법적 허구와 실체

Legal Fiction and Reality

This paper is started on the recognition of the problem that legal judgement is often assumed true and the critique of that is deterred. And the overview of some debate about legal fiction are as follows. Legal fiction means the artificial constructs in law and the legal concepts such as corporate entity, rights are in fact legal fiction. Jeremy Bentham believed that legal fiction was necessary evil and Hans Vaihinger expressed his opinion that through legal fiction we could understand truth. Also Lon Fuller thought that legal fiction had the function of appearing true character of law. But Pierre Bourdieu indicates that legal fiction is just illusion that justifies standing legal understanding and CLS criticise that legal fiction becomes the legal myth thus the debate about the law is limited. In case of communitarians, they argue that legal fiction such as neutrality is not desirable therefore legal standards should be made including the value of community. Moreover, post-modernists deconstruct legal value itself supported by legal fiction. And feminist legal theorists show us that legal standards are fiction in reality more accurately. Particularly, the essential legal standard and proclamation, that is social common reasonableness, neutrality/impartiality, truth/perfection are also rather fictional than realistic one construed artificially for convenience of legal analysis. Accordingly, in order to reveal and make legal reality, we should introduce more concrete and diverse narratives into law.