A Study Of The Nature Of Kelsen's Basic Norm

Kelsen's pure theory of law is very important in the field of the philosophy of law, which ends the western jurisprudence in the 19th century, establishes the independence of the law in academy, and becomes a beginning of studying the western jurisprudence in the 20th century. Basic norm, as one of three core categories of the pure theory of law, is the soul and contribution of the pure theory of law. The presupposition of basic norm is indispensable to the success of Kelsen's legal theory system and the maintenance of legal knowledge system. The basic norm is so important to Kelsen's pure theory of law, but Kelsen didn't make a clear definition of the nature of the basic norm. That the cause of Kelsen doesn't make a clear definition of the nature of the basic norm is the focus of this text. The full text is divided into five major parts altogether.In the first part, the question is proposed and the framework of the argument is established. This article argues that there are three phases in Kelsen's legal theory .The first phase, the constructive phase, is followed by a transitional period running from 1911-1922. The second phase, the classical phase, beginning in roughly 1922, runs up to 1960, including the Neo-Kantian period(1922-35) and the hybrid period(1935-60). The third phase, the sceptical phase, is from 1960 to the death of Kelsen. The transcendental basic norm, as transcendental-logical presupposition, isn't put forward in the first phase until the second phase, but the basic norm becomes a genuine fiction in the third phase. Why does Kelsen put forward the basic norm, why does Kelsen make a clear definition of the nature of the basic norm? This is the focus of the text.The second part studies why the basic norm is proposed. Why does Kelsen introduce the category of the basic norm? Kelsen's purpose is to make a neo-Kantian foundation for the legal system which established in the constructive phase. Why must the basic norm be introduced? Because the establishment of Kelsen's legal system is based on the overcoming of the dualism of legal theory. In order to overcome the dualism of legal theory, Kelsen introduces the central imputation. But it results in two more questions. The first is the legal system as the ultimate imputation point means that legal system must presuppose itself. The second is antinomy between the order of reality and that of value. On the one hand, the legal theorist must recognize a connection between the two orders in content; on the other hand, the legal theorist must grant that there can't be any connection at all between these two orders. In order to solve these two questions, Kelsen introduces peripheral imputation and the doctrine of hierarchical structure. But the foundation for peripheral imputation is not yet established, so Kelsen introduces the basic norm. The basic norm resolves the unity of the legal system, and makes a foundation for the legal system.The third part illuminates that how the basic norm is put forward. The basic norm is put forward by introducing the category of validity and the dynamic norm system in resolving the unity of legal system. Kelsen argues that a norm is a specific meaning that something to be. So the reason of the validity of a norm is from the validity of a norm, not morality or fact. Besides, Kelsen introduces the hierarchical structure of legal norms, which makes legal system be the dynamic norms system. So in a legal system, the validity of a legal norm is established by appealing to the appropriate higher-level norm, whose own validity is established, in turn, by appealing to its higher-level norm, and so on, until the highest level of norms, the level of the constitution, in the legal system is reached. How, then, is the validity of norms at the constitution level to be established? Because of lacking of any further appeal, their validity is simply assumed. And the assumption takes the form of the basic norm. The fourth part is mainly about the nature of the basic norm. Kelsen mainly takes form of transcendental-logical presupposition and fiction to illuminate the nature of the basic norm. The basic norm as transcendental-logical presupposition is the transcendental-logical condition to cognize the law as object, insofar as only the presupposition of the basic norm makes it possible to interpret the subjective meaning of law-creating act as their objective meaning, that is, as objectively valid legal norms. So by analogy with a concept of Kant's epistemology, the basic norm could be called transcendental-logical condition to cognize the law. However, the basic norm as transcendental-logical presupposition makes a change in the sceptical phase, and Kelsen argues that the basic norm becomes a genuine fiction in the sense of Vaihinger's philosophy of'as-if', which is characterized by its not only contradicting reality but also containing contradiction within itself.The fifth part discusses primarily the transcendental argumentation of the basic norm and its influence. If the nature of the basic norm is transcendental-logical presupposition, it is necessary to make the transcendental argumentation of the basic norm. Otherwise, the sceptic will think the basic norm to be a failure, and the pure theory of law will be a failure. So Kelsen must make the transcendental argumentation of the basic norm. But there are questions in the transcendental argumentation of the basic norm. So in the third phase, Kelsen modify the basic norm as transcendental-logical presupposition, and argues that the basic norm becomes a genuine fiction in the sense of Vaihinger's philosophy of'as-if', which is characterized by its not only contradicting reality but also containing contradiction within itself. Therefore, questions in the transcendental argumentation of the basic norm force Kelsen to abandon his idea that the nature of the basic norm is a transcendental-logical presupposition and by appealing to the fiction.