문학적 법철학연구: 법의 내용으로서 비극성

Abstract

The author examines the characteristics of tragedy intrinsic in the law through three major literary works ? Antigone, The Stranger and Before the Law. In each of three literature, the author identifies humanitarian tragedy of community, tragedy in choice and liberty of law, and empirical comprehensive tragedy. This essay regards the phenomenon of separation at the source of law as the tragedy of law and focuses on the relation between natural law and actual law to understand the character of tragedy. It is in this relation that the ‘door’ metaphor is created, and the author considers how border imagery of law influences its context. First work is [Antigone] by Sophocles. The author examines Antigone from viewpoints of communitarian humanity and biological cognitive injustice. This section explores the meaning of ‘Arete’ thought in Ancient Greece for Antigone when no division between literature and philosophy existed. In particular, with Hegel as a pioneer in literary jurisprudence, this section considers how Hegel discovered the concept of ‘humanity’ from Ancient Greek literature. It proceeds with the impossibility of interpreting fictional Antigone in the system of Family law on the basis of Butler’s analysis of Lacan. This section finalises with examination of philosophical revolution of Socrates that shrinks the concept of Arete though Comedy of Aristophanes, [The Clouds]. Second work is [The Stranger] by Albert Camus. In this work, among three deaths appears, the death of Meursault is seen as the result of personal choice and the author contemplates Meursault’s death from the perspective of tragedy in choice and liberty of law. The Stranger is interpreted according to Camus’ Absurdism. With tracking the flow of Meursault’s consciousness, the author considers tragedy by choice compared to the rational project of Stoic’s idea of natural law. This section considers the composition of Aristotelian rational [Poetics] alongside anti-rational ideas of Shakespeare and Goethe, and Benjamin’s study of tragedy. Third literature is [Before the Law] by Franz Kafka. A Countryman waits his entire life before the door of the law to enter the rule of law. For the ‘door’ metaphor blurs and hardly distinguishes the boundary of law and life, the author explores the meaning of tragedy according to Agamben’s theory. This indistinguishable character of law and life signifies the indivisibility of natural and actual laws. This in turn signifies indistinguishable nature of legal and illegal that can raise an issue of the source of law. Biopolitical thoughts of Foucault and Agamben show a comprehensive tragedy of law. As if Jesus closes the door of law, Agamben explains ‘inclusive exclusion’ theory as such a condition where law and life is indistinguishable. By creating the boundary between indivisible natural state and rule of law, the door of law discovers the potential ‘Homo Sacer’ from Antigone’s ‘death within death’, Meursault’s ‘Absurdism’ and ‘state of exception’ in a countryman. The author denominates the reason for discovering ‘hard case’ issues in modern jurisprudence as ‘comprehensive tragedy’ within the context of law.