법철학자의 관점에서 바라본 비교법 방법론: ‘비교되는 법’의 중층성 및 복합성과 관련하여

Abstract

What is the role of legal philosophy for investigating the methodological foundations of comparative law(Rechtsvergleichung)? Usually, legal philosophers have shown little interest in the study of foreign legal system, that is, comparative law. Traditionally, comparative lawyers have no attention to legal philosophy. In this essay I will try to combine these two subjects and argue that comparative activities are not only empirical work, but also philosophical (especially hermeneutische Prozesse). My aim is to demonstrate a possibility of comparative jurisprudence. In response to the imperatives of a global economy, comparative law undergoes a renaissance. In the sphere of comparative law, there are two methodological approaches: the contextualist and the textualist approach. On the first approach, one studies a foreign legal system in its socioeconomic and political context. On the second approach, one studies law as legal rules and positive legal norms. The contextualist approach has some affinity with functionalist methodology. In the field of comparative law, functionalism evokes the thesis that law is the function of society’s needs. But contemporary criticism of functional method stress the complexity of law when comparing laws. I will argue that these complexity of legal phenomena can be analysed and compared in the light of the background principles and institutions, which comprise the legal formants.