“입법의도”는 법해석의 보편적 기준이 될 수 있는가? : 애로우의 불가능성 정리의 적용

The historical interpretation has long been emphasized on “legislative intention” among other theories of legal interpretation. It might be because of the fact that law itself is the institution that gives a significance to a legislator’s authority. Nevertheless, the position putting emphasis on legislative intention in legal interpretation comes to meet with a problem as follows: What does the legislative intention concretely signify in an legislative body or an organization other than one individual? This study attempted to apply K. Arrow’s “Impossibility Theorem” as regards such a problem. In other words, this study tried to show that it could not be legitimate to regard an opinion, which governs the result of legislative proceedings, as legislative intention in case of the existence of a difference in views between individuals. To this end, this study looks into the existing discussion about legislative intention of the legislative body in Chapter 2, and examines which aspects become a problem in the concrete. In Chapter 3, this study gives an explanation about rationality of preference ,which must be premised as a being possessed by an individual who composes the legislative body, in order to develop a discussion about legislative intention. Afterwards, in Chapter 4, this study looks into the conditions for making it possible for a choice of the legislative body to properly reflect the preference of the individuals belonging to the agency. In addition, In Chapter 5, this study examines Arrow’s “Impossibility Theorem”, the argument that social welfare function which meets such conditions, doesn’t exist. In Chapter 6, this study intends to look into its meaning in the relation to the historical interpretation of law.