LEGAL NORMS

By : Lily Mulyati

CHAPTER III
LEGAL NORMS
1. The various types of legal norms constitute
one of the norms which governs the
relationship between individuals in a society.
In order to survive, human beings as social
creatures can not avoid the legal regulatory
instruments. Law prevails where there is a
society. However, it is obvious that human
beings are not governed merely by legal
norms as these norms constitute only a type
of the prevailing norms.

Lily Mulyati, SH., MH.

Apart from being members of a society, human

beings who cannot be perceived as separated
from their fellows, still possess some degree of
independence as they have personality distinct
from their counterparts.
So, the nature of a communal life governed by its
sets of regulations and that of private life which
is also set by its own regulations constitute a
basis for the establishment of various norms.
It can therefore be explained that the various norms
govern the human life can be put under the
following categories :
- Norms for Individual Life Aspects
- Norms for Inter individual Life Aspects
Lily Mulyati, SH., MH.

2. Abstract and Concrete Legal Norms

From the points of view of coverage and hierarchy,
legal norms include abstract legal norms or the general norms
and concrete legal forms or individual norms.
According to Hans Kelsen (stuffenbau theory), the order of
legal norms of a state constitutes a system of simple norms
which can be described as follows :
at the lowest level are the individual norms established by law
enforcing agencies, in particular, the court.
The individual norms depend always on the laws which
constitute the general laws established by legislative bodies,
while customary law are placed at the highest position and
relies on the constitution which is the highest legal norms and
deemed as a positive norm system.
Lily Mulyati, SH., MH.

The legality of Norms

The lower rank norms are usually based on norms at a
higher level of the national legal order where the
Constitution is placed a the highest level.
So, in our national legal order, the 45 Constitution
constitutes the highest legal norm and all other
regulations and law shall reflect the spirit and principles
contained therein.
The consequence of the teaching of Hans Kelsen is that
all legal forms which
do not comply with 45
Constitution shall be declared ineffective or revoked,
pursuant to a judicial review process taking place at the
Constitutional Court (Article 24 C 45 Constitution)
The review toward a certain regulatory law concerning
that of the content is defined as formal review
(formeele toetsingsrecht).
Lily Mulyati, SH., MH.

Based on the governing law (Law Number 14 of year

1970), a judicial review of regulations in Indonesia is
possible only when applied to regulations with force
lower than that of laws.
This can be found in Article 26 paragraph (1) of Law
Number 14 of year 1970 concerning the Main Judicial
Power which mentions the following things:
The Supreme Court has the authority to declare illegal
all legal products from the ranks lower than laws if such
products are found to be contradictory to the higher
level of legal regulations .
Paragraph (2) of the law adds further that :
The decision about the illegality of a legal regulation
can be made pursuant to investigation at the cassation
level. Revocation of such legal regulations deemed to be
illegal shall be done by the relevant institution.
Lily Mulyati, SH., MH.

Constitution as the positive legal norm

constitutes the highest norm, independent
to any positive legal norms but established
from a juristic thinking which is based on a
hypothetical basic norm.
This can be seen from the chart below :
Hypothetical Basic Norms
Constitution

Customary Law
Act

Established by legislative bodies

Individual Norms

Established by law enforcing institutions

Lily Mulyati, SH., MH.

Concrete legal norms or individual legal norms can be explained

in the following examples :
1)Someone has conducted an action which can be criminalized,
for example a theft.
A theft is subject to a criminal sanction under Article 362 of the
Criminal Code . If the person can be proven to have fulfilled all
the elements mentioned in the Article, the court can decide on
a punishment. The decision of the court to give punishment to
the person constitutes a concrete legal norm particularly
applied to an individual, the thief. This is different from the
stipulations used as basis of determining the punishment which
is an abstract legal form that can be applied generally. It means
it will apply to anyone fulfilling the criteria set forth in the
article.
2) The concrete legal norms do not always originate from a
judicial body nor do them always take the form of certain
decisions. Instead they can also come from a government body
(bestuur). The examples are the licenses granted by authorities
to certain people to conduct certain activities. For example, the
license issued for conducting import/export or certain goods,
license to construct, driving license, etc. Those licensed which
are issued by bestuur also constitute the concrete/individual
legal norms.
Lily Mulyati, SH., MH.

From the examples mentioned above, it can be seen that what

is governed are only the specific and concrete actions, or
behaviors of certain parties. Whats more, it is necessary to
notice that the individual norms established have to have a
legal ground or basis, which are the prevailing laws and
regulations which have higher rank of force.

Lily Mulyati, SH., MH.

3. The content and nature of Legal Norms

Legal norms, if reviewed from their content can be classified
into 3 types:
- Legal norms that contain orders (gebod).
- Legal norms that contain
or constitute prohibitions
(verbod)
- Legal norms that contain or constitute permissions
(mogen).
For the 3 types of legal norms above, the following examples can
be provided :
a. legal norms that contain orders as mentioned in our
Constitutional Law are the provisions set forth in Article 22
paragraph (1), (2), and (3) of the 1945 Constitution which
mention the following things :
1. During highly critical situation, President has the right to
issue a Government Regulation en lieu of Law.
2. Such Government Regulation shall obtain an approval from
the House of Representatives made in their consultative
meetings afterwards.
3. In the absence of such approval, the respective Government
is subject to revocation.
Lily Mulyati, SH., MH.

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b. Legal norms that contain prohibitions.

These norms can be found in Article 8 of
Law Number 1 of year 1974 which
basically governs that a marriage
between the following people is prohibited
:
1. those who share a vertical bloodline,
either downward or upward .
2. those who share a horizontal bloodline,
which is that between siblings, between a
person and the siblings of his/her parents,
or that between a person and the siblings
of his/her grandmother.

Lily Mulyati, SH., MH.

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a. Legal norms containing permissions can be

found in Article 29 paragraph (1) of Law
Number 1 of year 1974; which states that
the parties in a marriage can execute a
written agreement which will be legalized by
a Civil Registry Officer upon or prior to the
wedding ceremony
provided that no
religious or kesusilaan norms are violated.
Besides the classification which is based on the
content, legal norms can also be classified
according to their nature:
1) Imperative norms (order and prohibition
norms)
2) Facultative norms (permission norms).

Lily Mulyati, SH., MH.

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4. Formulation of Legal Norms

Legal norms as part of order of norms that govern life aspects of
individuals aim at building communal peace. Like other norms,
legal norms also provide guidelines, besides restricting
individuals actions or behavior when interacting with others. For
such guidelines to be understood, they have to be formulated in
such a way that those norms can be used as guidelines for all.
Formulation of legal norms can be classified into two views:
a. hypothetical or conditional judgment
A legal norm is classified under a hypothetical judgment if its
formulation shows that there is a relationship between a certain
condition and a certain consequence. Various provisions in the
Criminal Code shows that such relationship exists. For example,
we can read the article from the Criminal Code:
Article 362.
Any one who takes a certain good, part or the whole of which
belongs to another person, for the purpose to own it illegally,
shall be subject to punishment because of theft, which shall be
in the form of maximum imprisonment of 5 years and a
maximum fine of nine hundred thousand rupiahs.

Lily Mulyati, SH., MH.

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a. Categorical Judgment
Some articles of laws do not show relationships between
conditions and consequences. Those articles therefore, are
classified under the categorical judgment, examples of which are
mentioned below :
1.
Article 10 of the Criminal Code
Pidana terdiri dari
a.
Primary Criminal Sanction .
1)
capital punishment ;
2)
Imprisonment ;
3)
detainment ;
4)
fine;
b.
Subsidiary Punishment .
1)
revocation of certain rights ;
2)
seizure of certain goods ;
3)
announcement of court decision .
2.
Article 3 paragraph(1) Law Number.1 of year 1974
concerning Marriage .
By principle, in a marriage, a husband shall only have one wife.
A wife shall only have a husband.
Lily Mulyati, SH., MH.

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5. Violation of Legal Norms

Law as norms to govern the lives of individuals in reality can
be violated. It means, actions which are not appropriate or
in compliance with legal norms can always be found in this
life. Those violations can be in the form of :
A. Exception or dispensation as violation of existing
guidelines or benchmark, due to the fact that legality
acknowledges two different requirements :
1) Justification (rechtvaardigingsgrond), for example in the
area of the Criminal Law :
a. Noodtoestand, for example in the case of two people
floating in the sea, holding on to a piece of wood .
a. Wettelijkvoorschrift, for example, at set forth in Article
50 of the Criminal Code , The person conducting an
action in order to perform a legal regulation shall not be
punished (executor)

Lily Mulyati, SH., MH.

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2) Release from guilt

(schuldopheffingsgrond), for
example in the case of pressure forced
by
an
adversary (overmacht) as stipulated in Article 48 of
the Criminal Code :
The person committing an action due to a pressure
put forward by his adversary shall not be punished .
For example, a cashier handing over the cash money
because she/he was threatened under a gun .

Lily Mulyati, SH., MH.

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B.

1)
2)

3)
a.
b.

A delict is violation from benchmarks or guidelines which cannot

be legally justified; a delict is not the same with a criminal act
(which constitutes a delict but narrower in meaning), as it covers
also civil wrongdoings such as torts (onrechtmatige daad), as
among others stipulated in Article 1365 B.W. Also delicts include
state administrative procedure wrongdoings (peristiwa tata usaha
negara) such as detournement de pouvoir and constitutional
wrongdoings (peristiwa tata negara), such as excess de pouvoir;
so, the term delict here has a broad sense.
Not only to cover legal fields, delicts also cover civil law and civil
law and state administrative procedure law , for example :
In the area of civil law, one example is the exemplary/punitive
damages (aanvullende schadevergoeding).
In the area of State Administrative Procedure Law, one example is
the termination or suspension of employment of an employee,
revocation of business licenses, revocation of driving licenses
(administrative sanction ).
In the field of criminal law, an example is punishment in the form
of torture, that are:
Real or material torture, for example capital punishment, fine,
confiscation, etc.
Ideal or moral torture, for example, announcement of court
decision, revocation of rights, obligation to conduct customary
rites in Adat Law, etc.
Lily Mulyati, SH., MH.

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6. ENFORCEMENT OF LEGAL NORMS

According to the target :
1.
Judicial:
a.Hans Kelsen : related to stufen thorie that regards law as an
order of norms (which has to be arranged hierarchically)
b.Zevenbergern : that an order of legal norms is established
according to the application thereof (article 5 UUD `45 Radbruch)
from the point of view of target
c.Logeman : (legal norms) are the relationships between causes and
effect (relating legal events and legal consequences), the nature is
obligatory (memaksa)
2.Sociological : to enforce legal norms are to make them effective
a.The Power Theory : enforcement can be made obligatory by rulers
(Gustav Raddbrucl)
b.The Recognition Theory : Legal norms are enforced because they
are recognized
3.Philosophycal : Legal Norms have to be appropriate with the ideals
of Law as positive values (Pancasila)
Lily Mulyati, SH., MH.

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According to Logeman, legal norms can be

enforced from on the basis of :
a.The scene of the legal act
b.The individuals (the roles of each
individual )
c.The time period
d.The objects

Lily Mulyati, SH., MH.

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