The Comparative Analysis To Kelsen's Legal Norms Theory And Hart's Legal Rules Theory

Hans Kelsen and H.L.A. Hart as two important representatives of analytical positivist jurisprudence, with different characteristics of the legal theory which have brought vitality in Western jurisprudence circles in the twentieth century, and also their theories have become the important sources of the world's legal theory development.In Kelsen's and Hart's theoretical systems, one question which is worthy paying great attention on is that:their different interpretations to the concept of law. Owing to the concept of law is a fundamental problem in legal theory, so how to understand the concept of law becomes the basis of studying other legal theory problems. As the founder of pure theory of law school, Kelsen takes legal norms as his fundamental concept to interpret law in his pure theory of law. In contrary, Hart, the founder of new analytical positivist jurisprudence, uses legal rules as his fundamental concept to understand law. Kelsen employs norms to emphasize the existence of law as an independently logical system, and laying a self-existent legal science; and Hart takes rules to highlight close connection between law and real life, then rejuvenates philosophical jurisprudence in Western academia. This article attempts to start with distinguishing Kelsen's concept of law from Hart's, then through comparing and analyzing legal norms with legal rules, in order to be able to grasp the features of the two masters'theoretical systems and undertake to further illustrate the two master's theories, finally have a better understanding to their theories. This paper is divided into three parts:The first part, described the basic contents of Kelsen's legal norms theory and Hart's legal rules theory respectively. In this part, refines all the basic thoughts about Kelsen's legal norms theory and Hart's legal rule theory from Kelsen's General Theory of Law and State and Hart's The Concept of Law. Including:discusses the ideological roots which the two masters'theories originated from on the first step. On the second step, respectively introduces the main contents of Kelsen's legal norms theory and Hart's legal rules theory in detail. So, hope to understand the two masters'theories in general.The second part, discusses the differences and similarities between norms, legal norms, rules and legal rules. In this section will compare norms and rules firstly, then on this basis to guide the distinctions between legal norms and legal rules which Kelsen has made. Secondly, discusses the distinctions between rules and legal rules that Hart held. Thirdly, discusses the differences between Kelsen's legal norms theory and Hart's legal rules theory from the following aspects:different philosophical foundations, different theoretical tasks and whether it contains the features of inviolability, subjective and systematic, etc. Finally, discusses the similarities between the two masters' theories. Main features:the same theoretical basis and ideological roots; emphasis the objective of legal science is that the law as it is; and advocate separation of law and morality, and so on.The third part, comments on Kelsen's legal norms theory and Hart's legal rules theory. Owing to facing the different theoretical tasks, the different problems need to be solved; hence, the two masters'legal thoughts have different influences on later study and practice. Kelsen and Hart as two of the world renowned masters, learning and succeeding the soul of their theories will have profound impacts on legal research and developing Rule of Law in China.