오스틴의 규칙 공리주의와 반성적 규칙이론 — 커먼로의 존재론적인 성찰에 관하여 — = John Austin’s Rule Utilitarianism and Reflective Rules ― Ontological Foundations of the Common Law ―

다국어 초록 (Multilingual Abstract)

This article reconstructs the theoretical foundations of the existence of social rules by reinterpreting John Austin’s rule utilitarianism in light of post-Hartian theory of rules and the common law notion of judiciary law. It begins from the internal connection between Austin’s utilitarian ethics and his theory of legal commands, and introduces “reflective rules” as a distinct layer from H. L. A. Hart’s notion of “referential rules,” i.e. social rules understood as externally given reference points. Reflective rules are defined as normative patterns that emerge when an agent, who is at once a participant in and an observer of the life-world, evaluates and reconstructs generalized tendencies of conduct from a utilitarian, value-laden point of view; in this sense they occupy a different ontological level from formal normative texts. Referential and reflective rules are not mutually exclusive alternatives, but operate together as a dual essence that fully discloses the nature of social rules.
On this basis, the article rereads Austin’s theory of “positive morality” and rule utilitarianism through the lens of reflective rules, and argues that rules are not simply “given” from the outside but “manifest” themselves to judges and citizens from within their internal point of view. It then examines the history and doctrinal development of the common law, focusing on case law and Austin’s six sources of judiciary law, and contends that, unlike in the realm of statutes, what truly functions as “law” in the common law is not the verbal surface of judicial speeches but the underlying ratio decidendi that structures them. Judicial speech does not amount to mere formal or rhetorical packaging; it serves as a linguistic medium through which reflective rules, formed in the judge’s inner deliberation, are articulated by flexibly rearranging the legal significance of past cases and connecting them to the present dispute.
Consequently, judiciary law in the common law tradition is not adequately understood as a mere system of externally referential positive rules, but must be grasped at the level of reflective rules that traverse the temporal series of cases through the experience of normativity. In doing so, the article shows that Austin’s rule utilitarianism opens up an ontological dimension of positive law that Hart’s rule theory leaves largely unaddressed, and provides a basis for critically re-examining positivist theories of legal rules in continental legal scholarship, including conceptual jurisprudence (Begriffsjurisprudenz) and its codification-centred understanding of law.