법의 규범적 성격에 관한 연구 : 법은 수범자의 행위를 어떠한 방식으로 지도하는가?
A Study on Normative Characters of Law : In what methods do laws guide subjects?
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Legal philosophers who assume the standpoint of sanction thesis maintain that methods of law to guide actions include only duty-imposing method. In such standpoint, law guides actions of people only in a way to force people to select particular action that law requires. If so, norms that guides actions within legal system are only duty-imposing norms. On the other hand, other legal philosophers like H. L. A. Hart and J. Raz maintain that power-conferring norm proposes reason for action independently though it differs from duty-imposing norm in type. As a result of reviewing the standpoint of recognizing only duty-imposing method critically, it was concluded that such claim distorts the normative function of law severely. Power-conferring law assigns actors with power to modify the legal position of him/herself or others. Such conferring of power affects the decision of actor. At this time, the influence of power-conferring law on actor's decision is not simply coincident. In other words, power-conferring law combines legal results to the action of actor so that actor may ground his/her action on the legal results that law combines in deciding his/her action. Thus power-conferring also is a method of normative guiding of action. Therefore, I argue that power-conferring method also should be covered as well as duty-imposing method when legal philosopher explains the method in which law guides people's action. Only in such case, legal philosophers will be able to explain properly without distorting the normative function of law.
Abstract
Legal philosophers who assume the standpoint of sanction thesis maintain that methods of law to guide actions include only duty-imposing method. In such standpoint, law guides actions of people only in a way to force people to select particular action that law requires. If so, norms that guides actions within legal system are only duty-imposing norms. On the other hand, other legal philosophers like H. L. A. Hart and J. Raz maintain that power-conferring norm proposes reason for action independently though it differs from duty-imposing norm in type. As a result of reviewing the standpoint of recognizing only duty-imposing method critically, it was concluded that such claim distorts the normative function of law severely. Power-conferring law assigns actors with power to modify the legal position of him/herself or others. Such conferring of power affects the decision of actor. At this time, the influence of power-conferring law on actor's decision is not simply coincident. In other words, power-conferring law combines legal results to the action of actor so that actor may ground his/her action on the legal results that law combines in deciding his/her action. Thus power-conferring also is a method of normative guiding of action. Therefore, I argue that power-conferring method also should be covered as well as duty-imposing method when legal philosopher explains the method in which law guides people's action. Only in such case, legal philosophers will be able to explain properly without distorting the normative function of law.
참고문헌 (20)
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