법시학적 제안으로서 법의 본질론

Abstract

This article uses poetic thinking to read discussions surrounding the nature of law discussed in the modern legal philosophy. This article re-reads the implicit status of natural law as the relationship between praxis versus poiesis, form versus content, and power versus right. In particular, according to Aristotle’s great discovery that natural legal thinking is the source of human potential capabilities, that is, “thought,” I would like to explain the relationship between positive law and natural law in terms of the relationship between energeia and dynamis of law. The author borrows the relationship between Plato’s banishment of poetry and Aristotle’s Poetics, which originated in ancient Greek thought, to clarify the nature of law beyond the meaning of political confrontation between literature and philosophy. Aristotle says in Poetics that poetry is more philosophical than history. Aristotle gives the poet the status within the polis to the poet Plato wanted to expel by giving him the philosophical status of “the status of reason and plot.” Regarding the nature of law, the relationship between law and morality, which is still discussed in modern legal philosophy, and the relationship between “what law is” and “what law ought to be,” is examined by mapping the relationship between poets and philosophers. The author’s legal poetical approach proves the value to be implicit (and potential) in legal order through the composition of reason and plot. Therefore, like the poet’s task, lawyers think that the law has a natural character, a fictional character, and plays a practical role. The author believes that the status of natural law implicit in the actual law depends on the capabilities of legislators and judges as a poet (poiêtês), and like poetry, the law is also meaningful as a fictional activity called plot, mimesis, and catharsis. This article presents two dimensions of praxis. The duty of a judge to avoid legal illegality means not only the form of Antigone-like active resistance, but also, in terms of im-potentia (inoperasità). G. Radbruch should have considered im-potentia to avoid “legal illegality and beyond law”. Criticism of Radbruch was raised by L. Fuller and H.L.A. Hart. This article reinterprets Fuller and Hart’s argument from a legal poetics, points out the limitations of J. Finnis’ natural law, examines the aspects of R. Dworkin’s narrative natural law. In particular, introducing the novel “Where Are You Adam” by Heinrich Böl and Victor E. Frankel’s “In the Prison of Death” (1946), I reflect on the status of natural law for praxis pursued by Eun-jung Park as the restoration of humanity