실정법철학의 가능성과 방법: 민법학을 예로 하여

Abstract

Recently, voices are heard everywhere that basic law is in crisis. In particular, it is convincingly argued that basic law may be in crisis because the next generation of academics in basic law will not grow properly. A great crisis can be found across all academic disciplines and across the university. The following aspects also contributed to the crisis of law. Side effects appear as the law school system is operated differently from the original goal in South Korea. The most striking reality among these is that law education at law schools is subordinated to the bar exam. As the bar exam is strongly oriented toward practical ability, the negative effects of law education at law schools are emerging. As a result, basic law, including the philosophy of law, was excluded from the bar exam subjects, and the philosophy of law is rapidly losing power in the law school system. In this crisis situation, how to restore the academic status of the philosophy of law is urgently discussed. Several approaches can be considered for this. This article proposes a new approach to the philosophy of law as one of them. Unlike the traditional philosophy of law, which approaches law based on philosophy, the new approach seeks a philosophy of law that is more friendly to positive law or precedent. As an example, this article refers to the ‘positive law philosophy’. Here, positive law philosophy can be defined as a sub-division of legal philosophy that explores the philosophy of law with positive law as the starting point. Positive law philosophy can be understood as a field of legal philosophy that examines the basic concepts, systems, and principles that positive law studies are based on. This article explores how positive law philosophy can be made possible by taking the discussion made in civil law as an example. In particular, the possibility of positive law philosophy is explored by analyzing the basic principles of civil law developed by civil law scholar professor Kwon, Youngjoon. Among them, this article examines what kind of argument the positive law philosophy uses through the question of whether the right to claim for injunction can be recognized in torts. Through this, one way to overcome the current crisis of the philosophy of law is explored.