구성적 해석과 도덕적 영향 ― 드워킨과 그린버그의 법이론과 그 실천적 함의

This study examines Mark Greenberg’s Moral Impact Theory, a key driver of the “metaphysical turn” in contemporary Anglo-American jurisprudence, by contrasting it with Ronald Dworkin’s Constructive Interpretation, and explores the implications of their differences for Korean judicial practice. While Dworkin and Greenberg share a common anti-positivist stance, they exhibit distinct theoretical differences in detail. Whereas Dworkin understands law as an interpretation that identifies principles best justifying legal practices, Greenberg conceives of law as the moral impact generated by how legal practices alter the moral situation. These differences are analyzed through three key issues: theories of the grounds of law, critiques of semantic theories of law, and the constituent elements of constructive interpretation (the continuity between legal theory and legal interpretation, the one-right-answer thesis, the dual structure of fit and justification, and Integrity). In this process, the study emphasizes that Greenberg reinterprets Dworkin’s fit-justification schema not as a threshold model but as a direct trade-off model among moral values, explaining legal content as a shift in the ex post moral profile rather than as ex ante morality. The theoretical discussion is then applied to the recent Supreme Court en banc decision (2019Do3047) regarding the crime of indecent acts under the Military Criminal Act and its subsequent ruling (2022Do15950) to examine their practical legal significance. The court’s dual argumentative structure of “constitution-conforming interpretation” and “constitution-oriented interpretation” can be interpreted as an adoption of Dworkin’s constructive interpretation. Conversely, from Greenberg’s perspective, these cases are understood as events where soldiers’ moral obligations are reconstructed through the direct collision and adjustment of conflicting values such as democracy, fairness, equality, and military discipline. Specifically, the subsequent ruling’s adjustment of the scope of punishment based on concrete spatiotemporal criteria, such as living quarters and duty hours, clearly demonstrates how institutional actions influence the moral profile assigned to the status of a soldier. In conclusion, the theories of Dworkin and Greenberg are complementary, illuminating law from different levels. While Dworkin’s constructive interpretation offers internal ethics and attitudes for judges, Greenberg’s Moral Impact Theory excels in providing a causal explanation of law’s ontological structure and changes from an observer’s viewpoint. Both theories transcend text-bound approaches, revealing the moral values operating beneath legal norms and providing frameworks to capture the dynamics of Korean legal reality in a more multidimensional way.