최근 법실증주의의 전개와 자연법론과의 관계
Recent Development of Legal Positivism and Its Relation to Natural Law Theory
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The paper explores the recent development of legal positivism (hereinafter referred as LP) of Anglo-American legal philosophy, and its relation to natural law theory (hereinafter referred as NLT). I identified three notions of legal philosophers which give major influences on the development of LP and its relation to NLP. They are Hart’s rule of recognition, Dworkin’s law as interpretive concept, and Finnis’ reinterpretation of the classical natural law tradition. The first brought about the internal differentiation within LP circles, the second the modification of its main tenets, and the third suggested a new criterion in distinguishing between LP and NLT. It is known that the main tenets of LP and NLT have focused on the ontological status of law, but I believe that the conflicts between them have weakened since Hart asserted the denial of the obligation to observe evil laws. Some positivists assert that judges should interpret law without recourse to morality, but others maintain that LP has not favored any particular methods of interpretation. I expect that this epistemological issue of LP should be illuminated. I agree that LP is not the object of blame and reproach, and should be construed as an adequate and acceptable theory of law rival to NLT. However, it is hard to describe LP because I think LP has not been yet in a full shape. I hope that positivists engage in making LP more complete actively.
Abstract
The paper explores the recent development of legal positivism (hereinafter referred as LP) of Anglo-American legal philosophy, and its relation to natural law theory (hereinafter referred as NLT). I identified three notions of legal philosophers which give major influences on the development of LP and its relation to NLP. They are Hart’s rule of recognition, Dworkin’s law as interpretive concept, and Finnis’ reinterpretation of the classical natural law tradition. The first brought about the internal differentiation within LP circles, the second the modification of its main tenets, and the third suggested a new criterion in distinguishing between LP and NLT. It is known that the main tenets of LP and NLT have focused on the ontological status of law, but I believe that the conflicts between them have weakened since Hart asserted the denial of the obligation to observe evil laws. Some positivists assert that judges should interpret law without recourse to morality, but others maintain that LP has not favored any particular methods of interpretation. I expect that this epistemological issue of LP should be illuminated. I agree that LP is not the object of blame and reproach, and should be construed as an adequate and acceptable theory of law rival to NLT. However, it is hard to describe LP because I think LP has not been yet in a full shape. I hope that positivists engage in making LP more complete actively.
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