, especially related to justice values prevailing at anytime and anywhere. Hans Kelsen serves central themes and interesting fundamental to learn and be assessed because it is able to create a qualified thoughts primarily expressing concepts of justice which is necessary to be assessed because justice is the essence of the essence of law itself therefore Kelsen tries to open the curtain about the thought of justice, because justice is the ultimate goal rather than law supported by truth facts existing in the society, because the society misses the image of justice and truth. Justice and truth is a sword for survival of any law problems, that the law is not grounded in practice, because practice can be handled in various ways. Kelsen tries to present the themes that are very interesting to asses in present time, because in the law a messy system happens which is unmeasured again. Basic assessments expressed by Hans Kelsen can be a sedative in lawful life. The assessments revealed are doctrines seen from the natural law and the terms of the science angle, opening screen of natural law theory, revealing absolutism and relativism in philosophy and politics, is also revealed of value balance in the law science so as to find the bright spots and seek solution. Hans Kelsen shows his thoroughness in the opening of law screen, law mystery so that may provide meanings theoretically of the concept of justice based on the balance of rights and responsibilities. This situation makes the human open their conscience to know what exactly is the justice besides what the truth itself is. Hans Kelsen analyzes the structure of positive law from the reality

is not from the point of view of metaphysics therefore the law can be opened analyzed, operated by the reality of life among human with the reality of life.

Hans Kelsen shows relations much further needed by positive science pasa which in general is reality knowledge in life. Hans Kelsen fights for the theories and concepts of justice to create an ideal society. His thoughts interpretation is using positivism logics in order to seek the truth and using theoretical values that tend toward to relativistic theories. Hans Kelsen advocated parallelism between democratic and values in particular theory with parallelism, those two things will find the taste of law of which Stupen Theory governing legal treatment in levels adjusted to valid norms. With this theory Hans Kelsen may enjoy his works for the readers’ trials especially for the devotees of normative and positivistic law sciences, therefore Hans Kelsen is highly desirable for present nature now because there is a tendency of everyone to be able to enjoy the taste of justice. On the other hand Hans Kelsen also provide guidance and suggestion and suggest that the parallels condition of the same faith between absolutism and autocracy values, both of them can be the bridge to find the quality and content of the law that can be digested by abstract thought. Hans Kelsen tries to examine whether differences between natural sciences and social sciences in terms of knowledge that has a character so can be used as methodological foundation of the two fundamental principles, namely causality and connectedness.

Suggestion

Starting from the research result and discussion, suggestions are as follows:

1. The concept of justice according to the natural law from Hans Kelsen pure

should be understood perfectly about explanation, meaning, definition and the

variety of theories in life should be done well if desired to achieve justice on

the basis of the balance of rights and responsibilities that are supported by

various theories of justice in both classical times to the development of the

theory of justice nowadays.

2. justice relations order and law philosophy should be enabled, should be

prevented from the happening of duality leading to mixing such as nation as

the rule of law, the nation as a legal entity must be differentiated of the

implementation and should be ran professionally.

3. The concept of thinking about justice interpreted philosophically and

metaphysically should be digested in a sensible way because the law is very

important for human if it should obtain real justice because the concepts of

justice have different ideas depending on the subject judging, effective

positive law because of justice peak will achieve peace on the basis of law

legalities have been agreed.

4. To obtain the relevance of law thought in achieving justice in positive law

must be able to distinguish the role of justice, the subject of justice and how

the principles of justice to be applied in a common life so that justice can be

felt for every individual. Conditions of justice must be maintained that the

justice itself can run as objective as possible so as to get legality from the

society, authorities and the nation, thus fulfilling a sense of justice to achieve

real justice according to human desires.

5. In considering the idea of the justice concept is suggested that every human

should be able to exercise the rights and obligations in a balanced way so that

purity can be ran in accordance with the law and the growth of human on the

basis of the development of science, society development, technology

development according to the nation personality.

6. To achieve justice, human is obliged to organize themselves, organize the

community, organize a country governed by law so that any rights and

obligations can be implemented. The right that must be implemented and if it

is left, it does not have an effect towards sanction whereas obligations as a

necessity to obtain their rights and if it is left it will encounter sanctions

depending on the severity of the obligations to be accepted and implemented.

7. In applying the positive law to achieve maximum results in order to give

meaning to a rule of law so that can be applied fairly in the law question, the

difference between the norm, or law disputes, it will require interpretations by

both grammar and linguistics, systematic interpretation, interpretation based

on the history of the legislation, based on the history of legal reasoning,

interpretation based on teleology’s, anticipatory interpretation and dynamics

interpretation of evolutionary so as to obtain maximum results. Besides, it

also required a law construction related to law analogy, refinement of the law,

contrary to the analogy that is able to expand and clarify a range of the

effective of a regulation in order to achieve maximum in achieving justice.

8. Law is a set of norms both religious norms, legal norms, moral norms and the

norms of good manners to be obeyed and do not need to mix with the

elements of psychology, sociology, ethics, and political theory if it is desired

to find the purity of law theorem, if they are mixed, there will be

interpretation and create new problems, because the norm has characters that

make a certain act is legal or illegal because the norm is something that

should be existing or should be happening. Human action has meaning in the

content, action, and behavior that are charged with power or authority to

implement its own norms.

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Curriculum Vitae

a. Full Name: Drs. R. Arry mth. Soekowathy, SH, M. Hum. b. Place and Date of Birth: Solo, April 8th 1953, 57 years-old. c. Rank and Occupation: First class superintendent, Chief Lector d. Educational History:

1. Bachelor of Philosophy 1977, Faculty of Philosophy, Gadjah Mada

University.

2. 1992 Bachelor of Law, Faculty of Law, Gadjah Mada University.

3. Master of Philosophy Studies Humanities, Gadjah Mada University, 2004. e. Written Scientific Work, research and textbooks

1. Normative Logics Application in order to increase moral nature, in the era

of Technology. SK-PR. Bid Administration, UGM No 36A/J01/P2/KU /

2000, May 2000.

2. Scientific Ethics Counseling at SMU II Yogyakarta and SMU Klaten,

1998.

3. The views of Rene Decartes of the space and time of metaphysics event

No. 8 DRK. 62430/JO1-P/PL-0605/97, dated 13 September 1997.

4. Linkage of cosmological thinking about space and time between Rene

Decrates, I kant and Stepen Hawking (No. 8) / 13751/JOI PI) 06: 05/2000,

dated July 31, 2000.

5. Interpretation of motivation among employees and faculties in the faculty

of Philosophy UGM (No. 1/75/SK/OPF/UGM/B2.A/gb dated June 28,

1997). 35

6. Classification of Propositions according to Formal Logic Decree / Project

OPF 47/SK/OPF/UGM/31/94/in June 1994.

7. Systematic of formally heretical thought and the material in logic

SK/OPF/UGM/448/SK./OPF/UGM/3.1/93 6th 1993.

8. Barriers to creative thinking in formal logic, Decree in ./26/A (PT.O)

H4/FF.B/1991, dated 1 April 1991.

9. Classification of Formal Logic propositions according to the Decree No.

346/PT.011.k4.FF/B/1990 dated May 8, 1990.

10. Principles of Justice in the state of social justice decree in 736/PT01

Decree H4. FF/B/1990 dated May 8, 1990.

11. Interaction between the Formal Logic with Mathematical Logic decree in

736/PT.01/HA.FF/B/1989 dated 10 November 1989.

12. Correlation between Classical Logic with Symbolic Logic decree in /

736/PT./PT.01.HA.FF/B/1989 (881).

13. Systematic of misguided thinking (fallacy) in the inference (No. 21/3 /

UGM Projects / Contact Number 09/PCI.IV.TH.2/UGM/85 dated May 5,

1985).

14. Mystical Study of mystical life among Indonesian Youths decree. Contact

351/PIT/DP2M/795/1982 dated August 2, 1982.

15. Sketches and Logic Problems, Foundation of Philosophy trustee,

University of Gadjah Mada, Yogyakarta 1983-1985.

16. Correlation between Logic, Philosophy and Mathematics, Foundation of

Philosophy Trustees, Gadjah Mada University, Yogyakarta 1983.

17. Rationale of philosophical development of tourism in Bakoharjo

Prambanan district, Central Java, in 1983.

18. Mental attitude of high school Students in Central Java and Yogyakarta on

PMP, decree 1409./PSSR/DP2M/410/1983 Contract, dated August 28,

1984.

19. Motivation vocational SLA in entering universities, decree.

406/PT/DP2M/495/1982 contract, dated August 3 1982-1983.

20. Guidance on the Role of Social Ethics in the Environmental Development

of the Effects in Advancement of Science and Technology in

Minomartani residence, Sleman, Yogyakarta, 2003.

21. Counseling of Ethics and Pancasila in SMU III, Yogyakarta, 2003.

22. Attitude of Government Officials in District Level in Yogyakarta on

Implementation of social internship, LPM, 2004.

23. Orientation Philosophy of Law, Function and Relevance to the

Development, Philosophy Press, 2001, Yogyakarta.

24. Logics as a Practical Science, Yogyakarta 2006. f. Attended Scientific Meetings

1. DNKS meeting, entire Indonesia in Jakarta, 1997.

2. Seminar on Studies Development in Yogyakarta, 1999.

3. Lemhanas Course, Jakarta, 2002.

4. Course Certificate V, Gadjah Mada University, 1982.

5. Manners course, Gadjah Mada University, 1998.

6. Administrative Course Research, social politics, Gadjah Mada University,

1977.

7. Seminar on Political and nation Strategy Ideology, Sugiyo Pranoto

University, Semarang, 2003.

8. Seminar on The concept of ideology of Nations with the Ministry of

domestic affair, Yogyakarta, 1987.

9. Seminar on Religion, Post Graduate in STAH, Bali themed Inter-Religious

Harmony Denpasar, 2003.

10. Seminar on critical evaluation of the process and the referendum 1945,

Gadjah Mada University, Yogyakarta 8 to 10 July 2002.

11. Seminar on the Nationality Insights, Taman Siswa University (UST),

Yogyakarta 2003.

12. Comparative Study / Comparative in Religion Academy: Values of

Religious Philosophy and Academic, Salatiga 2003.

13. Seminar on leadership related to social internship, Gadjah Mada

University, Yogyakarta 2003.

14. Seminar on Curriculum and Programs, the Faculty of Philosophy of

Gadjah Mada University, Yogyakarta 2003.

15. There are still many more that have not been recorded during the 1970 up

to 2009. g. Appreciation

1. Champion of writing essay about the Blue Campus, 1976, KODEMA,

Gadjah Mada University, Yogyakarta 1976.

2. Exemplary Students of Philosophy Faculty, University level, Gadjah Mada

University, Yogyakarta 1977.

3. Satya Badges Satya Work, Signs Charter of Honor from the President,

Gadjah Mada University, Yogyakarta 1999.

4. Graduate of Post Graduate, cum laude predicate, Gadjah Mada University,

Humanities, Yogyakarta 2004.

5. Charter of Loyalty Award 25 years, Rector of Gadjah Mada University,

Yogyakarta on January 8, 2008.

h. Master Degree

1. 2001 : Etymology Personality, looking for a new format in Finish role

in Indonesia, Gadjah Mada University, Post Graduate,

epistemology.

2. 2001 : The substance of the language in the hermeneutic phenomenon,

A Review of Language Philosophy, Faculty of Philosophy,

Philosophy Language.

3. 2001 : Moral Teachings of the Book of Virtues SU Si, towards the Gate

of Virtue, Gadjah Mada University, Faculty of Philosophy, Asia

Philosophy.

4. 2002 : Chinese Metaphysics Cosmology, toward Neo Confucians

UGM, Faculty of Philosophy, Cosmology.

5. 2002 : The Story of Life After Death, According Reymonde JR Moody,

MD., Gadjah Mada University, Faculty of Philosophy,

Metaphysics.

6. 2003 : Orientation Philosophy of Law, Functions and Relevance in a

Sense of Justice according to Positive Law, UGM, Faculty of

Law.

7. 2003 : The concept of objective epistemology by AGN Rand UGM,

Philosophy Faculty, epistemology.

8. 2003 : Metaphysic Reflections on Pancasila, Gadjah Mada University,

Faculty of Philosophy, Metaphysics.

9. 2003 : Moral Law in Bathika, according to Immanuel Kant, Gadjah

Mada University, Faculty of Philosophy and Ethics.

10. 2003 : Translation of the Pancasila Philosophy, as the foundation of the

National Legal System Development, Faculty of Philosophy,

Faculty of Law, UGM.

11. 2001 : Cultural Strategy by Prof. Dr. CA van Reversen, a study of

Philosophy of Culture, PS, Philosophy of Culture, UGM.

12. 2002 : Post Modern and Consumer Culture Mike Featherstone, PS,

Contemporary Philosophy, UGM.

13. 2002 : Herzl, the Jewish State, Faculty of Philosophy, Faculty of Social

Studies, Gadjah Mada University.

14. 2002 : Philosophy and Religion as media counteracting moral

decadence, PS, Environmental Philosophy, UGM.

15. 2003 : Problems of Legal Philosophy Nowadays, the Faculty of

Philosophy, Faculty of Law, UGM.

16. 2003 : constructivism Philosophy and Deconstruction Language in FS

education, Philosophy of Education, UGM.

17. 2003 : Philosophy of Art in Aesthetics Perspective, FS, Philosophy of

Art, UGM.

i. Doctoral Degree

1. 2005 :

− Methods Logic - Methods Science / Logic and Methods in Legal

Thinking.

− The Concept of Hierarchy norms thinking, Sources of Law, Law

Creation and Application of the Law by Hans Kelsen on the General

Theory of Low and State.

− The concept of Theory of Justice by Hans Kelsen in the Pure Law

− Law Pure Theory, A review of Law Philosophy.

− Orientation of Law Philosophy and Functions and Relevance in the

sense of justice according to positive law, Seminar.

j. Non UGM

1. 1978 : Director I, Academic field, Insparin, Institute of Tourism

Indonesia, Yogyakarta.

2. 1980 : Vice Chairman III, Student Affairs, STIPOL, Kartika Bangsa,

Yogyakarta.

3. 1983 : Director III, Student Affairs, AKY, Yogyakarta.

4. 1983 : Director of the Education Institute, Bulaksumur Exelemsia Arts

Culture and Japanese, Yogyakarta.

5. 1984 : Vice Chairman and Chief Editor of Ideology Magazine and

Editorial Board, Yogyakarta.

6. 1985 : Chairman of the Cooperative IKIP, Veterans, Yogyakarta.

7. 1987 : Vice Chairman III, Student Affairs, Kartika STISIPOL Bangsa,

Yogyakarta.

8. 1988 : Board of Mental Health Course, Muhammadiyah PKU

Yogyakarta.

9. 1989 : Vice Chairman III, Student Affairs, Computer Academy AMIK

Wira Prasetya Mulya. Yogyakarta.

10. 1990 : Assistant Director of Academy Communications III Yogyakarta.

11. 1992 : Dean of the Social and Political Faculty, University Aminoto

Clark, Yogyakarta.

12. 1994 : Vice Chairman of HGPP, Association of Pancasila Successor,

Yogyakarta.

13. 1994 : Vice Chairman III of Student Affairs, Computer Academy

AMIK Wira Setya Mulya.

14. 1996 : Consultant of Attorney Dharma Agency, Yogyakarta.

15. 1999 : Director of Gama Engineering Institute, Yogyakarta.

16. 2001 : Committee Chairman of SLTP 14 Yogyakarta

17. 2009 : LKBH Team, PGRI, Yogyakarta, Legal Consultant and

Education.