기본권 조항과 사법심사제도의 법적 의미 재론(再論)

Abstract

As Korea becomes democratic, the judicial review by the Constitutional court is active. However, skepticism about the legal status of the constitutional rights and the judicial review increases at the same time. The workings of the basic rights clauses of the Korean constitution are vague and open rather than clear and definite. Then are those clauses the institutionalized ideas of law rather than a kind of legal norms as legal principles? And is the judicial review a legislative work rather than an adjudicative one? The proponents of the exclusive legal positivism regard the basic rights clauses of the constitution as the institutionalized ideas of law, not legal norms. The legal interpretivism treats them as legal norms even when they are not codified or conventionally recognized as legal norms. The inclusive legal positivists regard them as legal norms because they are incorporated into the constitution. The inevitable subjectivism seems to be nearly fatal to the legal interpretivism. And the basic rights clauses also have some definite contents, and there are rooms for a citizen’s claim that a legal norm is unconstitutional to be accepted at the court. So the basic rights clauses can be seen as “incomplete legal norms as well as the institutionalized ideas of law”, and the inclusive legal positivism seems to be supported. The distinction between the legal norms and the ideas of law is sublated as much. However we should keep in mind that the ideas of an actual legal system and those of an ideal one may be different.