다원화된 사회에서 헌법해석의 이해

This research examines the current issues concerning constitutional interpretation in the pluralized society by mapping out existing theories of constitutional interpretation. The traditional methodologies of legal interpretation attempted to find the objective and a priori meanings within the normative text. This methodology does not seem to be applicable to the interpretation of constitution, the text of which is highly abstract and open-ended. Especially, as it was proved that the pre-understanding (Vorverständnis) can not be excluded from the process of human cognition, the foundation of the traditional interpretation methodology has been severely challenged. Finally, alternative theories of constitutional interpretation have taken seriously the pre-understanding which the traditional approaches tried to eliminate. However, the new theories have not proposed plausible solutions to control the value-related pre-understandings. Of course, the constitutional interpretation based on a normative concretization seems to be relatively successful in curing the flaws of the alternative theories. Nevertheless, it is not deniable that any constitutional interpretation by judges is just a temporary authoritative interpretation. The constitutional interpretation of the court should be ultimately open to the public discussion in the pluralized society in order to enhance the persuasiveness. However, if the constitutional interpretation is too open to the social influences, it has a risk of weakening the legal stability. Given this, the contemporary theories of constitutional interpretation need to pay more attention to the structural dynamic among vaiours social and legal actors in the process of constitutional interpretation. In this context, the center-periphery distinction proposed by systems theory provides meaningful suggestions. For example, Teubner considers, as one of features of constitutionalism, differentiation into the spontaneous and formally organised sphere. The interpreters of the constitution have different functions in each sphere. Also, different methodologies of the constitutional interpretation are appropriate to two spheres. On the one hand, the interpreters of legal periphery (the spontaneous sector) can consider more topic-oriented interpretation in order to be reflexive to various social inputs out of the legal system. On the other hand, the constitutional interpreters situated in the legal center (the formally organised sphere) are required to take more rigorous strict dogmatic methods such as the normative concretization. Using this method, the center of legal system can review and filter various legal points proposed by the legal periphery in order to secure legal autonomy and stability. Here, there is not any static hierarchy between those two spheres. Rather, the feedbacks and mutual checks between two sectors can make significant contribution to generating and developing the common cognitive ground to integrate the various pre-understandings. In this context, constitutional lawyers need to expand the horizon of the constitutional interpretation theory, namely, from just a judical dogma into a structural analysis such as the relationship between the constitutional court in the legal center and the civil society or other state organs in the legal periphery.