하트 법이론의 철학적 의의에 대한 비판적 고찰

Abstract

The legal theory of H. L. A. Hart has been appreciated as a successful one that introduces contemporary linguistic philosophy into jurisprudence. The author points out its main features as follows: firstly Hart’s theory deploys as its methodological tool contemporary analytical philosophy, especially that of later Wittgenstein and Oxford ordinary language philosophy and Peter Winch’s descriptive hermeneutical sociology. Secondly it sheds light on unsatisfactory implication of traditional ways of defining legal terms and concepts, and highlights significance of understanding or elucidation of the terms used in jurisprudence. And thirdly it elucidates the central meaning of rules for understanding law, and recognizes the open texture of language. There have been many criticisms on each of these aspects of Hart’s theory. The author scrutinizes those criticisms, and finds that the criticisms have their own right, but that they have little implication on the validity of Hart’s theory. The author asserts that Hart’s theory should be understood as a product of a descriptive sociological enterprise rather than that of ordinary language approach. And if we are ready to understand his theory by way of principle of charity in Davidson’s and Quine’s sense, asserts the author, we can find the meaning of his theory in that way.