Positivism Theory by Hans Kelsen, Zwangs Ordnung and Normative Ordnung
Positivism Theory
The failure of thinkers on the state and law in investigating and explaining the origin of the state, the nature of the state, and the power of the state has created skepticism towards the state.
And then people prefer to adopt a positive attitude towards the country. Most people have lost their desire to learn or explore the basic fundamentals of the state.
There is a tendency to confine oneself only to the lessons of positive law, and besides this is already present in most countries, positive law will also be easier to learn.
This will give a stronger grip, because the constitution and organic laws can be read and studied, rather than people just thinking abstractly and without any provisions at all, the result is nothing but chaos and war.
Thus state science gradually but surely withdraws itself, and comes to visit reviews of theoretical and historical science.
State science becomes relativistic, negative and skeptical. Instead, Struycken came to a skeptical eclecticism (eclectic means to stand broadly, or in this case choose freely from various systems or philosophical schools).
Hans Kelsen
The theory of positivism states that there is no need to question the origin of the state, the nature and nature of the state and so on, because we do not experience it ourselves.
So without mentioning the origin of the state, the nature and essence of the state. If now there is a state, it is not an original birth, but only a rebirth rather than a state that existed in ancient times.So the flow of positivism then says, if we are going to talk about the State, let's just say the state as it is. The figures of this genre include Hans Kelsen.
Hans Kelsen is a great thinker on state and law from Austria who later became an American citizen. Among his books, "Allegemeine Staatslehre", published in 1925, and "Der soziologische und der juristische Staatsbegriff" published in 1922.
Hans Kelsen founded the Wiena school. In essence Hans Kelsen's teachings went a step further.
According to Hans Kelsen, that state science must withdraw or let go of its thinking in principle from each attempt to explain the state and its forms causally or abstract causes. And divert his speech or thoughts in a pure juridical manner. Therefore, each country can only be studied and understood within its own legal system. The ursprungsnorm of each country has defined and limited its construction or form.
While problems or questions about the emergence or existence of Ursprungsnorm are problems or problems that are meta juridical in nature, this is not included in the field or object of State Science discussion, but is included in the field or object of discussion of legal philosophy.
So Hans Kelsen said :
legal science no longer needs to find the basis of the state, the birth of a state for it is only a fact, which cannot be explained and captured in juridical terms.
Kranenburg said that it was attractive to hearts and usually very clever at the course of growth and development of the mind, which led to these skeptical and negative conclusions.
Negativity does not actually mean a withdrawal of state science as a serious science. Instead, he relinquishes all experimental attempts to explain the main task of each science. And leaving it to another science, which is strictly separated from the science of state and statute law, is sociology.
However, it was immediately strangely stated that science could not explain it, because this sociology could never understand or be able to investigate, let alone explain it. Because sociology can only basically work with facts and symptoms. Then Kranenburg explained at length the relationship between state science and sociology.
Furthermore, Hans Kelsen said that the country is actually a legal order. Which law order arises because of the creation of legal regulations that determine how people in society or the country are responsible for their actions. These legal regulations are binding in nature; it means that each person must obey it, and must adjust his attitude, behavior and actions with the applicable legal regulations. In fact, people can be forced to obey them, because if they do not obey them, they will be subject to sanctions.
So in fact, the country is a compelling legal order. The legal order consists of a series of legal regulations of various types, forms and a great number of them, but all of them are rooted in one source which is called the basic norm, so even though these legal regulations are different from one another, they are one unity.
Thus it can be said that there is legal order if the various colored legal regulations, and which are numerous, can be based on one source which is called the basic norm.
Because these legal regulations have the same source, each of these legal regulations is closely related to one another. Also a legal rule becomes the basis of a lower level legal regulation, and the latter is the basis of a lower level legal rule.
This is so so that there is a sequence in levels, hierarchies, from the lowest level to the highest, and the highest level is the so-called basic norm.
And if the many legal regulations and the various types are enacted based on one basic norm, then it can be said that there is legal order, then there is also a state.
Thus, said Hans Kelsen, we don't have to bother anymore about the state and which law is high, or which one is sovereign. Because they are the same. Besides, we don't have to question the origin of the state, the essence of the state and the power of the state.
This is an outline of the teachings of positivism which only accept, explain and face the state in reality. So according to Hans Kelsen, the state is synonymous with law, however Hans Kelsen also admits that the state is bound by law.
Why is that ? Because according to Hans Kelsen the state is a Zwangs Ordnung, a legal order, or a social order which is coercive in nature, because of this coercive nature there is a right to rule and an obligation to submit, also the law is Zwangs Ordnung, the conclusion is that the state is synonymous with law.
Furthermore, Hans Kelsen said that if we have seen the state as a unity of order, or a unity of regulations, then it is no longer possible for the state to be placed against the law, because then both the State and the law fall into one category or main understanding, namely Normative Ordnung.
So if people have recognized that the nature of a legal norm or regulation, in accordance with what is applicable, is a coercive nature, then both the state and the law are a compelling legal order. So the state is synonymous with law.
Compare Hans Kelsen's opinion above, regarding the definition of a country with that of H.J. Laski. Laski said that the State as a system of rule of law, is a temporary parallelogram of forces which change shape according to changes in power, which determine the temporary position of the state.
The law only applies in the sense that at a certain point in time the law can be implemented. If we want to prove the validity of the law on a basis other than the original, then we transcend the boundaries of the legal environment and we are under other factors.
The definition of a state mentioned above is purely from a legal perspective, so it is a juridical review, which of course will have no meaning or will not apply outside of a juridical review.
