西歐社會에서의 自然法理論에 關한 硏究 : 特히 中世紀와 近世를 中心하여 with the special emphasis on those of the Middle and Modern Ages = "Natural Law Theories in the West"

다국어 초록 (Multilingual Abstract)

In onder to study the natural law thought of confucians(Confucius), we should grasp the genuine core of natural law thoughts in the west. A Neo-Thomist, Prof. Wu, John C.H., maintains that the common Law of Anglo-American has been founded in that of St.Thomas Aquinas, and that in those countries the Foundation of Justice has been evolved and developed on the basis of Christian natural 1aw. He absolutely relies upon the medieval thought, and confirms the degeneration of common law spirits, English-jurisprudeuce, and furthermore warns what would be the future tendency of naturalla law thoughts on the center of common law of Anglo-American. He regards law as expression or concreteness of willingness of state or individual controlled by reason.
This article is composed of 5 parts. They are as follows:
I. Introduction
II. Natural Law and Middle Ages.
1. Foundations of Medieval Political and Legal Thought
2. Natural Law and Divine Order
3. William of Occam(1270~l343)
4. Decretum Gratianum
5. St.Thomas Aquinas(1226~l274)
Ⅲ. Reason and The Law of Nature
Ⅳ. Natural Law and SociaI Contract
1. Grotius(l583~1645)
2. Hobbes(1588~1679)
3. Locke(1632~l704)
4. Rousseau(1712~1788)
Ⅴ. Conclusion
1. Confucianism in Orient and natural law in the West
2. Evaluation
First of all, ius naturale expresses a tendency in the tendency in the trend of legal thought, a ferment operating all over the 1aw. Greek thinkers have laid the basis of natural law and developed its essential features. Heraclitus finds it in the rhythm of events. This he calls destiny, order, and reason of the world. In Sophocles' Antigone, natural divine law is opposed to written law. From this arise demands for justice which anticipate the principal demands for social justice. Nature for the Sophists is still something external. Outside men. Aristotle thinks that nature is now not only the order of things, but also man's reason. Man's reason is part of nature, and active reason becomes natural law. Socrates found that man's intelligence and insight were the measure of the good, and it was this insight which tested the reason and goodness of laws. The law of nature thus becomes identified with moral duties. The Stoics coupled this ideal(=reason)with a distinction between absolute and relative ideals. The practical Roman lawyers had turned the idea of natural law to practical account through the agency of ius gentium.
In the legal thought of Middle Ages connected with a civitas maxima, the thought was, undoubtedly, based upon the Kingdom and righteousness of God. According to the passage of Ulpian, natural law meant not only the supreme rule of human scciety, but also occasionally was identical with the laws of nature. Especially the thought of St.T.Aquinas was a system of Christian thoughts which combines the philosophies evolved and developed since ancient times with the doctrines of christian teachings. He has made great contributions that he attained the classifications of lex devina, Lex aeterna(=eterna1 law), lex nannalis, lex humana sellpositipa and the law of Scripture, and furthermore of common good and the highest good. The attempt that the Neo-Thomists prevent the present philosophical areas from the absence of philosophicalthought
presents the greatness and flexibility of Aquinas'. The negative elements of medieval thoughts could be expressed with the period of the deprivation of human individua1ity,divested of by worldly-Empire and Spiritual Power(=Christendom and the huge bodies did not help to enstrengthen their se1f-realization, And chriatianity had accupied mental world, thus made a society anesthetized, and human beings dwarfed and modellized, while it excluded other thoughts and religions. At this moment we can make a comparison between Confucianism and christianity by means of the different ways of relation to God.
Modem civil thoughts have attained the liberalization of human bondages, the establishment of human rights(=inalienable natural rights), and has followed modern constitutional states. There are imperishable contributions for us. It would be, we can say, a present ideal state which protects materially an enhenced positively and actively human natural rights and freedoms. Therefore the modem natural law thoughts have founded heirs of human rights and brought about constitutional states.
At present times, when we can enumerate the cases of the infringement of inalienable human rights, we should trace and find the original status of those back to and from modern natural law theories on the center of social contract theories. Furthermore we should succeed and develop those in the lights of modern thoughts. But it is found strange in Orient that law comes from God. From me proverb that the minds of lower people is identical with the divine wi1l, we cau1d not think that an emperor even at the first measure had been isolated from the people. The doctrines of nature of human beings of social contracrt teachings, also, had already been discussed by scholars in oriental aneient times(especially China).
The thoughts of material and social law-governed states at present time, we cauld and might say, would be the expression itself of the kingly way of Ccnfucianism with the aids of law of legalists.