법실증주의에 있어서의 법의 인식에 관한 고찰 = Review on the Cognition of Law in Legalpositivism

다국어 초록 (Multilingual Abstract)

Legal theories follow on elementary antagonism in philosophical thought by being either positivist or metaphysical. The opposition between idealism and materialism, although not identical, runs on closely parallel lines. Idealistic legal theories deduce the law from first principles. Positivistic legal theories consider law as necessarily determinded by social matter. Positivist attempts to apply a method in natural science to explain the behavior of human beings He explains the behavior of humanbeings according to the Law of Causality that is a principle of material fact. Positivist makes become to explain nature and society uniformly. On this point, positivism has brought a crisis on the subjectivity of human beings. We ought to reflect on the legal positivism, because of the law is a system of human behaviors guranteed by enforcement. This treatise attempts to study the methods for cognition of law by means of analyzing the existential constitution of law.
On the cognition of law, “the pure theory of law” and “analytical jurisprudence” takes the law as a given matter created by the state, whose authority he does not question. Therefore the legal system is made watertight against all ideological intrusions, and all legal problems are couched in term of legal logic. But the law is in close connection with historical actuality that contains ideology and fact. I can be said that jurisprudence has to study not only legal facts but also legal ideologys.
On the methods for cognition of law, “analytical jurisprudence”, “Allgemeine Rechtslehre” takes a method of formal logic in order to classify the legal concepts. “Pure theory of tlaw” takes a method of normative logic in order to constitute a “pure science of law”. “Sociology of law”（historical school, jurisprudence of interests, legal theory of Marxism） takes a method of causality in order to look more for the working law than for its abstract content But the method of formal logic and normative logic loses an historical and social reality in law, and the method of causality denies the valuation of law. Law has factual nature and normative nature that contradict with each other.
In conclusion, all culture aims at the realisation of values, not merely at perception, It is thus practical not pure reason. Law must thus be conceived as a totality of facts and relations, whose purpose it is to realise justice. It is the task of legal science to analyse the law as a factual unity of cultural values. It is the task of legal philosophy to analyse the law in its specific valuations.

목차 (Table of Contents)

• Ⅰ. 서 언（序言）
• Ⅱ. 법실증주의적 법인식의 방법
• 1. 형식논리（形式論理）의 방법
• 2. 규범논리（規範論理）의 방법
• 3. 인과적（因果的） 방법
• Ⅲ. 결 어（結語）