The theory brought and initiated by Hans Kelsen is oriented towards the purification of law from non-legal elements that can "contaminate" the law itself. Non-legal elements such as ethics and justice must be removed in constructing legal norms. This Hans Kelsen's Legal Purification is pre-positioned to be a guarantee of ensuring legal certainty and avoiding subjective tendencies.

As a social fact, law cannot be separated from humans as social beings and the values brought by humans themselves. These values bring tendencies both ethically and transcendentally. Hans Kelsen's legal purification is deliberately a form of "blind" labeling on the law and has implications for the disharmony of law with the social facts that occur. If the law cannot be friendly and provide solutions to problems that occurs, the urgency of the law needs to be questioned.

The urgency of law cannot be seen and felt if it is separated from non-legal elements such as ethics and justice. Justice, as a subjective tendency, undoubtedly has diverse definitions and concepts. These concepts and definitions are highly dependent on the era and social environment in which the law is found. It is natural that the concepts and definitions of law differ from one another across time and place. It is unnatural that law should be separated from justice due to its non-empirical and subjective labeling.

With the analysis of the above explanation, it can be concluded that behind the characteristics of the purity of law, various non-legal elements compose and construct the law that is declared pure by this theory. Directly and indirectly, these non-legal elements contribute to the construction of law. Thus, the postulate that law is pure and must be purified, purification, is a logical fallacy or logical fallacy.

Alternative Solutions to Addressing Hans Kelsen's Purification of Law

The pure theory of law conceived by Hans Kelsen indeed has logical flaws that can have fatal consequences for the application of the law itself. As discussed above, this theory cannot answer several very important things, such as ethics and justice. If traced, this logical flaw stems from the positivism stream that serves as an umbrella for the pure theory of law.

The parameters of the positivism stream rely on a single objective valuation and reject valuations that are not in line with its test parameters. These test parameters are conceptualized so as not to be mixed with physical and metaphysical elements. This can be seen in the theory's rejection of the concepts of ethics and justice, which are postulated as subjective and biased in meaning, not singular.

Logical flaws in positive law can be overcome by applying the concept of mixing or amalgamation. The concept of amalgamation in the context of positive law is to include the concept of unwritten law into positive law. This unwritten law can provide color because of the flexible characteristics inherent in unwritten law.

The extension of the concept of positive law also extends into the manifestation of law that is integrated with the values that live in society. This is due to the rejection of positive law against positivistic elements that separate themselves from society. Thus, the rigid characteristics and firm in positive law can fade and become more flexible.6

The application of this concept can be a control for positive law, which is known for its original rigid and firm characteristics. Besides its firm and rigid nature, the law is also required to be flexible so that it can be friendly with existing social facts and be able to provide solutions that can be accepted by all parties. Thus, mixing this concept can be an alternative solution in addressing positive law.

List of References

  • Buana, M. S. (2023). Comparison Constitutional Law : Philosophy, Theory, and Practice. East Jakarta: Sinar Grafika.
  • Isdiyanto, I. Y. (2017). Reconstruction of Indonesian Law & Constitutional Law. Yogyakarta: UII Press.
  • Jimly Asshiddiqie, M. Ali Safa'at. (2021). Hans Kelsen's Theory of Law. Jakarta: Konstitusi Press.
  • Suteki. (2023). Law, Morality, and Religion. Yogyakarta: Thafa Media.