쿤(T. Kuhn)의 과학적 방법론이 법학 방법론에 주는 의미 ―사회변화와 법적 삼단논법의 재구성―

Normally, interpretation and application of law appears in the form of a logical inference called legal syllogism, and the vast majority of court's decisions, including Supreme Court decisions, are based on the legal syllogism. This legal syllogism is the application of the logical syllogism to jurisprudence. Thus, the legal syllogism, like the syllogism, leads to the conclusion of application of law. In the legal syllogism, the major premise is the law, the minor premise is the facts, and the conclusion is the result of applying the law to the facts. In its essence, the legal syllogism is deductive and analytical reasoning, as is the logical syllogism, and contributes to legal stability and efficiency in resolving legal cases. However, there is not much literature that deals with meaning, methods, or scope of this significant legal syllogism so far in South Korea, and, more recently, some argued that the legal syllogism is “false” from the standpoint of legal hermeneutics. In my opinion, the legal syllogism, despite its importance and function, is particularly under criticism because it is combined with legal positivism or legal formalism. In this paper, I will examine the logical, mechanical and fixed syllogism based on legal positivism as well as skepticism of the syllogism of the law, then I am going to review the meaning and function of the legal syllogism from the perspective of legal paradigm shift. According to legal paradigmism, the emergence and accumulation of anomalies result in a crisis in the existing legal paradigm, and the operative paradigm is eventually replaced by an alternative paradigm. In this view, the dominant interpretation of a code is a legal paradigm, so the change in law, interpretation of law or major premise can be viewed from the historical and dynamic perspective of paradigm shift and paradigmatic legal syllogism.