The Crux Of Constitutional Validity

As a major achievement in the field of democracy and rule of law,constitution is not only the fundamental law of a political state,but also the fundamental law of a national legal system.Due to the particularity and importance of constitution,and the key significance of constitution to grasp the legal system,the constitutional and jurisprudence academic circles have conducted abundant research on the issues of constitution.However,it seems that the constitutional effect and related issues have not received due attention.In the constitutional field,the validity of the constitution has been regarded as the constitutional function and the constitutional function by scholars for a long time.Because the constitution has the significance of "conceptual necessity"for the existence of the legal system,the study of the validity of the constitution is not only the perfection of the validity of the law,but also relates to the overall understanding of the law.This requires the jurisprudence field to find a suitable theoretical field and use a scientific and reasonable research method to carry out the research on constitutional validity.This paper discusses this problem,and selects positivism jurisprudence as the ideal theoretical field in the comparison and analysis of various theories,and explores kelson’s basic norms and Hart’s rules of recognition as available theoretical resources.Through the analysis and comparison of the two,the author intends to seek the possibility of supporting the constitutional validity with positivism theory.The structure of this paper is as follows:The first part is the first chapter,which mainly introduces the definition of constitutional effectiveness and the study of the formal origin and substantive origin of constitutional effectiveness in the constitutional academic circle,and leads to the question throughout the whole text,whether the answer to the question of constitutional effectiveness can be found from the perspective of jurisprudence,which theory can most effectively undertake this task.The second part is the second chapter,the main content is a brief introduction of Kelson’s pure law theory and focuses on its theoretical core--basic norms,including its basic content and philosophical basis.By analyzing its rationality and deficiency,the author points out that it is difficult to solve the problem of constitutional validity effectively.Th ird part is chapter 3,the main part of this paper is to mainly introduce hart admitted rule theory,and the genetic relationship of constitution,recognition rules of interpretation of the source of effectiveness and acknowledged rules of rituals to and development of the part such as writing,inside the positivism,inclusive positivism in dominant position within the effect problem of constitution.Finally,the paper discusses the theoretical dilemma of recognition rules after the habitualism turns,In the fourth chapter,the author points out that due to the particularity of constitutional nature and the inherent theoretical logic of legal positivism,it is difficult for positivism constitutional law to provide a reasonable solution for the basis of constitutional validity.A more comprehensive approach to constitutional validity may be needed.Luhmann’s theory of autopoietic social system gives us hope.