사회학적 사고와 법해석의 교감을 위해

Abstract

This article intends to foster an fruitful interaction of social theory and interpretation of the law. How could it be useful to review the legal practice from the perspective of social science? I believe it would be very useful and even necessary. Thus, the article problematizes the notions such as fact-finding, and human behavior employed in the judicial decision from the light of relevant concepts in social theories. Particularly, the essay deals with three issues : issues involve in fact-finding in judicial procedure and empirical research in social science; the issues of lawyers' linguistic representation and belief in the factual truth; and the issues of context within which the legal actions were taken place. From discussion of the legal realism, fact-finding in the judicial process was a critical and yet questionable process. With underdevelopment in the method of collection, interpretation of the facts in the legal science to compare to social science, the data of empirical research in social science can be employed in many legal cases. Whereas applicability of empirical data to the filed of law must be immense, this does not mean every issues of fact can be solved through the empiricism. Empirical data in social science has not been immune from the question of viewpoint and positionality. The emphasis in language in social science precisely offers the tools for engaging with the question of 'fact' in the legal vocabulary. From the linguistic paradigm in 20th century social science, there will be no ‘reality’ known without representation of the symbols. The law as the linguistic system is tantamount to the grammar to organize the social reality. Through the channels of legal notions and rules, lawyers see, define, and construct the facts pertinent to the cases. The essay prescribes the lawyers' linguistic situation as “double bondage” that designates the bondage of language and that of lawyers' closed legal community. The ordinary linguistic world, however, is also filled with dominant world view, or ideology. Thus, the lawyers need to have critical distancing from it, and critical reflection about lawyer herself or himself. The next issue was about the context of legal behavior. From the case of ‘Nonghyup,’ the attitude of ignoring the context of legal action was discussed. The direct context or even the reason that led to the legal actions such as signing the legal document was only named as a ‘situation.’ Thus it was treated neither as a very important factor nor as a cause of an action. Although some could evaluate this attitude as legal positivism, it results in a very narrow interpretation of ‘the action’. Yet others could interpret the case as a policy-oriented decision in the context of IMF crisis in Korea. The basic data about pertinent company and employees, however, does not confirm that this decision is based upon a correct understanding of the social reality. In this sense, policy- or politics-oriented decision is very different from the decision based upon social science. From above discussions, we can expect that the exchange between viewpoints and language of legal and social sciences will bear many fruitful results. The legal education ought to train the lawyers prepared for that exchange, and social scientists also need to recognize the legal specificity and procedural importance.