맥코믹의 규칙 이론에 대한 고찰 : 규칙 삼분론과 규칙의 실천력
An Inquiry into the Rule Theory of Neil MacCormick : The Trichotomy and Practical Force of Rules
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This article examines from multiple perspectives and in depth the ‘Rule Theory’ of Neil MacCormick, a renowned advocator the Institutional Theory of Law. MacCormick’s Rule Theory not only served as an essential analytical basis throughout his Institutional Theory of Law, but also contributed greatly to the theoretical history of analytic jurisprudence itself, providing us with a significant insight for the legal theory and legal practice today. This article examines the theory from the perspective of its ‘trichotomy of rules’ and ‘theory on the application of rules’. By the ‘trichotomy of rules’ he classifies rules as ‘institutive’, ‘consequential’ and ‘terminative’ rules, based on the unique function of each kind. As an argument on a conceptual level, it is an essential part of ‘legal institutions’. In his theory on the application of rules, MacCormick distinguishes between ‘absolute’, ‘strict’, and ‘discretionary’ application, so as to elucidate the practical force of rules. With this he theorizes and analyses how the practical force of rules is actually realized. And thus the relation between rules and principles, as well as that between values and standards, is organized in a systematic way. With an aim to thoroughly understand and reconstruct MacCormick’s Rule Theory, and for a critical review thereof, this article proceeds as follows : It examines the background of the emergence of the theory, centering on its origins in the history of legal theory and its philosophical basis (II). The theory is an attempt to overcome the problems of H.L.A. Hart’s Rule Theory, which succeeds with improvements John Searle’s theory on constitutive rules; Based on the thorough understanding of the intellectual origins of MacCormick’s theory, we shall examine the theory from the point of its ‘trichotomy of rules’ (III) and ‘the theory on application of rules’ (IV), each from multiple perspectives; Lastly, we shall conclude the article with a general evaluation of the merits and demerits of the theory (V).
Abstract
This article examines from multiple perspectives and in depth the ‘Rule Theory’ of Neil MacCormick, a renowned advocator the Institutional Theory of Law. MacCormick’s Rule Theory not only served as an essential analytical basis throughout his Institutional Theory of Law, but also contributed greatly to the theoretical history of analytic jurisprudence itself, providing us with a significant insight for the legal theory and legal practice today. This article examines the theory from the perspective of its ‘trichotomy of rules’ and ‘theory on the application of rules’. By the ‘trichotomy of rules’ he classifies rules as ‘institutive’, ‘consequential’ and ‘terminative’ rules, based on the unique function of each kind. As an argument on a conceptual level, it is an essential part of ‘legal institutions’. In his theory on the application of rules, MacCormick distinguishes between ‘absolute’, ‘strict’, and ‘discretionary’ application, so as to elucidate the practical force of rules. With this he theorizes and analyses how the practical force of rules is actually realized. And thus the relation between rules and principles, as well as that between values and standards, is organized in a systematic way. With an aim to thoroughly understand and reconstruct MacCormick’s Rule Theory, and for a critical review thereof, this article proceeds as follows : It examines the background of the emergence of the theory, centering on its origins in the history of legal theory and its philosophical basis (II). The theory is an attempt to overcome the problems of H.L.A. Hart’s Rule Theory, which succeeds with improvements John Searle’s theory on constitutive rules; Based on the thorough understanding of the intellectual origins of MacCormick’s theory, we shall examine the theory from the point of its ‘trichotomy of rules’ (III) and ‘the theory on application of rules’ (IV), each from multiple perspectives; Lastly, we shall conclude the article with a general evaluation of the merits and demerits of the theory (V).
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