The Inquiry Of Kelsen’s Theory Of Legal Validity

Legal validity is the important basis and ground for law authority, and is the central problem of jurisprudential researches and studies of philosophy of law. In the history of western jurisprudence, Hans Kelsen is the one who studied this problem sufficiently and provided many distinctive theories and ideas. Therefore, his validity theory of pure theory of law has a typical meaning for analyzing and solving this problem at present. Kelsen made a deep study of legal validity through studying and analyzing in detail concept, the relation between validity and efficacy, the ground for legal validity and the dynamic rank system of legal validity. He insisted to rule out factors of justice, politics, social facts and the idea of nature law from the area of legal science, in order to keep its independence. Further more, methodological rigor and objectivity are essential as to keep legal science autonomous, systematical and unitive. The meaning and aim of Kelsen’s theory is maintaining the stability, clearness and definiteness, unity and authority of the real order of law. In this connection, Kelsen made basic norm the logical starting point of his theoretical system. Basic norm is a necessary presupposition of positivistic legal cognition. It’s the reason of validity of the order of legal norms and system of legal norms. By presupposing the basic norm, Kelsen made his statement of independence and distinctive nature of legal knowledge sound plausible and established the original academic theory, as well as promoted academic research to further develop. Although Kelsen suffered dissenters’attacks because of the extreme purity of his theory, the importance of his theory can not be denied. So, in the primary stage of constitutionality in China, it’s very significant for us to study his thought:not only can it provide us some original theoretical angle of view, but also instruct the construction of rule of law in China.