사회학적 사고와 법해석의 교감(交感)을 위해

Abstract

This article intends to foster an fruitful interaction of social theory and interpretation of the law. How could it be useful to review the legal practice from the perspective of social science? I believe it would be very useful and even necessary. Thus, the article problematizes the notions such as fact-finding, and human behavior employed in the judicial decision from the light of relevant concepts in social theories. Particularly, the essay deals with three issues : issues involve in fact-finding in judicial procedure and empirical research in social science; the issues of lawyers' linguistic representation and belief in the factual truth; and the issues of context within which the legal actions were taken place. From discussion of the legal realism, fact-finding in the judicial process was a critical and yet questionable process. With underdevelopment in the method of collection, interpretation of the facts in the legal science to compare to social science, the data of empirical research in social science can be employed in many legal cases. Whereas applicability of empirical data to the filed of law must be immense, this does not mean every issues of fact can be solved through the empiricism. Empirical data in social science has not been immune from the question of viewpoint and positionality. The emphasis in language in social science precisely offers the tools for engaging with the question of 'fact' in the legal vocabulary.