著者

森元 拓

出版者

日本法哲学会

雑誌

法哲学年報 (ISSN:03872890)

巻号頁・発行日

vol.2005, pp.165-175,194, 2006-10-30 (Released:2010-02-15)

参考文献数

13

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This paper will consider the legal validity of Georg Jellinek's legal theory. Jellinek's theory on legal order is as follows: in his theory, legal validity stems from “the legal belief” of the members of the legal community. “Legal belief” consists of two elements, one is the “normalizing function of facts, ” and the other “the factual function of norms.” The former element originates from extracting norms from facts, and the latter element originates from normative consciousness that transforms into a ‹normative› fact. These two elements are in a competitive relationship, which results in legal order always encompassing an opportunity to progress and continuously develop and evolve. However, this kind of theory on legal order contains two problems. First, there is a danger that this kind of theory on legal order to fall into a limitless relativism. This problem can be solved if and when the legal judgment of the legal community is based and rely on the unchanging and unique historical and cultural value of the community. Second, there is fear that this theory of legal order continuously enforce only the element of “normalizing function of facts, ” and that such a situation will result in a conservative society. To solve this problem, Jellinek emphasizes the element of “normalizing function of facts, ” while weakening the element of the other, thus, the concept of injustice (in German “unrecht”) and legal struggle becomes crucial in Jellinek's theory. Injustice (unrecht) is an illegal act committed on purpose, while legal struggle is a struggle to gain justice from the members of the legal community. Jellinek thought that the act of injustice (unrecht) and legal struggle will assure that the two elements will work competitively; therefore, insuring the progressiveness and continuous development of legal order.

著者

森元 拓

出版者

山梨大学教育学部

雑誌

山梨大学教育学部紀要 = 山梨大学教育学部紀要 (ISSN:24330418)

巻号頁・発行日

vol.28, pp.57-71, 2019-01-24

著者

森元 拓

出版者

山梨大学教育学部

雑誌

山梨大学教育学部紀要 = 山梨大学教育学部紀要 (ISSN:24330418)

巻号頁・発行日

vol.28, pp.43-56, 2019-01-24