괴델정리의 법이론적 함의

Abstract

The Critical Legal Studies(CLS) movement has for several years criticized

mainstream legal scholars belief that the law can determine outcomes in legal

disputes. CLS charge that this vision of the law is an illusion; legal formalism

does not exist. According to them judges are always free to make decisions as

they see fit, relying on their own predilections, insights and life experience. They

offers a thorough theoretical deconstruction of contemporary American legal

thought arguing that law is, and can only be, indeterminate.

To support this argument, CLS scholars have offered extensive commentary on

the limitation of human language. Language is subjective and imprecise, they

argue, traits which the law (being dependent on language) must share. Given the

inherent limitations of language, the law cannot uniformly and objectively inform

and constrain judicial decisions. In addition to linguistic arguments, they asserted

that mathematical theories and proofs have surfaced in debates over

indeterminacy in the law. Anthony DAmato, for example has argued that two

related-though distinct- mathematical results, the Löwenheim-Skolem Theorems

and Gödels Incompleteness Theorem, demonstrate that even though language is

precise and objective, the law still must prove inherently indeterminate. The

Löwenheim-Skolem Theorems, according to him, reveal that a case can be

decided either way consistent with any legal theory. Furthermore, Gödels

Incompleteness Theorem proves that legal, textual and linguistic demonstration

must propagate propositions that can neither be proved nor disproved.

* Full-time Lecturer, College of Law, Sun Moon University.