Dr. Ahmad Ahsin Thohari, S.H., M.H. - Ilmu dan Perancangan Perundang - Undangan : Norma Hukum & Me..

Summary

In this lecture, Dr. Ahmad Ahari from the Faculty of Law at UPN Veteran Jakarta discusses legal norms and norm-setting methods. He explains the four societal norms: religious, moral, customary, and legal norms, detailing their sources and consequences. The lecture also covers prominent theories in legal norm hierarchy, focusing on Hans Kelsen's 'Grundnorm' and Adolf Merkel’s dual nature of legal norms. Additionally, Hans Nawiaski’s classification of legal norms into four levels is explored, along with the methodology of norm-setting by identifying subjects, objects, legal modalities, and conditions.

Takeaways

• 📚 The lecture discusses various types of norms in society: religious, moral, customary, and legal norms.
• 🙏 Religious norms are derived from divine revelations, with sanctions in the afterlife.
• 💭 Moral norms come from one's conscience, and violations lead to feelings of guilt.
• 👥 Customary norms are created by society, with social exclusion as the primary sanction for breaches.
• ⚖️ Legal norms are established by the state, and their violations can result in criminal, civil, or administrative penalties.
• 🔑 Hans Kelsen's theory of 'norm hierarchy' posits that legal norms are arranged in layers, with each lower norm deriving authority from a higher one, culminating in the 'grundnorm'.
• 📖 Adolf Merkel's theory emphasizes that legal norms have 'dual faces,' where each norm is based on a higher one and serves as the foundation for lower norms.
• 🗂 Hans Nawiaski further elaborates on the structure of legal norms, categorizing them into four groups: fundamental state norms, basic laws, formal laws, and autonomous regulations.
• ⚙️ The method of norm-setting involves identifying the subject, object, operator (obligation, permission, prohibition), and the condition for each norm.
• 📝 An example of norm structure is: 'Every person must pay taxes according to the tax bill,' where 'every person' is the subject, 'must' is the operator, and 'pay taxes' is the object.

Q & A

What are the four types of norms mentioned in society?

The four types of norms mentioned are religious norms, moral norms, norms of propriety (customs), and legal norms.

What is the source of religious norms according to the script?

The source of religious norms is believed to come from God, as conveyed through divine revelations.

What is the consequence of violating moral norms?

Violating moral norms typically results in feelings of guilt or remorse, as moral norms are based on an individual's conscience.

How do societal norms of propriety differ from other norms?

Societal norms of propriety, or customs, are created and enforced by the community. Violations lead to social exclusion or ostracism.

What is the source of legal norms?

Legal norms are established by the state and are enforced through penalties such as criminal, civil, or administrative sanctions.

What is Hans Kelsen's theory of legal norms?

Hans Kelsen's theory is known as the 'Theory of Stufenbau' or 'Hierarchy of Norms.' It suggests that legal norms are structured in a hierarchical order, where lower-level norms are based on higher-level norms, with the highest being the Grundnorm (Basic Norm).

How does Adolf Merkel's theory on legal norms differ from Kelsen's?

Adolf Merkel's theory posits that legal norms have a 'double aspect' (Das Dopelte Rechtsgesicht), where a norm is based on a higher-level norm and also serves as the foundation for lower-level norms, making the validity of norms dependent on both levels.

What does Hans Nawiaski's theory of legal norms introduce?

Hans Nawiaski introduced a theory of legal norms that classifies them into four levels: Fundamental Norms (Stat Fundamental Norm), Basic State Regulations (Stat Grundgesetz), Formal Laws (Formel Gesetz), and Autonomous or Implementing Regulations (Verordnung Unutonom Satzung).

How does the Indonesian legal system align with Hans Nawiaski’s theory?

In Indonesia, Pancasila functions as the Fundamental Norm (Stat Fundamental Norm). The 1945 Constitution and MPR decisions align with Basic State Regulations (Stat Grundgesetz), laws and government regulations with Formal Laws (Formel Gesetz), and presidential or local regulations correspond with Implementing Regulations (Verordnung Unutonom Satzung).

What are the four components of norm structuring according to D.W.P. Rutter?

The four components are: the subject of the norm (Norm Subject), the content or object of the norm (Norm Object), the operator of the norm (Norm Operator), and the condition or context under which the norm applies (Norm Condition).