Das Sein and Das Sollen: Understanding the Gap Between Legal Rules and Reality in Indonesia

"The regulation is good, but its implementation on the ground is a complete failure!"

Legal Literacy- We may often hear or even say the sentence above ourselves. When we see motorcyclists going against the traffic in front of a police post, piles of garbage near a sign that says "No Littering", or news about corruptors receiving light sentences. A big question arises:Why is there such a wide gap between what should be (the law) and what actually happens (reality)?This phenomenon, in the world of legal philosophy, is known as the dichotomy betweenDas SeinandDas Sollen. Understanding these two concepts is not only important for law students or scholars, but is a fundamental key to legal literacy for every citizen. By understanding them, we can become a more critical, aware, and change-driving society.

• This article will thoroughly explore:
• What is Das Sein (the world of facts)?
• What is Das Sollen (the world of norms)?
• Why are the two often not in line?
• How does the theory of legal philosopher Hans Kelsen explain this phenomenon?
• Concrete examples of Das Sein and Das Sollen in the context of law in Indonesia.

How can legal literacy help bridge this gap? Das Sein?

Das Seinis a German term that literally means "that which is" or "reality". In a legal context,Das Sein is the world of facts, social reality, and everything that actually happens in society.Das Sein is descriptive. It does not make judgments of right or wrong, good or bad. It simply captures reality as it is.Characteristics of Das Sein:

• Factual: Based on events that can be observed and verified.
• Empirical: Can be proven through experience and sensory observation.
• Descriptive: Only describes, does not command.

Example Das Sein in Daily Life:

• Fact: Many drivers do not stop behind the white line when the traffic light is red. (Das Sein)
• Fact: The practice of "hush money" when traffic violations occur still exists. (Das Sein)
• Fact: People on riverbanks throw garbage directly into the water flow. (Das Sein)
• Fact: A company pays its workers below the Regional Minimum Wage (UMR). (Das Sein)

In legal science, the study ofDas Seinthis becomes the main domainSociology of Law. Sociology of Law does not ask "What does the article say?", but rather "How does law work in society? What social factors influence the effectiveness of law?". It sees law as a social phenomenon. A legal term that often intersects withDas Seinisius constitutumin its implementation, namely the positive law that applies and how it is applied in the field. In short,Das Sein is a reflection of the real behavior of all of us in society.

Chapter 2: Dissecting Expectations - What Is Das Sollen?

IfDas Seinis a portrait of reality, thenDas Sollenis the blueprint.Das Sollenis a German term meaning "what should be" or "what ought to be". In the context of law,Das Sollen is the world of norms, rules, regulations, and everything that is expected or ordered by law.It contains necessities aimed at society to create order. In contrast toDas Seinwhich is descriptive,Das Sollenisprescriptive(orders) andnormative(assesses).Characteristics of Das Sollen:

• Normative: Contains values of good and bad, right and wrong, permissible and impermissible according to the legal system.
• Prescriptive: Provides commands, prohibitions, or permissions.
• Abstract: Exists in the world of ideas and notions expressed in regulations.

Example Das Sollen Paired with Examples Das Sein Previously:

• Rule: Law on Road Traffic and Transportation (UU LLAJ) Article 106 paragraph (4) requires everyone to stop at a red light. (Das Sollen)
• Rule: Law on the Eradication of Corruption prohibits and threatens criminal penalties for any bribery practices, including towards law enforcement officials. (Das Sollen)
• Rule: Regional Regulation (Perda) regarding cleanliness prohibits residents dumping waste in the river. (Das Sollen)
• Rule: Government Regulation regarding Wages mandates employers to pay minimum wages according to the established UMR. (Das Sollen)

Studies regardingDas Sollenis the primary domainNormative Legal Science. Its focus is on the hierarchy of regulations, the validity of norms, and the interpretation of articles in laws. Legal terms that are identical toDas Sollenisius constitutum(written positive law) andius constituendum(the law that is aspired to). In short,Das Sollen is a moral compass and behavioral guide created by the state through its legal system.Image Illustration by the Editorial Team