법의 지배에 관한 조셉 라즈의 견해 ― 연속성과 정합성의 문제

Joseph Raz, who contributed greatly to modern legal philosophy, ethics, and political philosophy, published “The Rule of Law and its Virtue” in 1977 and became a leading figure in the discourse on the rule of law. There, he pointed out the problem of the trend of pursuing the rule of law by incorporating various political ideals into it and deeming it “the rule of good law”, which confuses the rule of law with other political ideals. He eloquently argued that the rule of law is only one of the many virtues that a legal system may possess, demanding governance according to laws that are general, clear, and non-retroactive, thus adhering faithfully to formal requirements of legality. However, in “The Law’s Own Virtue,” Raz’s later work on the rule of law, he emphasized elements of democracy and equality, unlike his earlier work. This raises questions about the continuity between the two works and theoretical coherence of the later work. This study seeks to understand the evolution of Raz’s theory on the rule of law by tracing the changes in his theories concerning law and adjudication. In doing so, it examines the critical argument that while Raz initially developed a coherent theory emphasizing the exclusionary nature of law and the judge’s duty to be bound by it, he later lost the continuity and coherence of his theory by shifting emphasis to morally legitimate authority and adjudication. Through this study, it became apparent that the evolution of his theory concerning the rule of law reflected changes in his theories on law and adjudication. It is also confirmed that his theory of the rule of law lacks continuity, and that his later work exhibits a certain lack of internal coherence. However, such theoretical changes can be understood as the result of a mature attitude that seeks to grasp the multiple facets of the phenomenon by employing not a single, but multiple perspectives on law, adjudication, and the rule of law.