‘사회 운동’에 기반한 ‘법을 통한 사회 변화’ - 기니에와 토레스의 데모스프루던스론을 중심으로 -

Recently, for the first time, the court ruled to recognize same-sex spouses as eligible recipients for health insurance. The debate over the ruling has reflected on a basic disagreement over the relationship between legal change and social change. Some argue that the law can drive social change, while others refute this notion, stating that it merely follows changes already happening in society. This ongoing debate has been particularly intense in the United States, where Supreme Court rulings, including the landmark 1954 case of Brown v. The Board of Education, have significantly expanded civil and political liberties. As a result, scholars from various academic disciplines have been discussing the potential and limitations of law, especially in the context of courts and social change. What sets the recent debate apart from classical discussions is its recognition of the reciprocity of legal and social change. In other words, it explores how legal changes can impact society and how societal changes, in turn, can influence the law. Within this trend, theories focusing on social movements have gained prominence. One such theory is Demosprudence, a term coined by Guinier and Torres. Demosprudence places emphasis on understanding the role of non-elites and social movements in driving sustainable social and legal change. It highlights the power of narratives derived from the lived experiences of non-elites. The article aims to examine Demosprudence and its implication as a theoretical basis for legitimizing law and social change in Korea. It will begin by providing an overview of the debate concerning law and social change in the U.S scholarship. Subsequently, it will delve into the explanation of Demosprudence as a theoretical foundation for law and social change. Finally, the article will conclude with a brief commentary on a court ruling, analyzed through the lens of the Demosprudential approach.