사법(司法) 대 입법(立法)－벤담의 “Pannomion(완전한 법체계)”에 대한 연구－
‘Adjudication’ versus ‘Legislation’ -Under J. Bentham’s ‘Pannomion’-
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The aim of this study is to arrange and situate Bentham’s ‘Pannomion’,to trace the theory of legislation by Bentham and thereby to propose(or gain)some useful perspective of the meaning of the principle of legislation. To perceive, at least access to the Bentham’s evaluation of legal and legislative theory, it is in its nature necessary to understand and conceptualize the line of Bentham’s theory of utilitarianism and ‘Pannomion’. The line of Bentham’s thought, based on ‘utility’, goes in phases further,critique of Common Law-rule(or law) in general-jurisprudence(analytical legal theory)-court and judicial process-legal reform and legislation (legislation and adjudication)-‘Pannomion’(‘Complete Code of Laws’). Bentham’s particular distaste for Common Law system and natural rights was a starting point of Bentham’s theory of legislation which inspired his earliest works. Bentham, in his lifelong academic writings, attacked both the practice and the theory of common law, so much as he tried to constitute a alternative entire system of law and legislation. Bentham argued it is impossible to have rights without a government or without law. Ultimately, maybe Bentham attempted to lay the foundation for the plan of the complete body of laws, ‘Pannomion’, supposing it to be constructed aborigine, according to a method of division grounded on natural and universal principles. Bentham proposed the analysis of the ‘idea of a complete law’ by identifying two qualities, ‘integrality’ and ‘unity’ which laid together established the individuality of law. To fix the individuality of a law was to ascertain what a portion of legislative matter must amount to in order on the one hand not to contain less, on the other hand not to contain more than whole law. And in the formation of such a work the sole proper all-comprehensive end should be the greatest happiness of the whole community governors and governed together, the greatest happiness principle should be the fundamental principle.
Abstract
The aim of this study is to arrange and situate Bentham’s ‘Pannomion’,to trace the theory of legislation by Bentham and thereby to propose(or gain)some useful perspective of the meaning of the principle of legislation. To perceive, at least access to the Bentham’s evaluation of legal and legislative theory, it is in its nature necessary to understand and conceptualize the line of Bentham’s theory of utilitarianism and ‘Pannomion’. The line of Bentham’s thought, based on ‘utility’, goes in phases further,critique of Common Law-rule(or law) in general-jurisprudence(analytical legal theory)-court and judicial process-legal reform and legislation (legislation and adjudication)-‘Pannomion’(‘Complete Code of Laws’). Bentham’s particular distaste for Common Law system and natural rights was a starting point of Bentham’s theory of legislation which inspired his earliest works. Bentham, in his lifelong academic writings, attacked both the practice and the theory of common law, so much as he tried to constitute a alternative entire system of law and legislation. Bentham argued it is impossible to have rights without a government or without law. Ultimately, maybe Bentham attempted to lay the foundation for the plan of the complete body of laws, ‘Pannomion’, supposing it to be constructed aborigine, according to a method of division grounded on natural and universal principles. Bentham proposed the analysis of the ‘idea of a complete law’ by identifying two qualities, ‘integrality’ and ‘unity’ which laid together established the individuality of law. To fix the individuality of a law was to ascertain what a portion of legislative matter must amount to in order on the one hand not to contain less, on the other hand not to contain more than whole law. And in the formation of such a work the sole proper all-comprehensive end should be the greatest happiness of the whole community governors and governed together, the greatest happiness principle should be the fundamental principle.
참고문헌 (25)
- David Liberman, "The Province of Legislation Determined-Legal theory in eighteenth-century Britain" (1989), Cambridge University Press
- J. Bentham, "Truth versus Ashhurst"
- J. Bentham, "The Works of Jeremy Bentham, published under the superintendence of John Bowring" (1843), William Tait, Simpkin, Marshall
- J. Bentham, "Theory of Legislation, 2 volumes, In 1864: Anarchical Fallacies; Being an Examination of the Declarations of Rights Issued During the French Revolution", Kegan Paul, Trench, Trubner
- J. Bentham, "The Limits of Jurisprudence Defined" (1945), Columbia U. Press
- J. Bentham, "A Comment on the Commentaries and A Fragment on Government" (1977), Athlone Press
- J. Bentham, "Of Laws in General, In 1970; Constitutional Code, Vol. I" (1983), Clarendon Press
- J. Bentham, "An Introduction to the Principles of Morals and Legislation, In 1970: Reprinted in paperback with new introduction" (1996), Clarendon Press
- J. Bentham, "Legislator of the World: Writings on Codification, Law, and Education" (1998), Clarendon Press
- J. Bentham, "Rights, Representation, and Reform - Nonsense Upon Stilts and Other Writings On The French Revolution, In Catherine Pease-Watkin and Cyprian Blamires" (1998), Clarendon Press
- J. Bentham, "Anarchial Fallacies in Jeremy Bentham, Selected Writings on Utilitarianism - On Utilitarianism and Government", Wordsworth Classics of World Literature
- J. Bentham, "Scotch Reform; Considered With Reference to the Plan Proposed In the Late Parliament, For the Regulation of the Courts and the Administration of Justice In Scotland: With Illustrations From English Non-reform: In the Course of Which, Divers Imperfectio", ~
- J. Bentham, "The Correspondence of Jeremy Bentham: Volume 8: January 1809 to December 1816" (1988)
- J. Bentham, "Pannomial Fragment" (2004), London Kessinger Publishing
- Gerald J. Postema, "Bentham and the Common Law Tradition" (1986), Oxford University Press
- H. L. A. Hart, "Essays on Bentham: Jurisprudence and Political Theory" (1982)
- John Dinwiddy, "Bentham - Selected Writings of John Dinwiddy" (2004), Stanford University Press
- Sir William Blackstone, "Commentaries on the Laws of England", Oxford University Press
- W. Twining, "Globalisation and Legal Theory" (2000), Cambridge University Press
- 이상영, "벤담의 법개념과 입법론에 대한 소고", 세계헌법연구, 13(2), pp.117~148 (2007), 세계헌법학회한국학회
- 이상영, "벤담의 Common Law 체계에 대한 비판과 입법론 구상에 대한 연구", 서울대학교 법학, 49(3), pp.1~39 (2008), 법학연구소
- 이상영, "공리주의 대 자연권 - 프랑스 혁명과 자연권에 대한 벤담의 평가", 세계헌법연구, 16(2), pp.295~334 (2010), 세계헌법학회한국학회
- J. R. Dinwiddy, "Bentham and the Early Nineteenth Centry, In The Bentham Newsletter", ~ (1992)
- M. Kaino, "Bentham’s Concept of Security in a Global Context: The Pannomion and the Public Opinion Tribunal as a Universal Plan", Journal of Bentham Studies, 10 (2008), UCL Bentham Project
- Philip Schofield, "Jeremy Bentham: Legislator of The World, In Current Legal Problems" (2000), Oxford University Press