Hans Kelsen, And Hart Legal Effect Of The Theory Of Comparative Analysis

Hans Kelsen is well-known but contentious for his Pure Theory of Law whichbelongs to a extreme school of positivist jurisprudence. As the founder of the PureTheory of Law, Hans Kelsen devote himself to establish a kind of theory of law whichshall only describe the law rather than anything else that can not be classified as theelements of law to prevent the science of law from any influence made by the externalfactors. The object of the Pure Theory of Law is to show the complete understandingand description of law rather than the answer the question of what law should be. Itsolve the problem of “be”, but not “shall be”. And as the core issue of Kelsen’s theory,the law effect theory give a clear view of the theory of basic norm, dynamic legalstructure which present the main part of the Pure Theory of Law and show thepurpose and significance of the same.In the first of the20thcentury, Hart, the leading exponent of the new analyticaljurisprudence, respond the hegemony of the traditional analytical jurisprudence inBritain and the challenge of the realistic jurisprudence in America by means of thestrategy which contains the ordinary language analysis and the conversion from thetraditional model to the modern model of the analysis of the concept of law. Hartadopts the sociological interpretation procedure, the methodology of naturalphilosophy and ordinary language analysis, the introduction of which expands thetheory of analysis of concept of law as well as inherits and develops the Kelsen’s laweffect theory.The author attempts to dissert the law effect theory of Kelsen and Hart from threeaspects to analyze the different perspectives and methodology basis adopted in theprocess of the establishment of the law effect theory by the two jurists and discusshow the pure bounds of Kelsen’s theory has been broken through by Hart andconverted to a relatively eased theory.The first part of this dissertation disserts the criticism of the Natural Law Theoryand the Imperative Theory from Kelsen and Hart to clear and definite the entirelydifferent attitude towards “be” and “shall be” between the Natural Law Theory and the Analytical Positivism Jurisprudence and the distinct opinion and thinking ofKelsen and Hart relating to the concept of law from the criticism of the ImperativeTheory. And this part makes a distinction between theory of the internal point of viewand the external point of view of Hart which consist of the core theory of Hart’s laweffect theory from the discussion of the viewpoint of “obligation”.The second part of this dissertation disserts the theory of the basic components of laweffect and the relationship between effectiveness and actual effect of Kelsen and Hart.By emphasizing the distinction between Kelsen’s “legal norm” theory and Hart’s“legal rule” theory, this part gives a clear view of the establishment of the law effecttheory of the two jurists. And from the discussion of the relationship betweeneffectiveness and actual effect, the distinct theoretical details of the demonstrationapproach to the theory of “actual effect in general” of Kelsen and Hart can bediscovered.The third part of this dissertation disserts the theory of effect source. In this part, itcan be found that in spite of the formal resemblance between the Kelsen’s “basicnorm” theory and Hart’s “rule of recognition” theory, there are distinctions of theirtheoretical basis, theoretical forms and the status in the legal system. In respect of thetheory of effect hierarchy, Kelsen sets up the dynamic legal system more based on hispure logic demonstration, but Hart mentions less about this respect.