Inner Logic Of Kelsen's Theory Of Basic Norm

Kelsen's pure theory of law is an extreme style of legal positivism. It holds to rule out factors of justice, politics, social facts and idea of nature law from the area of legal science, in order to keep its independence. Meanwhile, methodological rigor and objectivity are essential as to keep legal science autonomous, systematical and unitive. Just from this point, Kelsen constructs his pure theory of law on the basis of basic norm and discusses the theory of legal norm, the relation between validity and efficacy and the theory of legal system.Basic norm is used to impose constrains on the will of lawmaker in the juridico-philosophical tradition. Kelsen's basic norm is a necessary presupposition of positivistic legal cognition, make possible descriptive legal cognition, legal normativity and the unity of legal system. Basic norm has always been the object of attack from other scholars. How could basic norm make positive law legal? Is it possible to defend the presupposition in a way that is convincing? What difference does the presupposition make? These questions are not single,we should understand the theory of basic norm from different angles. I discuss these three questions in part four of this article. Kelsen once doubts whether or not legal science can be said to presuppose the basic norm, finally, his doubt dispels for he understands"presuppose"in a different way. Through Peczenik's theory of basic norm transformation, we could defend the presupposition, it's just the link between observable facts and the validity of the system. At last, I analyze the significance of the presupposition and focused on"rules of law in a descriptive sense"to show its effect on legal language.