정치의 사법화와 사법을 통한 정책결정 - 이민정책을 중심으로 -

The tendency of major policy decisions are made through judicial processes, by way of court decisions, instead of political processes has become a global phenomenon. While the judicialization of politics and that of policymaking are not exactly the same, there is much overlap between the two. This essay canvasses the judicialization of politics and the judicialization of policymaking in the area of immigration policy. It illustrates the forms in which immigration policy issues are referred to, and policies are made through, judicial review, and demonstrates the characteristic features of the judicialization of immigration policy. Immigration policy is unique in that it targets people who are outside of representative politics and that it is an area where state sovereignty looms most sacrosanct and inviolable. The essay inquires how these conditions restrict or impel policymaking by the judiciary, what kinds of issues in immigration policy are referred to judicial review, on what kinds of issues does the judiciary actively intervene, and what are the conditions on the part of the judiciary that are favorable to judicial intervention. It introduces cases, by reference to six types, that show the worldwide trend of judicial policymaking and its modes, followed by an analysis of backgrounds and causes of judicialization identified in terms of seven types. Lastly, it discusses how human rights law, a newly emerging subsystem of the legal system, which is a subsystem of world society, restrains sovereign decisions by the citizenry against outsiders and to what extent that restraint is effectively exercised.