헌법학방법론의 문제 -그 합리성 모색을 위한 담론-

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.