법과 법치 개념의 본질적 경합가능성에 대한 연구

The concept of law is one of the most controversial issues in legal philosophy. The question “What is Law?” continues to elicit diverse responses. Instead of supporting a particular view, I refer to the idea of “Essentially Contested Concepts,” which has been proposed by a linguistic philosopher, W. B. Gallie. His claim is that there are certain concepts, the proper use of which inevitably involve endless disputes. The first part of this article seeks to clearly picture conceptual contestation. I begin by explaining the notion of “concept.” I also elucidate other subjects, such as the relation between concept and meaning, the essence and changeability of a concept, and disagreements in the use of concept. In the second part, I explain seven conditions of essential contestability and disaggregate various meanings of law to determine this counterpart of the concept used in philosophical inquiry. On the functional interpretation and strict application of Gallie’s proposal, I show that the concept of law does not conform to several conditions. In conclusion, I argue that it would be better to think that law is not an essentially contested concept, while suggesting that the concept of the rule of law has an essential contestability.