드워킨의 헌법사상: 헌법적 통합성과 파트너십 민주주의

Abstract

The main purpose of this article is to provide an introduction to Ronald Dworkin’s constitutional theory. While Dworkin’s debate with H.L.A. Hart on judicial discretion and his “rights-thesis” are well-known, his views on constitutional interpretation, democracy and judicial review have not received proper attention from the Korean legal community. Given that he has consistently developed his philosophy of law through active engagement with constitutional issues, this is a gap that demands filling. The premise of this article is that a thorough understanding of his legal philosophy requires a command of his constitutional theory, and vice-versa. Rather than providing detailed discussions on his views on the various provisions of the constitution, the article focuses on two broader issues: his theory of constitutional interpretation and his views on the judiciary’s role in a democracy. In order to provide some historical background to Dworkin’s views on constitutional interpretation, a brief description of the rise of originalism as a conservative response to the liberal decisions of the Warren Court will be given first. This will be followed by a analysis of Dworkin’s criticism of the originalist position. Next will be an account of his argument for the “moral reading” of the constitutional as an instance of his broader theory of “law as integrity”. In the part on Dworkin’s views on democracy and judicial review, the first section discusses his criticism of John H. Ely’s theory which seeks to confine judicial review to matters of democratic process. The second section seeks to explain why Dworkin is against both judicial activism and judicial passivism. To him, they not only neglect the weight and authority of the interpretative tradition of American constitutional system, but also end up sacrificing the legal rights of the individual. The last section is a discussion of his theory of democracy because Dworkin basically attacks all views that presume that judicial review of legislation is difficult to justify in a democracy. Here, the focus will be on his distinction between majoritarian and partnership conceptions of democracy and on his understanding of political equality. The article will end with a brief discussion of a few selected responses to Dworkin’s constitutional theory, as well as a description of the changed political landscape in recent years with regard to the role of the judiciary in the United States.