自由法論의 형성과 전개과정

Abstract

In this article, a preliminary study on modern legal-methodological thoughts that the author plans to embark in the near future, he describes the origin and subsequent development of free law movement(Freirechtsbewegung in German), which took place in german legal scholarship in the early decades of the 20th century. He also examines the main ideas of major figures in the movement, including Hermann Kantorowicz, Ernst Fuchs, and Eugen Ehrlich. In this article the movement is observed to criticize Begriffsjurisprudenz because it asserted that the legislation(the german civil code) had no legal gaps, and that even in handling complicated cases, the judges could manage to make decisions by employing legal concepts to be productively applied in the legal system. The movement rejected the idea of self-(re)production of legal concepts and proposed so-called free law as a means of fulfilling legal gaps, which was a living law that was being formed from and in the social lives themselves. It would not even rely on analogy because it was a way of expanding the ambit of legislation. The scholars in the movement dared to regard free law as a kind of natural law in a sense that it had never been enacted by any state authorities. They were also interested in disclosing voluntary elements in the judicial decision making that Begriffsjurisprudenz looked upon as an automatic calculation insulated from the judge’s intuitive insights. The author finds that the movement was awkwardly misunderstood to emphasize discretion or even arbitrariness of the judges without any constraints provided by the legal system. And this misunderstanding was aggravated by their own slogan Richterkönig, that is, judge as a king. What they wanted was to reveal and apply new rules which reflected the regulatory principles formed from the cases themselves.