Legal Literacy - This article reviews and critiques legal purification Hans Kelsen with his Pure Theory of Law. Let's take a look at the explanation regarding Hans Kelsen's legal purification from a sociological and ethical perspective below!
From Positivism to Formalism
The positivism school of thought initiated by Auguste Comte presented a revolutionary intellectual breakthrough in its time. The teachings he brought emphasized the existence of test parameters in the field of science. The emphasis on these test parameters is oriented towards maintaining empirical facts from predictive assumptions and vague claims that cannot be proven true. Furthermore, he emphasized a strict separation of the realm of science with the realm of moral and dogmatic religious beliefs.1
The paradigm that separates scientific elements from non-scientific elements, such as morality and religion, is constructed on the postulate that abstract ideas should not and cannot be united with concrete ideas. This paradigm was continued by legal philosophers with the formalism school of thought, which separates abstract values, including ethics and justice, from law as a concrete field of science. This formalism school of thought, which is oriented towards the concretion of law, then emphasizes the existence of legal certainty even above justice. This is reflected in the three characteristics of positivistic-formalistic law, namely: Lex Scripta, Lex Certa and Lex Stricta.2
The nature of positivistic-formalistic law; written, definite/clear, and rigid; describes how rigid and strict the legal atmosphere is. This rigid and strict nature is inherent in the law because it is described as a leader or command which functions as an instrument of social control or instrument of social control. Legal objectivity is upheld in order to realize this function and orientation of law. The logical consequence is that the valuation of legal objectivity must also be through objective test parameters in order to avoid elements that influence legal objectivity.
Hans Kelsen's Legal Purification
In Hans Kelsen's view, law is constructed on a review of natural law theory, which relies solely on moral aspects for the validation of law.3 Moral aspects, including justice and ethics, are very subjective and almost impossible to apply because the parameters used are biased and non-systemic. For example, the definition of justice relies on the fulfillment of social happiness. This definition leaves irregularities because the fulfillment relies on emotional factors, making it relative. 4
This moral relativity can lead to legal ambiguity, which is opposed by the positivism school of thought. As described above, this school of thought sets objective test parameters, while emotional factors fall into the subjective realm. The law is required to be objective so that it does not open up opportunities for abuse and benefit one group, while on the one hand being detrimental and repressive to other groups. This is the argument used by Hans Kelsen in constructing the Pure Theory of Law or Pure Theory of Law.
This theory deduces law as an object of scientific study that is free from metaphysical tendencies. The prospect of metaphysical tendencies is projected as unable to represent law as a social fact because its orientation is diametrically opposed. Law as a social fact is oriented towards solving empirical problems by seeking real answers that have no correlation with metaphysical aspects. This is certainly different from metaphysical aspects that are oriented towards transcendental ideas, good and bad, which cannot be reconciled with social facts that are non-transcendental. Therefore, law must be strictly separated from metaphysical tendencies and other non-empirical tendencies.
In addition, this theory presupposes the legitimacy of law without relying on non-legal valuation. Law obtains its legitimacy because it is born from procedures determined by the law itself. The ultimate legitimacy that underlies the law is the constitution as a " when referring to the basic norm. His consideration is that " or basic norm. The validity and legitimacy of the constitution are the last presupposition and final postulate in the hierarchy of legal norms. The presupposition of the validity and legitimacy of the constitution is necessary because it is the reference for the validity and legitimacy of legal norms below it. Thus, without the existence of the " when referring to the basic norm. His consideration is that " the law will not obtain its legitimacy.5
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