S-Space College of Law/Law School (법과대학/대학원) The Law Research Institute (법학연구소) 법학 법학 Volume 49, Number 1/4 (2008)
판례, 어떻게 볼 것인가?-다양한 시각과 쟁점 ; 벤담의 Common Law 체계에 대한 비판과 입법론 구상에 대한 연구
A Search for New Perspectives on Judicial Precedent ; A Study about the Criticism on the Common Law System and the Construction of Theory of Legislation
- Issue Date
- 서울대학교 법학연구소
- 법학, Vol.49 No.3, pp. 1-39
- 제레미 벤담; 선례구속원칙; 공리성; Jeremy Bentham; Common Law, stare decisis; concept of Law; Legislation; 입법
- The aim of this study is to arrange and situate Bentham’s critical evaluation of
Common Law system, to trace the assumptions on the stare decisis of Common
Law in eighteenth- and nineteenth century in Britain, and thereby to propose(or
gain) some useful perspective of the meaning of stare decisis. To perceive, at least
access to the Bentham’s evaluation of Common Law and stare decisis in Common
Law theory, it is in its nature necessary to understand and conceptualize the line
of Bentham’s theory of utilitarianism and analytical judicial reasoning. The line of
Bentham’s thought, based on ‘utility’, goes in phases further, critique of Common
Law － rule(or law) in general － jurisprudence(analytical legal theory) － court and
judicial process － legal reform and legislation(legislation and adjudication) －
‘Pannomion’(‘Complete Code of Laws’).
Bentham, in his lifelong academic writings, attacked both the practice and the
theory of Common Law, so much as he challenged aggressively to natural rights,
for example the Declaration of Rights. Bentham’s argument and critique of
Common Law theory and stare decisis in Common Law system focused on two
problems. First, although the principle of stare decisis has a actual effect and
substantial meaning, if it will be consistently, law is and must be, a matter of
public standards, publicly declared, publicly authorized and publicly accessible.
Second, as his attack to natural rights with the concept of ‘fiction of law’, he dare
to point out that judge-made law in Common Law system is not so much as ‘dog
law’ because it is typically the way one teaches a dog to behave.
Ultimately, maybe Bentham attempted to lay the foundation for the plan of the...