A Study On The Identity Of Kelsen Law And The State

Hans Kelsen is a famous jurist in the 20th century,a representative of legal positivism,and one of the most imaginative and original jurists in the 20 th century.His two editions of pure law theory have a very high academic status in the field of legal theory,which contains rich theoretical ideas and still have great research value.Compared with pure law theory,Kelsen’s theory of law and the state identity,which is an integral part of pure law theory,lacks in-depth research.This paper focuses on the interpretation of Kelsen’s theory of law and the state identity,and puts forward two criticisms on the same theory.First,the author introduces Kelsen’s pure law theory.As an organic part of pure law theory,Kelsen’s theory of law and state identity cannot be understood without understanding the pure law theory.The philosophical position and basic content of pure law theory constitute the theoretical background of studying the theory of Kelsen law and state identity.Second,Kelsen’s theory of the identity of law and state demonstrates each other from two aspects.In the first aspect,Kelsen’s theory of identity is gradually formed in the demonstration of Jelinek,the representative of the dualism of law and state,and sied,the representative of the realistic view of state.Kelsen criticizes the state theory of these two figures and believes that the concept of state independent of the concept of law does not exist.In the second aspect,Kelsen positively discusses the basic content of the theory of the identity of law and state,and Kelsen’s key argument is: by attributing the behavior of people who meet the specific legal norms to the state,he comes to the conclusion that the state is the legal order.This does not mean that the legal norms of the state and the person are independent.On the contrary,Kelsen believes that not only the state is fictitious,but also the legal person(natural person,legal person)is a kind of legal fiction.Kelsen claims that the essence of the state is the normative meaning,that is,the relationship of rights and obligations between people.It is meaningless to personify these rights and obligations,which is a false abstract entity.Kelsen opposes this kind of abstract entity.Third,this paper puts forward two criticisms on Kelsen’s theory of identity.First,there is a loss of inference in Kelsen’s theory of identity of law and state.As a legal order,state brings two arguments: first,all acts of state are legal acts.The second argument is that all legal acts are acts of state,which is obviously unreasonable.Secondly,there is a loss of purity in the theory of identity.The biggest characteristic of Kelsen’s theory is the unique purity,but too much pursuit of purity makes Kelsen cling to the content of legal norms,and keep a distance from the factors beyond the content of legal norms.This will lead to its theory can not solve the problems of some modern countries.These problems can be easily solved by factors other than the norms.For example,Hart’s recognition rule is the biggest supplement to Kelsen’s theory of law and state identity.