올바른 이성으로서의 법과 헌법재판의 개선방향 – 쿠크의 법 관념에 대한 키케로의 영향을 중심으로 –

Constitutional adjudication originated with the establishment of judicial review in Marbury v. Madison (1803); however, the legal notion that even statutes enacted by parliament could be void if they contravened common law first emerged in Edward Coke’s Bonham’s Case (1610). Coke maintained that law is “right reason,” and Cicero likewise defined law as recta ratio. Coke directly cited Cicero’s formulations and conceived of law as “perfected reason” and as the reason of the learned—thus inheriting Cicero’s conception of law. Further, by characterizing law as artificial reason, Coke not only adopted Cicero’s notion of artifice but also developed it into a form of judicial rationality. As this understanding of law informed Bonham’s Case, it is evident that the conception of law of Coke and Cicero contributed significantly to the foundations of judicial review and constitutional adjudication. In Cicero’s De Republica, the conception of law as an agreement about utility, advanced by Philus, stands in contrast to the conception of law as eternal and immutable reason, articulated by Laelius. Both Coke and Cicero endorse Laelius’s view of law while rejecting that of Philus. This does not imply that politics or public opinion should be excluded from the process of discovering the law, but rather that law must be grounded in reason, not in interests and opinions that are subject to constant change. Accordingly, the development of constitutional adjudication intended to address the contemporary phenomenon of the juridification of politics should be pursued not as a compromise of the rule of law, but as a restoration of it.