Law Reform, 21.
, 2025, 81-93 Master of Law.
Faculty of Law.
Universitas Diponegoro Avoiding Misunderstandings About the Emergence and Position of Grundnorm as a Source of Law FX Adji Samekto1*.
Yasyifa Fatharani2 1Faculty of Law.
Universitas Diponegoro.
Indonesia 2European School of Law.
University Toulouse Capitole.
France *samektoadjifx@gmail.
ABSTRACT
Immanuel Kant's teachings on the stages of human knowledge development regarding the universe became the foundation for Hans Kelsen's renowned legal theory, namely Grundnorm.
According to Kelsen.
Grundnorm exists at the rational-practical stage of each individual, is a priori, and has never been formalized through a constitutional process.
However, law students often have a simplistic understanding of Grundnorm, particularly in constitutional law studies.
The discussion below falls within the scope of legal positivism, employing a juridical-philosophical approach.
Grundnorm is frequently reduced to a mere issue of consistency, where lower regulations must not contradict higher regulations.
No further explanation is provided, apart from the assertion that a legal regulation is effective only if consistency between lower and higher rules is maintained.
This oversimplified explanation can be misleading, as it fails to convey the essence of Grundnorm theory to law students.
Based on this analysis, it can be concluded that, according to Hans KelsenAos teachings.
Grundnorm is the highest source of legal norms, accepted as a necessity by individuals through their free will.
Grundnorm, as an imperative-categorical basic norm, can be transformed into legal principles if it has been widely accepted by society.
Keywords : Grundnorm.
Hans Kelsen.
Immanuel Kant.
INTRODUCTION
This misunderstanding arises when law The Legal Positivism school of thought is students interpret the State Constitution as based on Hans KelsenAos teachings on Grundnorm Grundnorm.
Such an interpretation can mislead The term Grundnorm originates from German, meaning "basic norm.
" However.
Grundnorm as a foundational norm.
To address misunderstandings regarding the meaning of this issue, this article explores Hans Kelsen's Grundnorm persist.
In many cases.
Grundnorm is Grundnorm oversimplified as merely ensuring the consistency legal-philosophical of lower regulations with higher regulations.
The Regarding previous studies .
s published only explanation often provided is that, based on in journals and conference proceeding.
, this Grundnorm, a legal regulation will be effective if article compares several prior works with the there is alignment between lower and higher present discussion.
Law Reform, 21.
, 2025, 81-93 Master of Law.
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concluded that Hans laws and regulations.
They argued that Pancasila Kelsen's Grundnorm theory, in practice, has not should serve as a guiding principle in the always been the primary consideration in drafting or amending State Constitutions.
However.
HoptonAos study did not examine the meaning of In this discussion, the author presents an Grundnorm in depth from a legal-philosophical argument based on a philosophical approach within the Legal Positivism school of thought.
Thilakarathna & Madhushan .
argued using a juridical-philosophical method.
This that in many countries, the constitutionAibeing the approach views law from a philosophical supreme law of the landAiis recognized as perspective, particularly in relation to human free Grundnorm, will and the necessity of legal rules to regulate countries are labeled as democratic or not.
They social interactions.
Based on this conception, law also noted that changes in constitutional order, if is identified as:
carried out according to constitutional provisions, .
A set of regulations derived from the highest are considered valid, whereas changes made meta-juridical imperative.
outside these provisions raise serious questions .
Concretely established by the highest regarding their legal validity.
legitimate authority.
Several other studies discuss Grundnorm .
Democratically structured based on mutual in relation to Pancasila, rather than the State Constitution.
Manullang .
argued that .
Designed to regulate human behavior in social questioning whether Pancasila qualifies as Grundnorm is inappropriate under the philosophy According .
Comprising commands and sanctions.
Kelsen.
This analysis aims to clarify the true nature Grundnorm is merely a source of legal validity.
of Grundnorm within the framework of legal contrast.
Pancasila is an idea with philosophical philosophy, preventing misunderstandings and value, serving as a belief system that cannot be ensuring a more comprehensive understanding of reduced solely to validity concerns.
its role in legal theory.
Lita Tyesta ALW .
concluded that Pancasila could be regarded as Grundnorm or the DISCUSSION basic norm of national life.
Therefore, it must be The Teachings of Hans Kelsen reflected in both the material and formal aspects Hans Kelsen .
1Ae1.
was a proponent of law-making and regulation.
Similarly.
Saputri & of Legal Positivism, whose teachings remain Samsuri .
emphasized PancasilaAos crucial relevant to this day.
Kelsen's legal philosophy can role as a foundational norm in the formulation of be regarded as an outcome of the rationalist Law Reform, 21.
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KelsenAos legal philosophy was The distinction between Rationalism and profoundly influenced by the modern legal system Empiricism can be clearly understood from Paul that arose following the French Revolution of KleinmanAos explanation (Kleinman, 2.
, which 1789, as well as by Immanuel KantAos concept of states that Rationalism is the theory that reason, the categorical imperative.
Understanding the rather than sensory perception, is the source of categorical imperative within Kantian philosophy Rationalists argue that without pre- is essential to comprehending KelsenAos legal existing principles and categories, humans would be unable to organize or interpret sensory The French Revolution of 1789 is widely Thus, according to Rationalism, regarded as a crucial milestone in the evolution of humans must possess innate concepts and constitutional and political thought (Doyle, 2.
This revolution introduced key principles that Empiricism asserts that all knowledge originates continue to shape modern legal and political from sensory experience, rejecting the notion of systems, including:
innate knowledge and maintaining that human understanding is exclusively a posteriori, meaning Popular sovereignty .
overnment by the people or democrac.
"based on experience.
Nomocracy .
he principle of governance based KelsenAos legal philosophy can be seen as on la.
the result of a synthesis between:
Equality .
he notion that all humans are .
His advocacy for legal and political principles inherently equa.
that emerged from the French Revolution of .
Human .
His alignment with the Neo-Kantian school of .
Free market principles.
The modern legal system.
His engagement with the Positivist tradition in The ideas that emerged from the French legal philosophy.
Revolution were largely shaped by the empirical The following sections elaborate on these methods of reasoning developed during the Age of Enlightenment, which significantly influenced The Influence of the French Revolution Western European thought in the 17th century (Fukuyama.
Enlightenment The philosophical foundations of any challenged the medieval worldview, which was thinker are inevitably shaped by the historical and often characterized by mysticism and speculative spatial context in which they lived.
A philosopher's ideas emerge as a response to the realities of Law Reform, 21.
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Universitas Diponegoro Although Kelsen did not explicitly state his KantAos epistemology posited that human support for these principles in his writings, his knowledge arises from a synthesis of a posteriori legal philosophy clearly aligns with the ideals of .
xperience-base.
and a priori .
nnate or popular sovereignty, democracy, rule of law, rationa.
This synthesis may even equality, human rights, and the free market.
transcend the limits of sensory perception.
As a proponent of the modern legal KantAos philosophy was influenced by both system, which was an outcome of the French Plato .
Ae347 BC) and Aristotle .
Ae322 BC).
Revolution of 1789.
Kelsen argued that the who distinguished between the ideal world creation of legal norms must be based on human .
piritual, abstract, and containing absolute truth.
will and formalized through democratic processes.
and the empirical world .
he realm of observable According to him, the essence of democracy lies According to them, the ideal world governs in the recognition of human equality.
Once legal the empirical world, meaning that laws and principles and rules are formulated through regulations must be derived from fundamental, democratic means, their validity must then be unchanging principles.
In their view, human affirmed by the highest legitimate authority.
reasoning serves only to describe reality, rather The Influence of the Neo-Kantianism than to transform it.
The Neo-Kantian Building upon the philosophical foundations originated from the teachings of Immanuel Kant of Plato and Aristotle.
Kant integrated elements of .
4Ae1.
, who lived during the transition from Empiricism .
nfluenced by Francis Bacon .
1Ae the Enlightenment Era .
th centur.
to the 1.
and David Hume .
1Ae1.
) with Modern Era .
ost-1789 French Revolutio.
This Rationalism, developing his own Transcendental transitional period shaped KantAos philosophy.
Idealist philosophy (Kleinman, 2013.
Landau, which emphasized that humans are not merely Szudek, & Tomley, 2.
passive observers of the world but active agents Through Transcendental Idealism.
Kant capable of shaping reality through reason and asserted that both reason and experience are sensory experience (Renzikowski, 2.
necessary for humans to comprehend and shape The the world.
In other words.
Kantian philosophy Enlightenment to the Modern Era contributed to represents a synthesis of Rationalism and KantAos assertion that all individuals possess free Empiricism:
will and must be treated as equals.
According to .
Empiricism holds that knowledge is derived Kant, every human being has the right to equal treatment and is also morally obligated to treat others equally.
Kant recognized that humans are autonomous and free to act (Law, 2.
Law Reform, 21.
, 2025, 81-93 Master of Law.
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Rationalism holds that knowledge originates from the human mind and relies on innate principles .
priori knowledg.
Thus.
Kant, understanding of the universe progresses through three stages:
Table 1 : Three Stages of Human Recognition of the Universe According Immanuel KantAos Philosophy Sensory Stage Understanding Stage Reasoning Stage (Vernunf.
(Verstan.
A posteriori.
HumanAos knowledge come from their experience of objects in the world, rather than their reason .
Humans only speak about the world .
assive min.
Knowing.
Passive thinking A priori.
HumanAos knowledge come form the relationships between sensory data, then Humans do not just speak about the world, but begin to form the substance of Understanding.
A priori.
HumanAos knowledge come form conclusions from understanding.
Both reason and experience were necessary to understand the Humans do not just understand, but begin to form conclusions based on cause-effect relationships from previous understanding.
Arguing, as it becomes the basis of Active thinking Active thinking (Sources : Weeks, 2014.
Bertens.
Ohoitimur, & Dua, 2.
Based on the description above.
Immanuel beyond understanding and begin to formulate Kant explains that the levels of human cognition cause-and-effect regarding the universe progress through three relationships derived from their prior knowledge stages, namely: .
The Sensory Stage Ae the (Bertens.
Ohoitimur, & Dua, 2.
stage of sensory perception, which is referred to At the Reasoning Stage.
Immanuel Kant as empirical experience.
The Understanding distinguishes between two categories of reason:
Stage Ae the stage where humans do not merely theoretical reason and practical reason.
Through perceive the world but begin to construct meaning theoretical reason, humans draw conclusions from their sensory experiences.
The Reasoning Stage Ae the stage where humans go organizing their arguments systematically, which Law Reform, 21.
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but are instead accepted as necessary truths based on a priori reasoning.
At the highest levelAipractical reasonAi other words, beliefs such as the existence of God, humans, guided by their free will, actively human freedom, the immortality of the soul, and discover what Kant refers to as categorical the moral obligation to act in accordance with imperativesAiprinciples oneAos words are not scientifically provable but are accepted as truths.
These include fundamental embraced through human practical reason.
moral and metaphysical beliefs, such as:
To better illustrate the progression of human .
God is the ruler of the universe and is all-good.
cognitionAifrom theoretical reason to practical .
Humans are born free.
reasonAithe following matrix is presented:
The soul is immortal.
Thus, categorical imperatives are not derived from empirical experiences .
posteriori Table 2 Stage of Human Introduction to Nature Based on Reason Immanuel Kant :
Reasoning Stage ( V e r n u n f t ) Humans do not just understand, but begin to form conclusions based on cause-effect relationships from previous understanding of the universe.
Theoretical Reasoning Practical Reasoning Humans, based on their free will, actively .
ased understanding obtained from the Intellectual Stag.
, and construct causeand-effect based arguments.
Humans, based on their free will, actively form something called the Categorical Imperative, namely ideas that contain postulates that must be accepted as truth.
or example: God is the ruler of the universe and is all-righteous, that humans are born free, that the soul is immorta.
Proven by science.
Not proven by science.
Creating science.
Forming beliefs based on will.
(Sources : Weeks, 2.
Bertens.
Ohoitimur, & Dua, 2.
Immanuel KantAos teachings on the stages German and translates into English as basic of human cognition regarding the universeAi culminating in practical reasonAiserved as the According to Hans KelsenAos foundation for Hans KelsenAos legal theory of Grundnorm is a presupposed necessity, formed Grundnorm.
The term Grundnorm originates from based on free will, yet not created through formal state procedures.
Within the framework of Law Reform, 21.
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Universitas Diponegoro Grundnorm the highest authority, which contains orders and represents rational-practical reason, serving as The legal positivist school was the highest source of validity for legal norms.
originally developed by John Austin .
0 Ae Consequently, the substance contained within 1.
, an empirical positivist.
John Austin is a Grundnorm is an imperative rational-practical figure who teaches law based on the Positivist- product, accepted by individuals based on their Empirical school of thought as his paradigm free will (Kafara, 2022.
Paz, 2.
(Murphy, 2.
Thus.
Grundnorm is not a source of Legal-Positivism was built with the following necessity derived from sensory experience.
This characteristics: .
rejecting natural law because distinction is why Hans Kelsen asserted that the source of its creation is unclear and therefore Grundnorm is the highest source of legal .
the law must contain orders from necessity, independent of political influence and the sovereign authority, as well as clear sanctions.
psychological elements (Cohen, 1.
Laws are made by supreme sovereign power, but Following Immanuel KantAos frameworkAi In a more derivative explanation.
John where human cognition progresses toward Austin's opinion is: law is the order of an authority practical rationalityAiHans Kelsen positioned the that has sovereignty, an authority that is not highest source of legal necessity within the realm subject to anyone.
That's why the law is coercive, of the categorical imperative.
This foundational not optional and can be negotiated by members of concept was integral to Hans KelsenAos legal philosophy, developed in his Pure Theory of Law In a more detailed explanation.
John Austin since the early 1920s (Paulson & Paulson, 1.
, defined law as the command of a sovereign and remains highly influential in legal education authorityAian entity that is not subject to any higher power.
Accordingly, law is coercive, nonFrom the explanation above, it is evident optional, and cannot be negotiated by members that Immanuel KantAos Transcendental-Idealist Philosophy of society.
Based on John AustinAos theory, legal development of Hans KelsenAos Pure Theory of discussions do not concern morality, fairness, or Law.
rather, they focus on orders issued by a Integration of Grundnorm Teachings in sovereign power.
As a result.
Austin shifted the Stufenbeautheorie concept of justiceAitraditionally central to natural The Stufenbeautheorie teaching is actually lawAitoward legal certainty, which arises from a general teaching in legal positivism, which authoritative commands.
In other words.
Legal prioritizes law from its formal side.
The main Positivism, as presented by Austin, emphasizes principle is that law is a set of regulations made by the creation of legal certainty to ensure Law Reform, 21.
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but also on reason and rationality.
This evolution A prominent proponent of Legal Positivism, of thought is reflected in Hans KelsenAos legal Gustav Radbruch, argued that legal certainty is philosophy, as articulated in The Pure Theory of one of the most fundamental contributions to legal Law (Pak, 2.
thought and has been widely accepted.
Radbruch The Grundnorm theory further refined Hans asserted that law should serve the ideals of KelsenAos Stufenbau Theory, introduced in 1923, justice, utility, and legal certainty, and these three by emphasizing that the highest source of law is a principles correspond to different stages in the categorical-imperative necessityAione that does development of law and society (Putro & Bedner, not require empirical validation (Vinx, 2.
The While justice had been a central concern categorical-imperative substance serves as a since the pre-modern era, legal certainty only causa prima .
irst caus.
, generating a series of became crucial with the emergence of modern normative implications in the form of concrete legal systems.
According to Muh Afif Mahfud and legal commands.
Therefore, the relationship Sia Chin Chin (Mahfud & Chin, 2.
, legal between the causa prima and its consequences is certainty in legislation is closely linked to a purely normative relationship (Paulson, 2.
language, which plays a critical role in expressing However, this normative relationship is not legal concepts, interpreting legal texts, and derived from psychological will or experience- enforcing the law.
Legal language must be clear based reality.
Instead, it originates from a truly and precise, as it differs significantly from neutral will within individuals.
If this neutral will is everyday social language.
widely accepted by the majority.
Hans Kelsen Over time.
Legal Positivism encountered refers to it as objective will.
intellectual challenges, particularly from emerging Table 3 Causality Relationships From Grundnorm Towards Concretization In Legal Principles No.
Categorical Imperative:
Grundnorm Humans are creatures who have free will.
Implication Legal Principle Human freedom must be guaranteed.
Every guaranteed the freedom to express Humans are born to be Human equality must be guaranteed.
Equality Before the Law (Every individual must be treated Law Reform, 21.
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equally before the la.
Pacta Sunt Servanda .
greement is binding on the partie.
Humans must behave according to what they say.
(Source : Samekto, 2.
Legal principles are general propositions characterized by clear, publicized, stable, and just expressed in general terms about a set of Those are applied evenly.
values to serve as appropriate guidelines for protect the fundamental rights, including the carrying out a legal action.
This legal principle security of persons and property and the certain provides clear guidelines for action, which is the core of human rights.
Aries Hariyanto (Haryanto, "heart" of legal regulations (Martitah et al.
, 2.
, meanwhile, wrote in his article ,based on However, there is no agreement on what norms the principle a rule of law, the role of the constitute as general principles of law .
The most state and government as protectors of society commonly accepted examples of general principle is to make regulations that benefit the community.
are pacta sunt servanda, res judicata, and Although there is specific principles of a rule reparation for damage (Merdekawati.
Triatmodjo, of law, state & Hasibuan, 2.
On the other hand, the fundamental tenet is that all individuals in Grundnorm was initiated by Hans Kelsen in the power within the state must comply with both paradigm of rational-individualist societal thought, written and unwritten which places individuals, with their rationality,and differently, the goal remains the same: to free-will, as the center of change.
Hans KelsenAos thinking about law is largerly based on his belief individual from the capriciousness of group in the truth of the principles which emerged from authority (Widiyono & Khan, 2.
The principle French Revolution of of rule of law consists .
Put the liberty of the of four democracy, nomocracy, human rights, modern characteristic: .
protection of human rights.
legal system.
Republic and Aemost important- rule distribution of power.
governance based on law of la.
According to Myrna A.
Safitri (Safitri, .
state administrative court (Warsono et al.
, concerning the principle of rule of law, 2.
and therefore, the implementation of the World Justice Project calls four pillars that must be principle of the rule of law is impossible without The first is the possibility of a personAos access to an both government agencies and the private independent, impartial court, the proceedings in The second pillar is just law that is Law Reform, 21.
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, 2.
Currently, there is a tendency that the Grundnorm is the highest source of legal creation of positive legal regulations ignores the necessity, which every human individual accepts, teachings about Grundnorm.
As a result, the based on his free will to submit to orders that are implementation of these regulations creates no longer disputed because they are accepted as The discussion of Hans Kelsen's That's why Grundnorm is a priori.
teachings on Grundnorm is very important to The substance in Grundnorm is thus not make readers and students of law aware that formed by the state through formal constitutional positive law must actually be based on imperative- processes or something that is formed due to categorical values.
These imperative-category political processes within a country.
Therefore, values were then introduced by Hans Kelsen as Grundnorm is called the peak of human Grundnorm, as the highest source of meta- recognition of the universe which is imperative- juridical law.
So, this study reminds us that positive law must be accountable based on The teachings about Grundnorm further universal morality.
For example, that humans are Hans KelsenAos essentially equal.
However, morality is not always Stufenbeautheorie, which were introduced in related to morality based on religious teachings.
1923, by emphasizing that the highest source of law is a categorical-imperative necessity that does CONCLUSION not need to be proven based on theoretical Based on the discussion above, this Imperative-categorical substance is a explanation leads to the conclusion concerning source of causation .
ausa prim.
which gives Grundnorm, with the following arguments:
rise to implications .
of more concrete Grundnorm is Hans Kelsen's teaching Thus, the relationship between the which is integrated in his theory known as Pure causa prima and its implications is a normative Theory of Law and originates from the belief in the From this normative relationship, truth of Immanuel Kant's philosophical teachings legal principles are be provided.
about the rational-practical nature that exists in From the explanation above, it can be every human being.
Grundnorm therefore, does understood that, the discourse on Grundnorm, is not originate from psychological will that is driven not just a teaching that lower laws should not after the individual experiences reality so they conflict with higher rules.
Such an understanding have to accept orders.
Practical ratio is the is a simplification and greatly simplified the highest stage in the stage of human recognition of meaning of Grundnorm taught by Hans Kelsen.
the universe because it is based on free will to The teachings about Grundnorm were actually Law Reform, 21.
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Vol.
10, (No.
thoughts of Hans Kelsen, and their truth is https://doi.
org/10.
21776/ub.
undeniable to this A less in-depth understanding of Grundnorm tends to be Cohen.
The Political Element in Legal Therefore, an understanding from a Theory: A Look at Kelsen's Pure Theory.
philosophical perspective regarding Grundnorm.
The Yale Law Journal.
Vol.
88, (No.
, pp.
will help academics and legal practitioners in https://doi.
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2307/795677
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