물경시정치(勿輕視政治) -비례입헌주의(比例立憲主義)를 주창(主唱)하며-

Abstract

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...