법합리성과 경제합리성, 그리고 법치: 하이예크와 베버를 중심으로

초록

In this study we tackle the problem of a disparity between legal rationality and economic rationality. Through critical assessment about legal positivism, we connect this conceptual problem of two rationalities to the issue of the rule of law. As we saw from Weber’s well known concept of ‘rational-legal authority, the ’logically formal’ type of legal rationality is the key ethos of modern bureaucracy, and the central force of the modern ‘rationalization’ process. On the other hand, in the emergence of captitalist economy, another central force of ‘rationalization’, we can read a somewhat contradictory story. In England, which historically led the development of capitalism, we face the iroy that legal rationality had never dominated in the history of English legal system. This historical connundrum raises the theoretical problem of a gap between legal rationality and maket rationality. We first follow the Hayek’s liberalistic logic to see how the ‘rule of law’ and the market consequences can both be regarded as a ‘spontaneous order’. We briefly summarize the position of legal postivism which emphasizes formality and systemic closedness, and we delineate the Hayek’s critique of legal positivism from his market-oriented viewpoint. Next, we meticulously trace Weber’s remarks in his Sociology of Law to assess critically how his legal rationality concept was applicable or contradictory with the market situation. We indicate the similarity between Weber’s conception of legal rationality and the key logic of legal positivism. And we compare Hayek and Weber in terms of how each theorist interpreted or caracterized the English Common Law. We also compare Hayek and Weber in their stances to the individualistic nature of the rule of law through a discussion about the contrast between ‘formal justice’ and ‘khadi justice’. Finally we make a comment about the fundamental limit of the logically formal legal system, and argue that a fallacy of equating the ‘rule of law’ to ‘rule by law’ and the resultant excess of legal logic in civial society can deteriorate the market rationality and further, disintegrate the democracy and the rule of law itself.

키워드