현대 법치주의에서 공자 직(直)의 의미

Abstract

This paper tries to examine the validity of Confucius' Jik(直) concept in the Modern Rule of Law society. Modern rule of law centers on Positive Law. Positive Law is a concept that runs counter to Natural Law, such as the statute law, the customary law, and the case law. Unlike Natural Laws of universal character based on human nature, Positive Law is variable and relative with the involvement of Human will. On the other hand, Natural Law means permanent and invincible law that can be applied to all times and places. Natural Law’s supplement the Positive Law by being above the Positive Law, and sometimes serve as a guide to the Positive Law. Today, It can be said that the Rule of Law is within the scope of the Positive Law. However, the 'Legal Positivism attitude' in accordance with the Positive Law has led to the side effects of ‘almighty law’. Under the Rule of Law, We must follow the Law, the artificial system prescribed outside, regardless of moral intuition ability. The Law is an objective standard that applies to everyone, but even Unjust laws produce problems that must be followed. Confucius's idea of focusing on the law of morality seems to be impossible for any formalized regulation in a Modern Rule of Law. For example, Someone ask “Why don’t you avenge your as a Virtue(德)?”, Confucius answers “Give you back the grudge as a honesty(Jik, 直).” Confucius' answer seems to be limited to the moral area, not law and system. Can Confucius' Jik(直) be legally binding on society based on the Positive Law?