S-Space College of Law/Law School (법과대학/대학원) The Law Research Institute (법학연구소) 법학 법학 Volume 49, Number 1/4 (2008)
물경시정치(勿輕視政治) -비례입헌주의(比例立憲主義)를 주창(主唱)하며-
Don`t Take Politics Lightly －An Essay on Proportional Constitutionalism－
- Issue Date
- 서울대학교 법학연구소
- 법학, Vol.49 No.3, pp. 97-126
- 가치의 비교불능성 ; 대중입헌주의 ; 도덕적 조정문제 ; 법현실주의 ; 비트겐슈타인 ; 실천적 권위 ; 통상정당화테제 ; 특성적 권위 ; democratic Legitimacy ; dependence thesis ; 정답테제 ; candor
- This essay concerns the relation between political process and judicial process.
This particular relation is so problematic that people, lawyers or otherwise, have
repeatedly expressed the following puzzling statement: While politics defines
law, law regulates politics. As far as legal interpretation is concerned, this
statement can be paraphrased as follows: Who determines the law?
We are living in a pluralistic contemporary society where diverse and incommensurable
values are in competition. People with diverse values compete
with one another so that their societys law can reflect and communicate their
own ways of valuing things. A reasonable person would try to support his or
her claim with factual and normative arguments which he or she finds
convincing from his or her own internal viewpoint. However, there are multiple
viewpoints that reasonable people might regard as valid or at least tolerable.
Therefore, if each person arrives at a right answer of his or her own in
accordance with his or her own internal viewpoint, the predictability in law we
are seeking is not enhanced significantly. Given the diversity of incommensurable
values, it is unlikely that the various answers people would provide in hard
cases on the basis of their own internal views would concur with one another.
Hence, law ought to provide as clear guidance as possible by setting up rules
that adopt certain ways of valuing things.
One of the functions of most positive laws is to coordinate peoples social
interactions by setting rules for people to follow when they intend to behave as
most other people behave but are uncertain as to how most other people do
actually behave. It is the government that issues public, general, clear and...