Research On The Theory Of Norms Of Kelsen

Hans Kelsen's Pure Theory of Law plays a very important role in the development of the Jurisprudence of the Twentieth Century. Kelsen and his Jurisprudential theory do not only have far-reaching influence on modern western jurisprudence, but also have significant meaning on Chinese jurisprudential study. Kelsen's academic career lasted for more than seventy years and not long before he died in 1973 at the age of 91, he was still busy on writing his last book: General Theory of Norms, trying to perfect his theory system. If we say the first-half of his academic career was dominated by Neo-Kantianism, then the second-half of his career was a process back to Positivism. And the thriving mind philosophy and linguistic philosophy after the mid-twentieth century deeply aroused his interest and attention. These theories certainly affected his ideas and thought as an integrated system of legal theory. Though he didn't finish his last book, he left a huge manuscript containing the results of his work during the preceding decade. This was published in 1979 as Allgemeine Theorie der Normen (General Theory of Norms). This makes it possible for us to understand his opinion in his late years. This article tries to explain the main ideas of General Theory of Norms to reveal the new thought of his late years, especially the logic problems which he emphasized most.This article is composed of four parts:The first part is a review of the four main books of kelsen's legal theory. These include: Pure Theory of Law (the first edition), General Theory of Law and State, Pure Theory of Law (the second edition), and General Theory of Norms. This helps us to have an overview of the development and evolvement of his legal theory from the very beginning to his swan song.The second part analyzes some important concepts relating to kelsen's logic of norms. Instead of listing all important concerning concepts, here just centers on three concepts which Kelsen made material modification compared with his former discussion, these are: the concept of norms, the condition of norms, and the validity of norms. In General Theory of Norms, Kelsen expounded his theory of will and defined norm as the meaning of the act of will. At the same time, he affiliated a condition (i.e. the possibility of observance and violation) to every norm in order to reason the validity of norms. Since the validity of norms has been touched in detail many times in the article, here is only a sketch of the main point of the problem.The third part expatriates the theory of logic of norms in detail, including the applicability of the principle of contradiction and of the rules of inference to norms. This part is the keystone in General Theory of Norms and is also the emphasis of this article. To a certain degree, all the concepts and theories Kelsen mentioned in the first half of the book, including the linguistic philosophy and mind philosophy are meaning to lay a necessary ground for the discussion of the problem of logic. Here Kelsen overthrew his former theory of conflicts of norms and of the relationship between general and individual norms. Kelsen denied the applicability of these two principles for the nature of norms and the passive role of legal science. At last, he also renounced that the possibility of the existence of a specifically'Juristic'logic.The fourth part discusses the meaning of the denial of the applicability of logic to norms, evaluates Kelsen's theory of norms briefly, and discusses the enlightenment of his theory on Chinese jurisprudential study. In spite of shortages and disputes, his theory worth further study and discussion, for the vitality of a theory happens to be embodied in the possibility of development and perfection. The'purity'of his legal theory, the'analytical' method and the'scientific spirit'implies in his theory all are worthy of reference and learning.