I am nearing my final exam this semester, to be exact, my fifth semester in university, one of the paper is jurisprudence, which is to me a very interesting subject that transgressed every things that come across our mind as it involves to justification of thought and action that we make in our daily lives.
Hans Kelsen, is classified as being of those positivism theory of law. Where in positivism, one will focus what should be the outcome not what it is or neither the justification of having it. In jurisprudence, this approach or tendency is describe in general with the word 'ought'. For example, if we are about to create a law, a positivism will think with the view of what it ought to be? or what is the outcome of it?
Hans Kelsen came with 'pure theory of law' that was founded upon the classification of the 'basic norm'. He justified it by explaining that making of laws is a deliberate process and that depends upon the norm of any given sovereignty, being the monarch or democratic governments. The basic norms, she said refers to the process of how that law is created.
He came out with this theory upon looking at the reduction caused by natural law towards positive law. this is understood by looking at the effect of such reduction, where it could cause instability to a nation, where nowadays people make laws in order to achieve an objective, for example to hang rapist so that rape cases can be reduced. When natural law come into picture, the authority of the law will be subject to scrutiny, where there will be questions such as, can you actually hang rapist, have you consider the inherent rights stemmed with the rapists, or perhaps it may not be justified to excessly punish a person in order to make others to learn from it, where that punishment is, on the strict understanding, is not justified to be imposed on the rapist.
When such a situation of questioning come into picture, the applicability or the effectiveness of the law is no more that strong without the natural law's propositions, this is where a problem begins to erupt. As an approach to overcome this situation without actually distorting the basis under the natural law, Kelsen point out that natural law that includes the notion of morality and religion, is separate concerning the matters on creation of the law, in a form of a discipline, not in total that he rejects the propositions of natural law and religions.
He justified it by making it as such to come out with a law, it is done through the deliberate actions of people in authority, regardless being a monarch of the representatives in the hall of representatives, where when the people subscribe under that system, the law ought to be valid because of such mass acknowledgment. The question, that it should be moral or not is to Kelsen, an entirely separate question.
Because of this, ignorance to reality and logic, Kelsen is criticized as going against his own logic, where Kelsen admit to that critics and point out that morals and religions is different from law that are created. He said normal law, will remain in force and being the rule as long as there are people or subjects that adhered and recognized it. Instead, religion and morals, despite there are no people anymore being subjects to it and recognized it, it will forever remain as the rule.
Hans Kelsen, is classified as being of those positivism theory of law. Where in positivism, one will focus what should be the outcome not what it is or neither the justification of having it. In jurisprudence, this approach or tendency is describe in general with the word 'ought'. For example, if we are about to create a law, a positivism will think with the view of what it ought to be? or what is the outcome of it?
Hans Kelsen came with 'pure theory of law' that was founded upon the classification of the 'basic norm'. He justified it by explaining that making of laws is a deliberate process and that depends upon the norm of any given sovereignty, being the monarch or democratic governments. The basic norms, she said refers to the process of how that law is created.
He came out with this theory upon looking at the reduction caused by natural law towards positive law. this is understood by looking at the effect of such reduction, where it could cause instability to a nation, where nowadays people make laws in order to achieve an objective, for example to hang rapist so that rape cases can be reduced. When natural law come into picture, the authority of the law will be subject to scrutiny, where there will be questions such as, can you actually hang rapist, have you consider the inherent rights stemmed with the rapists, or perhaps it may not be justified to excessly punish a person in order to make others to learn from it, where that punishment is, on the strict understanding, is not justified to be imposed on the rapist.
When such a situation of questioning come into picture, the applicability or the effectiveness of the law is no more that strong without the natural law's propositions, this is where a problem begins to erupt. As an approach to overcome this situation without actually distorting the basis under the natural law, Kelsen point out that natural law that includes the notion of morality and religion, is separate concerning the matters on creation of the law, in a form of a discipline, not in total that he rejects the propositions of natural law and religions.
He justified it by making it as such to come out with a law, it is done through the deliberate actions of people in authority, regardless being a monarch of the representatives in the hall of representatives, where when the people subscribe under that system, the law ought to be valid because of such mass acknowledgment. The question, that it should be moral or not is to Kelsen, an entirely separate question.
Because of this, ignorance to reality and logic, Kelsen is criticized as going against his own logic, where Kelsen admit to that critics and point out that morals and religions is different from law that are created. He said normal law, will remain in force and being the rule as long as there are people or subjects that adhered and recognized it. Instead, religion and morals, despite there are no people anymore being subjects to it and recognized it, it will forever remain as the rule.
