세계화시대에서 법실증주의의 함의에 관한 고찰

• 영문명: An Inquiry into the Implication of Legal Positivism at the Age of Globalization - With special reference to Kelsenian Approach
• 발행기관: 국제법평론회
• 저자명: 김성원(Kim Sung Won)
• 간행물 정보: 『국제법평론』제48호, 31~58쪽, 전체 28쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2017.10.30

영문 초록

Simma and Paulus were perplexed when they were invited to make a contribution to a positivist perspective to the Methods of International Law Symposium by the American Society of International Law. They said that they did not know whether to regard this invitation as flattering or as an insult. This confession of Simma and Paulus rightly indicates attitudes toward legal positivism. Put it differently, international lawyers are divided between two groups concerning legal positivism: advocate or opponent. In parallel with the robust expansion of international law evidenced by the emergence of special fields of international law such as international trade law, international human rights law and international environmental law, international law plays a pivotal role in constructing and managing affairs of the international society. For the purpose of solving difficult problems of the international society, the instrumental nature of international law is unprecedently highlighted at the age of globalization. In this context, various strategic attempts are introduced into the realm of international law including insights from social science such as politics, economics and sociology. This collaboration of social science and international law undoubtedly leads into the richness of international law discourses. However, the intrusion of social science into the area of international law might not necessarily guarantee a happy endings. Despite of enriching the substance of international law, this mixture might result in soiling the pureness of international law. In other words, the very nature of law as normative system would be swept away by the impurity of non-legal science such as politics, economics and sociology. In this regard, it is high time for international lawyers to reconsider the lessons from the great legal positivist Hans Kelsen through the pure theory of law and Grundnorm. Since Kelsen does not directly confront the ongoing debates about globalization impact, it is very difficult to envisage what kinds of the response from Kelsen concerning the relationship between globalization and international law would be taken. However, exploring the lessons from Kelsen, international lawyers might reach the area belongs to the Kelsenian perspective on international law. With special reference to current debates concerning the constitutionalization of international law or global constitutionalism, international lawyers would become aware of merits and demerits of constitutionalists arguments through lens from the Kelsenian perspective on international law resorting to the core concept of the pure theory of law and Grundnorm. This article seeks to grapple with strength and weakness of the Kelsenian approach to international law with regard to the constitutionalization of international law. Straightforwardly, the Kelsenian approach to international law would not acknowledge the argument of constitutionalists because their argument could not satisfy the core requirement of Kelsen s doctrine: the pure theory of law and Grundnorm. From the Kelsenian perspective, constitutionalists argument would be political and social rhetorics of the constitutionalization movement at best because there is no international constitution. Also, the argument that utilizes the UN Charter as the constitutional law of the international community would be strongly rejected by the Kelsenian perspective. However, the Kelsenian approach to international law would also have serious defects. Among others, the foremost defect would be the blindness of the Kelsenian perspective to realities of the development of the international community. Put it differently, by narrowing its focus on the pure theory of law and Grundnorm, the Kelsenian perspective would unnecessarily restrain itself to the pure ideal image of the international community which would only exist in the unrealistic utopian world.

목차

Ⅰ. 서론

Ⅱ. 법실증주의의 주요 내용 및 계보

Ⅲ. 국제법의 헌법화 논의에 대한 법실증주의 관점에서의 비판: Kelsenian 접근을 중심으로

Ⅳ. 결론

Abstract

키워드

법실증주의 Kelsen 근본규범 법의 순수이론 국제법의 헌법화 Legal Positivism Kelsen Grundnorm The Pure Theory of Law Constitutionalization of International Law