The Study Of Kelsen's Norm Theory

As a consistent basic standpoint of pure theory of law, Hume's law refers to an insurmountable gap that exist between "moral" and "reality", which cannot be deduced from each other.Based on this standpoint,regardless of the legal theory of dynamic or static, "norm", as the research object of pure theory of law, can only be reasoning or created by the same as "moral" of "norm" through the application of the logic or the connection of the validity, rather than as a "reality" of "is" or "effect". Under pure theory of law, therefore, from "norm" to "norm" includes two relations, One is creation and application between the norms, it is embodiment of the "dynamic" of "dynamic normative system"; The other is logical deduction between norms, which refers to the theory of "normative logic". The relations, which lead by Hume's law, directly affects the foundation of the pure theory of law.Pure theory of law, according to the change of its philosophical stance, especially the theory of Neo-Kantianism and will, can be divided into three phases. In the previous two phases, the two relations coexist in this theory, but in the third stage, the situation has changed, Kelsen systematically discuss the matter of "normative logic" in his unfinished work, which is being named of General Theory of Norms. He draw a final conclusion, there does not exist a special normative logic, and logical principles cannot apply to norm.Kelsen denies the existence of the "normative logic", so the dynamic creation and application between norms become the only viable relations to connect "norm" with "norm" under pure theory of law. This conclusion means that "moral" and "reality" are completely separate, it strengthen the theory of consistency and highlighting the unity of normative order. However, this conclusion has also led Kelsen's theory abandon the initial objectives and wave the standpoint of two opposition, even whether this theory can be still worthy of the the name of the "pure" should be marked with a huge question mark. The theory of the third phase makes pure theory of law stuck in a dilemma, and the way to solute it is to abandon the theory of the third stage, then based on the second edition of the Pure Theory of Law, followed the idea of "Deontic Logic", which be built by Von Wright, and prove the existence of the "normative logic" from the perspective of "axiomatic system".The article consists of four parts:The first part describes the background of the Pure Theory of Law in relation to the two relations issues. Firstly, introducing the basic stance and philosophical standpoint of Kelsen's theory and combing the philosophical context hidden in the different views of three phase. Secondly, according to the development of theory of three stages to analyze the concept of "norm". Finally, explain the division of "dynamic" and "static", which leads to the two relations.The second part, according to the "dynamic normative system" to analyze the first relation.This part firstly describes the architecture of "dynamic normative system", and then discuss the meaning and the initiative of relationship between four different levels of norms, which be included in this system, namely the basic norm, constitution, general norm, the individual norm.The third part, "normative logic". Firstly, this article propose Kelsen why attaches great importance to the this issue, and then describe the changes of author's attitudes about whether logic can be applied to "norm" in three phases.The fourth part, discusses the dilemma of the single relation and it's outlet. Firstly, interrogate Hume Law this basic position, and explain that their denial does not affect the foundation of the Pure Theory of Law. Secondly, interpret the dilemma in which a single path makes pure theory of law stuck, and analysis the reason and find the outlet. Finally, put forward the idea of axiom system from three aspects: concept, judgment, reasoning.