법경제학의 학적 필연성과 개념화에 대한 고찰

Law and economics have been basic structure of human and society for a long time from Aristotles to many comtemporary researchers. Especially Luhmann, Habermas and Marx made an exercise to analyze and explain the structure of society in terms of law and economics. In modern times, individual came to be a central one in history compared with medieval times, and rationality has been divided into the political from the economic things. In this research, I try to show how individual came into being and rationality developed in a way that has been typed in a literary work such as the Odyssey(Homeros) and Robinson Crusoe(Daniel Defoe). The former shows us how individual be freed from nature and the latter how individual come to be economized. This typological Approach to character in literary works can help us to understand the meaning and function of law. In this perspective, law is an incentive to individual by inducing them to behave in specific ways. Law and Economics is a kind of interdisciplinary research using economic method to analyze and explain the legal things. Actually, economics has been considered to obtain the advantage over other social sciences of precision in analyzing human behavior and no other social sciences has a comparable objective basis for assessing individual subjective values and analyzing their behavior in the world. Anyway, it is true that law and economics have the same ultimate goal - to maximize social welfare- but disagreement arises with the effort to define and measure social welfare. Therefore it needs some steps to consider Law and Economic as a department of jurisprudence. For law, economic feasibility such as efficiency never acts as the sole determinant of social welfare. In order to take Law and Economic as a department of jurisprudence, economic feasibility should function to criticize legal theory and also to guarantee validity of law.