불확정성과 법치의 관계에 대한 세 관점
Indeterminacy and the Rule of Law: Three Perspectives
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Abstract
Law is determinate when a question of law has a single right answer. In other words, indeterminate law does not constrain judicial decisions because it cannot lead to one conclusion. Indeterminacy in law has been an important issue as it is deemed to damage the rule of law by allowing arbitrariness from judges and by diminishing legal stability. There are three existing theories about the relationship between indeterminacy and the rule of law: Firstly, critical legal theorists criticize the rule of law to be a fiction covering arbitrary use of power, considering indeterminacy of law. This stance thoroughly denies determinacy of law, so it cannot tell unlawful judgments from discretionary judgments. Secondly, Dworkin denies that the judicial discretion damages the rule of law, suggesting that law always has a right answer. According to his interpretive legal theory, political morality offers the standard to judge what the best interpretation is. However, considering that there can be a serious disagreement about moral judgment, this can lead to epistemological indeterminacy of law. Thirdly, legal positivists assert that indeterminacy and the rule of law are compatible although law is partially indeterminate. This argument is wrong in that it is based on a false premise that there are few indeterminate cases in law. Due to the indeterminacy in law, it seems to be impossible to achieve the ideal of the rule of law. In order to solve this contradiction, it is required to reconstitute the concept of the rule of law. Thus, when law is indeterminate, making final resolutions of legal disputes can be a requirement for the rule of law. From this stance, it is not inconsistent with the rule of law when a judge concludes a dispute based on his or her decision for indeterminate cases.
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