동아시아적 법개념론은 가능한가?-이른바 동아시아 법학(East Asian Jurisprudence)의 현재와 미래에 대한 비판적 시론-

This paper points out that to build a theory of Li and Fa, the two East Asian traditional concepts of social norm, those two concepts should not be understood from the point of view, or in the context, of the modern theory of the concept of law, which presupposes the legal system of the West, but explicated their nature, the form of their existence and their own political ends. Since the modern concept of law is accompanied by the typically modern idea of rule of law, Fa cannot be translated successfully into positive law or Hart's notion of rule. And the same is true in case of Li and natural law or Dworkin's notion of principle. As this paper shows, the concept of Li had historically been evolved from religious ritual into social institution, and eventually replaced by the concept of Fa. Therefore, the novelty value of Fa should be understood in comparison with the nature of Li. This paper claims that constructing the theory of the concepts of Li and Fa is one of the most important tasks yet to be done for an East Asian Jurisprudence to develop properly. And the main thesis of this paper is that Fa is different from Li in the sense that it is a prescriptive method as well as a diagnostic test.