The Autonomy Of Legal System

The argument of the legal system is a complicated but important question which has been studied by many jurists. From some representative works of them, some progresses have been made with deep investigation, some questions still exist however. These questions are presented in two aspects: firstly, the excessive technologization and complication of it makes the predictive, fundamental and generally reflexive legal system a positive remedy of contemporary legislation system. Secondly, on the contrary, it is put into a broader extent to the study of it like economy, society, politics, culture etc.. These two approaches are rational and scientific to some extent but with some obvious flaws. The former loses itself in detail, without finding out the core of the legal system; the latter the regulative characteristics of it.The representatives of the study on the autonomy of the legal system are Austin, Hart, Kelsen, Raz etc., and in Chapter 1, the paper analyses and interprets the possibility of autonomy in philosophy and logic, and reversely to the possibility of autonomy in legal system. Chapter 2 analyses the Austin’s theory of it, pointing out the shortcomings of the sovereignty theory, the impossibility of autonomy of it. Chapter 3 analyses Hart’s theory, who puts forward the primary rule and the secondary rule to interpret and describe the nature of law and realize the autonomy of legal system, but fails for their vagueness. Chapter 4 analyses Kelsen’s theory which tries to keep the purity characteristics of it, needing the autonomy of legal system, otherwise it involves in the factors of ethics and morality. To realize the autonomy, Kelsen applies for the methodology of Kant’s Critiques, to construct the autonomy in the form of presupposing and thesis-making of basic norms. The loss of factuality exists out of basic norms, simplifies the construction of legal system, and fails to realize the autonomy of it.Based on the above analyses and the standards and bases displayed in Chapter 1, Chapter 5 brings out the necessary characteristics and requirements for the autonomy of legal system. Firstly, from the perspective of practical reason, the relevant rules in the legal system need play as the alternative reasons, and draw out another requirement, that is, the existence of the authority constitution in society. Secondly, the supreme norms stated in the legal system should be constitutive, such as the constitution, which draws the analogy that the legal norms and its system should be practically generative.