영국법과 미국법의 비교 연구(5) -법이론 (legal theories)(1)

Abstract

This article is the first part of our comparative study of Anglo-American legal theories. The second half will follow in the next edition of this journal. And the overall study is a part of a series of comparative analysis of Anglo-American law which Ahn has contributed to this journal over the past few years. Therefore, one purpose of this study would be to examine whether the differences between English Law and American Law as identified in the previous researches can also be identified in the field of legal theory. The complete work consists of three main sections and the first two are produced here. The first section discusses the immanent problem in a comparative study in the field of legal theory. We assume that this problem is ascribed to the nature of legal theory which seeks to find universal validity or truth rather than conditional or local one. In other words, it is almost untenable to differentiate Anglo legal theory from American legal theory. What criteria can be employed? The nationality of the writers of particular theories? The places of their births, or the countries where they were grown up? The countries where they worked or now are working? For example, H. L. A. Hart and R. Dworkin are often said to be the representatives of English and American jurisprudence, respectively. It is true that their theories are different, that is, Hart stands for analytical jurisprudence while Dworkin is an arch-critic of legal positivism, and the former is an English while the latter an American. But both were Professors of Jurisprudence of Oxford University, and as B. Leither1) points out, Hart's theory is further developed not only by his Israeli disciple Joseph Raz but also such American legal positivists as Gerald Postema of the University of North Carolina, Jules Coleman of Yale and Frederick Schauer of Harvard. Furthermore, it is well known that the booming of legal positivism in the Nineteenth Century America was helped by Bentham and Austin's positivist theories, then were these English lawyers fathers of American jurisprudence? Therefore, we argue that a comparative study of the two countries' legal theories means one that compares the image of law or the public's general attitudes towards law permeated in the one country's legal system with those of the other country. In the second main section, we seek to demonstrate that the English legal system governed by the constitutional principles of the parliamentary sovereignty and the rule of law can readily mesh with traditional English attitudes not only towards the relationship between politics and law and but also towards litigation. English legal theorists since eighteenth century have tried to keep the role of the courts in the policy-making process in the bay. In other words, despite many superficial differences between their theories, Blackstone, Bentham, Austin, Dicey and Hart shared common belief that courts cannot overrule the express will of the legislature; the political institution is in a better position than the courts to know what the society demands and what should be done to respond to such demands. The divisions of natural law and human law (Blackstone), science of law and science of legislation (Bentham), the existence of the law and the merit of the law (Austin) and expository jurisprudence and critical, apologetic, eulogistic jurisprudence (Dicey), all reflect the dichotomy of fact and value, which was ultimately led to the supremacy of politics over justice. This line of thought makes English people believe that the American style judicial review does not fit the English legal system. At least in this regard, Richard Posner's assertion is correct that England has better alternatives to litigation as a means of social control than the United States does. The final main section which seeks to demonstrate the contrasting feature of American legal theory will ensue in the next edition.