양형 개혁에 대한 법체계의 반응 미 연방 양형지침서의 사회체계이론적 분석

This paper examines how the American legal system responds to the U.S.Federal Sentencing Guidelines, which were set as an effort to reform sentencingdisparity, from the perspective of Luhmann's social systems theory and Teubner'sautopoietic system theory. These theories suggest that autonomy of law ischaracterized by the self-referential operation or autopoiesis. Once the SentencingGuidelines were accepted by legal system through self-referential processinvolving legal communications, they became an element of “legal norm.” Inpractice, this new element of system threatens sentencing discretion which is anelement of “legal action”. Thus, the legal action (sentencing) may be inconsistentwith an element of legal norm (sentencing guidelines) in the self-referentialrelationship of legal system. In this situation, the legal system tries to maintainits equilibrium by referring to other components of system, such as “legalprocess.” When legal action (sentencing) refers to legal norm (sentencingguidelines), plea bargaining and departure are identified as the elements of legalprocess through which discretion can be preserved. This paper argues that legalsystem as a autonomous system reinterprets the influence of sentencingguidelines as an intervention from external system or environment and thusresists to the external impact through its own internal self-reference/autopoieticmechanism persisting its structured sentencing discretion.