하트의 법개념 비판

Abstract

In The Concept of Law, Hart maintains that law is similar to morals and different from commands in their nature and structure, and that there is no necessary connection between law and morals. Though his book is praise-worth and known as a book reviving the 20th century legal philosophy, I can't but take the very opposite side against him. I believe law should be understood in terms of rules imposing sanctions rather than rules of behavior along with Austin, Holmes, Kelsen and so on. Thus, I propose that law should be different from morals in its nature. Law should be understood as rules backed by sanction, whereas morals are rules of behavior. And though Hart argues against natural law theories on two grounds, I believe the grounds that he claims rather support them rather than oppose them. In the book, Hart emphasizes internal aspect as the key character of rules. He says that rules have internal aspect, but he does not clarify the question on whether all rules or some rules have it. His position must be the latter, for he is a Wittgensteinian and maintains that general classifying terms have open texture. If so, why doesn't he argue the important issue clearly? I believe that he does not want to state his position clearly because it will weaken the coherence of his theory. He distinguishes rules from habits by internal aspect; contrary to rules, habits do not have internal aspects. Internal aspects are regarded as the most important character of rules, too. Though Hart has provided an alternative theory of understanding law against John Austin in the tradition of Anglo-American legal philosophy, I believe the Austinian theory illuminates the essence of law better than the Hartian. I hope that Korean legal philosophical circle will discuss the merits and demerits of Hart's concept of law seriously.