형식적 법체계모델과 실질적 법체계모델
Formal vs. Substantial Modeling of the Legal System
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A system-approach to the law is essential to understand and make a theory on it. We can divide theories or models of the legal system into formal ones and substantial ones. The formal theories of legal system focus on the membership of a norm to a legal system and the modes of inter-relation between formally different modes of legal norms, namely, command, prohibition, permission, empowerment, etc. In contrast with them, substantial theories of legal system place stress on the substantial, not formal, interaction between legal norms. The analytical, normative positivists'(including Kelsen, Hart, and Raz) legal theories can be seen as the formal models of the legal system. On the other hand, the non-positivists' theory based on the legal rule/principle distinction is a substantial theory of the legal system. Alexy and Dworkin are representatives of this position. However, a positivist can also accept the rule/principle distinction and make a sustantial model of the legal system, if he or she is not an exclusive legal positivist who claims that a moral ideal or value cannot be a legal norm even if it has a social source as an enactment, a precedent, or a custom. And the exclusive positivism should be objected, because they ask too much certainty on the law while exaggerating the uncertainty of moral reasoning, and cannot explain appropriately the multi-layered legal system. Each of the approaches-formal and substantial- to the legal system gives attention to the different aspects of it, and are complementary to each other.
Abstract
A system-approach to the law is essential to understand and make a theory on it. We can divide theories or models of the legal system into formal ones and substantial ones. The formal theories of legal system focus on the membership of a norm to a legal system and the modes of inter-relation between formally different modes of legal norms, namely, command, prohibition, permission, empowerment, etc. In contrast with them, substantial theories of legal system place stress on the substantial, not formal, interaction between legal norms. The analytical, normative positivists'(including Kelsen, Hart, and Raz) legal theories can be seen as the formal models of the legal system. On the other hand, the non-positivists' theory based on the legal rule/principle distinction is a substantial theory of the legal system. Alexy and Dworkin are representatives of this position. However, a positivist can also accept the rule/principle distinction and make a sustantial model of the legal system, if he or she is not an exclusive legal positivist who claims that a moral ideal or value cannot be a legal norm even if it has a social source as an enactment, a precedent, or a custom. And the exclusive positivism should be objected, because they ask too much certainty on the law while exaggerating the uncertainty of moral reasoning, and cannot explain appropriately the multi-layered legal system. Each of the approaches-formal and substantial- to the legal system gives attention to the different aspects of it, and are complementary to each other.
참고문헌 (22)
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