가치와 규범의 구별과 기본권 문제의 해결

In fundamental rights case, the reasoning that relies on the relative importance of the values in question is an argument that has a major weakness: the crucial point that determines the conclusion of a case lies in an area where it can not be argued in public terms. In order for a claim of fundamental rights to be assured of validity, it must undergo a justification process of argumentative discourse. The justifiability of a non-elected judges’ decisions to invalidate the legislature's decisions is provided by the assurance that it has been successfully tested in a constitutional argumentative discourse. However, the mental process itself, which balance the weight of value, is difficult to express in the form of explicit argument, and only conclusions after such processes can be presented. In other words, the view that understands the arguments of basic rights in terms of value judgement comes to a serious doubt about the legitimacy of constitutional judgement. In this paper, I argue the following points as theoretical attempts to overcome these difficulties. (1) It is theoretically possible to distinguish between values and norms as types of reasons for having different attributes that favor or oppose an action. (2) The normative argument has a unique form because norms presuppose higher status relationships to approve it. In other words, the normative argument necessarily includes the examination of whether the proposed legal conclusions violate the relations to be considered. Such relations comprises hierarchical structure, which renders the status relations of plural free and equal communicators most fundamental. On the other hand, the discussion of values produces contextual judgments about better objects that are retained in the (extended) first person perspective. And value judgments do not logically presuppose test of fundamental relationship violations. (3) The normative argument in resolving the problem of fundamental rights has priority over the value argument. Only values which can be shown that it is shared by everyone, can serves to specify norms unless that specification violate the priority of the fundamental rights norm. (4) Reversing the basic norm by renewing value judgments contradicts the very reason for basic norms. Thus, the role of the Constitutional Court is to interpret and apply the relations expressed by the Constitution, not to act as the second legislature by weighing the same value considerations again.