Legality, Morality And Substantive Justice In Constitutional Court Decision Number 46/Puu-Viii/2010: A Critique Of Hans Kelsen’s Pure Theory Of Law

Abstract

This study examines Hans Kelsen’s Pure Theory of Law within the context of Constitutional Court Decision No. 46/PUU-VIII/2010 regarding children born out of wedlock, analyzing it through the principles of legality, morality and substantive justice. The research finds that the Constitutional Court made a groundbreaking move to protect children born out of wedlock from discrimination; the decision was grounded in Pancasila values and constitutional principles, prioritizing substantive justice over formal legal certainty. This is evidenced by the Court’s reasoning, which emphasized the principle of nondiscrimination regarding children as guaranteed by Article 28B paragraph (2) of the 1945 Constitution applied a constitutional interpretation to Article 43 paragraph (1) of the Marriage Law and accepted scientific evidence regarding the biological relationship between child and father. Furthermore, the study evaluates the limitations of Hans Kelsen’s Pure Theory of Law from a contemporary legal-philosophical perspective, drawing upon Gustav Radbruch’s ideas on legal certainty, justice and utility; Ronald Dworkin’s theory of "law as integrity"; and concepts of substantive justice and human rights.