Lex Superior Versus Lex Inferior: Selection Between Social Norms and Applicable Legal Norms

Author Name(s): Saifullah Bombang, Syamsul Haling, Paisal Halim
Author Email: saifullah.bombang@gmail.com

Abstract

Human life cannot separate from social norms that become a benchmark for behavior. Social norms have validity and power applicable to legal subjects. In addition to human social norms, it is also bound by legal norms, which also have validity and power applicable to legal subjects. Types of research methods used are normative legal research focusing on positive legal norms in the form of legislation, namely by reviewing the laws and regulations governing the registration of arbitration decisions to realize legal certainty for the parties while empirically is to see the reality directly occur in the field. In such situations, it will be able to arrive at one meeting point, namely social norms with legal norms in the same position. The choice of personal priority will take only one norm in this paper called Lex superior versus Lex inferior. Norms with a superior Lex position will face with inferior Lex norms, which in turn are only one social norm that will fulfill both in the position of superior Lex and inferior Lex. Humans only choose one social norm that believed and expected to fulfill their interests and demands (material and spiritual). Consequently, logically from this position, humans will be trapped in the struggle of the superior Lex norm with Lex inferior in a continuous and alternating manner throughout their lives. Inharmonious and disharmonic interactions, often people trapped in a pattern of logical relationships that are diverse and alternating both constructive, contrarian, and sub-alternative.

Introduction

In the level of the formation of legislation known as the sound level theory (Stufentheorie) proposed by Hans Kelsen [1]. In the theory Hans Kelsen argues that legal norms are hierarchical and layered in a hierarchy (arrangement) in the sense that a higher norm is valid, sourced and based on higher norms, and so on until a norm that cannot be traced further and are hypothetical and fictitious, namely Basic Norms (Grundnorm) [2]. Basic norms are the highest norms in a norm system that are no longer formed by a higher norm, but the basic norms are determined beforehand by the community as a fundamental norm which is a hanger for the norms below it so that a basic norm said to be pre-supposed [3]. Legal norms always sourced and based on the norms above, but below the legal norms are also a source and become the basis for norms that are lower than that [3]. In terms of the arrangement/hierarchy of the norm system, the highest norm (Basic Norm) becomes the place where the norms underneath depend on it, so that if the Basic Norms change it will be a breakdown of the norm system underneath [4]. Hans Nawiasky said that a legal norm from any country is always layered and tiered [5]. The below norms apply, sourced, and based on higher norms, higher norms apply, sourced, and based on the highest norms called Basic Norms

Conclusion

Social norms in society are norms that can be chosen by individuals and groups in interacting with each other. Social norms carry out social functions as a benchmark for behavior, and their implementation varies according to the objectives, interests, and expectations of legal subjects. Legal subjects in the act of being able to choose between social norms as a reference for behavior (orders, prohibitions, permits, and dispensations) and the selection of social norms referred to will show a picture of social norms which positioned as Lex superior and Lex inferior. The selection also shows the existence of patterns of normative logical relationships that are illustrated abstractly in social interactions.

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