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Jurisprudence

Norms and Normative System

The word jurisprudence derives itself from a Latin word jurisprudence which means ‘knowledge of the law’ or ‘lawful knowledge’. The Latin word ‘Juris’ means law or something lawful. On the other hand, ‘Prudential’ states skill or knowledge. Thus jurisprudence states knowledge of the law and its relevant application. Jurisprudence also has some practical means or applications. In this article, we will look at the various aspects related to norms and normative system.

Normative System

Concept of Normativity

Hans Kelsen’s jurisprudential work centered on the normative nature of law. He believes that law necessarily consists of norms. Moreover, this requires an approach different from descriptive, empirical approaches.

Kelsen’s approach assumes that there is a sharp division between “ought” statements and “is” statements. No one can draw a conclusion about what one ought to do from statements of what is the case. This concept of not accepting the ‘ought’ statements in the form of ‘is’ statements is widely acceptable in modern time.

The importance of the Humean differentiation between “ought” and “is” is the evidence that for every normative conclusion, there must be at least 1 normative premise. (e.g., about what one ought to do or value).

In the context of a normative system like law (or religion or morality), every statement of what one ought to do (or ought not to do) requires justification from a more general or basic statement. Such statements lead upward through the normative hierarchy until one reaches a foundational normative premise.

In Kelsen’s understanding of “the science” of norms, every “ought” claim implies the foundational norm of that normative system. Moreover, the corollary is that every normative system is independent of every other normative system.

The normative system along with its foundational norm is essentially separate from the normative system of a particular moral system or religion. However, this does not exclude lawmakers from being influenced by the content of some another normative system.

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Concept of Basic Norm

In Kelsen’s works, one can find language to the effect that the presupposition of the ‘Basic Norm’ is essential to make possible the interpretation of the subjective sense of certain important facts. It is important to note that Kelsen makes it clear, in a number of places that one need not presuppose the Basic Norm.

In particular, Kelsen notes that the anarchist need not see the actions of legal officials as “naked power”. This is in accordance with the legal system being for them not more than the “gunman situation writ large”

Question on Normative System

Question: What are Kelsen’s point of view on Norms on the grounds of ‘Pure Theory’?

Answer: Kelsen states, “Pure Theory strongly emphasizes that the statement that the subjective meaning of the law-creating act is also its literal meaning – the statement, which is, that law has objective validity – is only a possible explanation of that act, not an essential one”.

Kelsen adds that the Pure Theory aims simply to increase to the level of consciousness what all jurists are doing (for the most part unwittingly) when, in thinking their object of inquiry, they understand the positive law as a right and valid system, which is, as a norm, and not merely as factual contingencies of motivation”.

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