Kiyoung Kim

Does international law have a philosophy? Most international law scholars don't feel that the international law presupposes any legal philosophy. However, the influence of philosophy on international law actually is profound. While the international law is a law among states, its binding force is weak and the boundaries between morality and politics are ambiguous, making its philosophical foundation all the more crucial. Therefore, philosophy, or the philosophy of law incurs or in some dimension, embeds a repercussion on the discipline, which is essential for a better understanding of international law. Against this backdrop, this paper aims to enhance our understanding of international law through the legal philosophy and general philosophical thoughts. The main text of paper is structured as follows. It examines the influence of two major schools of legal philosophy—legal positivism and natural law theory—on the international law. Furthermore, given the inseparable fate of international law and international politics, it summarizes the influence of realism and neorealism, two major schools of thought on the international politics, say, an element of clout and grease on international law. Specifically, Chapter 2 covers a legal positivism and international law, Chapter 3 on the universalism and international law, Chapter 4 on the realism and international law, and Chapter 5 on a neorealism and international law. Each chapter examines how the respective legal philosophy is reflected in understanding the international law. Meanwhile, with the advancement of democracy, the classical liberalism has given way to a liberal institutionalism, and the dogmatic nature of ideology has led to the development of new disciplines, such as critical theory and critical legal studies. Therefore, this paper adds a perspective on the international law from the liberal institutionalism and new critical philosophy, whenever necessary. Philosophy plays a role in the international law, providing theoretical foundations, ethical legitimacy, a framework for interpretation and criticism, and the imagination for a new alternative order. The possibility for international law to evolve beyond a mere agreement among the nations into a universal, shared legal order for humanity stems from philosophy.

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.

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.

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.

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.

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.

This book can be useful for college seniors or graduate students who have studied law to some extent. It also can inspire law professors, business people, Members of the National Assembly, administrative officials, in addition to all intellectuals who suffer from whipping or beating due to an incomprehensible legal structure and mandates relevant with their routine desk work. Chapter 1 of this book examines the essence of existing constitution and international law theories directed to the nature of state power, market and civil democracy in a rapidly developing international society in the age of globalization. Most of discussions had been expended to introduce and survey a new legal perception and its logic of reasoning as a law indebted to the concept of world law theory. Chapter 2 studies the core contents of international law according to the chapter on international law and international relations of the United States. It was spelled out to comply with the explanations and comments incorpated within the 4th edition of the Restatement of the United States. Chapter 3 refers to the legal system characterized as a public law and concerning a regulatory measure over the world market by states. An idealistic class of citizens, who emerged for a capitalist hegemony, generally have a status of sovereign, which came into being as owed to their revolution. However, it is also true that the citizens as an individual or laity are required to obey the regulations of state in the market. The interstate commerce clause of the United States Constitution is generally viewed as being shunned with an intention that state governments' measures to regulate the market should not hinder the prosperity of US market at the federal level. WTO laws known to be the most important international trade law, in fact, have a structure similar to the interstate commerce clause of United States Constitution. In this point of view, scholars gave a name to WTO as the world economic constitutional system. In the same vein, WTO member countries should not hinder the prosperity of a single world market as if the Clause requires pursuing that of a single federal market. Chapter 4 summarizes the core of legal norms, which is purported to study the jurisprudence of global market in coverage of fundamental principles espousing the freedom of contract, laws of sales, contract, documentary letter of credit, basic rule on the agencies of civil law. Therefore, we will be exposed to the laws of United Nations convention on the sales contract (CISG), the United Nations contract law, popularly cllled Principles as well as short introductions for the agency laws and cases relating the civil dispute of documentary L/Cs. I am unfeigned to confess that this book is neither thorough nor complete in terms of the craftsmanship of necessary exhaustiveness. So its contents may insufficiently cover issues or discussions as contrary to the author's purpose. However, I have exerted utmostly to include and cover as much as possible what I think is necessary for readers to grasp new theories and basic principles. I plan to add necessary revisions and supplements as opportunities arise. As a scholar, I always feel cautious and sorry about publishing books. However, the development of global market, civil democracy, and the universal legal system related to them is certainly Darwinistic and an evolutionary joy that can be duly sensed in the field of law. I dare to recommend that readers can enjoy.

The Constitution is the highest law of the country, while international law is a field of law that deals with the rights and obligations between countries. The essence of international community is of decentralized nature, in which the legal order is formed according to the principle of sovereign equality. However, there are many perspectives that approach the international community and international law from a universalistic and idealistic viewpoint. In other words, if the positivist and pseudo-oriented view of international law is the reality of international community and international law, the universalist or idealist perception of international law can be said to be their goals. It is true that those two perspectives on international community and international law are neither omnicient nor all-perceiving, but complexly intertwined. The Constitution and international law, which can be considered the two axes of public law, are closely interrelated to the formation of a modern absolute state and civic democracy. The absoluteness of state power and civic democracy are doomed to fate our present and our future. This is not only such fundamental political order, but it also has become a foundation for the development of modern and contemporary order of law. And the two dimensions of order, politics and law, are developing in a dialectical manner. Under this background, this paper aims to provide a harmonious view sprucing up the reality of public law that penetrates both of the international and domestic society within a large framework. It is for research purpose and needs an effort of work by reviewing and analyzing the essence, commonalities, and differences among various adjacent concepts of the Constitution and international law discourse. This paper first begins with a discussion by presenting the historical development of existing hard legal system that penetrates the Constitution and international law through their realistic framework. Furthermore, we look at the softness of international law, conceptual discourse on the international law and world law, international constitutionalism and constitutional theory, and a compendium of world administrative law. We look at the background for the development of these commentaries, the main topics of discussion, and their commonalities or differences. Finally we briefly diagnose and place the future of new sermons that needs to be adduced due to changes in the international community.

그동안 많은 전문서적을 출간한 경험을 가지고 있지만, 이번 출간하는 법과 생활은 생활 현장에서 느낀 바를 진솔하게 담고 있어 독자들이 쉽게 읽을 수 있게 하였다. 항상 법이 무엇인가를 생각하면서 단조로운 일상을 살아야 하는 변호사, 법학교수로서, 우리 주변의 이야기는 빈곤한 사고의 저변을 넓혀 준다. 조선대학교 법사회대학에서 학생들을 가르치는 백면서생이지만, 서울과 광주를 오가면서 한국 사회를 객관적으로 바라볼 수 있는 시간을 가질 수 있었던 것은 본서 출간을 가능하게 한 동인이었다. 본 서는 정밀한 법이론이나 사례 분석, 또는 판례에 대한 학술적 비평을 담고 있지 않다. 다만 지난 수년간 느껴온 바를 일상의 시간에 연결한 천학비재한 한 법학도의 단상과 에세이 모음집이라 할 수 있다. 페이스북을 통하여 발표된 글들을 정리하여 학술적 외관을 씌운 부끄러운 졸작이다. 그러나 저자로서 작은 소망이 있다면, 그것은 독자들이 함께 살아 온 시간들을 반추하면서, 민주주의와 법치주의의 가치를 조금이라도 음미할 수 있었으면 하는 것이다.

버리고 비우는 일은 결코 소극적인 삶이 아니라 지혜로운 삶의 선택이라는 법정 스님의 말씀이 새삼 가슴에 사무치는 가을입니다. 우리는 버리고 비우지 않고는 새것이 들어설 수 없다는 지혜를 알고 있습니다. 가을은 나눔의 계절입니다. 오늘은 나눔의 날입니다. 내 마음에 가득 고인 고마운 마음을 이웃과 나누고 싶습니다. 보잘 것 없는 생각의 편린들이지만 나도 나눌 수 있다는 것이 고맙습니다. 가을의 풍성함과 쓸쓸함은 인생의 진리인 듯 합니다. 들판의 곡식이 다 내 것이 아니고 나무의 열매가 다 내 것이 아니지만 추수의 계절은 우리에게 감사한 마음을 가져다 주고 모든 수고로운 사람들과 만물에 감사하는 계절임에 분명합니다. 모두에게 고마운 마음을 전하고 싶은 소박한 마음에 김기영 시모음 제 1권, 제 2권에 이어 『가을이 보내온 편지-우거에서』 라는 제목으로 제 3권을 펴내게 되었읍니다. 모쪼록 풍성한 가을을 맞아 행운과 건강이 함께 하길 기원하면서 엉터리 사마천 같은 우리의 시간 기록과 함께 삭막한 세상 살이에 위로가 될 수 있었으면 좋겠습니다.

춘래 불사춘이라 ‘봄이 왔지만 봄 같지 않다’라는 선현들의 말씀이 남의 일이 아닌 요즘 세상이다. 혼탁한 정치와 메말라가는 인간들로 우리 사회는 양들의 침묵 같이 감성이 메말라 버리고 우리의 사회 생활은 사하라 사막 같이 황량하고 무미 건조하게 되어 가고 있다. 과학 기술의 발전으로 페북이라는 작은 표현의 장을 얻어 남기고 싶은 느낌들을 시로 긁적거리기 수년이 지났다. 페북의 빈 페이지는 마치 사막의 오아시스처럼 잠시나마 생각을 표현하고 이를 지인들과 공유할 수 있게 한다. 본 시선 1집은 2020년 경 페북 시들을 모아 본 것이다. 시라고 하지만 무엇이 시인지 아직도 감을 못잡고 있는 가운데 그저 진솔한 느낌을 글로 전해 보려는 작은 마음으로 아직도 페북에 시 형식으로 글을 쓰고 있다. 제 2집 제 3집처럼 씨리즈로 출간해 볼 요량이다. 무엇보다도 걱정되는 것은 직접적인 서정적 표현이 아닌 비유와 풍자적 표현이 많아 시를 통하여 감성적 만족을 얻으려는 독자의 기대에 모자라지 않을까 걱정된다. 다만 풍자와 해학으로 이해하면서 감상하면 망외의 즐거움이 아닐까 한다. 본 시선 모음은 독자의 지루함을 덜기 위하여 중간 중간에 사진을 삽입하였다. 시의 감상과 함께 자연과 가족이 가져다 주는 오붓한 느낌을 공유할 수 있었으면 하는 바램이다. 2023년 여름이 짙어져 가고 있다. 예년보다 더한 폭염이 온다는 예보 속에 독자들의 건강과 행복을 기원한다.

법을 공부하고 법을 가르치는 법학도나 법학 교수, 그리고 현실 사회에서 법과 정의를 구현하기 위하여 묵묵히 자신의 책무를 수행하는 일선 법률가들을 생각하며 조금이라도 도움이 될 수 있는 글을 써 보겠다는 마음으로 페북에 글을 올리기 시작한지 어언 5년 가까이 되고 있다. 우리 법률전문가들은 세상의 진실에 눈을 감고 진리를 왜곡하는 곡학아세의 길을 걷는 것을 항상 경계하여야 한다. 특히 좌우 정치가 자리를 잡아가면서 법률가들 마저 파벌을 이루어 법을 생각하기 앞서 자파의 이익을 생각하는 현실을 부인하기 어렵다. 이는 우리에게 양심의 회복을 질책한다. 무매한 민중을 호도하고 국가의 기강이자 바른 초석이어야 할 법과 법지식을 우롱하는 것이라 아니할 수 없다. 이는 민주주의와 함께 우뚝 서야 할 법치주의를 갉아 먹는 행태라 아니할 수 없다. 조심스러운 마음에서 같이 공부하여야겠다는 생각으로 ‘인간과 사회 그리고 법에 관한 성찰’이라는 제목으로 책을 출간하기로 마음 먹었다. 본서는 한 법률과목을 전문적으로 다루었다거나, 법이론이나 법해석학 관련 주제를 체계적으로 다룬 서적이 아니다. 그렇다고 법 실무에 도움이 될 수 있는 구체적이고 실무적인 문제를 다루고 있는 것도 아니다. 본서는 우리의 일상을 기반으로 법에 관한 단상, 그리고 관련되는 이론들을 생각나는대로 기술한 책이다. 변호사. 법률가. 법학교수, 법학도 등이 제 1차로 독자가 될 수 있을 것이지만, 그 밖에 인간, 사회, 법에 관심 있는 시민 모두가 즐겁게 읽을 수 있도록 엮으려고 노력하였다. 천학비재한 주제에도 화광동진(和光同塵)의 심정으로 출간에 나아가면서 감히 일독을 권하는 바이다.

From the traditionalist position on international law, a new form of compact agreement, which cannot be classified as an international treaty in terms of academic framework, had long fueled much of contention in politics, international law, and constitutional law. A growing practice of compact agreement had been natural as corresponding with the global compression of international community and rising aspiration of peace regime on the international relations. The scholars of international law believe that, regardless of whether the President of the United States is an internationalist or an isolationist, the enactment of international law in the 21st century will be based on more pragmatic rather than formal criteria. It is still true whether or not he is willing to accept or escape the international obligations so that we can more realistically share the powers conferred by the Constitution. On the other hand, a constitutional controversy on somewhat mushy yet sophisticated issues on the compact agreements began with the Laurence Tribe's acrimonious criticism in 1990. He argues that a procedure between Congress and the executive branch for the Clinton administration's accession to the North American Free Trade Agreement(NAFTA) is unconstitutional. His criticism pointed out that the NAFTA is unconstitutional since it is contrary to the text and structure of the Constitution. On the other hand, scholars of political science believe that, while a politics is termed as the distribution of values, the new form of compact agreement serves connecting the domestic and international politics as a living organism and must be affirmed from the standpoint of parliamentary politics. The political scientists argue on the necessity and inevitability of a new form of international agreement as pursuant to the nature of political process on informal procedures and parliamentary practices. In respect of the theoretical controversy, the paper is devoted to survey what the new form of compact agreement is, what types we can identify and explore the theoretical contest among the disciplines. As the dealings of paper attempt to touch on the core of scholarly assertions as fundamental and philosophical, the endeavor could inculcate the mind of international lawyers within and outside the government by providing a better framework to understand the specific real-world issues. The perception and rationale for the new form of international agreement should differ varying with their academic disciplines from which their thought stems from. The paper ends with implications within the grand scale of jurisprudence.

The following provides to facilitate a better understanding of Niche doctoral programs, which was elaborated on the frequency of major institutions within the doctoral program listings. While no definitive ranking unlike the college rankings and programs is available, we are able to conjecture the breadth of doctoral programs for the list institutions. Others on instant sense may see in a mild aura of college or program strength. Then, they may refer to A/B/C tables below the Niche Doctoral Rank, whose focus runs solely on the availability and breadth of programs.

The major research universities in the United States had been investigated for the doctoral ranking of 2022 College Factual. The investigation had been performed as best as possible for the accuracy of data, but never be perfect nor exhaustive. Suggestion and advice are truly welcome (Kiyoung Kim, Professor of Law and Public Policy, College of Law and Social Studies, Chosun University, Gwang-ju, South Korea. I plan that the data would be used for the next research publication. The institutions had been ordered alphabetically.

With the establishment of the World Trade Organization in 1995, the dispute settlement mechanism for international trade was greatly prepared unlike the old GATT system. It has a very different pattern from that of original GATT system. In our case, international trade is a matter of the future of nations, and in reality of the intense world economic competition, this system change may well be of concern to our government or legal experts. In this context, this paper examines the nature and problems of the WTO appeal system under the premise of the rule of law, judicial prowess, and the role of a judge. The WTO dispute settlement mechanism is based on the domestic judicial system or other international judicial systems. In contrast to this, the comparative history is only short indeed, but according to the accumulation of future precedents, it is highly possible to provide a model for the achievement of the rule of law ideals in the international community. However, due to the inherent limitations of international agreement system, the reality of appellate body is not easy. In terms of the international trade and rule of law, the role of appellate body and judges is very broad. However, in this paper, we first look at the significance and nature of the launch of WTO and furthermore; 1) the rule of law and judicial system, 2) several issues related to the nature of WTO dispute settlement mechanism, 3) the importance of judge-made law and the scope and limitations of appellate jurisdiction, 4) issues of reference materials submitted by procedures outside the process, 5) the relationship between the appellate body and political authorities. Over the review, the penetrating thoughts will be focused on judicial activism. Those points of consideration will be discussed through the approach and method on the comparative legal studies and several significant WTO precedents.

The purpose of college and university ranking mainly resides to assist with the students in choosing their schools and programs at the level they wish to study. The US News and World Report (USNWR) graduate programs ranking is notable that evaluates the graduate level programs uniquely and in contrast with other general subject rankings. Along with the reputation of source, this specificity enables to enjoy a number of subscribers in making an application decision about which school or program is competitive and personally fits. Given the study of national research council is most exhaustive and authoritative ranking source on research doctorates, called Ph.Ds, the ranking of professional schools, for instance, law schools, medical schools, nursing schools and on, as presented to the students in USNWR is very determinative in deciding which school I choose. In this light, the following tables show a ranking that has been yielded on the diversity and quality of graduate and research doctorate programs as well as law studies specifically. Therefore, the tables can be referred to a vast of interested people on the graduate studies in the United States. The last part of reference can be referred not only by JD students, but also by researchers in the graduate law programs. Since some small or exclusively JD-oriented law schools are not available of LL.M or graduate study, the users of table are expected to read consciously. The ranking table has a threshold to qualify so as to be enlisted that the top 44 law schools in all specialties exclusively had been selected and ranked according to the average of two subjects. As said, it could be used secondarily to refer in deciding the schools on the application of general LL.M program. Given the junior scholarly nature of LL.M. or graduate law programs, it is considered that the legal writing program is half factored to select the schools. The column 1 and 2 transcribes the US ranking, which are added for a sum in column 3. Least number is placed at top and less number attains a high ranking correspondingly thorough the end of institution. The first and second parts of this work show the top universities according to the number of programs, whose possible highest rating is placed within the range 1st -17th in either R or S rank of most recent 2010 NRC assessment and roughly same range in the USNWR graduate programs ranking. They are prepared from the revised NRC report published in 2011, which is most recent as well as based on the 2021 version of USNWR. Both data will be incorporated into my current project concerning the American higher education and graduate studies.

The Kiosk is designed to reveal the compiled rankings of leading institution that is not exhaustive to include all of doctoral programs. I have, nevertheless, list the major follow-up institutions from the 2010 NRC report. Ranking for each program finally has been yielded by average number of 1996, 2010, and USNW ranking for the graduate programs. Hence the coverage in period is longitudinal possibly 1986 (the first year from last 1985 NRC) through 2020 (the last year for ten year interval of NRC practice, but not surely for every turn). The ranking of USNW graduate programs are mostly yearly, or changed with the interval of about three years for Natural and Social Sciences. The USNW ranking mostly was based on 2017-2018 version (eventually to determine the period of effect for this KIOSK), but in rare case, might be adjusted to avoid a sharp precariousness or in consideration of promotional equity.

법의 系統으로 분류할 때 사회주의 국가권을 제외하면 일반적으로 성문제정법 중심의 대륙법계와 보통법 및 법원의 판례법을 법으로 인식하는 영미법계의 兩大 法界가 존재한다. 법은 일반적으로 국가를 전제로 한 개념으로 인식되고 있으며, 따라서 사법의 경우 국가마다 자신의 私法을 가지고 있고, 국제사회의 발달과 함께 사법의 통일노력은 꾸준히 지속되어 왔다. 사법의 통일방식에는 다양한 유형이 있 고, 그 중 하나가 超國家法(Non-State Norms)의 제정을 통한 통일이다. UNIDROIT Principles와 유럽 계약법원칙은 초국가법의 제정을 통한 사법통일의 대표적 실례이다. UN계약법원칙이라고도 불리는 UNIDROIT Principles은 중세 상인법(lex mercatoria)의 현대적 부활로 불리며, 대륙법과 영미법이 조화를 이룬 잘 된 입법으로 평가받고 있고 향후 사법통일의 지표와 시금석 역할을 하고 있다. 그러나 초국가법의 제정에 의한 사법통일은 그 法源性 및 대륙법계와 영미법계의법문화적, 지적 차이, 국제사회의 현실적 여건과 통일에 있어 법기술적 문제로 인하여 국제사회의 다른 법통일 노력과 비교할 때, 여러 가지 특징을 보이고 있다. 따라서 본고는 초국가법의 의의, 법원성을 간략히 살펴보고, 사법통일 운동 내지 초국가법에 의한 사법통일의 특징을 살펴본다. 나아가 초국가법에 의한 사법통일은 대륙법계식 사법통일을 대변하므로 그에 대한 보통법국가의 비판적 기본 시각을 정리해 보고, 대륙법계식 통일의 불가피성에 관하여 논한다. 사법통일에는 많은 變數가 존재하고 그 나름대로의 특징이 존재한다. 1893년 헤이그 국제사법회의 이래 최근 UN을 중심으로 한 사법통일에의 노력에 이르기까지, 사법통일운동은 향후 많은 변수 속에서 진행될 것이다. 그리고 초국가법을 통한 사법통일운동은 그 방식, 법적 성격, 法文化的 차이로 인하여 여러 가지 특징을 보이고 있으며, 이는 사법통일의 주체가 되는 각국 정부나 이를 국제거래분쟁해결의 준거규범으로 적용하여야 하는 司法官들이 참고할 필요가 있다고 본다.

The paper aims to briefly look into the civil law remedies of CISG from the perspective of economic efficiency. It mainly illustrates the basic tools of remedies in CISG, and discusses its strengths and flaws from the standpoint of economic deals normally present in most of commercial transactions. As many literature have long contributed to the legal economic discourse, our discussion, as a matter of course, largely depends on the current stronghold, or prospect that those theories espouse. Generally, the remedies in CISG have two basic pathways addressing or penalizing the breach of contract from one party, namely specific performance and damages award. Other instruments to deal with the breach of contract cover a cure of defect, repudiation to perform a contract, additional period to perform a contractual duty, avoidance of contract and etc. This group of instruments can be classed as a privately administered remedies for our purpose of analysis. On this assumption, we can find many aspects of strengths in economic terms, but some paucity that the prescribed approach cannot properly address the best of economics between the contracting parties. This paucity comes mainly because the lawmakers normally could not pre-consider all circumstances among the individual contracting parties. For this reason, this paper argues in favor of privately administered remedies to fill the paucity of two typical remedies. Moreover, the contractual negotiation or design of contract is considered very important as the contracting parties are most informed about their best of economics besides the official lawmakers. The paper concludes with a short discussion of the electronic commerce in comparison with the traditional domestic and international commerce.

1995년 세계무역기구가 출범하면서 구 GATT체제와 달리 국제통상에 관한 분쟁해결절차가 대폭 정 비되었다. 逆滿場一致制의 채택, 處理時限의 명시, 국제통상에 있어 법치주의의 구체화를 위한 抗訴機 構의 설치 등 舊體制와는 매우 다른 양상을 보이고 있다. 우리의 경우 국제무역은 국가의 미래가 걸려 있는 문제이고, 세계가 경제전쟁화되고 있는 현실에서 이러한 체제변화는 우리 정부나 법률 전문가의 관심 사항이 아닐 수 없다. 이러한 맥락에서 본고는 법치주의, 사법적극주의, 심판관의 역할이라는 명 제하에 세계무역기구 항소기구체제의 성격과 문제점을 조명하고 검토한다. 세계무역기구 분쟁해결시스 템은 국내사법체제나 다른 국제사법체제와 달리 비교적 역사가 일천하나, 향후 선례의 축적에 따라서 는 국제사회에서의 법치주의 달성에 있어 하나의 典型을 제공할 수 있는 가능성이 크다. 그러나 국제 협정체제라는 본질적 한계로 인하여 항소기구가 처하고 있는 현실은 그리 쉬운 것도 아니다. 국제통상 에 있어서의 법치주의와 항소기구, 심판관의 역할문제는 매우 광범위한 문제영역에 걸쳐 있는 문제지 만, 본고에서는 먼저 세계무역기구 출범의 의의와 성격을 살펴보고, 나아가 법치주의와 사법제도, 세계 무역기구 분쟁해결시스템의 성격과 Judge-made law의 중요성, 항소기구심판권의 범위와 한계, 절차 밖의 자가 제출한 참고자료의 문제, 항소기구와 정치기관 간의 관계 및 사법적극주의 문제 등에 관하 여 몇가지 事例와 比較法史的 접근방식을 통하여 논한다.

In retrospect of Hague convention on international sale of goods, the efforts had been poured in the initiative of UNCITRAL since 1968 triggering more welcome international treaty on the area of law. The efforts came to reality where the committee in action, comprised of 14 countries, concluded a final draft in 1978. In 1980, it was adopted as United Nations Convention on Contracts for the International Sale of Goods(CISG). While the treaty is deemed a marvellous success within the purview of uniform private laws, it is also true that there arises a severe criticism. One of criticism points to imprecise and ambiguous terms CISG employs that harms the uniformity in its interpretation. However, I would support the strength of CISG that CISG can be interpreted consistently in itself in terms of its international character, which means imprecision of CISG, short coverage of hardship issues, imbalance between parties, and inept nature to commodity transactions. In support of CISG, these criticisms either overlook the intrinsic difficulties underlying production of the uniform laws or seems to be groundless on various points of views. On the other hand, the true uniform laws presuppose uniformity in the application of treaty. We can see some extent of difference in terms of the role of precedents between the common law and civil law countries. It is encouraging that the recent practice of civil law countries, including Italy, Poland, Denmark and so on, tend to cite the foreign precedents for the cases of CISG laws. Within the regime of common law countries, the rule of “stare decisis” prescribes that the national precedents should govern as binding authority while those of other common law countries function to be a persuasive authority. This means that the practice of civil law countries has considerably developed as similar to that of common law counterparts. While they seem to use foreign precedents as persuasive authority like their counterparts, or in the least accept as inspirational authority, the application of CISG grows to be made in a shared fashion for true uniform laws. This development seems to prosper at the advent of academic database as well as the contribution of CISG experts.

WTO는 2005. 3. 7. EC 제소의 선박산업에 대한 보조금지급에 관한 한국과 EC 간의 通商紛爭에 관 하여 패널결정을 선고하였으며, 양국의 항소포기로 인하여 4. 12. 분쟁해결기구가 동 결정을 채택하고 그 이행에 관하여 감시하고 있다. 즉, WTO는 제소국인 EC가 대한민국의 수출입은행법 및 동법 시행 령, 동 법령에 근거한, 개별적 특혜조치, 대우, 한라, 대동 등 우리 나라 주요 조선기업에 대한 특혜적 구조조정이 WTO가 허용하지 않는 금지보조금 및 조치가능보조금에 해당한다고 주장하면서 대한민국 정부를 상대로 제소한 통상분쟁과 관련하여 대부분 EC의 주장을 배척하고 일부 개별적 거래가 WTO 의 보조금 및 상계조치에 관한 협정에 위반한다는 결정을 내린 것이다. 이에 따라 WTO는 피소국인 대한민국에게 지체없이 동 일부 특혜조치 등을 철회할 것을 권고하였고, 대한민국 정부는 이를 이행할 의무를 부담하게 되었다. 본 사안을 통하여 WTO는 보조금 및 상계조치에 관한 해석론상의 많은 쟁점들에 관하여 法理的 견해 를 밝혔다. 첫째, 동일한 사실관계에 관하여 금지보조금과 조치가능보조금의 주장이 중첩적으로 가능하 고, 둘째, 전통적인 재량행위론, 즉 법령조항의 기속행위성 여부가 정부나 공공기관의 재정적 공여요건 의 충족 여부에 관한 판단의 기초를 제공하며, 셋째, 소위 SCM협정 예시목록의 법적 성격, 넷째, 재정 적 공여 요건과 특혜요건의 준별, 다섯째, 중대한 손상요건과 관련하여 보조금 해당요건과 국내 상계관 세부과조치의 준별, 여섯째, 보조금해당 여부의 판단에 있어 ‘ 동종물품요건’ 의 적용문제, 일곱째, 조치가 능보조금의 태양으로서 가격유지 및 왜곡된 가격인하의 개념 및 보조금요건충족과의 문제 등이 그것이 다. 본 논문은 우리의 주요 수출산업인 조선산업과 관련하여 이러한 쟁점들에 대한 WTO 결정의 의미 를 검토하였는바, 국제통상규범과 관련하여 향후의 무역분쟁에 대한 대비에 일조할 수 있었으면 한다.

자국의 통상이익을 확보하려는 국가의 노력과 무역의 자유화와 확대를 위한 경제심 판관으로서 WTO의 역할은 인류복지의 극대화를 위하여 한 방향으로 나아가면서도 충 돌하고 있다. 개별국가의 성장과 복지없는 인류복지의 극대화는 껍데기에 불과하고, 자유와 비차별(non-discrimination)의 원칙에 바탕한 기회균등, 공정경쟁조건의 보장이 없는 한 국제무역은 홉즈식 "즉발적 利己主義(spontaneous disorder)"만이 횡행하게 된 다. 이를 구제하기 위하여 국가적·국제적 통상관리체제가 발전되어 왔으며, WTO가 세 계경제헌법체제로서 많은 역할을 하고 있는 것은 주지의 사실이다. 많은 WTO업적 중 최근의 버드법 문제는 그 이례성과 전략성으로 인하여 양식있는 자의 관심이 대상이 되어 왔으며, 최근 미 연방법원과 WTO분쟁해결기구는 동 법의 적립금배분조항에 관 하여 국제적·국내적으로 위헌성을 확인한 바 있다. 그러나 양대 司法機關의 결정취지는 동일한 것이 아니다. 미국 연방법원은 문제된 버드법 조항이 헌법상 보장된 표현의 자 유와 평등권을 침해하여 위헌이라는 결정을 하였고, WTO분쟁해결기구는 반덤핑협정 이나 보조금협정 등 관련협정에서 허용하고 있지 않는 내용의 무역규제조치를 하였다 는 이유로 동법의 협정위반을 선언하고 그 철폐를 권고하였다. 이에 본고는 버드법상 적립금배분제도에 관한 양대 사법기관의 결정요지를 살펴보고, 헌법국가의 이상이라는 관점에서 사법기관의 역할과 버드법에 관한 사법심사가 주는 시사점을 음미하기로 한 다. 이는 종래의 외교통상문제와 국내문제의 엄별이라는 기존관념으로부터 헌법국가이 상의 역사적 의의와 발전, 국제법과 국내법의 관계, 사법기관의 국제적 협조와 연대라 는 관점에서 보다 적극적 자세로의 인식전환과 관련을 갖는다. 사법기관은 역사적으로 시민사회의 형성ㆍ발전에 있어 기본적 가치의 수호를 통하여 국제적ㆍ국내적 차원에서 중요한 역할을 하여 왔으나,현대 국제사회에서는 외교통상 행정영역의 발전에 뒤떨어 지는경향이있고, 세계헌법주의라는 관점에서 새로운 조명이 필요하다고 본다. 결론에 서는 현재 국제사회의 현실에서 사법부를 포함하여 우리정부의 전략적ㆍ법제적 대응 방안을 간략히 적시해 보도록 한다.

世界化는 우리 경제의 현실이자 우리의 일상을 지배하고 있다. 그러나 기존의 세계화에 대한 우리의 관심은 경제영역을 중심으로 전개되고 있다. 세계경제의 밀도증가는 이를 관리할 수 있는 정치․경제적 패러다임을 요구하게 된다. 국제형사재판소의 설립 및 최근 우리 외교력의 신장과 함께 차제에 법학자로서 국제적 차원의 民主主義와 法治主義의 가능성을 살펴보는 것은 의미가 있다. 민주주의의 장으로서 국제사회는 국가사회와는 다른 다양한 변수가 있으며, 이를 이론적으로 체계화·제도화하는 것은 쉬운 일이 아니다. 또한 민주주의와 법치주의가 실현되는 것은 제도 이전에 시민의 자각을 필요로 한다. 세계시민의 자각과 참여가 전제된다면, 현재의 단계에서도 미흡하나마 국제적 차원의 민주주의와 世界法體制에 의한 법의 지배가 가능하다고 본다. 즉 신체의 자유, 소유권의 보호, 경제행위의 자유 등 기본적 인권이 보장되고, 다차원적인 국제통치 구조를 가지고 있다는 것이다. 본고에서는 法史的․法哲學的 觀點에서 가장 순수한 이론적 프레임워크인 켈젠의 주장을 시작으로, 정치․법제적 현실 및 이론적 문제점 등에 관하여 살펴본다. 즉 민주주의의 기본원리인 시민참여, 토론과 대화, 다수결, 소수자보호 등에 기초하여 이론과 현실을 고찰하는 한편, 국제법의 발전과 가칭 세계법체제의 메카니즘 및 그 역사적 발전 및 성격에 관하여 살펴보고, 그 의의를 규명한다.