순수법학에 있어서 법과학의 개념
Kelsen On the Science of Law
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H. Kelsen, the representative theorist of contemporary legal positivism, uses as his fundamental premises notions that are not easily comprehensible to those trained in the British legal positivism. Perhaps the most notorious of such notions for indefiniteness would be “basic norm”. Paradoxically, due to such notoriety, it is fair to say that there has been much research on the basic norm. On the other hand, there is relatively little research on “norm”, “science of law”, and “normativity”. Among such, especially the study on “science of law” is almost nonexistent. In pure theory of law, however, science of law is one of the core concepts. This is because science of law is an important theoretical device that allows pure theory of law to secure that “purity”. Therefore, this essay intends to explain the concept of “science of law”. As the result, the conclusion was drawn that the explanations by Kelsen on the science of law had the following problems. First, if the matter is strictly distinguishable by the dichotomy of ‘is’ and ‘ought’ and irreconcilable, there is the problem of how to explain the fact that human activities can be explained either by causality or imputation. Second, the claim that the science of law must define the legal concepts based only on legal norms also appears problematic. Third, in the process where the science of law represents the law, the claim that the law must be represented in the form of “given condition C, compulsory act A must be executed” is wrong.
Abstract
H. Kelsen, the representative theorist of contemporary legal positivism, uses as his fundamental premises notions that are not easily comprehensible to those trained in the British legal positivism. Perhaps the most notorious of such notions for indefiniteness would be “basic norm”. Paradoxically, due to such notoriety, it is fair to say that there has been much research on the basic norm. On the other hand, there is relatively little research on “norm”, “science of law”, and “normativity”. Among such, especially the study on “science of law” is almost nonexistent. In pure theory of law, however, science of law is one of the core concepts. This is because science of law is an important theoretical device that allows pure theory of law to secure that “purity”. Therefore, this essay intends to explain the concept of “science of law”. As the result, the conclusion was drawn that the explanations by Kelsen on the science of law had the following problems. First, if the matter is strictly distinguishable by the dichotomy of ‘is’ and ‘ought’ and irreconcilable, there is the problem of how to explain the fact that human activities can be explained either by causality or imputation. Second, the claim that the science of law must define the legal concepts based only on legal norms also appears problematic. Third, in the process where the science of law represents the law, the claim that the law must be represented in the form of “given condition C, compulsory act A must be executed” is wrong.
참고문헌 (24)
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