법학과 사회과학-학제 연구방법론의 모색 : 제2부 ; 제4주제 : 헌법재판에서의 사회과학적 변론 -Brown사건과 생계보호기준사건의 비교를 중심으로-

Abstract

It has been a long tradition for Korean jurisprudence and judicial review

practice that judicial adjudication should be based on normative interpretation

of some preexiting rules. The facts-finding, on which authoritative

adjudication shall be decided, must be distinguished from rule-finding; they

cannot and shall not be intermingled, but only independent each other. There

shall be absolute distinction between the normative judgement, the factual

recognition and understanding.

This paper would not deny this differentiation; rather, it tries only to posit

that fact-finding based on scientific method may make some significant

difference in normative judgment, and so the social science, with which we

can find out some general and objective understanding on pending issues,

can give reasonable grounds in claiming and adjudicating a case.

Judicial review on constitutionality of any statute or any regulatory

actions of state organs is different from any other type of adjudication. It is

a kind of legislation, which creates new legal regulations and makes so

serious influence on the whole society as well as the parties at issue. This

means that it shall be necessary to consider seriously legislative facts as

well as adjudicative for the decision to acquire appropriate legitimacy - not

only substantial but also procedural. One of the most obvious evidence for...