Country Classification according to Hans Kelsen and Nature of Citizen Freedom Hans Kelsen
Hans Kelsen
As Hans Kelsen is known to be a follower of positivism, Hans Kelsen wrote his teachings in his book "Der Soziologische und der juristische Staatsbegriff".
In Hans Kelsen's teaching on State classification, Hans Kelsen said, among other things, that, if you want to classify a country, you must first determine what will be used as a criterion.
This criterion, according to Hans Kelsen's opinion, must be in accordance with the essence of the state, and even cannot be separated from the essence of the state, because this is the main thing. Therefore, first of all, in this case we must know in advance what is the essence of the state.
The essence of this state will have certain effects on the citizens of the state, and what gives rise to these consequences in particular. It is the essence of the state which gives rise to certain consequences to its citizens which is used as a criterion in classifying the state.
According to Hans Kelsen's teachings, the state is essentially a Zwangsordnung, a legal order or public order which has a coercive nature, which creates the right to rule and the obligation to submit.
Because of which law order incarnates in the form of legal regulations, and these legal regulations contain sanctions, that is, if the legal regulations are not obeyed, certain legal consequences may arise for those who do not obey or violate the law. And even the enforcement of these legal regulations can be enforced.
Because these legal regulations are coercive in nature, then automatically reduce or limit the freedom of the citizens.
So in this case then there are restrictions on the freedom of citizens. In fact, the freedom of citizens, according to Hans Kelsen, is a fundamental or principal value in a country.
Now the problem is, what is the nature of the degree to which the limitations on citizens 'freedom are, whether the degree of restriction on citizens' freedom is very broad, or is it very narrow. In other words, the degree to which the restrictions on the freedom of the citizens of the state are either maximum or minimum.
This means that if the degree of limitation on citizens' freedom is maximum, then the consequence is that the freedom of citizens is a minimum. On the other hand, if the degree of limitation on the freedom of citizens of the country is minimum, then as a result, the freedom of citizens will be maximum.
The question now is what determines the nature of the degree to which the citizens' freedom is limited.
According to Hans Kelsen, the nature of citizen freedom is determined by two things, namely :
- The binding nature of legal regulations made or issued by the competent authority.
- The nature of freedom of the ruler or government in intervening or regulating the life of its citizens.
This is what Hans Kelsen then used as a criterion in classifying countries. And based on these criteria, countries can be classified into :
- With the first criterion, namely the binding nature of legal regulations made or issued by the competent authority, Based on this :
a. In principle, the legal regulations issued by the competent authority are only binding or applicable to the people or citizens only,so it does not apply or bind the rulers who make and issue these legal regulations.
So if in a country the legal regulations maker is not subject to or is not bound by the legal regulations he makes, so they are only binding, or only directed to its citizens, the legal regulations seem to have originated from outside of those who are subject to these legal regulations.
So as a result the ruler then has a tendency to make or issue as many legal regulations as possible. The consequence of this is that the degree of limitation on the personal freedom of citizens is general in nature, whereas the privacy of citizens of citizens is minimum. Hans Kelsen said that such a country uses a heteronomic system and a heteronomous state.
b. In principle, the legal regulations issued by the competent Authority, except for binding its citizens or people, also bind the maker of the legal regulations themselves. So in this case there is a similarity between the ruler and his citizens, so it is as if the applicable legal regulations originate from their own will, thus their nature is autonomous.
So the result is that the ruler then has a tendency to make and issue as few legal regulations as possible. The consequence of this is that the degree of limitation on the personal freedom of the citizen is minimum, whereas the privacy of the citizen is the maximum. Hans Kelsen said that such a country is a country that uses an autonomous system, and the country is called an autonomous country. - With the second criterion, namely the discretionary nature of the ruler or government in interfering or regulating the life of its citizens. Based on this :
a. In principle, the ruler or state has the freedom to interfere or regulate all aspects of life than its citizens. So against all things the ruler or the State has the right to regulate it. The result is that the rulers then have the tendency to issue as many legal regulations as possible to regulate all aspects of the life of their citizens. The consequence of this is that the degree of limitation on the privacy of the citizen is maximum, whereas the privacy of the citizen is minimum. Hans Kelsen called this kind of state a totalitarian or ethatistic state.
b. In principle, the ruler or the state can only interfere with or regulate the life of its citizens rather than the main points which concern the life of citizens as a whole. Whereas matters other than the arrangement are left to the citizens themselves. So the consequence is that the degree of limitation on the personal freedom of the citizen is minimum, while the privacy of the citizen is the maximum.
Because in this case the ruler only has a tendency to issue a few legal regulations, because only matters that are given to the ruler are left to the ruler, while the rest of the arrangements are left to each citizen himself. The country that implements this system by Hans Kelsen is called a liberal state.
Why is there a tendency to change the system ? Because in both countries it can be said that the principles used are the same, the symptoms are the same.
On the other hand, in countries that use a heteronomy system or principle, there is a tendency to change towards a totalitarian state.
Why is that ? No other than the principle used, it can be said that there are similarities, the symptoms also have similarities. And in these countries there is a possibility that the ruling power is absolute.
If we compare the teachings of state classification from Hans Kelsen above with those of Aristotle and Epicurus regarding the nature of the composition of the state or society, then it can be said that there Hans Kelsen's state classification, namely the heteronomous state and the totalitarian state, has similarities with Aristotle's teachings regarding the nature of the composition of the state or society, which states that the state is essentially an organism.
On the other hand, Hans Kelsen's classification of states, namely autonomous and liberal states, has similarities with Epicurus teachings regarding the nature of the composition of the state or society, which states that the structure of society or the state is atomistic.
But even so, never mix up these teachings, because each of these teachings is about different aspects, although they are related to one another, and one has a tendency to change in another direction.
For example, the organizational structure of society, such as Aristotle understanding, can gradually turn into a totalitarian state. Or also the atomistic structure of society from Epicurus understanding could turn into a liberal state.
Strictly speaking, it is as follows, that the organism, as opposed to atomism, is an understanding or teaching regarding the problem or nature of the structure of society or the state, namely the view of how society or the state is composed, so the point is about the nature of the structure of society or the state.
Meanwhile, totalitarianism and liberalism are understandings or teachings regarding the problem of what is the nature of the ruler's freedom to interfere with aspects of the life of citizens or society.
There is another understanding that is almost the same as the things mentioned above, especially with the terms used in the Hans Kelsen State classification, namely individualism and collectivism. But this is actually another matter.
Namely, that individualism and collectivism are understandings or teachings regarding the prioritization of interests. Obviously, individualism is a notion or teaching that prioritizes individual interests, so that individual interests are primary when compared to secondary interests of public or society.
Meanwhile, collectivism is an understanding or teaching that prioritizes the public interest or society as a whole.
So the primary thing here is the public or community interest, while the individual interest is characteristic secondary.
But do not forget that each of them has a close relationship, because the principle is the same. The consequence is that one can fuse or change in the other.
Returning to the national classification according to Hans Kelsen, Earlier it was said that according to Hans Kelsen there are four types of countries.Namely : heteronomous, autonomous, totalitarian and liberal. It is theoretically possible to construct a combination system.
- A country that uses a combined autonomy-liberal system, or a country that uses a combined autonomy-totalitarian system.
- A country that uses a heteronomy-liberal combination system, or a country that uses a heteronomy-totalitarian combination system.
For example, for example a country that uses a combined autonomy-totalitarian system, this is practically impossible, because here there are two opposing principles or symptoms, namely the principle or symptom in an autonomous system is freedom, while the principle or symptom in a totalitarian system is a limitation of freedom as hard as -loud.
Also, in countries that use a combination heteronomy-liberal system, this is not possible, because the principles or symptoms are also opposite. That is, the principle or symptom in heteronomic systems is to limit personal freedom citizens as hard as possible, while the principle or symptom of the liberal system is to give the widest possible freedom to its citizens.
While other combination systems we can theoretically think about, namely that autonomous countries have a tendency to change towards a liberal state, so that autonomous-liberal combination systems are likely to occur, because indeed the principles or symptoms are the same, namely the degree of limitation on personal freedom of citizens is minimum, thereby giving maximum freedom to its citizens.
Or perhaps there could also be a combination system between a heteronomous system and a totalitarian system, because in these two systems the symptoms are the same, namely that the degree of limitation on the personal freedom of citizens is maximum, thus only giving freedom to citizens to a minimum. Even from one country there is a tendency to change towards another country.
