일반논문 : 형법의 해석과 적용에 있어서 규칙 따르기(Rule-Following) 논변의 의의 = The Implication of Rule-Following Arguments in the Interpretation and Application of Criminal Law

다국어 초록 (Multilingual Abstract)

Ludwig Wittgenstein`s work on Rules, especially the Philosophical Investigation(PI) has been put to a variety of uses by many legal theorists in various contexts since in the early twentieth century up to present times. One wave of legal theorists employ PI in an effort to show that law is radically indeterminate. They base their arguments on Saul Kripke`s unique and influential reading of PI. This essay begins with a consideration of Kripke`s rule-skepticism which is the result of his reading of Wittgenstein`s view on rule-following, and its implications for law. Like many legal theorist such as Brian Bix, Jes Bjarup, Scott Hershovitz, Christian Zapf and Eben Moglen, this essay conclude that Kripke`s view is defective, and as such tells us little about (criminal) law. The second wave includes such kinds of legal scholars as turn to Wittenstein`s remark on rules to explain how it is that law can be determinate and also to show that law can often be applied and understood without legal interpretation. They are the views of Brian Bix, Andrei Marmor and H.L.A. Hart. Not only the rule-skeptics but also these kinds of views will be argued against in this essay, because Wittgenstein`s remarks on rules have little to offer legal theory and interpretation. That is, nothing much can be learned about legal rules or legal interpretation by attending to Wittgenstein`s remarks on rules. In short, though legal rules and Wittgenstein`s rules are aimed at wholly different phenomena, above legal theorists made mistake of criteria by using these different kinds of rules interchangeably. But this essay will accepts the Hart`s theory, the core/penumbra case distinction which is also based on the Wittgenstein`s remarks on rules. Because though Hart also seem to confuse the legal rule with Wittgenstein`s rule, but we believe that his new idea of rule of recognition can cure the theoretical defect. The distinction of core/penumbra case has an implication for criminal law in relation to mistake of law. This essay argues that the core case show the criteria where mistake of law could hardly be made, because in the core case, there would be needed no legal interpretation. Scott Hershovitz thought that he had exorcised the phantom menace of Wittgenstein from legal theory, but it would be right that the real thing he had exorcised is not Wittgenstein, but misinterpretaion of his remarks. Wittgenstein is still alive here.