Browse

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
최대권
Issue Date
2002
Publisher
서울대학교 법학연구소
Citation
법학, Vol.43 No.1, pp. 42-80
Keywords
1948년 대한민국헌법선진외국의 학설․판례․제민주법학학문적 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
URI
http://lawi.snu.ac.kr/

https://hdl.handle.net/10371/9081
Files in This Item:
Appears in Collections:
College of Law/Law School (법과대학/대학원)The Law Research Institute (법학연구소) 법학법학 Volume 43, Number 1/4 (2002)
  • mendeley

Items in S-Space are protected by copyright, with all rights reserved, unless otherwise indicated.

Browse