CHAPTER I

BRIEF HISTORY, AND THE FUNDAMENTAL THINKING OF HANS KELSEN

Hans Kelsen was born in Prague 11 October 1883 in a Jewish family. When he was 3, he
moved to Vienna and completed his education there. And has a secular view of law as an
instrument of peace inspired by the dual Astro-Hungarian regime.
Become an advisor and drafter of the constitution for Austria when the Astro-Hungarian
empire collapsed. But in 1930 had to leave the constitutional court and move to Cologne due to
the anti-Semitic movement in the Christian socialists. But in 1933 the Nazis rise to power also
forced Hans Kelsen to move to Switzerland until the outbreak of World War Two.
Hans Kelsen moved to America during World War Two and became a professor in America
from 1940 to 1952. At the end of his life on April 19, 1973 Berckeley, the United States, Hans
Kelsen had left about 400 works for 92 years he lived.

When viewed from his work, the thought that Hans Kelsen prioritizes is 3. The theory of
law, state and international law.
The legal theory developed by Hans Kelsen covers two important aspects, the static aspect
that sees actions regulated by law, and the dynamic aspects that see the laws governing
certain actions.
According to Friedmann, the essential foundations of Hans Kelsen's legal theory of thought
are as follows;
1. The purpose of legal theory to reduce chaos and pluralism into unity.
2. Legal theory is knowledge about the law that applies not what it should be.
3. Law is a normative science, not natural science.
4. Legal theory as a theory of norms has nothing to do with the workability of legal norms.
5. Legal theory is formal, which is a theory about how to organize and change in a special way.
Some experts mention Hans Kelsen's thinking as a middle ground from two previously
existing laws. Because it has a different approach between schools of natural law and empirical
positivism.
 Empirical law sees law as reducible as a social fact, while Hans Kelsen argues that legal
interpretation relates to non-empirical norms. On the other hand, it is inversely proportional
to the school of natural law, Hans Kelsen argues that law cannot be limited by moral
considerations.
The theories developed by Hans Kelsen are generated from the analysis of the comparison
of different positive legal systems, forming a basic concept that can describe a legal community.

CHAPTER II
STATIC LAW CONCEPT
(NOMOSTATICS)

A. LEGAL CONCEPT
1. Law and justice
Law is an order as a system of rules about human behavior. So that the law does not refer
to a single rule (rule), but a set of rules (rules) that have a unit so that it can be understood as a
system.
Pure legal theory (the pure theory of law) is a theory of positive law but not a positive law
of a legal system, but a positive law from the theory of general law (general legal theory). The
aim is to answer the question of whether the law is and how it is made. It is not a question
whether the law should (law ought to be) or how it should be made (ought to be made). Pure
legal theory is legal science, not legal policy.
Legal problems as a science are social techniques, not moral problems. The purpose of the
legal system is to determine that people act in a manner that has been determined by the rule of
law. Law and justice are two different concepts.
Justice can be interpreted as legality. The point is a quality that is not related to the content
of positive rules, but with its implementation. A fair or unfair act means legal or illegal, namely
whether the action is in accordance with valid legal norms. Only in the sense of legality can
justice be included in legal science.
 2. Legal criteria: law as a social technique.
Legal differences with other social norms are from the point of view of their function as
direct or indirect motivation, and consequences in the form of sanctions in the form of penalties
and rewards.
From a realistic point of view, the decisive difference is a rule of law whose validity
depends on sanctions and which does not depend on sanctions. Every community must have
sanctions, the difference is the rules that determine sanctions, while other sanctions are
automatic reactions of the community concerned.
Sanctions can also be transcendental, that is religious and come entirely from authority
over humans. The initial social order (primitive) has a fully religious character. The form of
sanctions is adverse treatment related to non-compliance or promises of benefits in terms of
compliance. Social reality shows that the first sanction is more important than the second.
The law is a coercieve order, which has coercion that can interfere with life, health,
freedom, or ownership. This terminology can be justified and is a significant concept for social
life. But when recognizing the law as an a coercive order, we can fight it with other social
arrangements that are both part of the community, but different meanings. Like a murderer, we
cannot kill him, because law, religion and morals oppose it.
The law is an order to bring about peace so that it prohibits the use of force of force in public
relations. But law is not the same as the use of ordinary power, Law is an organized force used
in human relations only under certain conditions. So that the legal monopoly of a community
has a purpose to reconcile it.
Peace is a condition where there is no use of force. The law can bring peace relatively, not
absolute peace by prohibiting individuals but by giving them to the community.
Law is often considered effective if sanctions are carried out on offenses, so that it is said
that the law is an enforcible rule. But the weakness of the legal concept is that it cannot know
one's motives to obey the law, this is because in religion and morality, sanctions are not socially
organized and are more of a psychological pressure.
3. Validity and in effect.
What distinguishes validity from in effect? for example is a legal rule that prohibits theft and
will get a law if it violates it. This law is legal or valid and everyone must obey this rule, but this
rule does not apply to people who do not commit theft.
 4. Legal norms
If coercion is an essential element of law, then the norms that make up the legal system must
be the norm that determines the coercive act, namely sanctionsNorms also have meaning as the
basis for a specific assessment to qualify subjects as lawful or unlawful.

B. SANCTIONS
Sanctions are divided according to the law, there are civil and criminal law. In civil law,
sanctions aim to provide reparations. Whereas in criminal law are retributive and preventive
in the modern view.

C. DELIK
1. "Mala in se" and "mala Prohibita"
Delik is a condition where sanctions are given based on existing law. Human actions are
said to be criminal offenses if they have criminal sanctions, and what is the civil offense if they
have a civil sanction. In the theory of traditional criminal law there is a difference, namely mala
in se in the act of evil because of the action itself. And mala prohibita is an evil act because
it is prohibited by a positive legal order.
2. Delik as a condition for sanctions
The relationship between offense and sanctions, although it can be analogous to the law of
cause and effect, is not a causal law because law studies norms as a necessity and not actual
events. This relationship is a normative provision that can be called imputation.
3. Legal personal offense (juristic person)
To include this case in the definition of the theory of kelsen, it must define the offense as an
individual's action against the sanctions imposed on anyone who has a certain relationship
that is legally determined with the individual subject to sanctions.

D. LEGAL LIABILITIES
1. Obligations and legal norms
Legal obligations do not mean without legal norms, legal obligations are the obligation not
to commit offenses, or the obligation to comply with legal norms. Legal norms themselves are
those which require subjects not to commit offenses by giving sanctions if done.
E. LEGAL LIABILITIES
1. "Culpability" and "Absolute liability"
Someone said to be legally liable for a certain act is that he can be subject to a sanction in the
case of his actions. There are two types of accountability, based on absolute errors and
accountability.
When sanctions are given only to the offense with psychological qualifications it is referred
to as error based responsibility (responsibility based on fault or culpability). Whereas the entry
into absolute responsibility, rather than culpability.
2. Individual and collective responsibility.
When sanctions are not applied to delinquent, but to individuals who have a relationship
with delinquent, the individual's responsibility has an absolute responsibility character.
Collective accountability is always an absolute responsibility.

F. LEGAL RIGHTS
1. Rights and obligations
The right to do something is sometimes interpreted as a permit to do certain actions. The
difference that has developed is jus in rem which means the right of an object and jus in
personam right person that demands an action from someone else.

G. COMPETENCE
The law cannot punish all subjects, only individuals who can and are capable of being
caught by the law. Children and crazy people are not liable towards sanctions and they cannot
commit offenses.

H. IMPUTATION
The capacity to do offenses is often expressed with the concept of imputation, especially
criminal sanctions that are given only to individual actions in special qualifications, a certain
minimum age and mental capacity.

I. PERSONAL LAW (THE LEGAL PERSON)

The concept of legal person per definition is the subject of an obligation and legal right.
Legal person is a legal substance that has legal obligations and rights as a legal quality.
 AFTERWORD
The outlook Hans kelsen give to rule and law has set a new meaning for modern law in the
world. The event he experienced shape and give hans kelsen what is need for a country and
people to live in harmony.
His life nothing short of wonder, live in a dual regime of austro-hungary, and became an
advisor of law and military in world war 1 for austro hungary, experienced what does it mean
to lose a war and seeing identity of your country destroyed and divided (dissolution of austro-
hungary).
After world war 1 he draft the constitutional for republic of Austria, but the increase of anti
Semitism make him chased out of his homeland. Moving to swiss in 1930, but the rise of nazi to
power at 1933 make don’t want to experience second world war and move to America land of
freedom.
In America he can focus back to his study, teaching, and writing. While receiving 11
doctorate his study bore a fruits, his law study focus on all aspect of life with goal of justice and
harmony for people
Died at the age of 92 in berckeley, united states. has write around 400 books, and nominated
four times nobel for peace