The Research On Kelsen’s Basic Norm Theory

Hans Kelsen(1881 ～ 1973)is one of the most prestigious jurists in the 20th century.His pure theory of law is devoted to the research object of cognitive legal science and integrates everything outside the field of legal science.Politics,society,ethics and other factors are excluded.The banner clearly reflects the theoretical characteristics of analytical jurisprudence and has a profound influence on the jurisprudence of the twentieth century.In Kelsen’s theoretical system,the basic norm occupies a very important position.It is not only the foundation and logical origin of pure theory of law,but also the ultimate validity basis of the real law system.Concerning the question of "what exactly are the basic norm",there are many opinions in theoretical circles.Some scholars believe that the basic norm is actually the judging standard of legal validity,which is a question at the fact level;some scholars equate the basic norm with the first constitution in history;and some scholars believe that the basic norm is a pure form Preset.In this paper,basic norm is not real law norm,they are only a priori logical presuppositions.The purpose of setting up basic norm by Kelsen is to understand the substantially effective mandatory order as an objective and effective legal order.The presupposition of "basic norm" makes the identity of the legal system possible and also guarantees the purity of the pure theory of law.In Kelsen’s pure theory of law,the "basic norm" is undoubtedly the most imaginative and attractive theory.The basic norm theory has both strong supporters and fierce critics.In many schools such as New Analytical Law,New Natural Law,Sociology of Law,and Postmodernist jurisprudence scholars have vigorously criticized basic norm theory.Among them,more representative scholars include Hart,Raz,Fuller,Morrison and so on.By sorting out the criticisms put forward by these scholars,we find that their criticisms cannot be established.Although there are many criticisms of Kelsen’s basic norm in the theoretical circles,there are also many detractor and supporters.In the philosophical background of the “linguistic turn” in Western philosophy in the twentieth century,some scholars even tried to use language analysis and The method of legal logic to re-understand and construct the basic norm theory,of which the most typical one is Peczenik’s basic norm transformation theory.This article is based on Kelsen’s work on basic norm published in different periods.At the same time,it references domestic and foreign scholars’ research on basic norm,and attempts to conduct a more systematic and complete comprehensive analysis of basic norm theory.The article consists of six chapters.Chapter 1: Introduction,mainly introduces the significance of researching Kelsen’s basic norm theory and the current research situation at home and abroad,discusses the current research on the development of basic norm and the lack of attention to the basic norm theory.And the research is too fine,sporadic,one-sided and so on.Chapter 2: The Origin of Kelsen’s Basic Norm Theory.This chapter first introduces the philosophical foundation of basic norm.Hume’s problem and Kant’s transcendental philosophy have laid the ideological foundation for Kelsen’s basic norm theory.After that,the purpose of the basic norm theory is explained.In this paper,the basic norm is proposed to solve the following three questions: answer the first question of pure theory of law,explore the basis of the validity of legal norms and distinguish between legal and illegal behaviors.Chapter 3:The development of Kelsen’s basic norm theory.As we all know,the development of Kelsen’s pure law theory has gone through a long time.Correspondingly,the basic norm theory as an important part of pure law theory also has a process from initial proposal to basic maturity,and then to further transformation.This chapter attempts Carried out theoretical stages of Kelsen’s basic norm theory.In this chapter,based on chronological order and based on Kelsen’s works in different periods,Kelsen’s basic norm theory is divided into four main periods: germination,preliminary proposal,basic maturity,and late changes.Chapter 4: Systematic sorting of basic specifications.This chapter first discusses the connotation and nature of the basic norm,and secondly introduces the content of the basic norms from three angles,they are: basic norm in the domestic legal order,basic norm in the international legal order,basic norm in the domestic legal order and international law,Once again expounded the function and value of the basic norm,and finally,discussed the relationship between the basic norm theory and the other parts of the pure theory of law.Chapter 5: Evaluation of Kelsen’s basic norm theory.There are many controversies in the theoretical circles regarding basic norms.First,this chapter discusses the criticism of basic norms by new analytical law,new natural law,sociology of law,and Postmodernist jurisprudence.For scholars of these schools,such as basic norms is an unnecessary repetition,basic norms are not universal,and basic norms cannot Questions such as the successful construction of the legal system,basic norms deviating from reality,and excessive rigidity responded.This article believes that these questions cannot be established.Then,this chapter elaborates the affirmation of the basic norms in the theoretical circles,and highlights the transformation of basic norm in the basic norm theory by using new research methods under the philosophical background of the "linguistic turn" in the twentieth century.Chapter 6: An Analysis of Kelsen’s Basic Norm Theory.It mainly introduces the groundbreaking of basic norm theory,the breakthrough of basic norm theory to traditional legal theory,and the important contribution of basic norm theory to legal research.Finally,it discusses "the current significance of basic norm theory" and "is the basic norm theory obsolete","Is there still a need to study and study basic norm theory" and other issues.The answer to this article is: Even though there are many controversies in the basic norm theory,it is undeniable that the basic legal theory,the classic legal theory,has a certain groundbreaking and transcendental nature in discussing legal validity and legal system issues.Provides new thinking paradigms and research methods,and has an indelible contribution to the twentieth century jurisprudence.Even today,the basic norm theory itself is still worthy of study.It still has an irreplaceable role in maintaining the identity of the legal system and explaining the validity of legal norms.