법과 역할 - 법의 임무로서 역할 보호에 관한 비판적 고찰 -

Modern law, systematized based upon rights, and today’s legal system based on it, establishes the protection of individual rights as the core mission of law. However, observing the overall discussion of law reveals different perspectives. The emphasis on protecting legal interests (Rechtsgut) in criminal law is an example. Even more intriguing is the argument presented in legal philosophy: the law’s mission is to protect individual roles of its society. This argument finds sometimes its theoretical foundation in the concept of ‘Alssein’ established by German legal philosopher Werner Maihofer. This argument is interesting in that it departs from the rights-centered thinking emphasized by modern law and establishes individual role or ‘Alssein’ as the object of legal protection. However, for this argument to be persuasive, the following presupposition must be made: the individual role protected by law must be a legitimate role. This is significant because the concept of individual role could have a dual meaning, one conservative and one progressive. This article begins with this critical awareness. It examines whether the argument that law should protect individual role still holds its meaning today. In this context, it examines the possibilities and limitations of Maihofer’s legal ontology, which underpins this argument. To this end, this article includes, to a certain extent, role theory discussed in American and German sociology and its systems theoretic approach to that concept.