Apprehending Kelsen

The principal part of the paper is analyses to the school resource andworth an object of the Pure Legal Theory of the Kelsen. The core theory ofthe author is try to make clear the Transcendental Philosophy ofNeo-Kantianism and the methodology principle of sociology of Max Weberthese two section that pierce through the pure legal theory, then state theimplicated pursuance to the liberty of human.The paper is including introduction, text, conclusion three parts. Thepaper is composed of five parts, in the first part, it introduce the intellectualbiography of kelsen and his background of theory; in the second part, itdiscourse the core categories of his theory; in the third part, it mainlydiscuss the application of transcendental argument of neo-Kantianism to thebasic norm and the influence of the methodology principle of Max Weber tothe legal methodology of kelsen; in the fourth part, it discuss the impact thatthe pure legal theory to the new analytical jurisprudence; in the fifth part, itdiscuss the significance of the pure legal theory.The introduction point out the intention of author, introduce theactuality of study on kelsen, it make clear the purpose of author that makethe people learn the great contribution of pure legal theory througheliminating the misunderstand to kelsen.The text presents the pure legal theory of kelsen objectively andanalyses the source of this theory by way of description and analysis. Fivepart of text as follows:The part A is main to regard recommending as the lord, in the sectionof kelsen's intellectual biography, the author described the influence ofspecific history and civilization tradition of Vienna to kelsen, and point out,he is not only a careful scholar but also a active policeman. Subsequently,the author hands over the substitution to the main school background of thekelsen.The part B, the author recommends the main categories of pure legaltheory, basic norm, validity chain, validity and effectiveness, state theory.The basic norm is the core of pure legal theory, also a concept that generatesthe most disputes between scholars. The validity of norms of a law systemrequires a final validity source, and then can give law sense to the practiceaction; the basic norm is the final validity source in a law system. Thevalidity chain is in order to illustrating that exit variant validity rank in adynamic law system; the low class is a regulatory authority in dependent onhigh rank, but the highest rank belongs to the basic norm. Validity andeffectiveness present the relation between social truth "is"andnormalization truth "should"; validity depend on the guarantee ofeffectiveness, effectiveness depend on the validity to obtain its norm sense.The state theory is the extension of pure legal theory, kelsen insistedopposing the division that between law and state, he considers that law andstate is an integral whole, is monistic whole. The part C is the core of this paper, mainly discuss the source of thepure legal theory. From the author's view, the transcendental philosophy ofneo-Kantianism and methodology principle of sociology of Max Weber istwo main pillar of the pure legal theory. (1) The transcendental philosophyof neo-Kantianism was used to demonstrate the rationality of basic normand dynamic norm system that come from basic norm. Supposing a basicnorm as the premises of thinking is the tradition of investigation of legalphilosophy, kelsen follow this tradition but not accept its inherence meaning.Kantian's natural law theory regard moral as the source of substantial law,but kelsen oppose this viewpoint utmost. But he can't analyses the matterfrom another viewpoint—social fact, because empirico-postivism not apt tosolve the legal problem, the researching object of jurisprudence is "should",not "is", thus, kelsen select a "middle way"——the "progressive vision"oftranscendental argument of neo-Kantianism, induce a normal premises(basicnorm), as the foundation of theory. (2) The methodology principle ofsociology of Max Weber provides the polestar to the legal research of kelsen.Value neutrality and legal independency is the basic principle of legalresearch of kelsen, these two principle is peculiar research style of kelsen.These two principle is beneficial to critic the traditional theory of law. Thereare historical determinism and historical expressionism in the traditionallegal positivism of Germany, the theory consider the law is same as thepower, but kelsen considered it would weaken the critic to thepositivism ,if regard the law as the expression of specific faith of politicsand society, as the result of historical destiny. Thus, kelsen aim at the statusthat traditional theory is short of precise methodology and objectivity,establish the principle of value neutrality and legal independency, analysesthe legal science in accurate and in standard by way of guidance of this twoprinciple. In the researching framework of Max Weber, the basic norm areendowed another meaning——analytical tool, at this time, kelsen don'tconsider the basic norm is a category of thinking, but consider it is a dummy...