법해석에 의한 모호성 제거의 불가능성
The Impossibility of Eliminating Vagueness through Legal Interpretation

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서울대학교 법학연구소
법학, Vol.50 No1 pp.123-152
법해석모호성사법재량문언주의Legal InterpretationJudicial DiscretionTextualismPurposivism
Since interpretation is essentially creative, the law requires interpretive methods to
achieve coherence and authority. Many theories of legal interpretation have emphasized
text, intention, and purpose. Nevertheless, indeterminate law cannot lead to
one conclusion when it comes to a legal dispute. The indeterminacy of law entails
judicial discretion. The vagueness of law is the fundamental source of legal
indeterminacy. Vagueness is necessary, irreducible, and desirable therefore, the range
of indeterminacy is far-reaching. In addition, vagueness shows that each theory of
legal interpretation does not explicate the practice of law suitably.
First, textualism is mistakenly based on the descriptive theory of meaning. Legal
texts cannot even determine the limit of judicial discretion, because the notion
“boundary of possible meanings” disregards the problem of high-order vagueness.
Second, although intentionalism highlights the authority of law and democracy, both
of them can be supported without legislative intention. Moreover, legislative intention
is as vague as the text. Lastly, purposivism ignores the fact that law can be
understood without interpretation. Since the law is vague pragmatically as well as
semantically, purpose and context cannot exclude judicial discretion.
However, the methods of interpretation are worth examining. Appeals to them are
not mere ex post rationalizations of judicial decisions. They are indispensable for
understanding law and necessary rules of legal arguments, although they cannot
constrain judicial discretion.
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College of Law/Law School (법과대학/대학원)The Law Research Institute (법학연구소) 법학법학 Volume 50, Number 1/4 (2009)
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