막스 베버 법사회학에서 로마법과 영국법의 위상 : 법유형론과 법발달론의 법제사적 재구성

초록

It was not Weber's original intention to classify legal orders into four quadrants composed of two axes: formality and rationality. His typology of law was intended to extract Idealtypen from historical and contemporary legal orders and to explain the development process of these Idealtypen and their causal relationship with political and economic factors from the perspective of historical sociology. For Weber, the typology of law is inseparable from the theory of legal development. This article is an attempt to reinterpret Weber's Sociology of Law from the legal history perspective. The development of Western law, expressed in terms of legal typology, progressed from procedural irrational law to empirical formal rational law and to logical formal rational law, having close interaction with substantive rational law in this process. Expressing this in terms of the legal development, it can be said that from the charismatic revelation of law by the law prophets, via the empirical discovery and creation of law by the legal honoratioren, it reaches professional judicial decision based on academic and formal logical training, having in the process mutual influence with the imposition of law by secular and theocratic political power. In the discussion that connects the typology and the developmental theory of law, it is revealed that the development of ancient Roman law is the product of the interaction between empirical formal rationality of ius civile and substantive rationality of ius gentium (natural law) and imperial constitutiones. Again, the development of English law is the product of the interaction between empirical formal rational Common Law and substantive rationality of Equity and statutory law. The position that English law is close to substantive irrational law seems to be based on a misunderstanding of Weber's sociology of law.

키워드