현상학적 법 이론의 의의와 방법 ― 에드문트 후설과 게하르트 후설의 현상학을 중심으로 ―

Abstract

It is not a bloated exaggeration to say that 20th century’s thought lives under the influence of Edmund Husserl’s phenomenology. Husserl’s powerful argument to return to the Sachen selbst, not to work with abstract theories and void metaphysics, has ignited various types of phenomenological philosophizing as we can see in those big names like Scheler, Heidegger, Merleau-Ponty, etc. No doubt, phenomenology had influence on legal theories and now we have it as ‘phenomenological theory of law’. We can think of Adolf Reinach as the first legal phenomenologist. However, his phenomenological theory of law is considered to be a theory of ontological phenomenology inspired by Husserl’s Logical Investigations and, as Husserl himself acknowledges his early ontological phenomenology as untenable and takes a transcendental turn, phenomenological theory of law should also be a transcendental-philosophical one, not ontological. And Gerhart Husserl takes up the task of developing a transcendentalphenomenological theory of law following his father Edmund Husserl. Phenomenological theory of law can be distinguished, first of all, from the theory of natural rights. Theory of natural rights tends to work with unexamined, dogmatic concepts such as ‘human nature’, ‘human essence’, etc. Classical examples of theory of natural rights could be the legal theories of Hobbes, Locke and Rousseau. They set up a dogmatic hypothesis of the ‘state of nature’ and try to draw some legal legitimacy(Geltung) out of it in a way or another. Therefore, depending on different shapes of their dogmatic hypothesis, they come to draw totally different kinds of legal legitimacy. Phenomenological theory of law, on the other hand, does not presuppose a hypothesis for its research but tries to get at the pre-given phenomena, i. e. Sachen selbst of law. Transcendental-phenomenological reduction is the methodological way into the Sachen selbst of law. We literally ‘reduce’ the existence of the world and obtain the world as a cluster of mere ‘phenomena’ incessantly constituted by our own transcendental consciousness. Then, we come to see that basically two domains of the world are constituted before us, the world of material reality and that of personal/cultural reality. And the immediately pre-given, fundamental phenomenon (Sachen selbst) of law is none other than the ‘phenomenal’ world of personal/cultural reality in which the phenomena of possession interlock, intertwine and interweave in struggle. Finally, in contradistinction to theory of natural rights that seeks the ground of law somewhere outside of law itself, we can presume that phenomenological theory of law tends towards legal positivism in the sense that it tries to find out the ground of law within the law itself. However, we leave this as an open question for a future legal-philosophical research.