법규칙과 법원리를 질적으로 구별할 가능성에 대한 비판적 고찰

Abstract

A legal system consists of different kinds of norms. Exponents of the Non-positivistic theory of legal principles give salience to the distinction between legal rules and legal principles. They assert that (i) legal rules and legal principles are logically different, (ii) those background-norms which determine the validity and content of legal rules are legal principles even though they do not have social sources or convention, and (iii) legal principles eliminate or curtail the judicial discretion. As the criteria of the logical distinction between legal rules and legal principles, the Non-positivistic theory of legal principles suggests (i) whether a norm determines or just directs a legal decision, (ii) whether a norm turns out invalid or just yields to another norm when a norm-conflict happens, (iii) whether a norm is definite in its content or an ideal ought which claims to be maximally realised both factually and normatively. Those differences reveal themselves in the process of application or interpretation of norms. However, because (i) there may be neither a norm without being a concretization of a value, nor a value without any definite content, (ii) substantial interaction may happen between legal rules and legal principles, (iii) if being a background reason in the process of interpretation of the validity and content of a legal norm, not the indeterminacy of content matters, then the distinction is a matter of empirical tendency not logic, the logical distinction of legal rules and legal principles cannot be maintained. The distinction is a matter of degree, not of logic. And the question whether to recognize a value as such to be a legal norm still remains.