풀러에서 법의 도덕의 문제 (On the problem of the morality of law in Lon. L. Fuller)

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초록

Fuller thinks that his eight principles of legality are needed for any legal system to be legal. That those principles exist and they are constitutive principles of the rule of law is accepted by almost legal philosophers. The problem is the morality of those principles.
Fuller calls their morality internal morality of law. The internal morality is the morality of the action by which legal rules are enacted and applied, while the external morality is the morality of the rules themselves. Because the principles are not just efficient principles but ones by observance of which the action can be moral, the principles can be called moral principles and the concept of internal morality is sustained.
Fuller claims that principles of legality affect positively the morality of the laws which are enacted according to the principles. The claim presupposes that the legislators consciously respect the moral principles which are contained in the principles of legality and enact laws according to the moral principles. But the presupposition is not so evident that they need no justification. And even if they enacted the laws according to the moral motives, the laws would not necessarily become moral. For the most unjust rules were enacted by the idealists rather than wicked governors. Therefore the claim that the internal morality of law affect positively the external morality of law lacks proper foundation.
But the whole system of the law can be morally affected through the governor’s observance of the principles The definition of the wicked regime which the debate between Kramer and Simmonds presupposes cannot be accepted. Because the wicked regime must be defined not in terms of wickedness of governors’ motive but that of laws they enacted.

영어초록

Fuller thinks that his eight principles of legality are needed for any legal system to be legal. That those principles exist and they are constitutive principles of the rule of law is accepted by almost legal philosophers. The problem is the morality of those principles.
Fuller calls their morality internal morality of law. The internal morality is the morality of the action by which legal rules are enacted and applied, while the external morality is the morality of the rules themselves. Because the principles are not just efficient principles but ones by observance of which the action can be moral, the principles can be called moral principles and the concept of internal morality is sustained.
Fuller claims that principles of legality affect positively the morality of the laws which are enacted according to the principles. The claim presupposes that the legislators consciously respect the moral principles which are contained in the principles of legality and enact laws according to the moral principles. But the presupposition is not so evident that they need no justification. And even if they enacted the laws according to the moral motives, the laws would not necessarily become moral. For the most unjust rules were enacted by the idealists rather than wicked governors. Therefore the claim that the internal morality of law affect positively the external morality of law lacks proper foundation.
But the whole system of the law can be morally affected through the governor’s observance of the principles The definition of the wicked regime which the debate between Kramer and Simmonds presupposes cannot be accepted. Because the wicked regime must be defined not in terms of wickedness of governors’ motive but that of laws they enacted.

참고자료

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