On The Basic Obligatory Norms Of Law

The basic obligatory norms are the normative foundation of every legal system. In order to explain this conception, it is necessary to do some research on the normative words, logical status and effectiveness-making of the basic obligatory norms. This problem is approached through the process of demonstrating logically and describing normatively.Modern theory of logic alleged that deontic mode and deontic words are the key point of understanding and apprehending the deontic logic (or normative logic). Because legal norms are the typical normative logic, it is necessary to take normative words seriously firstly in order to do some research on the basic obligatory norms. It is normative words that endow the norm with normative function. In Chinese world, it is a confusion of using "ought" and "shall". But in fact, as normative words, "ought" and "shall" are different. At first, they have different meaning. Secondly, their functions are not the same when they enact the obligations. Thirdly, their values are dissimilar when they construct the normative order. Thereby, "shall" cannot be replaced by "ought" in the legislation. On the contrary, norms which contain different obligations must be enacted on the foundation of distinguishing "ought" and "shall" strictly. And it is the requirement which result from the certainty and nicety of legal langue. In addition, analyzing the legislative express and function of normative word "shall" in the context of the Constitution of United States is useful for apprehending the legislative express and function of normative word and the logical status of legal obligatory norms.As one of the basic obligatory norm, "The Law Shall Be Abided by" is the prerequisite of the logical self-sufficiency of legal system. On the one hand, "The Law Shall Be Abided by" is the core of Kelsen's basic norm and essential element of Hart's primary rules, on the other hand, it is the conjunctive point between primary rules and the rule of recognition. The validity of the whole legal system results from this special basic obligatory norm. The validity of law means the existence of law, so the basic obligatory norm: "The Law Shall Be Abided by" is the most important norm in every given legal system. And the validity of this basic obligatory norm is justified by the theory that the law is a kind of social institutional facts.The effectiveness of the basic obligatory norm: "The Law Shall Be Abided by" concerns some special problems which come from the process of people abide by law in the real life. In fact, the law which could not accord with some external moral criteria is still provided with the essence of law. Although Radbruch's formula tries its best to harmonize the conflict between legal certainty and morality in law, but according to the analysis of Berlin Wall Shooting Case and Plessy v Ferguson (1896), we get the conclusion that the value principle in Radbruch's formula bears huge uncertainty, and its legal function is limited during the judicial process. At the same time, modern idea of the rule of law requires that the law should possess the formal rationality in some degree. However, this notion could not deny the fact that some kind of legal norms without the formal rationality are still valid. For example, the catch-all statutes in the penal code in ancient China were short of certainty, but they were a part of legal system in ancient China. The function of those catch-all statutes was important, including constructing the major premise for judicial reasoning, maintaining the social order and imperial power, and offering the rightful foundation for the judicial autarchy.When we explore the logical status of the other basic obligatory norm: "The Acts in Violation of Law Shall Be Punished" in the legal system, we should face a perplexing problem, that is, the decrease of conception of legal coercive power. If the sanction is not the intrinsical character, the rationality of the basic obligatory norm: "The Acts in Violation of Law Shall Be Punished" will be oppugned logically. In fact, the decrease of conception of legal coercive power is worth of suspecting. There are four reasons: at first, not all of the scholars assert that the conception of legal coercive power is decreasing. Secondly, nullity is a kind of sanction. Thirdly, the internal point of view could not gat the support from psychology. At last, many scholars (including H. L. A. Hart) did not deny the importance of the sanction and coercive power. So, the argument that the conception of legal coercive power is decreasing is just a Utopia. On the other hand, in order to review the logical status of the other basic obligatory norm: "The Acts in Violation of Law Shall Be Punished", we should analyze the relationship between Kelsen's primary norm and secondary norm. As we all know, freedom and order are the end of law, and in order to achieve this purpose, direction and regulating which are guaranteed by sanction are more important than the threat of sanction. Sanction is the final way to ensure the law is abide by. Therefore, the secondary norm is independent of the primary norm. Because effectiveness is a condition for the validity, the basic obligatory norm: "The Acts in Violation of Law Shall Be Punished" provide the legal foundation for the operation of legal coercive power, establishing the normative condition for the effectiveness-making of the legal system. In other words,it provides the logical premise for the existence of the legal system.The effectiveness-making of the basic obligatory norm: "The Acts in Violation of Law Shall Be Punished" means the actualization of the legal sanction. It including two steps as follows: decision-making and the enforcement of the adjudication. We can observe the process of the decision-making in terms of the judicial process in Qing Dynasty. In order to punish the acts in violation of law and ensure the actualization of this basic obligatory norm, the judges in Qing Dynasty always took kinds of judicial method. If it was an easy case, the judge could realize the details of a case and then resort to his legal feeling to choose the proper norms in statute law. If it was a hard case, the judge could construct the norm for decision in terms of legal interpretation, judicial analogy, expanding interpretation and the application of precedent. There were four characters of the process of decision-making. At first, the conception that sanction shall fit guilt pervaded the whole judicial process. Secondly, the legal cognizance of the details of the case is suspect. Thirdly, precedent had special function in the construction and justification of the norm for decision. Finally, the judicial process returned to the rule by statute law strictly. At the same time, the enforcement of the decision relates to the matter of cost That is to say, how to deal with the balance between the benefit of enforcement, namely the actualization of justice and the cost of enforcement. The deterrence theory of behavioral psychology is worth paying more attention when we discuss the balance between the benefit of enforcement and the cost of enforcement. The deterrence theory suggests that the sanction should be enforced strictly when the cost of enforcement is acceptable accorder to peoples' experience. But when the cost of enforcement go beyond peoples' acceptable limit accorder to their experience, the best way is that confirming the inevitability and certainty of enforcement, and decreasing the probability of the investigation and conviction.After investigating the logical status and effectiveness-making of these two basic obligatory norms, we found that the basic obligatory norm: "The Law Shall Be Abided by" is the common source for the validity of all norms that belong to the same legal system, and the basic obligatory norm: "The Acts in Violation of Law Shall Be Punished" is the normative premise for the effectiveness-making of the legal system. So we can reach the conclusion that these two obligatory norms are the normative foundation of every legal system. As far as the Constitution of the People's Republic of China, Article 5 ordains that all state organs, the armed forces, all political parties and public organizations and all enterprises and institutions shall abide by the Constitution and the law, all acts in violation of the Constitution and the law must be investigated. In addition, Article 53 ordains that Citizens of the People's Republic of China must abide by the Constitution and the law. According to our analysis, therefore, Article 5 and Article 53 which involve the two basic obligatory norms are the classical expression of the normative foundation of Chinese positive legal system in the Constitution.