Publications
Detailed Information
헌법학방법론의 문제 -그 합리성 모색을 위한 담론- : A Search for Rational Solutions to Methological Problems in Constitutional Law Studies
Cited 0 time in
Web of Science
Cited 0 time in Scopus
- Authors
- Issue Date
- 2002
- Publisher
- 서울대학교 법학연구소
- Citation
- 법학, Vol.43 No.1, pp. 42-80
- Keywords
- 1948년 대한민국헌법 ; 선진외국의 학설․판례․제 ; 민주법학 ; 학문적 자극(inspiration)
- Abstract
- This paper is composed of two thronged arguments: one for criticisms
directed to the two predominantly practiced approaches to constitutional law
studies; and the other for rational alternatives which are not only useful but
also necessary. Foreign sources such as American and German theories,
judicial decisions and other examples are widely relied on uncritically for
justification of scholarly works or judicial decision-makings. Self-evidently,
foreign authorities can be sources for inspiration or for persuasion but not for
the kind of constitutional justification. For such a justification can be made
either deductively, historically, or otherwise from the constitutional law of the
nation or on the ground of scientifically based rationality.
The second predominantly practiced approach to constitutional studies is a
very formalistic one that is suitable perhaps for interpreting such precisely
provided statutory provisions on concrete matters as the civil law, the criminal
law, or administrative regulatory provisions usually proceeding from the plain
meaning rule of statutory interpretation. As is well-known, constitutional
provisions particularly on fundamental rights and freedoms are usually
open-ended, abstractly provided so that a formalistic, deductive approach cannot
do the job proper for constitutional interpretation. Nevertheless, a number of the
Constitutional Court's decisions can seriously be criticized as actually no more
than civil or criminal decisions that were clothed in constitutional terminology,
since those decisions would have been made differently if they were decided
with proper constitutional interpretation methods.
- ISSN
- 1598-222X
- Language
- Korean
- Files in This Item:
- Appears in Collections:
Item View & Download Count
Items in S-Space are protected by copyright, with all rights reserved, unless otherwise indicated.