다원주의 사회와 실용주의적 법 해석 (Pluralistic Society and Pragmatic Interpretation of Law)

서지정보

· 발행기관 : 충북대학교 법학연구소
· 수록지 정보 : 법학연구 / 33권 / 2호 / 1 ~ 28페이지
· 저자명 : 김창희

초록

In a pluralistic society, law interpreters, such as judges, also have various value ideas. If the text of the law is not unilateral, the interpretations will inevitably be various depending on the interpreters' personal belief in goodness. When there is hate speech, there is no general standard for determining whether the speech exceeds the limits of freedom of expression under the Constitution, whether it meets the requirements for defamation under the criminal law, or tort under the civil law.
Would it be okay for judges to draw a conclusion according to their own values? Values are inevitably subjective, and all judges have different values.
Sometimes, opposite judgments are pronounced on similar cases, causing confusion in the legal life of citizens, and some citizens are dissatisfied with the judgment and resist it.
In a pluralistic society facing such difficulties, pragmatism is attractive.
Legal pragmatism is the idea of interpreting and applying the law to produce the best results by accepting philosophical pragmatism. Legal pragmatism does not talk about the fundamental values that exist at the root of the case and cannot be agreed upon, but emphasizes only the consequences of legal judgment. Such a judgment may be questionable and regretful to intellectually mature citizens, but it does not attack the fundamental values they have in their hearts. This is because it show sincerity to provide practical solutions to specific issues that have arisen in reality, while reserving conclusions on fundamental values.
This study examines how philosophical pragmatism can affect the interpretation of law, and how pragmatism is embodied in concrete case judgments in the United States and Korea.

영어초록

In a pluralistic society, law interpreters, such as judges, also have various value ideas. If the text of the law is not unilateral, the interpretations will inevitably be various depending on the interpreters' personal belief in goodness. When there is hate speech, there is no general standard for determining whether the speech exceeds the limits of freedom of expression under the Constitution, whether it meets the requirements for defamation under the criminal law, or tort under the civil law.
Would it be okay for judges to draw a conclusion according to their own values? Values are inevitably subjective, and all judges have different values.
Sometimes, opposite judgments are pronounced on similar cases, causing confusion in the legal life of citizens, and some citizens are dissatisfied with the judgment and resist it.
In a pluralistic society facing such difficulties, pragmatism is attractive.
Legal pragmatism is the idea of interpreting and applying the law to produce the best results by accepting philosophical pragmatism. Legal pragmatism does not talk about the fundamental values that exist at the root of the case and cannot be agreed upon, but emphasizes only the consequences of legal judgment. Such a judgment may be questionable and regretful to intellectually mature citizens, but it does not attack the fundamental values they have in their hearts. This is because it show sincerity to provide practical solutions to specific issues that have arisen in reality, while reserving conclusions on fundamental values.
This study examines how philosophical pragmatism can affect the interpretation of law, and how pragmatism is embodied in concrete case judgments in the United States and Korea.

참고자료

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