드워킨의『법의 제국』에 대한 니체 철학적 의문

Abstract

This article aims at a critical reading of Ronald Dworkin’s Law’s Empire through Nietzschean philosophy. The purposes of this work are twofold. One is to propose a new reading of Law’s Empire to identify where Dworkin’s legal theory would be located within the broad spectrum of (legal) philosophy. The other is to introduce the German philosopher Nietzsche into the arena of legal philosophy. Nietzsche is highly respected as a philosopher who opened the era of post-modern philosophy. For legal theorists, however, Nietzsche is not a familiar thinker. In the field of legal philosophy, the philosophy of rationality, such as Kantian or Hegelian thinking, dominates. Dworkin’s Law’s Empire is part of this tradition. This article claims that giving balanced attention to both of those two different streams of philosophy, Kantian rational philosophy and Nietzschean post-modern philosophy, is essential for the field of legal philosophy to have a productive future. Dworkin’s theses at issue here are the thesis of law as integrity, the theory of constructive interpretation, the one right answer thesis and chain novel theory. Dworkin’s legal theory presumes that a society as a political unity can speak in a single voice about the notions of political morality such as justice or fairness, which leads to the law as integrity. This premise is critically conceptualized by Raz as ‘univocality’. The article focuses on attacking this univocality of Dworkin’s thinking through Nietzschean and Derridian philosophy. Dworkin dreams of the law as a coherent grand narrative, which achieves absolute integrity through constructive interpretation, which becomes possible by the power of reason possessed by human judges. That is why, for Dworkin, judges are the princes of the empire of law. Such a grandiose grand narrative of an empire inevitably silences the voices of minorities and the marginalized. We must listen to the distant voices of those ‘others’, which hold truth but were silenced and excluded in the course of creating a coherent grand narrative. One of the ways Nietzschean philosophy can contribute in critically reading Dworkin’s powerful Law’s Empire lies here: guiding us to listen to those muted voices which will lead us to the new grounds for justice. For that purpose, this article compares Dworkin’s ideal judge Hercules to Nietzsche’s Übermensch, and Dworkin’s method of constructive interpretation to Derrida’s idea of double reading. While Dworkin’s Hercules writes a grand narrative following the univocality of a society, Nietzsche’s Übermensch deconstructs the grand narrative and gives breath to those thousands of different stories and voices which were hidden and erased behind the grand narrative. Finally, this article suggests an imaginative new genre of literature “Stories Quilt” as the better analogy for law, in contrast to Dworkin’s chain novel theory.