Understanding the Hierarchy of Legal Norms: 5 Minutes to Understand the Order of Rules

Examples of Legal Norms

1. The 1945 Constitution of the Republic of Indonesia: Fundamental legal norm that governs the basis of the Indonesian state.
2. Criminal Code: Legal norm that regulates criminal acts and their sanctions.
3. Civil Code: Legal norm that regulates legal relations between individuals.
4. Government Regulations: Legal norm made by the President to implement laws.

Legal Norms are Different from Social Norms

1. Legal norms are made by official state institutions, while social norms are made by society.
2. Legal norms are written, while social norms are unwritten.
3. Legal norms have binding and coercive power, while social norms do not.
4. Legal norms aim to create order and justice, while social norms aim to maintain politeness and morality.

Hierarchy of Legal Norms

The hierarchy of legal norms is a tiered and layered arrangement of legal norms, where the higher norm binds and underlies the lower norm. This hierarchy is important for maintaining the consistency and coherence of the legal system.

Here are some basic principles of the hierarchy of legal norms:

1. Lex superior derogate legi inferioriHigher norm (lex superior) overrides the lower norm (legi inferiori) if there is a conflict.
2. Lex specialis derogate legi generali: Specific norm (lex specialis) overrides the general norm (legi generali) if there is a conflict in the same scope.
3. Newer norms override older norms: Newer norms (lex posterior) overrides the older norms (lex prior) if there is a conflict.

Here is an example of the hierarchy of legal norms in Indonesia:

1. The 1945 Constitution of the Republic of Indonesia (UUD 1945): Fundamental legal norm which is the highest source of law in Indonesia.
2. Decree of the People's Consultative Assembly (TAP MPR): Legal norm made by the MPR, the highest state institution.
3. Law (UU): Legal norms created by the DPR (House of Representatives) and the President.
4. Government Regulation (PP): Legal norms created by the President to implement the Law.
5. Presidential Regulation (Perpres): Legal norms created by the President.
6. Regional Regulation (Perda) of Province: Legal norms created by the DPRD (Regional People's Representative Council) and the regional head of the Province.
7. Regional Regulation (Perda) of Regency/City: Legal norms created by the DPRD (Regional People's Representative Council) and the regional head of the Regency/City.

It is important to remember that the hierarchy of legal norms can change along with changes in the constitution and other laws and regulations.

Here are some of the benefits of the hierarchy of legal norms:

1. Maintaining consistency and coherence of the legal system: The hierarchy of legal norms ensures that all legal norms are interconnected and do not contradict each other.
2. Ensuring legal certainty: The hierarchy of legal norms provides legal certainty for the public by providing clarity about which norm applies if there is a conflict.
3. Facilitating dispute resolution: The hierarchy of legal norms facilitates dispute resolution by providing guidance for judges in determining which norm should be applied.

Adolf Mekl's View on the Order of Legal Norms

Understanding legal norms in a country introduces us to the concept of legal stratification, also known as the hierarchy of legal norms. This concept was originally proposed by Adolf Merkl and later mentioned by Zoran Jaliae in his writing entitled "A Note on Adolf Merkl’s Theory of Administrative Law".

According to Adolf Merkl, law is a hierarchically structured system. In other words, each legal norm has two interrelated dimensions, referred to as das Doppelte Rechtsantlitz". A legal norm at a higher level always depends on and originates from the legal norm above it, while a legal norm at a lower level becomes the basis and source for the legal norm below it.

Thus, the duration of validity of a legal norm is relative, depending on the validity of the norm above it. If the norm above it is abolished, then the legal norm below it will also be abolished.

Hans Kelsen's Concept of the Hierarchy of Legal Norms

Theoretically, the concept of the hierarchy of legal norms first put forward by Merkl has become popular through Hans Kelsen's ideas in the Tiered Legal Theory (Stufenbau des Rechts"). Kelsen states that lower norms are produced by higher norms, creating a tiered and hierarchical legal structure.

That is, each lower norm is enforced and derived from a higher norm. The higher norm, in turn, is rooted in an even higher norm. This process continues until it reaches the basic norm (Grundnorm), which is a hypothetical and fictitious norm that cannot be traced further.

What is Grundnorm?

Grundnorm is a legal principle that is abstract, general, and serves as the basic assumption for all sources of law formally. In the analogy of the legal pyramid, Grundnorm is at the top of the pyramid as the highest norm.

Kelsen considers Grundnorm as meta juristic, which is a norm outside the legal system or algemene verbindende voorschrifften (not included in legislation). Grundnorm is the source of sources in the regulatory order below it.

The concept of Die Stufenordnung der Rechtsnormen Hans Nawiasky

This theory was further developed by Hans Nawiasky, a student of Kelsen, in the concept of Die Stufenordnung der Rechtsnormen. Nawiasky connects this hierarchy with the structure of the state. His concept is similar to Kelsen's, that legal norms in a country are structured hierarchically and tiered. Each higher norm becomes the basis and source for the lower norm, and so on, until it reaches the highest Basic Norm.

Hierarchy of Norms According to Hans Nawiasky

According to Nawiasky's concept, legal norms in a country are not only hierarchical, but also divided into certain groups. This classification consists of four parts that can be explained as follows:

1. Staatsfundamentalnorm;
2. Staatsgrundgesetz;
3. Formel Gesetz; and
4. Verordnung & Autonome Satzung.

In the context of the legal norms pyramid, Nawiasky places Staatsfundamentalnorm at its peak, which is translated by Hamid S. Attamimi as the State Fundamental Norm. This norm is the highest norm in a country that does not originate from a higher norm.

For Nawiasky, staatsfundamentalnorm is a norm that is considered to have existed previously by the society of a country and becomes the foundation for the legal norms below it. It is also the basis for the formation of a country's constitution and is a requirement for the constitution to be valid, because this norm existed before the constitution was formed.

Similarities and Differences in Views on the Concept of Legal Norms Between Hans Kelsen and Hans Nawiasky

Nevertheless, there are similarities between Kelsen's and Nawiasky's thinking. Both acknowledge that legal norms are hierarchical and originate from higher norms, reaching a point where the original source can no longer be traced because it has been pre-supposed (pre-supposed).

However, there is a difference between them. Nawiasky groups legal norms, while Kelsen sees them more in the context of norms in general, without direct connection to a country.

The last difference is that Nawiasky uses the term "staatsfundamentalnorm" instead of "staatsgrundnorm" when referring to the basic norm. His consideration is that "grundnorm" refers to a fixed (unchanging) arrangement of norms.

Meanwhile, the highest norm can still change in situations such as rebellion, coup d'état, Putsch, Anscluss, and the like. Although in some legal perspectives, the term "grundnorm" is still more often used than "staatsfundamentalnorm".

Conclusion

The hierarchy of legal norms is an important element in the legal system that guarantees consistency, certainty, and dispute resolution. Understanding the hierarchy and classification of legal norms helps to understand how the legal system works and how legal norms are interconnected.

Reference Source

1. Ni’matul Huda. 2011. Theory & Testing of Legislation. Jakarta: Nusa Media.
2. Maria Farida Indrati S. 2017. Legislation Science 1. Yogyakarta: PT Kanisius.

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