법의 일관성 확보를 위한 개념 형태에 대한 비판적 분석 ―로날드 드워킨과 래리 알렉산더의 논쟁을 중심으로

What is the best conceptual means to achieve a coherence of law? Ronald Dworkin, who represents the contemporary natural law theory has argued for legal principle to get legal stability. In contrast, Larry Alexander who belongs to the current legal positivism sees a canonical legal rule as a means to guarantee a coherence of law. This debate is related not only with what should be the desirable forms to achieve the state of coherence of law but also with the generative process of meanings in legal concepts. As Alexander and Kress criticized, a moral principle has moral correctness and a legal rule can provide a clear guidance, but a legal principle does not possess any virtues of those. Also, even when we follow Dworkin’s argument, a legal principle does not have any determinative impact on a legal decision in question. The conception of legal principle is too vague, too flexible and unprescribable to be entrenched in posited formal standards. Moreover, the concept of moral weight, which is the most important factor of a legal principle, cannot make a decisive role in supporting a coherence of law. Regardless, it is hardly acceptable that a principle cannot find any ground in law. As long as a law is based on a linguistic concept, it is inevitable to abstract and compress a case into a concept that has a general and common meaning. Therefore, the hermeneutic methodology that Dworkin has proposed sounds persuasive, though his description of a fundamental principle as an unchangeable axiom should be taken away. In addition, even though a legal rule can bring itself with a canonical form and stability within a particular spatio-temporal context, it is not constantly fixable at all. A legal rule can also be discussed as a matter of weight and sometimes have a kind of flexible form and substance. Most of all, a conception of a legal rule is not totally separable from a principle. We don’t have any strong and a priori means to make it sure to get a law’s consistency as well as its justification at the same time. Thus, the normative reality should be accepted, that the process of legal interpretation and application is always facing dynamic productions of meanings. The balancing process of principles is in a sense logical but fundamentally intuitive. The legal concept that is chaotic in its deep nature can have a type of order on the stage of experiential rationality.