사법판결은 정치적인가?

Abstract

In the process of appointing Justices of Supreme Court or Constitutional Court, the media evaluates the political inclination of the judgments he has made in the past and responds sensitively to the future composition of the Supreme Court or Constitutional Court. Of course, the president, the National Assembly, or the Chief Justice of the Supreme Court who recommends the candidate would have reviewed his political inclination in advance and makes the recommendation. But if a judge’s decision is made by his political inclination, how should we accept it? Should he be estimated and condemned for violating his basic duty as a judge, that is, his duty of fidelity to the legal rules and legal doctrines, or should we accept that he has made a decision according to his conception of justice? In this paper, I will approach this topic focusing on the analysis of Duncan Kennedy, who has published many studies and papers on the relationship between judicial adjudication and ideology. Particularly, Kennedy’s main point is that the way in which judges can put their political ideology is through the legal methods that have been developed in the liberal legal system. Kennedy describes how judges put their political ideology in their argument for legal interpretation, and what kind of psychological state judges are faced with in the situations of conflicting between the duty of fidelity to the legal rules and the ideology that permeates the legal discourse. Kennedy views ideology as a positive concept and defines it as a universalization project of intelligentsia. Based on this concept, he describes the ideological differences between liberalism and conservatism that have been formed in American legal culture. The jurisprudence of adjudication formed in the 19th century had an optimistic view of the liberal judicial system based on the premise of the separation of legislation and the judiciary. However, from the beginning of the 20th century, problems began to appear in applying the legal rules to the cases, and to solve this problems, the social and teleological legal reasoning appeared, and various legal interpretation theories have been proposed. Judicial adjudication theories that appeared in the second half of the 20th century, Hart, Unger, Raz, and Dworkin were reviewed. To reveal the process of interpenetration of legal discourse and ideological discourse, Kennedy provided model of legal discourse, and showed how ideology intervenes through the process of legal interpretation, especially policy argument. And to explain how judges respond to the intervention of ideological elements in adjudication Kennedy suggested three types of judges. Judges are faced with a situation where ideology is intervened in the process of legal interpretation, which Kennedy describes as a role conflict of judge. In particular, he describes the role conflicts of judge with Freud’s concept of denial and Sartre’s concept of bad faith. By dealing with Kennedy’s critical analysis of the relationship between judicial decisions and ideology, I pointed out the several problems in his viewpoint. First, by overestimating the concept of ideology, all of discourses are reduced to ideology. Second, he overemphasizes the conflicting and contradictory concepts inherent in the liberal legal system, failing to suggest an alternative to escape from it. Third, Kennedy emphasizes the problem of justifying arguments involving ideology in judicial decisions, while neglecting the normative power of the legal rules. Fourth, although Sartre’s concept of bad faith contains an opportunity for individuals to overcome it, Kennedy does not provide any opportunity for individual judges to escape from the contradictory structure of liberal legal system. Fifth, Kennedy showed that the liberal legal system is filled with a lot of contradictory and opposing concepts and principles, and that new ideologies are constantly being produced and reproduced and affecting all parts of society. However, looking at this phenomenon from a different perspective, it can be said that the strength of liberalism is to embrace the conflicting and contradicting concepts and arguments. It seems Kennedy’s paradox that his tenacious and elaborate critique best shows the strength of the liberal legal system.