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

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서울대학교 법학연구소
법학, Vol.49 No.3, pp. 1-39
제레미 벤담선례구속원칙공리성Jeremy BenthamCommon Law, stare decisisconcept of LawLegislation입법
The aim of this study is to arrange and situate Benthams 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 Benthams evaluation of Common Law and stare decisis in Common

Law theory, it is in its nature necessary to understand and conceptualize the line

of Benthams theory of utilitarianism and analytical judicial reasoning. The line of

Benthams 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. Benthams 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...
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College of Law/Law School (법과대학/대학원)The Law Research Institute (법학연구소) 법학법학 Volume 49, Number 1/4 (2008)
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