하트의 법이론과 국제법의 법적 성질

Abstract

In international jurisprudence, there is a growing interest in the legality of international law. This article begins with a discussion of the legality of international law from the Hart's concept of law and outlines some arguments of the legality of international law and draws out modern implications. Hart argued that international law is like a primitive legal system because it does not have the secondary rules, in particular rules of recognition. In this regard, there are three major theoretical approaches. The first approach is to accept Hart’s concept of law and apply his concept to today’s evolved international law to grasp the international law. The second is that the new concept of law is derived from the national order as Hart, but it is different from the Hart’s concept. The third is to exclude the concept of law derived from national orders and to formulate an alternative concept of law based on international orders. Each approach will contribute to elucidating the nature and legality of international law through legal debates and elaborations. In particular, the process of them should be taken into consideration and reflected the horizontal and non–hierarchical factors of international orders, away from the straightforward application of concepts of law derived from national orders.