"The rules are good, but in practice they are 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, garbage piling up near a "No Littering" sign, 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 between Das Sein and Das 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 it, we can become a more critical, aware, and able to drive change. 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?

Chapter 1: Exploring the Core Concept - What Is Das Sein?

Das Sein is a German term that literally means "that which is" or "reality". In the context of law, Das Sein is the world of facts, social reality, and everything that actually happens in society. Das Sein is descriptive. It does not give a judgment of right or wrong, good or bad. It only portrays reality as it is. Characteristics of Das Sein:
  • Factual: Based on observable and verifiable events.
  • Empirical: Can be proven through experience and sensory observation.
  • Descriptive: Only describes, does not command.
Example Das Sein in Everyday Life:
  • Fact: Many drivers do not stop behind the white line when the 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 wages below the Regional Minimum Wage (UMR). (Das Sein)
In legal science, the study of Das Sein this becomes the main domain of Sociology of Law". Sociology of Law does not ask "What does the article say?", but rather "How does the law work in society? What social factors influence the effectiveness of the law?". It sees law as a social phenomenon. The legal term that often intersects with Das Sein is ius constitutum in its implementation order, namely the positive law that applies and how it is applied in the field. In short, Das Sein is a mirror of the real behavior of all of us in society.

Chapter 2: Dissecting Hope - What It Is Das Sollen?

If Das Sein is a portrait of reality, then Das Sollen is the blueprint. Das Sollen is a German term meaning "what should be" or "what ought to be". In a legal context, 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. Unlike Das Sein which is descriptive, Das Sollen is prescriptive (commanding) and normative (assessing). Characteristics of Das Sollen:
  • Normative: Contains values of good-bad, right-wrong, permissible-not permissible according to the legal system.
  • Prescriptive: Giving commands, prohibitions, or permissions.
  • Abstract: Being in the world of ideas and notions expressed in regulations.
Example Das Sollen Paired with Example Das Sein Previous:
  • 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 to law enforcement officials. (Das Sollen)
  • Rule: Regional Regulation (Perda) on cleanliness prohibits residents from throwing garbage in the river. (Das Sollen)
  • Rule: Government Regulation on Wages requires employers to pay the minimum wage according to the established UMR. (Das Sollen)
Study regarding Das Sollen is the main domain Normative Legal Science. The focus is on the hierarchy of regulations, the validity of norms, and the interpretation of articles in laws. Legal terms identical to Das Sollen is ius constitutum (written positive law) and ius 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. Scales of Justice: Das Sein vs. Das Sollen Image Illustration by Editors

Chapter 3: The Dividing Gap - Why Das Sein and Das Sollen Often Not Aligned?

This is the core of the matter. The gap between reality (Das Sein) and rules (Das Sollen) is inevitable in any legal system in the world. However, the width of the gap is often an indicator of the health of a country's legal system. Some of the main contributing factors include: The law will not be effective if the public as legal subjects do not know, do not understand, or consciously choose not to comply with it. This can be caused by the level of education, a permissive culture, or distrust of the law itself.
  • Example: Someone who litters may think "it's just one small piece of trash" or "everyone does it".

2. Weak Law Enforcement (Law Enforcement)

Law enforcement officials (police, prosecutors, judges) are the spearhead of implementation Das Sollen. If the apparatus is weak, corrupt, unprofessional, or lacks resources, then any good rule will become a paper tiger.
  • Example: Rules prohibiting smoking in public places (Das Sollen) does not work because there are no officers actively monitoring and imposing sanctions (Das Sein).

3. Poor Quality Regulations

Sometimes, the problem lies in Das Sollen itself. The regulations created may be:
  • Unrealistic: Does not consider the socio-economic conditions of the community.
  • Ambiguous: Contains elastic clauses that are open to multiple interpretations.
  • Non-Participatory: Created without involving community groups that will be affected.
  • Overlapping: Conflicts with other regulations that are equivalent or higher.
  • Example: A street vendor relocation rule is created without providing new strategic and affordable locations. As a result, traders will return to their old locations.

4. Economic and Social Factors

Economic conditions often force individuals to ignore the law in order to survive. Social inequality can also create dissatisfaction that leads to civil disobedience.
  • Example: A father was forced to become a "3 in 1" jockey (when the rule was still in effect) due to economic necessity, even though he knew it violated the rules.

5. Political and Power Interests

The law can be a tool for the ruling group. The legislative process or law enforcement may be influenced by short-term political interests, not for the common good. This undermines the sense of justice and reduces public trust.

Chapter 4: Hans Kelsen's Perspective and Pure Theory of Law

Speaking of Das Sein and Das Sollen cannot be separated from the big name Hans Kelsen, a philosopher and legal expert from Austria. Through Pure Theory of Law, Kelsen provides a very influential framework. Kelsen argues that jurisprudence should be "purified" from non-legal elements such as sociology, politics, morality, and history. That is, the study of law (Das Sollen) must be strictly separated from the study of social facts (Das Sein). Why should it be separated? According to Kelsen, the validity or legality of a legal norm does not depend on whether the norm is obeyed in the field (Das Sein). A law remains a valid law even if many people violate it. Then, where does a law get its legitimacy? Kelsen answered it with Stufenbau Theory. He analogizes the legal system as a pyramid:
  1. Grundnorm: At the top of the pyramid is a basic norm that is pre-assumed (hypothetical). In Indonesia, many experts interpret it as Pancasila or the Proclamation of Independence. This is the highest source of validity.
  2. Constitution (UUD 1945): The norm below it (UUD 1945) is valid because it comes from Grundnorm.
  3. Laws/Government Regulations in Lieu of Laws: Valid because its creation is mandated by the Constitution.
  4. Government Regulation (PP): Valid because it is mandated by law.
  5. Regional Regulation (Perda): And so on down to the most concrete norms such as judges' decrees.
For Kelsen, a rule (Das Sollen) is valid as long as it is born from a higher norm, not because it is effective in society (Das Sein). This separation is important so that we can analyze the law objectively. However, Kelsen also does not turn a blind eye to the fact that if a legal system as a whole is no longer effective (no one obeys it at all), then the system can collapse and be replaced by a new system.

Chapter 5: Case Study - Portrait Das Sein vs Das Sollen in Indonesia

Let's look at some concrete examples of how this gap is clearly visible in the Indonesian context:

Case Study 1: Obligation to Use Pedestrian Bridges (JPO)

  • Das Sollen: The LLAJ Law and related Regional Regulations require pedestrians to cross at designated places such as JPO or zebra cross for safety and smooth traffic flow.
  • Das Sein: In many locations, people choose to cross the highway directly under the JPO. They break through road barriers, risk their lives, and cause traffic jams.
  • Gap Analysis:
    • Design & Security Factors: Pedestrian bridges are often designed unfriendly for people with disabilities, the elderly, and pregnant women. The stairs are steep, dirty, poorly lit, and prone to crime. Das Sollen is not balanced with adequate facilities.
    • Behavioral Factors: The culture of "taking shortcuts" and a low awareness of safety risks.
    • Enforcement Factors: There are rarely any sanctions for pedestrians who do not use pedestrian bridges.

Case Study 2: Eradication of Corruption, Collusion, and Nepotism (KKN)

  • Das Sollen: Indonesia has a very complete legal framework to combat corruption. There are the Anti-Corruption Law, the KPK Law, and various other regulations with severe penalties.
  • Das Sein: Indonesia's Corruption Perception Index (CPI) is still fluctuating and tends to be low. The practice of bribery, gratification, and trading in positions is still daily news. Many corruptors receive light sentences or are even acquitted on appeal/cassation.
  • Gap Analysis:
    • Enforcement Factors: Political intervention, corrupt officials, and the "judicial mafia" are the main obstacles.
    • Political Factors: The existence of political "transactions" in policymaking and the placement of positions.
    • Cultural Factors: The culture of "grease money", "envelopes", and gratification that is considered normal in some circles.
Understanding the difference between Das Sein and Das Sollen is not an invitation to be pessimistic or cynical about the law. On the contrary, this understanding is the first and most important step to becoming an empowered citizen. When we understand, we no longer just complain "the law is blunt". We can start asking more deeply:
  • "Is the problem in the substance of the law" (are the rules bad)?
  • "Or is it in the legal structure (is the apparatus incompetent)?"
  • "Or maybe it's in the legal culture of society (are we negligent ourselves)?"
Legal literacy born from this understanding encourages us to:
  1. Be Critical: Be able to analyze why a regulation fails in the field.
  2. Encourage Advocacy: Provide constructive input in the process of making or revising laws.
  3. Oversee Implementation: Demand accountability from law enforcers.
  4. Improve Yourself: Set an example of legal compliance starting from small things.
The gap between Das Sein and Das Sollen may never be completely closed. However, our collective task as citizens is to continue to narrow it, brick by brick, through awareness, knowledge, and concrete action. And it all starts with understanding these two worlds: the world of hope (Das Sollen) and the world of reality (Das Sein).