Legal Positivism's "Alternative"

As to the researchers of the pure theory of law in China, Kelsen's pure theory of law and legal positivism are not strange concepts. However, when we probe relationship between the pure theory of law and the legal positivism, the problem is complicated, because the relationship between the two is that"Cut, it won't sever; Be ruled, it will never."The theory labelling of"pure legal science","the basic norms"and logic analysis made Kelsen entered the club of law positivism, and this view circulated widely. However, if we explore the philosophy foundation and theoretical system of Kelsen's legal theory, we will find that it is not consistent with the legal positivism.Different from the philosophical background of legal positivism,Kelsen's pure theory of law is based on the neo-Kantian.He elaborated the unique"basic norm"and related theory on the basis of the neo-Kantian. More importantly, under the guidance of the neo-Kantian, Kelsen's legal science makes the people who hold legal positivism hard to reach. Kelsen's so-called"law as norms"is different from legal positivism advocating"orders","rules","institutional facts", which belongs to social fact systematic theory. Although it makes thing simple and unified to bring Kelsen's legal theory into legal positivism, yet it will covered the sparkles of Kelsen's theory, that is, the gap between the pure theory of law and legal positivism. Therefore, isolating these sparkles from legal positivism not only can clarify the relationship between legal positivism and the pure theory of law, but also restore the real facts of the pure theory of law, so we can know that Kelsen's pure theory of law is rather an"alternative"of legal positivism than a branch of it.Based on this theoretical intention and thought, this paper is divided into the following several parts:The summary part made a brief account about the research situation on Kelsen at home and abroad( especially the research situation on the pure theory of law at home).Its aim is to let the readers understand the position in the aspect of studying Kelsen's legal theory and the problems this theory tries analysis and solve.The introduction section combines relevance theory between the pure theory of law and legal positivism. On that basis, we point out the problems of them, and put forward ideas to solve the problem. In the meantime, we put forward the research road and method, and further clear the purpose and meaning of this paper. The first part briefly describes the life of Kelsen, highlight relationships between Kelsen and numerous"Vienna cercle"when he is in Vienna, so that to reveal the impact of different levels on the legal theory of Kelsen which played by these people and relationships.The second part analyzed the discrepancy between legal positivism and the pure theory of law in philosophical background and theory characteristics field, and show Kelsen's responses to legal positivism by neo-Kantian, which reflected the characteristics of "alternative" legal positivism.The third part is based on the second part, on the basis of that elaborates the difference between the legal positivism and the pure theory of law in theory aspect further. Through the deduction method the pure theory of law constructed the strict law science system, which strongly response to the intention and position of theory of legal positivism and reflected the characteristics of"alternative"legal positivism.Conclusion part summarized the characteristics of Kelsen's the pure theory of law by comparing with legal positivism. Also, it pointed out a possible relationship between pure theory of law and legal positivism: the pure theory of law is legal positivism's"alternative".