사회규범 이론의 형법적 의의

Besides law, there are also other constraints regulating human behavior, namely norm, market and architecture. Each constraint has its particular way of effecting on the behaviors of men and the sum of these constraints consists the net of regulation in a society. According to Old Chicago School, “law is, relative to these other constraints, a less effective constraint: Its regulations, crude; its response, slow; its inter- ventions, clumsy; and its effect often self-defeating.” Hence this old school maintained that it would be better to let these alternatives to law regulate. The scholars under the rubric of “social norm scholarship” or “New Chicago School” also argue that the regulation through the modality of norm can be a more effective way to decrease criminal behaviors than the direct regulation through the strict legal punishment. However they, unlike the old school, strongly believe that the law can use the regulatory power of social norm to law’s own end. In this vein, these scholars assert that certain policing techniques, such as youth curfews, anti-gang loitering ordinances or rewarding snitching of gun-possession, are effective, politically feasible and morally sound alternatives to the harsh punishment of criminal behaviors. Kahan and Meares, Yale law professors and the proponents of norm-focused scholarship, cogently describe how these alternatives would work. According to them, possessing weapon is highly valued by juveniles because it has the meaning of resistance to authority and expression of strongness. The snitching policy will make the possessors of the weapon not show them in the fear of being snitched, which will change the this meaning of gun-possession amongst juveniles and eventually decrease the possession of weapon. At a first glance, this type of explanation might sound convincing. However, there is no guarantee that the change of social meaning would actually happen as it was originally intended. Since the social interactions are so diverse phenomena that it is very unlikely to precisely predict what will be the result of a certain policy. Furthermore the norm-focused theorists show the tendency to rely too heavily on the empirical data. The fact that there is a seemingly causal link between the policing technique and the decrease in criminal behavior does not necessarily mean that the social meaning of the behavior has been actually changed. To investigate the change of social meaning, more research than the statistical result would be necessary, such as in-depth opened interviews, historical research into similar social phenomena and comparative research to the other societies with similar institutions. Another important matter is that researchers need to critically reflect themselves through their researches. Considering the situation of Korean Criminal Law which is, like that of USA experiencing the escalation of criminal sanctions, the thorough analysis of norm-focused theory is believed to be not only the intro- duction of a scholarship movement in USA, but also able to enrich Korean Criminal Law Scholarship. However one should also take into account that the norm-focused scholarship needs to be methodologically redeemed.