분석적 법리학의 의의와 한계
The Significance and Limitations of Analytic Jurisprudence
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Analytic jurisprudence can be understood as an application of the ideal of conceptual analysis as pursued by contemporary analytic philosophy into legal theory. The ideal represents the belief that conceptual analysis would reveal the a priori and universal features of law. According to this belief, conceptual analysis is value-neutral and autonomous since it relies upon the first-person intuitions of the analyst herself. Another way of seeing analytic jurisprudence is to see it in its own history, i.e, the history from Austin, via Hart, to Raz and Coleman. Their analytic jurisprudence involved the ideal of conceptual analysis as its common and essential element. Hart' legal theory, in particular, opened a new horizon of legal philosophy---analytic jurisprudence. At the same time, however, such an inquiry lost its rich content and a variety of approaches it had been proud of. The inquiry has become that of a sort of “exclusion” and “subtraction.” Of course, these limitations leveled against analytic jurisprudence would not go for the entire members of it. This is because, as suggested above, insofar as Hart's analytic jurisprudence is concerned, it deserves to be 'non-analytic' in that it is anti-essentialist, hermeneutic and constructive in a sense. Therefore, if assuming that there is no room for such disagreement, the main history since Hart can be summarized as an attempt to share the limitations of analytic jurisprudence stated above, on the one hand, and challenge and offer an alternative to it, on the other.
Abstract
Analytic jurisprudence can be understood as an application of the ideal of conceptual analysis as pursued by contemporary analytic philosophy into legal theory. The ideal represents the belief that conceptual analysis would reveal the a priori and universal features of law. According to this belief, conceptual analysis is value-neutral and autonomous since it relies upon the first-person intuitions of the analyst herself. Another way of seeing analytic jurisprudence is to see it in its own history, i.e, the history from Austin, via Hart, to Raz and Coleman. Their analytic jurisprudence involved the ideal of conceptual analysis as its common and essential element. Hart' legal theory, in particular, opened a new horizon of legal philosophy---analytic jurisprudence. At the same time, however, such an inquiry lost its rich content and a variety of approaches it had been proud of. The inquiry has become that of a sort of “exclusion” and “subtraction.” Of course, these limitations leveled against analytic jurisprudence would not go for the entire members of it. This is because, as suggested above, insofar as Hart's analytic jurisprudence is concerned, it deserves to be 'non-analytic' in that it is anti-essentialist, hermeneutic and constructive in a sense. Therefore, if assuming that there is no room for such disagreement, the main history since Hart can be summarized as an attempt to share the limitations of analytic jurisprudence stated above, on the one hand, and challenge and offer an alternative to it, on the other.
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