| The main theoretical contribution of analytical-positivist jurisprudence is the research about the validity of law. Austin is the founder of the analytical jurisprudence and Kelsen is the founder of the pure theory of law. They are both the representatives of the analytical-positivist jurisprudence and both have their theory on legal validity. Kelsen builds his own theory of legal effect in inheriting and criticizing Austin’s theory of legal effect. Austin’s theory include the nature and the origin of legal validity, he regards validity of law as coercive power, and the origin of effectiveness as the orders of the sovereign. Kelsen does not agree with Austin’s theory, he makes norm instead of command and his theory of legal validity mainly include the essence of effectiveness, the origin of effectiveness and the structure of effectiveness. He points that effectiveness means the existence of norm and the origin of validity of law is the basic norm. Unlike Austin, he also elaborates the scope and the structure of legal validity. Their theories are different mainly in three aspects:on the reason of legal validity, Austin insists the sovereign’s commands while Kelsen shows the normalization of law. On the continuity of legal validity, Austin has no definite answer while Kelsen has carried on an innovation. On the integrity of the legal validity, Austin’s theory is more of a parallel architecture, but Kelsen begins his theory with the basic norm and constructs a complete theoretical system. Compared with Austin, this is a kind of progress; it is still a new development of analytical-positivism jurisprudence. This paper attempts to explore the reasons why do people obey the laws through the comparison of the two different legal theories, in order to discover the true spirit of the law and seek more adequate theory for a better understanding of the law. |
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