Legal Literacy - The Constitution has an important role in the system of government and law. This article discusses the concept of normative and positive constitutions, the historical dynamics of the Indonesian constitution, and the implications of constitutional flexibility on the practice of power. Learn how the constitution ideally balances legal legitimacy and the need for adaptation to the times.

The Conception of the Constitution, Between Theoretical and Practical

The constitution is divided into two, namely the positive constitution (as it is) and the normative constitution (as it ought to be). The positive constitution is a constitution that is enacted in a legitimateway, such as the 1945 Constitution which was formed and amended by the People's Consultative Assembly. Meanwhile, the normative constitution is a constitution that is idealized or in other words as the noble ideals of the nation's founders regarding ideal values. The gap between the positive and normative constitutions creates its own problems, the solution to which is interpretation.[1]

Mollers said “Constitution can describe a norm but also a political condition, an object, the document itself or even a function.” The constitution is essentially vague, so an analysis of the meaning contained in the constitution is necessary. As an effort to interpret the constitution, Mollers proposed three meanings of the constitution, namely “a theoretical level that reflects the term with regard to history and legitimacy; a normative level that applies the term as an element of the legal system; and a descriptive level that uses constitution as a term to analyse institutions.”[2]

The first meaning is at the theoretical level, namely by looking at the historical background of the formation of a constitutional article which then makes the article have its own legitimacy. The normative level in the meaning of the constitution is that the constitution is interpreted as the legal-constitutional basis for laws and regulations under the constitution. Based on Hierarchy of Law Theory initiated by Hans Kelsen, regulations that are lower should not conflict with those that are higher, and if this happens, testing such as judicial review by the Constitutional Court. While at the descriptive level, the constitution is interpreted as an instrument that evaluates the movement of the state through institutional organs formed based on constitutional based power or constitutional importance.

The constitution has a dual role, namely its position towards the state government and towards the legal system in force in that country. Based on its position towards the state government, the constitution is an antecedent that gave birth to the state government and which makes the power possessed by the government have a rightful basis. The longevity of executive power that is thick with executive heavy during the New Order era is an example of government power that has a rightful basis, when viewed from a positivism perspective. If the constitution does not provide a basis for legitimizing the longevity of presidential power, then that power will fall by itself because it does not have a normative-constitutional basis.