방법론의 관점에서 바라본 법제의 경관 - 「행정기본법」의 제도법학적 이해

Institutional jurisprudence is essentially differentiated from interpretative jurisprudence, which is mainly centered on litigation and uses deductive reasoning based on legal positivism, in that it considers the institutional context, such as politics, economics, and society, and uses inductive reasoning to analyze the law in various fields of legal practice. For the development of such institutional jurisprudence, it is necessary to be interested in and actively adopt the institutionalism that is developing in the social sciences such as economics, political science, sociology, and public administration. However, care should be taken to ensure that the uniqueness of jurisprudence is not eroded as a result. In this regard, the various existing criticisms of the General Act on Public Administration can be characterized as coming primarily from an interpretive jurisprudence perspective. The situation is different from an institutional jurisprudence perspective, where it is neither necessary nor possible to substantiate all laws in writing. Furthermore, it would be even more difficult to substantiate all administrative laws in a single document. This means that when approaching a comprehensive “general administrative law” from an institutional jurisprudence perspective, we need to find different reasons and different methods than when approaching it from an interpretive jurisprudence perspective.