환경법의 해석과 자유민주주의

One who participates in various social controversies including the disputes over environmental issues has one’s own valuation method, and claims its superiority. These social disputes get to involve legal disputes because the parties involved cannot agree on the valuation method that will govern the case. Such disagreement among the parties is not due to the lack or insufficiency of reason-based practical reasoning; it is because their valuation methods on which their justifying reasons are grounded are plural and incommensurable. If one cannot place one valuation method above the other, one has no alternative but to make a choice between them, which exerts a decisive influence on the relevant legal judgment. If then, the decision on the legal disputes depends on the choice of the valuation method, and, more essentially, on the meta-method of valuation, i.e. the method of choosing among the valuation methods. The Constitution provides us with liberal democracy as an idea to regulate our choice among valuation methods. With democracy we determine to leave such choice among valuation methods to the majority’s decision, which results in the positive law. A positive law functions to reflect and communicate a certain valuation method, which is called the “expressive function of law.” On the other hand, people’s fundamental rights mandated by the Constitution put certain restrictions on the majority's choice. This meta-theory of legal interpretation may develop into concrete interpretive directives that are applicable to civil cases, administrative cases and constitutional cases, respectively. It is evidenced by our court decisions that these directives have been used consciously or unconsciously by our courts.