영국법과 미국법의 비교 연구(5) -법이론 (legal theories)(2)-

Abstract

In this part of the article, we seek to demonstrate that the American legal theories have at least two contrasting features against the English legal theories. First, unlike their cross-Atlantic counterparts which have consistently accorded the courts the secondary, ancillary role in the policy-making process as judges have recognized and acquiesced in the sovereignty of Parliament, the American legal theories have assumed, though with some exceptions, that the courts had played an important role in their national policy-making process. It is easily conceivable that the American style judicial review lies at the centre of this thought. Secondly, despite this somewhat general feature, the American legal theories have developed diverse patterns of theory in terms of the relationship between politics and law, while their English counterparts have shown a very unitary pattern. More specifically, the English legal theories converge into one commonality, that is, the dichotomy of fact and value which was ultimately led to the supremacy of politics over the judiciary. On the other hand, although the American legal theories reflect Americans' high dependence upon litigation as a means of social control, the ways they reflect such reality show a great diversity of patterns. Langdellian legal formalism adopting strict separation between law and politics was led not to the English style parliamentary sovereignty but to judicial activism of the Lochner era by sidelining the statute-making power of the legislators as ancillary to the common law-making power of the courts. Progressive Legal Theory developed by Holmes and Pound criticised the mechanical separation between law and fact and at the same time stressed the primary role of the legislature rather than the courts in social engineering, though they did not totally deny judicial review. Legal Realism presumed the necessity of the law-fact dichotomy and locating the courts at the centre of the law-making process while recognizing the instrumentality of law. Process Jurists, in particular, Fuller focussed on the plurality of society and human interactions and thus moved on to the concept of law as purposive activity and legal pluralism responding to social plurality. This school pointed out not only the problematic simplicity of the dual dichotomy of law and fact but also that there is the independent systemic rationality - mainly procedural rather than substantive - pertaining to adjudication as a sort of law-discovery process. In particular, as we can see in the example of Justice Frankfurter, the latter has functioned as a limitation on the courts' law-making power rather than as the justification for that. A reflection of this approach in the American Constitutional Law can be best found in double standard first suggested in the famous Footnote 4 by Justice Stone in the Carolene Products Co. case [304 US. 144] in 1938. This approach assumed that the degree and scope of judicial scrutiny depends upon whether legislation affects political processes which could ordinarily be expected to bring about repeal of undesirable legislation and that regulation of the economic sphere can rarely fall into this category. American legal theories since 1970s including Rights Theories and Critical Legal Studies Movement have also developed surrounding the legitimacy of judical supremacy over legislation and with diverse patterns which cannot be explained in a simplistic positivist dichotomy of law and fact.