Don`t Take Politics Lightly －An Essay on Proportional Constitutionalism－

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...이 논문은 서울대학교 법학발전재단 출연 법학연구소 기금의 2008학년도 학술연구비 의 보조를 받았음