헌법해석에 있어 법과 사회의 상호작용: 볼킨(J. Balkin) 법이론에 있어 헌법해석주체의 다원적 확장과 위헌심사의 민주적 정당성 기초 (The Interaction between Law and Society in Constitutional Interpretation: the Multidimensional Extension of Subjects of Constitutional Interpretation and the Democratic Legitimation of Judicial Review)

서지정보

· 발행기관 : 법과사회이론학회
· 수록지 정보 : 법과사회 / 42호 / 251 ~ 288페이지
· 저자명 : 이계일

초록

With the purpose of establishing a theoretical foundation to capture the multidimensional extension of subjects of constitutional interpretation and devise a realistic frame about the democratic legitimation of judicial review, this study pay attention to the legal theory of J. Balkin, a constitutional scholar and a legal philosopher.
First, (with respect to the author's previous study) the author attempts to contour the underlying legal methode of Balkin's constitutionalism under the banner of living originalism. This will be a foundation used to analyze Balkin's conception on various entities of constitutional interpretation and their interaction in next chapter. Such extension of subjects in constitutional interpretation, especially the attention to a role in constitutional meaning construction by political branches raises unavoidably a question, whether it is compatible with the original conception of constitutionalism that purposes to control political majority, especially with institution of judicial review. This problem shall be dealt with in the following chapter. Based on such an analysis this study tries to intensively review one of Balkin's core conceptions, that is, his trial of controlling and legitimating constructional court justice through ‘democratic responsiveness’. Lastly, it attempts to comprehensively evaluate Balkin's implication and make a conclusion by reviewing the incompleteness and possible criticism thereof still confirmed in Balkin's conception.

영어초록

With the purpose of establishing a theoretical foundation to capture the multidimensional extension of subjects of constitutional interpretation and devise a realistic frame about the democratic legitimation of judicial review, this study pay attention to the legal theory of J. Balkin, a constitutional scholar and a legal philosopher.
First, (with respect to the author's previous study) the author attempts to contour the underlying legal methode of Balkin's constitutionalism under the banner of living originalism. This will be a foundation used to analyze Balkin's conception on various entities of constitutional interpretation and their interaction in next chapter. Such extension of subjects in constitutional interpretation, especially the attention to a role in constitutional meaning construction by political branches raises unavoidably a question, whether it is compatible with the original conception of constitutionalism that purposes to control political majority, especially with institution of judicial review. This problem shall be dealt with in the following chapter. Based on such an analysis this study tries to intensively review one of Balkin's core conceptions, that is, his trial of controlling and legitimating constructional court justice through ‘democratic responsiveness’. Lastly, it attempts to comprehensively evaluate Balkin's implication and make a conclusion by reviewing the incompleteness and possible criticism thereof still confirmed in Balkin's conception.

참고자료

· 없음