법철학의 형이상학적 전환 ― 결정 요인과 법적 사실 사이의 결정 관계를 중심으로

Metaphysical turn has recently been at the center of attention for legal philosophers. This paper aims to introduce metaphysical turn in legal philosophy, especially focusing on the determination relation. According to Mark Greenberg, past discussions on the nature of law can be summarized into the debate on the determination relation between legal facts and their determinants. To be specific, positivists are claimed to believe that law practices alone determine legal facts, whereas naturalists are claimed to believe that law practices and value facts together determine legal facts. It is further claimed that, even if law practices or social facts alone may metaphysically determine legal facts, value facts must play a role to rationally determine legal facts, meaning that the legal facts are metaphysically determined and the determination is well-explained at the same time. Metaphysical determination relation has been widely explained through the concept of supervenience. The birth and development of the concept of supervenience originated from metaethics and philosophy of mind. In the philosophy of mind, it is commonly said that the mental supervenes on the physical, in the sense that if two substances do not differ with respect to their physical properties, then they do not differ with respect to their mental properties. Supervenience represents determination relation between two different types of properties, and further research and a variety of applications were made in metaphysics. The problem is that the supervenience lacks an explanation of why that specific determination relation holds, which is called explanatory gap. Subsequently, a series of attempts emerged to understand determination relation as metaphysical grounding. Grounding seems to be based both on the explanation relation and determination relation, and in this respect, grounding is expected to bridge this explanatory gap of determination relation. The concept of grounding, however, is criticized for its vague and ambiguous definition, and scholars are challenged to clarify its boundary with adjacent concepts. Along these lines, further attempts have been made to reinterpret Hart and Dworkin by drawing on the concepts of rational determination, supervenience, and grounding. Meanwhile, Chilovi and Pavlakos explore the relationship between rational determination and grounding, extending the discussion from a contemporary perspective. Taken together, these debates may suggest that there is a need for a concept of rational determination that is distinct from both supervenience and grounding.