Research On Theories Of Law's Validity Of Analytical Jurisprudence

Austin, who represents the classical analytical jurisprudence, made a distinction between"law it is"and"law as it ought to be"on the basis of English empiricism. He thought validity of law was the power of enforcement in essence; the validity of law rooted in the sovereign who possessed paramount authority. Austin's view on validity of law makes for independence of law and stability of legal order, however, it easily gives birth to tyrannical and can't explain why validity of law can continuous after one sovereign gone. Kelsen, who is the representati of Pure Theory of Law, was influenced by Neo-Kantian thought, which stressed constructing theoretical system in logistic way. So he insisted to distinguish"be"and"ought to be",explained clearly the division and relation between"validity of law"and"efficacy of law". Kelsen constructed one legal system on the base of"basic norm", which has rigid hierarchical structure in respect of validity. As the source of validity of law ,"Basic norm"helps to explain why the validity of law can continuous and eliminate the bad influence to law which caused by"validity of law was the power of enforcement". Because of hypothesis, however, basic norm on the one hand can't resolve itself legitimacy, on the other hand can't provide realistic guide for legal practice, which is different from the logistic way. Moreover,"basic norm"merely resolves why legal system is legitimate, but it can't provide the standard which can distinguish whether specific norm is legitimate.Disaster caused by the two world wars in the 20 century, prompted west society restoring classical value theory in a new departure. Representing the Neo–Analytical Jurisprudence, Hart pulled the ordinary-language philosophy in the legal research. He criticized the views of legal validity of Austin and realism jurisprudence and maintained the stability of law on the base of"internal point of view". Hart made the rules of recognition as the source of legal validity. He thought rules of recognition could contain some value element and its validity was a fact. Hart's views on the legal validity amended Kelsen's view of validity to some extent. However, rules of recognition can contain value factors, called itself into question.Institutional Theory of Law made legal validity as a kind of institutional facts. Institutional Theory of Law made practical reason as tool and stressed to integrating consensus,discussion and procedure to surpass the dispute between nature law school and legal positivism. Institutional Theory of Law try to combine"ought to be"and"be"in the perspective of institution and make the rationality of legal system guaranteed from the aspects of content and procedure. But Institutional Theory of Law doesn't succeed in resolving the difficult problem on rationality of legal content.The theory on legal validity of analytical jurisprudence makes for independence of legal system and stability of legal order,makes for independence of law knowledge. But how to treat the relations between validity of law and morality is an eternal difficult problem to the analytical jurisprudence.