實用主義(Pragmatism)法學과 現實主義(Realism)法學 = Legal Pragmatism and Legal Realism (Legal Philosophy in the United States of America)

다국어 초록 (Multilingual Abstract)

Ⅰ. Introduction
1. Legal pragmatism and legal realism are American unique ideologies originated and developed in the United States of America.
The pragmatism and realism have infiltrated into sociological, economic and historic ideologies as well as into the legal field. These ideologies in the last field can be defined as legal pragmatism and legal realism which start from criticism of the natural law, historic jurisprudence, and analytical jurisprudence (Begriffsjurisprudenz).
2. Natural law
The American Constitution is a written statute of those theories of natural law in the 16th and 17th Centuries and its private laws are inherited from the British Common Law. According to those theorists of the natural law there exists the law of nature in human society as that consistent in the natural world. The American scholars of the natural law overlooked the realistic view of seeking specific reasonableness . There arose among them a tendency of adhering to the formality of the Constitution articles. Those Justices of the Federal Supreme Court who stood for the natural law manifested with no hesitation their formal, superficial and mechanistic way of thinking in judicial review. The initial greatest text for American private laws was Blackstone's "Commentaries on the Laws of England". He was a believer in the natural law and commented the Common Law as a consistent everlasting law.
3. Historic Jurisprudence
This is an application of the theory of evolution to the science of law. The theory of evolution was originated not by G.H. Mendel nor C.R. Darwin but by H. Spencer. It was a kind of the natural determinism. The historic jurisprudence was initiated in England and imported into the United States of America, where it could not develope as an influencial theory because of the powerful resisitance of the above natural law. It could not perform the mission of criticizing or improving the existing American laws.
4. Analytical Jurisprudence (Begriffsjurisprudenz)
J. Austin completed the English analytical jurisprudence with influnce of the Continental Law. He grasped law as the sovereign order. The American theorists for the natural law who believed the Constitution and Common Law as consistent everlasting laws had to require this analytical jurisprudence for their skills and it became dominant in the United States of America. It then had to receive the same criticism with the Continental Begriffsprudenz.
Ⅱ. Legal Pragmatism
1. John Dewey
Legal pragmatism was influenced directly and greatly by two philosophers; John Dewey and William James. Dewey apprehended the law as vicissitudinary social phenomena.
2. O.W. Holmes
Legal judgments seem to be formed through legical syllogism but actually major causes of forming them are timely requirements, morality, customs, political ideas intuitive perception of public benefits and judges' prejudices. There causes are to stem generally from some instinctive emotions orvague convictions. Judges do not use good sense, conceal their realconviction, and only try to make excuses in their judgments. Thus, Holmes advocated that law was for social benefits filtered throughjudges' subjective opinions.
3. Roscoe Pound
He claimed that jurisprudence is nothing but an application of pragmatism, and law is a phase of social control. Stress was put by him on the necessity of considering the law relative to social phenomena as well as its relationship with other social sciences. He regarded law as a social system, mainly concerned with the actual vivid side of the system, and emphasized on the functions rather than the formal logics of the system while the analytical jurisprudence mainly concerned with datailed contents of positive laws. He claimed that the mission of law was to enhance the efficiency of social life and seeked the effectiveness of law in social benefits or social purposes. He did not attribute the law simply to the sovereign power as Austin did.
Ⅲ. Legal Realism
J.W. Bingham, K. Llewellyn, J.N. Frank
These scholars did not consider the norm of law or principles of law as a part of jurisprudence but considered specific causal relations of facts and their lagal results judgments which deserved to be researched as lagal subjects. They thought that the norm of law, principles of law, or legal terminology were just classifying means to deliver the legal knowledge.

목차 (Table of Contents)

• Ⅰ. 總 說
• 1. 序 言
• 2. 自然法學
• 3. 歷史法學
• 4. 分析法學(槪念法學)
• Ⅱ. 實用主義法學
• 1. Dewey
• 2. Holmes
• 3. Pound
• Ⅲ. 現實主義法學
• 1. 序 言
• 2. Bingham
• 3. Llewellyn
• 4. Frank
• Ⅳ. 後 說