법의 한계에 대한 시론(試論)적 고찰 (A Study on the Limits of Law)

서지정보

· 발행기관 : 중앙법학회
· 수록지 정보 : 중앙법학 / 14권 / 4호 / 7 ~ 37페이지
· 저자명 : 오세혁

초록

Law attempts to dominate our whole lives. Some legal philosophers think law has omnipotent power over human behaviors and affairs. The optimistic view contradicts the common knowledge that law can’t meet every need of men and societies. Does law have enough power to regulate all of the members in a society? It leaves room for doubts. Law reaches the limits in the realms of Is(Sein) and Ought-to(Sollen).
There is no doubt that law should not violate the individual freedom and rights nowadays. Notwithstanding, law often infringes on individual rights. How far can exercise legally the state power over individual freedom and rights. It is classic question of political philosophy and social philosophy. The normative limits of law i.e. the limits of law in the viewpoint of legitimacy of law relates to the nature of law.
If law is considered as a mechanism of protecting individual freedom and rights, the limits of law enter another phase. How far can law protect the individual freedom and rights? It does not focus on the legitimacy, but the effectiveness of law. In this context, the practical limits of law relates to the functions of law. Furthermore, law consists of legal norms. In principle, it only regulates the members of the legal community. The constitutive limit of law relates to the legality of law.
In sum, the questions about the limits of law relate to the all kind of validity including effectiveness, legality, and legitimacy of law. So, the discourse on the nature of law’s limits requires the reflections on the nature, functions and validity of law.
It is necessary to elucidate an indeterminacy of the meaning of law’s limits in order to discuss types and remedies of law’s limits. The limits of law have three different meaning: practical, normative, and constitutive limit. These meanings cross over each other in some real cases. While it causes a conceptual confusion, it also reflects the interrelationship among the meanings of law’s limits.

영어초록

Law attempts to dominate our whole lives. Some legal philosophers think law has omnipotent power over human behaviors and affairs. The optimistic view contradicts the common knowledge that law can’t meet every need of men and societies. Does law have enough power to regulate all of the members in a society? It leaves room for doubts. Law reaches the limits in the realms of Is(Sein) and Ought-to(Sollen).
There is no doubt that law should not violate the individual freedom and rights nowadays. Notwithstanding, law often infringes on individual rights. How far can exercise legally the state power over individual freedom and rights. It is classic question of political philosophy and social philosophy. The normative limits of law i.e. the limits of law in the viewpoint of legitimacy of law relates to the nature of law.
If law is considered as a mechanism of protecting individual freedom and rights, the limits of law enter another phase. How far can law protect the individual freedom and rights? It does not focus on the legitimacy, but the effectiveness of law. In this context, the practical limits of law relates to the functions of law. Furthermore, law consists of legal norms. In principle, it only regulates the members of the legal community. The constitutive limit of law relates to the legality of law.
In sum, the questions about the limits of law relate to the all kind of validity including effectiveness, legality, and legitimacy of law. So, the discourse on the nature of law’s limits requires the reflections on the nature, functions and validity of law.
It is necessary to elucidate an indeterminacy of the meaning of law’s limits in order to discuss types and remedies of law’s limits. The limits of law have three different meaning: practical, normative, and constitutive limit. These meanings cross over each other in some real cases. While it causes a conceptual confusion, it also reflects the interrelationship among the meanings of law’s limits.

참고자료

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