AN EXAMINATION OF PANCASILA POSITIVISM: A COMPARISON AND CRITIQUE OF HANS KELSEN'S POSITIVISM

Abstract

The aim of this article is a comparative-critical analysis of Hans Kelsen's Pure Theory of Law and "Pancasila Positivism" as two models of legal philosophy. Employing a normative legal research method with philosophical and comparative-conceptual approaches, this study analyses Kelsen's primary works and literature on Pancasila legal philosophy through philosophical interpretation and critical synthesis. The analysis reveals fundamental differences across three dimensions: (1) Ontological: Kelsen's law is a "pure" order of norms (Sollen) separate from morality (Sein), while Pancasila's law is an embodiment of inherent moral values. (2) Epistemological: Kelsenian validity is procedural, culminating in a hypothetical, a priori Grundnorm. In contrast, Pancasila's validity is twofold (procedural and substantive), functioning as a formalised, value-laden Staatsfundamentalnorm that serves as a substantive touchstone. (3) Axiological: Kelsen dismisses justice as an irrational domain, whereas Pancasila posits substantive justice (social justice) as the law's raison d'être. The research articulates "Pancasila Positivism" as a theoretical synthesis of "moral positivism": a model where law remains positive (state-enacted), yet its validity is inherently bound to the substantive moral values of Pancasila, offering an alternative to the moral vacuum of pure positivism.

 Keywords: Pancasila Positivism, Pure Theory of Law, Hans Kelsen, Grundnorm, Legal Validity, Legal Philosophy.