Korean law schools are poised to develop a first year required legal writing course and eventually, an exciting array of advanced legal writing courses. Enthusiastic and energetic law professors from more than a third of the new law schools in South Korea attended the workshop and shared ideas about teaching legal writing.20)Some of the attendees had just finished teaching legal writing for the first time and others were preparing to teach legal writing in the next year. Given the commitment of those in attendance, there is no doubt that Korean law students will receive an excellent legal writing education.
Attendees were encouraged to work together to develop legal writing problems even if at different law schools. Collaboration across schools is com- monplace in the United States. List-serves of legal writing professors provide a way to share teaching ideas and solutions for issues that arise in the legal writing class. During the workshop, we discussed the possibility of starting a Korean association of legal writing professors or a sub-group of the Korean Association of Law Schools for faculty interested in legal writing to share ideas and resources. An e-mail list-serve of legal writing professors in Korea could be created. Legal writing professors in Korea are encouraged to join the United States based legal writing associations, including the Legal Writing Institute21) and the Association of Legal Writing Directors.22)Global collaboration would benefit all legal writing professors and law students. It will be exciting to watch as the discipline of legal writing develops in Korean law schools.
KEYWORDS: teaching legal writing, teaching techniques, critiquing student writing, student conferences
Manuscript received: Sept. 9, 2009; review completed: Nov. 24, 2009; accepted: Dec. 10, 2009.
20) Professors from several Korean law schools, including the following law schools, attended the workshop: Ajou University, Chonbuk National University, Chungnam National University, Hanyang University, Kangwon National University, Korea Univerisity, Kyung Hee University, Kyung Pook National University, Pusan National University, Seoul National University, Sungkyunkwan University, Wonkwang University, and Yeungnam University.
21) www.lwionline.org.
22) www.alwd.org.
Appendix A
Selected Resources:
Legal Writing Institute - www.lwionline.org
Including publications: The Second Draft and Legal Writing: Journal of the Legal Writing Institute
http://www.lwionline.org/the_second_draft.html http://www.lwionline.org/journal_of_the_lwi.html Association of Legal Writing Directors - www.alwd.org
Including publications, in particular: The Journal of the Association of Legal Writing Directors
http://www.alwd.org/publications.html http://www.alwd.org/jalwd.html
Institute on Law Teaching and Learning — http://lawteaching.org
American Bar Association — Section on Legal Education and Admissions to the Bar, Sourcebook on Legal Writing Programs (Second Edition - 2006)
http://www.abanet.org/legaled.html Stuckey, et al, Best Practices in Legal Education (2007) Association of American Law Schools - www.aals.org
Publishers of the Majority of Legal Research and Writing Texts in the United States:
Aspen Publishers - www.aspenpublishers.com
Thomson West — http://www.thomsonwest.com/http://west.thomson.
com Westlaw Nutshell Series
Lexis Nexis — http://www.lexis.com/http://www.lexisnexis.com Lexis
Matthew Bender Publishers
Kelsen’s Pure Theory of Law from the Perspective of Globalization
Un Jong Pak*
Abstract
This essay attempts to critically look at Kelsen’s pure theory of law and pyramid model of legal order(der Stufenbau der Rechtsordnung) from the perspective of globalization. The stream of globalization has changed the face of legal order: legal plurality, inter-legality spread out, retreat of legal formalism, advent of ‘soft law’ and legal particularism, and accordingly it has become increasingly difficult to put limitations on how far each domain of regulation covers. It is my belief that this in fact reflects how the lines between domains in the pyramid are becoming hazy.
In this essay I will briefly look at the particular features of Kelsen’s legal theory; afterwards, the limitations of the pyramid model, the retreat of the state law centrism following globalization.
Under this light, I will attempt to demonstrate that legal autonomy and purism as asserted by Kelsen cannot be maintained easily. We can but say that law is only partially enveloped by the pyramid model.
I. Introduction
Throughout his life, Kelsen has advocated the view that knowledge of law is possible without moral knowledge. Amongst the scholars of law, Kelsen is the only legal scholar who has been chosen — in welcoming the new millennium — as one of the highly influential figures during the last one thousand years. It is easy to see Kelsen’s singular status in law, his works having been translated into almost 28 languages.1)
Kelsen was not only a scholar of law but from 1921 to 1930 he practiced as a judge at the Austrian Federal Court of Constitution of which its establishment he actively participated in.2)Many people mistakenly believe the pure theory
* Professor, Seoul National University School of Law. This Article was funded by the Seoul National University Law Foundation in 2009.
1) For more information, see Werner Krawietz, Hans Kelsen — Ein Normativer Mastermind des Rechts und der Rechtstheorie für das 21. Jahrhundert?, 38 RECHTSTHEORIE34 (2007).
2) Id. at 35 f.
of law to be somewhat the result of many years toiling in an ivory tower, in fact that theory reflects much of his long experience during his time as a practitioner.3)Being Jewish he lived most of his life as a wayward traveler, nevertheless he said that law — even Nazi law! — could not be called not law just because of its contents and throughout his life he stuck to his opinion that knowledge of law should be separate from moral knowledge.4)
Kelsen aimed to understand not the content but the structure of law. This structure can be explained by four features. These are: positivity of law, legality, dualism of is and ought and lastly the pyramid model(der Stufenbau der Rechtsordnung). This essay attempts to critically look at Kelsen’s pure theory of law and pyramid model of legal order from the perspective of globalization.
In short we can but say that law is only partially enveloped by the pyramid model.5)The stream of globalization has changed the face of legal order: legal plurality, inter-legality spread out, retreat of legal formalism, advent of ‘soft law’ and legal particularism, and accordingly it has become increasingly difficult to put limitations on how far each domain of regulation covers. It is my belief that this in fact reflects how the lines between domains in the pyramid are becoming hazy.
In this essay I will briefly look at the particular features of Kelsen’s legal theory; afterwards, the limitations of the pyramid model, the retreat of the state law centrism following globalization. Under this light, I will attempt to demonstrate that legal autonomy and purism as asserted by Kelsen cannot be maintained easily.