법의 한계 영역으로서의 가정(家庭)

Abstract

The domain of human lives has been divided into the private sphere and the public sphere traditionally. It is an unwritten rule everywhere that the state should not interfere in the family as far as possible. The basic private sphere of human life consists of the personal privacy and the family. The family has been protected from the interference of the state as an autonomous domain institutionally. But there is a growing tendency for the state to interfere in the family in modern welfare state. Metaphorically speaking, the patriarchy has been changed from private one to public one. We should deliberate on whether the arbitrary interference of the state into the family is desirable. It is highly likely that the interference of the state into the family will intrude the privacy of the members of the family. Futhermore, the enlargement of the state power resulted from the expansion of its interference is likely to destroy the ideal equilibrium between state and individual. So, the family is doomed to remain as a boundary area of the law. The legal investigation into the basic problems of the family needs the philosophy of family law. The philosophy of family law is a branch of jurisprudence that investigates into the principles of family law and the method of applying it on the legal issues concerning family law. The study of the philosophy of family law is one of our most urgent task.

The domain of human lives has been divided into the private sphere and the public sphere traditionally. It is an unwritten rule everywhere that the state should not interfere in the family as far as possible. The basic private sphere of human life consists of the personal privacy and the family. The family has been protected from the interference of the state as an autonomous domain institutionally. But there is a growing tendency for the state to interfere in the family in modern welfare state. Metaphorically speaking, the patriarchy has been changed from private one to public one. We should deliberate on whether the arbitrary interference of the state into the family is desirable. It is highly likely that the interference of the state into the family will intrude the privacy of the members of the family. Futhermore, the enlargement of the state power resulted from the expansion of its interference is likely to destroy the ideal equilibrium between state and individual. So, the family is doomed to remain as a boundary area of the law. The legal investigation into the basic problems of the family needs the philosophy of family law. The philosophy of family law is a branch of jurisprudence that investigates into the principles of family law and the method of applying it on the legal issues concerning family law. The study of the philosophy of family law is one of our most urgent task.