What are das sollen and das sein? What is the difference between das sollen and das sein, law in book and law in society? Thank you.
DAFTAR ISI
INTISARI JAWABAN
Das sollen is a general legal regulation or normative reality (what should or should have been done), while das sein is a concrete event that occurs in society. Das sollen and das sein are found in legal research. In this context, das sollen is what the law should be as a legal fact expressed by jurists at the theoretical level (law in the books), namely the law in the form of ideals of how it should be; while das sein is more about the law as a fact (in reality), namely the law that lives, develops and processes in society (law in action).
Please read the review below for a further explanation.
This article is an update of the article with the same title written by Sovia Hasanah, S.H., and was first published on Thursday, 12 April 2018.
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Definition of Das Sollen and Das Sein
According to Sudikno Mertokusumo in Mengenal Hukum: Suatu Pengantar, das sollen is a normative reality or what should be done. Meanwhile, das sein is natural reality or concrete events (p. 16).
"Whoever steals must be punished", and "whoever buys something must pay" is a normative reality or what should happen (das sollen). Meanwhile, if someone actually steals or someone buys something and does not pay, then there is a natural reality or a concrete event (das sein) (p. 16).
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Furthermore, Sudikno explained that the rule of law as a provision or guideline on what should be done, requires a concrete event (das sein), because the concrete event is the activator needed to be able to make the rule of law active (pp. 16-17).
On the other hand, a concrete event can only become a legal event if there are legal rules. Legal events are events that are relevant to the law, events that the law relates to legal consequences or events that the law relates to the emergence or disappearance of rights and obligations (p. 17).
For example: smoking is a concrete event, but if someone smokes near a gas station where there is a smoking ban board and then a fire is caused by that person's cigarette, then smoking becomes a legal event that causes the smoker to be punished (p. 17).
Das Sollen and Das Sein in Legal Research
Sabian Uthman in Metodologi Penelitian Hukum Progresif (p.17), das sollen and das sein are found in legal research. Legal research at least discusses between what the law should be as a legal fact (das sollen) expressed by legal experts at the theoretical level (law in the books). At this level, more on the study of normative basics (law in the form of ideals of how it should be) with what is in fact (das sein) more on the law as a fact, namely the law that lives, develops and processes in society (law in action).
Sabian exemplifies das sollen and das sein as follows:[1]
Should be (das sollen) = Rape is against the law
In reality (das sein) = Rape is not easily punished.
Question: Why are rapists often found not guilty during court hearings? There is a discrepancy between das sollen and das sein, where the rapist should be punished because the act was actually committed, but in reality, is often not proven guilty according to the applicable provisions.[2]
To answer your question, we can conclude that das sollen and das sein are not the same. In short, the difference between das sollen and das sein is: das sollen is a general legal rule or normative reality; what should or ought to be done, while das sein is a concrete event.
Then, related to das sollen and das sein in legal research; das sollen is what the law should be as a legal fact expressed by legal experts at the theoretical level (law in the books), namely the law in the form of ideals of how it should be; while das sein is more about the law as a fact (in reality), namely the law that lives, develops and processes in society (law in action).
These are the answers we can provide, we hope you will find them useful.
Reference:
Sabian Utsman. Metodologi Penelitian Hukum Progresif. Yogyakarta: Pustaka Pelajar, 2014;
