Abstract

Introduction to Understanding Law It's been 30 years since I began my career as a scholar at one local university in South Korea. As I approach an age of retirement, I've been spending more time reflecting on my life. Over the reflections, it was impressive that a professor of commercial law ogled the audience of big classroom about German legal philosopher, who proposed that the ultimate objective of law is presumed to pursue a predictability and legal stability. An experience on my undergraduate days had been stupendous within the legal thought of Hans Kelsen and Hart, who adduced that the inherent nature of law is about hierarchy and authority. The years of graduate studies had exposed me to the prodigious world of Jellinek's law and social sciences. As a professor, I studied the politics and constitutional law, grappling with a churning of Karl Schmitt's determinism and the ideals of integrationist view propounded by Rudolf Smend. Later in the professional career, it had been hyped with a realistic meaning squinnied with such utopian thought of Kant and Duguit's, who asserted that law should be supreme about people and philosophy. These days, I am unfeigned to find a self filled with a sense of remoteness and self-loathing. My career life as a law professor had been devoted to seek a veracity of law in the two-dimensional world of analytical and normative jurisprudence concerning the constitutional and international laws. While I regret if I had been dilatory and less talented over thirty years of law professorship, a desire to construct a bit of meaning suddenly struck me. It is solely due to a grace of god on health and family consort that I recollected past writings into a book despite a sense of shallow knowledge and modest abilities. As common with the scholars, this amazing reward of publishing a piece of work had also been indebted to the precious comment and criticism as well as, in no small part, ascribed to the support of fellow scholars on the faculty of law and juridical science Not only the great teachers of law at Seoul National University Law School, especially Kwon Young-seong and Kim Cheol-soo, but also Professor Seong Seung-hyeon on the Roman and Civil Laws at Chonnam National University Law School; Professor Kim Yeon-mi, president of the Korean Society of Legal Philosophy, who generously provided me with a hard-to-find copy of Herbert Hart; and Professor Lee Yeong-rok, who always had been kind and adamant as a paragon of scholarship and a model for researchers. It is difficult to mention in this book, a countless number of thankful scholars, notwithstanding distinguished international pundits, who had assisted, inspired and influenced squarely over the years of professional career. In publishing this book, one teacher who cannot be left out is the late Professor Choi Hong-yeop, who passed away recently. When I first took office, we laughed together, saying, "International trade law is private law, but international trade law is public law, right?" My juniors, who shared my lifelong journey as environmental activists, reminded me of the red leaves of a mountain full of crimson leaves, reminding me of the love of my fellow countrymen and the sentiments of old age, saying, "Our homeland is both South and North Korea." Even amidst the material abundance of the ever-growing South Korea, our humble moments spent with the North Korean people, the window between the two Koreas. Looking back, a deep sorrow pierces my heart. Professor Choi, a native of Gwangju, studied abroad in Seoul for many years, and despite numerous choices, returned to Chosun University with a noble spirit of "Let's nurture future generations in our hometown!" He became a lifelong scholar, a figure of respect for his students, and a role model for his fellow professors. This book is sparse but comprehensive. While there are many influential scholars on the subject, it is limited in that I approached the topic through the lens of a limited number of scholars I encountered over a short period of two or three years. Furthermore, like Chapter 1, "Roman Law," this book has limitations in that it selectively and concisely covers the vast topic of Roman law and its influence. Nevertheless, this book is written from a comprehensive and holistic perspective to facilitate an easy understanding of law. For example, public law scholars focus on democratic politics and the rule of law, but rarely pay attention to Roman law. Nevertheless, Roman law serves as the origin of modern legal knowledge and legal systems. Public law scholars, preoccupied with Anglo-American democracy, political philosophy, or legal philosophy, rarely have the opportunity to reflect on Roman law. However, the legacy of Roman law, developed by British and French jurists, and particularly in Germany, the successor to the Holy Roman Empire, is undeniably the sole legacy of jurists. As with all disciplines, legal philosophy is essential to understanding law. The two most prominent legal philosophical approaches are legal positivism and natural law theory. While these two philosophical schools of thought can trace their origins back to Socrates's Hemiptera, scholars generally view them as philosophical schools of law that emerged alongside the development of modern democracy. Legal positivism contributed to the scientificization of law, while natural law theory contributed to the development of justice and democratic values within the framework of politics and law. This book goes beyond simply introducing these two philosophical schools of law. Its inclusion of the American written constitution and the British unwritten constitution, in relation to the establishment of a democratic legal system, is intended to be comprehensive and promote a holistic understanding of legal systems. Particularly noteworthy is Montesquieu's The Spirit of Law and the greatness of the New World jurists who were influenced by his work. While the design of institutions is a matter of the aesthetics of legal scholars, as the title suggests, this book is a remarkable work that vividly illustrates the relationship between politics and law, and what law is, more than any other legal philosopher. While he is often categorized as a conservative thinker due to his sharp focus on the design of legal systems, his influence on emerging democracies, legal scholars, and jurists has been profound. Montesquieu can be contrasted with the British constitutional philosopher Albert Dicey, who believed that law is about personality rather than institutions. While it falls short of specialized expertise, Chapter 5's brief discussion of the legal philosophies of neighboring social scientists serves as a comprehensive and comprehensive overview of the book. Therefore, this book could be classified as a specialized textbook on law rather than a specialized legal text. I owe a great debt to Professor Sung Seung-hyun for Chapter 1, "Roman Law." Through the dinner debate at the famous chicken stew restaurant Gwangil Restaurant and the discussion of Roman law, I, a public law professor immersed in the theory of natural rights and rights-centered democratic legal philosophy, have found the joy of encountering another facet of law: the world of technical and neutral dimensions. Perhaps I felt like I was moving from Descartes to Vico. Pacta sund servanda, the Pandect system, and countless other Roman law maxims seemed to awaken the souls of legal scholars. Chapter 2, Legal Positivism, was influenced by the simplicity and practicality of the neighborhood lawyers I encountered in my daily life. Bentham's criteria of utility, based on the inner nature of human beings and pleasure and pain, free from the constraints of religion and philosophy that dominated the Middle Ages, serve as a philosophy of life for neighbors and lawyers in the world of common law. As mentioned in the text, Hart contrasts Jeremy Bentham with Karl Marx. Marx's harsh criticism of Bentham, saying he resembled an ordinary, unassuming English shopkeeper, evokes the image of ordinary neighborhood lawyers. Nevertheless, Jeremy Bentham, a lawyer with a small, store-like office, offers a crucial philosophical yardstick through the everyday life of the rule of law. Jeremy Bentham's simple truths about law predicted the collapse of the established system of the time, like the Ancien Regime, and, as he himself said, will continue to serve as a benchmark for social criticism and institutional reform for generations to come. This, of course, stems from his human-centered philosophy, and he had a significant influence on British criminal law reform. However, the fact that he was so staunchly critical of American independence demonstrates that, despite being a great philosopher and criminal law scholar, he was ultimately a British citizen. In short, as someone who lived through the new democratic eras of American independence and the French Revolution, his insight into human nature through his criminal law philosophy deeply imprinted utilitarianism, revolutionary thinking, and reformist spirit, and will continue into the AI era. His greatness is evident not only through his extensive writings, but also in the efforts of Mill and Hart, two leading scholars of democracy and the rule of law, to evaluate and overcome him. Within this context, Chapter 2 is designed to provide a glimpse into the true nature of democracy and the rule of law through biographies of John Stuart Mill and Herbert Hart. Chapter 3 of this book addresses the issues of natural law theory and the democratic system. As mentioned earlier, the modern democratic system was built on the foundations of the Glorious Revolution in England, the American War of Independence, and the French Revolution. British traditionalism and the unwritten constitution can be examined through the lens of Albert Dicey. The legal philosophy of the French Revolution is significant in many ways, but examples include the Napoleonic Five Codes, the establishment of the Supreme Administrative Court, and the tradition of administrative centrality. These aspects of the modern French legal system are particularly significant from the perspective of democratic legal systems and system building. They naturally contrast with Albert Dicey, a constitutional scholar who championed the unwritten constitutional tradition and championed the political value of the constitution. This chapter will examine his praise for British liberalism and the parliamentary tradition, as well as his critique of the French administrative state. This can be translated into the practicality of administrative law, embodying the ideals of the Constitution and its implementation, or the Anglo-American constitutional state, embodying liberal ideals, and the practicality of administrative law, embodying and pursuing socialist values. This will provide public law scholars with a philosophical opportunity. Meanwhile, the American independence and the enactment of the Federal Constitution left another significant mark on the history of global democracy. Particularly for countries with presidential constitutions, the United States is the motherland of democracy. The US Constitution embodies the spirit of the Montesquieu-style separation of powers, characterized by political power integration and exclusion, and separation and checks. This ideological background is well-articulated in the Federalist Papers. Although only a small portion of this ideological background is explored, we will delve into the legal philosophy of the founders of this new continent. Chapter 4 of this book, titled "Rediscovering Legal Philosophy," includes reflections on the legal philosophy of Sean Coyle of the University of Glasgow and Scott Shapiro of Yale Law School, two leading British and American legal philosophers. As Sean Coyle's book "Modern Jurisprudence" and Scott Shapiro's book "Legality" suggest, modern legal philosophy is becoming specialized, centered around legal positivism, natural law theory, analytical law, and normative law. With law schools recently being reduced to bar exam preparation institutions, and with the marginalization of non-mainstream subjects like legal philosophy, I worry that, as with all academic disciplines, unless philosophy is predicated, future lawyers will inevitably become legal technicians or legal idiots. Faced with a reality where lawmakers are blind to political principles and entrenched in legal texts, and where impeachment clauses are used to impose dozens of impeachments in a short period of time, we need to reflect on whether law has become a tool of political power. The final chapter, Chapter 5, examines the philosophy of law and legal issues in the postmodern era, focusing on social scientists. Although selective and superficial, I hope this book provides a valuable opportunity to appreciate the developments in legal philosophy since World War II. Rawls, Nozick, and others demonstrate that "rights-based democracy" remains the dominant political philosophy in Western democracies. Furthermore, Walzer and Sandel have significantly influenced legal thought, facilitating an understanding of the liberal and communitarian philosophies of the United States, a leading democracy. In Germany, Jellinek achieved remarkable success by integrating the rigidity of legal scholarship with the scientific nature of social science. Furthermore, Radburg, under the banner of value jurisprudence, shifted from the absoluteness of law to the relativity of law and presented the inherent social function of law as legal certainty and predictability. This approach has had a profound impact on jurisprudence in Southern Europe and South America, and under the banner of the WTO's rule of law, it serves as a guide for lawyers worldwide. My humble hope is that this book will serve as a useful beacon for understanding law and legal philosophy.