법해석에 의한 모호성 제거의 불가능성

Since interpretation is essentially creative, the law requires interpretive methods to achieve coherence and authority. Many theories of legal interpretation have emphasized text, intention, and purpose. Nevertheless, indeterminate law cannot lead to one conclusion when it comes to a legal dispute. The indeterminacy of law entails judicial discretion. The vagueness of law is the fundamental source of legal indeterminacy. Vagueness is necessary, irreducible, and desirable therefore, the range of indeterminacy is far-reaching. In addition, vagueness shows that each theory of legal interpretation does not explicate the practice of law suitably. First, textualism is mistakenly based on the descriptive theory of meaning. Legal texts cannot even determine the limit of judicial discretion, because the notion “boundary of possible meanings” disregards the problem of high-order vagueness. Second, although intentionalism highlights the authority of law and democracy, both of them can be supported without legislative intention. Moreover, legislative intention is as vague as the text. Lastly, purposivism ignores the fact that law can be understood without interpretation. Since the law is vague pragmatically as well as semantically, purpose and context cannot exclude judicial discretion. However, the methods of interpretation are worth examining. Appeals to them are not mere ex post rationalizations of judicial decisions. They are indispensable for understanding law and necessary rules of legal arguments, although they cannot constrain judicial discretion.