법의 한계에 대한 시론(試論)적 고찰
A Study on the Limits of Law
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Law attempts to dominate our whole lives. Some legal philosophers think law has omnipotent power over human behaviors and affairs. The optimistic view contradicts the common knowledge that law can’t meet every need of men and societies. Does law have enough power to regulate all of the members in a society? It leaves room for doubts. Law reaches the limits in the realms of Is(Sein) and Ought-to(Sollen). There is no doubt that law should not violate the individual freedom and rights nowadays. Notwithstanding, law often infringes on individual rights. How far can exercise legally the state power over individual freedom and rights. It is classic question of political philosophy and social philosophy. The normative limits of law i.e. the limits of law in the viewpoint of legitimacy of law relates to the nature of law. If law is considered as a mechanism of protecting individual freedom and rights, the limits of law enter another phase. How far can law protect the individual freedom and rights? It does not focus on the legitimacy, but the effectiveness of law. In this context, the practical limits of law relates to the functions of law. Furthermore, law consists of legal norms. In principle, it only regulates the members of the legal community. The constitutive limit of law relates to the legality of law. In sum, the questions about the limits of law relate to the all kind of validity including effectiveness, legality, and legitimacy of law. So, the discourse on the nature of law’s limits requires the reflections on the nature, functions and validity of law. It is necessary to elucidate an indeterminacy of the meaning of law’s limits in order to discuss types and remedies of law’s limits. The limits of law have three different meaning: practical, normative, and constitutive limit. These meanings cross over each other in some real cases. While it causes a conceptual confusion, it also reflects the interrelationship among the meanings of law’s limits.
Abstract
Law attempts to dominate our whole lives. Some legal philosophers think law has omnipotent power over human behaviors and affairs. The optimistic view contradicts the common knowledge that law can’t meet every need of men and societies. Does law have enough power to regulate all of the members in a society? It leaves room for doubts. Law reaches the limits in the realms of Is(Sein) and Ought-to(Sollen). There is no doubt that law should not violate the individual freedom and rights nowadays. Notwithstanding, law often infringes on individual rights. How far can exercise legally the state power over individual freedom and rights. It is classic question of political philosophy and social philosophy. The normative limits of law i.e. the limits of law in the viewpoint of legitimacy of law relates to the nature of law. If law is considered as a mechanism of protecting individual freedom and rights, the limits of law enter another phase. How far can law protect the individual freedom and rights? It does not focus on the legitimacy, but the effectiveness of law. In this context, the practical limits of law relates to the functions of law. Furthermore, law consists of legal norms. In principle, it only regulates the members of the legal community. The constitutive limit of law relates to the legality of law. In sum, the questions about the limits of law relate to the all kind of validity including effectiveness, legality, and legitimacy of law. So, the discourse on the nature of law’s limits requires the reflections on the nature, functions and validity of law. It is necessary to elucidate an indeterminacy of the meaning of law’s limits in order to discuss types and remedies of law’s limits. The limits of law have three different meaning: practical, normative, and constitutive limit. These meanings cross over each other in some real cases. While it causes a conceptual confusion, it also reflects the interrelationship among the meanings of law’s limits.
참고문헌 (38)
- 김학태, "법의 상징기능에 관한 연구: 상징입법의 개념과 기능에 대한 비판적 고찰", 법철학연구, 3(2), pp.171~194 (2000)
- 심헌섭, "법철학" (1985), 한국방송통신대학 출판부
- 심헌섭, "분석과 비판의 법철학" (2001), 법문사
- 홍영기, "국가권력의 한계, 어디에서 비롯되는가", 법철학연구, 8(1), pp.199~232 (2005), 한국법철학회
- Allot, A, "The Limits of Law" (1980), Butterworths
- Arendt, H, "The Human Condition" (1958), Chicago UP
- Arendt, H., "Hannah Arendt Karl Jaspers Correspondence 1926-1969" (1992), Harcourt Brace & Co
- Claes, E, "Facing the Limits of the Law" (2009), Springer
- Cohen, J, "Perspectives on the Limits of Law, In The Limits of Law", pp.39~45 (1974), Lieber Atherton
- Dekleerck, S., "Limits of Human Rights Protection from the Perspective of Legal Anthropology, In Facing the Limits of the Law", pp.375~414 (2009), Springer
- Deklerck, S., "Limits of Human Rights Protection from the Perspective of Legal Anthropology, In Facing the Limits of the Law", pp.375~414 (2009), Springer
- Dicey, A.V., "헌법학입문" (1993), 경세원
- Dickinson, L., "Terrorism and the Limits of Law: A View from Transitional Justice, In The Limits of Law", pp.21~74 (2005), Stanford UP
- Dierckxsens, S., "Legitimacy in the European Union and the Limits of the Law, In Facing the Limits of the Law", pp.189~204 (2009), Springer
- Douglas, L, "At the Limits of Law: An Introduction, In The Limits of Law", pp.1~20 (2005), Stanford UP
- Dworkin, R, "Law's Empire" (1986), Fontana
- Dyzenhaus, D, "The Dilemma of Legality and the Moral Limits of Law, In The Limits of Law", pp.109~154 (2005), Stanford UP
- Feinberg, J., "The Moral Limits of the Criminal Law I-IV", pp.1984~1988 (1973), Oxford UP
- Foqué, R, "The Limits of the Law and the Development of the EU, In Facing the Limits of the Law", pp.205~236 (2009), Springer
- Hart, H.L.A., "The Concept of Law" (1961), Oxford UP
- Ieven, A., "Privacy Rights as Human Rights: No Limits?, In Facing the Limits of the Law", pp.315~332 (2009), Springer
- Kelsen, H., "Reine Rechtslehre, 2" (1960), Manz
- Koslowski, P., "Sozialphilosophie, In Staatslexikon: Recht-Wirtschaft-Gesellschaft, 5.Bd", pp.33~41 (1989), Herder
- Loth, M., "Private Law and the Limits of Legal Dogmatics, In Facing the Limits of the Law", pp.25~44 (2009), Springer
- McFerson, H, "Transplants, In Encyclopedia of Law & Society, vol. 3", pp.1505~1516 (2007), Sage
- Raz, J., "The Authority of Law" (1979), Clarendon
- Roehrig, T, "Transitional Justice, In Encyclopedia of Law & Society, vol. 3", pp.1497~1503 (2007), Sage
- Roland Pennock, J, "The Limits of Law" (1974), Lieber Atherton
- Ruys, T., "When Law Meets Power: The Limits of Public International Law and the Recourse to Military Force, In Facing the Limits of the Law", pp.253~272 (2009), Springer
- Valiñas, M, "Rebuilding Trust in the Former Yugoslavia: Overcoming the Limits of the Formal Justice System, In Facing the Limits of the Law", pp.177~188 (2009), Springer
- Van Overwalle, G, "Funtions and Limits of Patent Law", pp.415~442 (2009), Springer
- Van Putten, M, "Labour Law and the Limits of Dogmatic Legal Thinking, In Facing the Limits of the Law", pp.57~71 (2009), Springer
- Vandenhole, W, "The Limits of Human Rights Law in Human Development, In Facing the Limits of the Law", pp.355~374 (2009), Springer
- Verrijdt, W, "The Limits of the International Petition Rights for Individuals: A Cade Study of the ECtHR, In Facing the Limits of the Law", pp.333~354 (2009), Springer
- Wagner-Pacifici, R, "The Conditions of Surrender: Reconstituting the Limits at Conflict’s End, In The Limits of Law", pp.155~208 (2005), Stanford UP
- Weinstein, M, "A Binary Theory of the Limits of Law, In The Limits of Law", pp.102~114 (1974), Lieber Atherton
- Zippelius, R, "Rechtsphilosophie" (1982), C. H. Beck
- "The Limits of Law, In Stanford Encyclopedia of Philosophy" (2012)[URL]