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The Concept of Justice Under the Pure Law Of 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 1 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 2 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 3 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 4 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). 5 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 6 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 7 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.
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