Research On Kelsen's Jurisprudence

Hans Kelsen is one of the greatest jurists in the twentieth century and his majority of the influence and reputation is rare. Hans Kelsen's honor is largely due to his deep knowledge aspects of legal philosophy. Without the persistence of pure law in law philosophy field, it is inconceivable that he can achieve the honor of the greatest jurists. Additionally, the study on Kelsen is not so consistent with affirming his reputation. Most people study for Kelsen differences, which can be said to be influential figures in the general fate. In this paper, we try to grasp the essence of Kelsen's legal philosophy, and hope to get some practical lessons which may benefit for our socialist legal construction.The author believes that the importance of Kelsen's thinking is not the details, but his law philosophy dedication of two shining gems. The first treasure is that he gives a new concept of pure law to the two areas of philosophy and law; the second treasure for his dedication to the issue of justice, a system of thought is consistent with the pure theory of law against strategy. The concept of the so-called pure theory of law is the metaphysical and moral doctrines and try to turn the fact that the ways and means of scientific areas with strict distinction between law in order to achieve the legal rules of inherent laws of nature to deal with the phenomenon, the establishment of a statutory system of norms and norms order, national life and international relations, justice and peace in a permanent basis. For the justice problems, Kelsen has a strategy to systemically handle. The problem of metaphysics is to understand the problem, solution to the problem of justice is to ensure that the norms of justice issues, and the administration of justice is to establish effective regulatory system problems. Distinction between these three issues is to establish the basic concept of the independence of the judiciary and the rule of modern society. But in terms of legal practice in modern society, the concept of pure law and strategy laid the modern rule of law based on an aspect of society. Kelsen's Pure Theory of Law is not ideal for your study of knowledge, but the mature period of capitalist development, the most important realities. Currently, it is often misguided for the academia study on the Kelsen thinking not for such a comprehensive strategy but for one part of the implementation of the resolution. Analysis of this article may be found in the right way of thinking to understand Kelsen. If so, the real sense of the unseen world, the master down well, extremely lucky!In the field of philosophy of law, Kelsen is attributable to the analytical Jurisprudence camp. As Kelsen has a profound philosophical heritage, he is committed to learn from analysis of scientific evidence and scientific laws, while the spirit of science in the heritage of the human spirit is saved and kept. These open the logical analysis of the standardized empirical scientific method that is carried out in the whole system of legal norms related to his pure theory of law. Kelsen not only committed to Law as an independent science but also hope to lay a rational foundation for national life and international rules in twenty-first century life by the Science of Law. Further to achieve lasting peace in the world is expected through the rule of law to resolve the conflicts within countries or outsides. The key of Kelsen's Law Philosophy is that he implements the norms of scientific evidence and logical analysis to the creation of legal ideology.Firstly, this article analyzes the philosophical background of pure law theory, trying to tease out the formation of a purely theoretical system of law context and exploring Kelsen's basic position is purely legal philosophy and methods. The influence of the background of Kelsen life as well as some philosophers and jurists on Kelsen's theory construction is mainly studied.Secondly, how to create a pure and independent system of legal norms by Kelsen is studied. In this part, how to clarify the relationship between the law and ethics (justice) by Kelsen and will be discussed as well as the relationship between legal and natural reality. Although law and morality belong to the same specifications, morality is unconditional order, and more performance for the abstract principles. Further it has a very strong subjectivity and shows many kinds of trend for different ethnic and cultural backgrounds, which results in different moral values. Legal norms with a strong operational is a certain objectivity, which makes it become one of the compliance standards. Therefore, in the construction process of the legal science, as far as possible the interference from morality should be excluded as far as possible in order to achieve the law pure. The fact that the provisions of the law human rights and obligations as the causal relationship between the junction point, and the causal relationship between the natural fact is a big difference. Full use of the natural law of cause and effect of scientific methods of empirical analysis of legal science would destroy the human spirit. Kelsen limit the scope of the law formulated by the state of positive law and the law is defined as operational management of special specifications to society.Thirdly, Law of the State and the Law of the doctrine in the Pure Theory are discussed. This section analyzes how to construct the law levels of regulatory system by Kelsen, law system from static to dynamic law system, legal norms of the relationship between the levels of effectiveness. The properties of basic norms theory brought forward by Kelsen, gauging theory based on the order of legal norms as a logical starting point and ultimate effectiveness of the sources, are addressed, which is the cornerstone of a purely theoretical system of law. In the sense of the basic norms based on the constitution, the national identity is defined as a legal entity. The logical proof of the unitary state and the law lays the rational basis to achieve the country's rules of law.Fourthly, the concept of international law in the pure law theory is discussed. This part reflects Kelsen's ideal to avoid world wars and realize the international community peace. We mainly analyze how to locate the international legal order as the domestic legal order by Kelsen. In this sense, the national and international law monism is achieved, which establishes the sanctity of international law. He hopes the dispute in the international community could be solved through not the war between the countries but the channels of law rules and the nomocracy in the international community could be achieved.Finally, according to the needs of consummating the socialist legal system, several suggestions have been brought forward from Kelsen law philosophy. The construction of the pure law theory is rigorous and its logic is self-consistency. The methodology used in research paradigm of law in China plays a complementary role; pure law theory as a philosophy of law for the judicial field should benefit the construction of judicial independence in China and bring an important inspiration value. The criticism on Kelsen's thought is necessary but more lessons may be achieved from his theory. In this article, we hope to demonstrate its one or two of these lessons.