공적 이성과 헌법 논증 ― 공적 이성의 구성적 측면을 중심으로

The core of John Rawls’s idea of public reason is that citizens who hold different political conceptions of justice can accept political decisions as at least reasonable, even if not the best or the most just, and that only such decisions are legitimate. This idea bears directly on judicial review in two ways. First, if the substantive appropriateness of political decisions concerns political legitimacy, judicial review can be justified as enhancing legitimacy by ensuring the substantive appropriateness of statutes. Secondly, public reason provides a standard for assessing that appropriateness. This article clarifies the conditions under which citizens can reasonably accept the merits of political decisions. It distinguishes two strategies in Rawls’s account ―the exclusionary and the constructive― arguing that the former is insufficient and developing the latter. After showing that the constructive strategy inevitably encounters the circumstance of integrity, the article refines the dimension of fit within Ronald Dworkin’s conception of law as integrity, and argues that the dimension of justification cannot operate within substantive legitimacy. These analyses lead to the argument that judicial review can play a role in ensuring that statutes are acceptable as reasonable to citizens holding differing views of justice, and that it should do so rather than imposing the Justices’ personal moral convictions.