The Nature of Legal Knowledge ofHans Kelsen`s Pure Theory of Law

• Main Authors: Yi-Wei Chuo, 卓翊維
• Other Authors: Chueh-An Yen
• Format: Others
• Language: zh-TW
• Published: 2009
• Online Access: http://ndltd.ncl.edu.tw/handle/93628047111603033246

碩士 === 國立臺灣大學 === 法律學研究所 === 97 === Hans Kelsen published The Pure Theory of Law first edition in 1930.He didn’t renew the content of this publication until 1960 he wrote the second edition of The Pure Theory of Law. In the first edition he reconstructed the norms as the “hypothetic judgment”, in which the specified legal condition are connected to the legal consequence by function of imputation. The “hypothetic judgment” doesn’t refer to any moral value and ideology. In the first edition, however, he didn’t make the differentiation between the norm and the norm statement. That results in the nature of legal knowledge of pure theory of law hardly to be clarified. In the second edition, Kelsen has made the differentiation between the norm and the norm statement. He interpreted the norm as the meaning of the act of will, which is toward other people’s act. The norm statement is the description of the norm, its function is different from the norm. The task of the pure theory is to provide the transcend presumption of the norm cognition and to describe the being of the norm. Eventually, Kelsen’s pure theory is a research directed to the “normativity”, which is different from the legal positivism. He not only support the separation of legal and moral, but also the separation of legal and facts. The task of jurisprudence is describe the meaning of norm posited by human will. The function of it lies in the exploitation how human being attain the cognition of norm with reason. Kelsen tell us that there is different way and form to know the ought norm. In order to understand the ought, we must presuppose the basic norm.