Taking Purpose Seriously: Radbruch and Jhering in the Supreme Court of Korea
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Teleological interpretation, or purposive interpretation, has grown recently in the Supreme Court of Korea. Along the way, the German legal philosophers Radbruch and Jhering were cited directly or indirectly in the Korean Supreme Court’s decision. Accordingly, it is timely to examine the judicial philosophy on which the Court has applied such expression. The development of purposive interpretation can be categorized into two approaches. The first is an approach that uses the entire legal order as the normative criterion for legal interpretation and aims at it. This approach has something in common with Radbruch’s theory based on the objective theory of interpretation. Justice Kim Jae Hyung promoted this approach at the Supreme Court. The second is an approach that extracts and synthesizes specific legal objectives from the Constitution, statutes, and provisions of the law and applies them to legal interpretation. This approach is similar to Jhering’s discussion. Also, Justice Ahn Chul Sang solves the problem through this approach in hard cases. This paper examines the strengths and weaknesses of the two approaches based on the influence the two approaches had in the Supreme Court en banc Decision ruling on Article 92-6 [indecent act] of the Military Criminal Act.
Abstract
Teleological interpretation, or purposive interpretation, has grown recently in the Supreme Court of Korea. Along the way, the German legal philosophers Radbruch and Jhering were cited directly or indirectly in the Korean Supreme Court’s decision. Accordingly, it is timely to examine the judicial philosophy on which the Court has applied such expression. The development of purposive interpretation can be categorized into two approaches. The first is an approach that uses the entire legal order as the normative criterion for legal interpretation and aims at it. This approach has something in common with Radbruch’s theory based on the objective theory of interpretation. Justice Kim Jae Hyung promoted this approach at the Supreme Court. The second is an approach that extracts and synthesizes specific legal objectives from the Constitution, statutes, and provisions of the law and applies them to legal interpretation. This approach is similar to Jhering’s discussion. Also, Justice Ahn Chul Sang solves the problem through this approach in hard cases. This paper examines the strengths and weaknesses of the two approaches based on the influence the two approaches had in the Supreme Court en banc Decision ruling on Article 92-6 [indecent act] of the Military Criminal Act.
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