난해한 사안에서의 법적 판단에 관한 연구 - 법의 공간적 재현과 반성적 추론의 시론(試論) -

Many discussions have been made about the causes and solutions to difficult problems in forensic analysis. A variety of diagnoses and prescriptions have been proposed, ranging from legal positivism, Dworkin, law interpretation methodology, legal argument theory, and Habermas discourse theory. The front line of the theoretical debate centered on the betrayal question of whether a law is found or justified in a difficult issue. This paper attempts to present a new perspective on the task of legal interpretation by deconstructing the common premise implied by these opposing discussions. The common premise is that the process of interpreting the law is applied to the individual case, given the universal meaning of the law in advance, and thus the typical phase in which Kant’s regulatory judgment works. However, this paper revived Karl Engish's long-standing insight into the ‘communication between matter and norm’, and the interpretation of the law is a specific point in which the individual case lies, from the concrete and relative perspectives of the interpreter, through various dimensions open to him. It is suggested to look at and to reproduce this problem. The priority of individual issues in the interpretation of the law does not end there. The issue compels the interpreter to reflect on the Kant's meaning, and the interpreter is awakened to the reflective meaning of the law through an occasion rather than discovering the legal meaning of the law or justifying the ex post meaning of the law. Reflective reasoning on law in difficult matters is a process of reflective attribution as to what is the purpose of legislation and further as to the unity of law as a whole. Rather than recognizing and subscribing to an object in accordance with a pre-existing law concept, it is more like retrieving a concept that is appropriate to the object, such as the process of realizing something beautiful without the concept of beauty. Thus, this paper proposes a Copernicus perception shift, reflecting on the meaning of law that is multidimensionally observed and reflectively inferred at one point around the issue. Legal thinking without a real conflict between case and logic, will only fall into the “sleep of dogma that leads to death.” Finally, we will go one step further in understanding the interpretation of law based on the spatial reason of “law-painting” and look back at the meaning of the time of law. We can understand the time of law indwelling the law's (consistent) truth in the development and maturity of the law, which is achieved by the accumulation and synthesis of countless paintings of law.