법학방법론의 현대적 의미

초록

Where there is law and jurisprudence, there can not be no legal methodology. Since ancient times, jurisprudence has developed various methods of thinking that lead to correct legal solutions to individual cases. Legal methodology is a self-portrait that reflects the work of law and clearly shows the academic level of law. Despite the Professionalisierung(H.-M. Pawlowski) of legal methodology, the function and limitations of legal methodology are still controversial. Some argue that legal methodology is unnecessary in practice, others argue that there is no need to teach legal methodology because the methodology is learned naturally through learning positive law. However, legal methodology is the knowledge that a lawyer must possess and is one of the most practical branches of law. Nevertheless, considering the reality of academia dominated by legal dogmatics, it is unlikely that one can learn the methodology only by studying positive law. Legal dogmatics and legal theories are the products of methodologically justified statutory interpretation(Gesetzesauslegung) and further formation(Rechtsfortbildung). In practical reasoning, such as legal reasoning, there is a path to take between extreme rationalism and irrationalism. The possibility of diverse interpretations should not be directly equated with the arbitrariness of legal decisions. In most cases, there is a range of choices regarding acceptable interpretations, and within this range of choices, the final conclusion is made according to the interpreter's pre-understanding(Vorverständnis). However, outside the scope of choice, there is a much wider range of objectively unacceptable areas. Therefore, the possibility of intervention by a judge's personal prejudice or subjective evaluation should not be equated with the irrationality or arbitrariness of the judgment. In modern countries ruled by law, the choice of method of legal interpretation is not completely left to the discretion of judges. For example, judges are subject to institutional and procedural restrictions, such as the principle of legality of criminal punishment and the principle of separation of powers, when choosing an interpretation method. In this respect, the problem of today's legal method is also a constitutional problem. Legal methodology increases the predictability of judge’s decisions by reducing interpretive and decisional discretion of judges. Today's legal methodology goes beyond the classic topic of interpretation and application of law and covers a wide range of topics related to the understanding of law. These topics are ultimately connected to issues of legal theory such as the distribution of authority between legislators and legal users, standards or perspectives for interpreting laws, consideration of social reality and interests behind the law, and the functions and roles of judges. Therefore, legal methodology requires reflection on legal theory(Rechtstheorie), which is ultimately directly or indirectly connected to understanding the nature of law. In the end, legal methodology does not stop at exploring the nature or method of understanding law, but also makes us consider fundamental issues of legal philosophy such as the effectiveness of law and legal ideology. To paraphrase H. Ryffel, methodology inevitably leads to philosophy whether we want it or not. We can get a glimpse of the alliance between positive law and legal philosophy in legal methodology(K. Larenz). Dworkin also suggested a close connection between legal philosophy and legal methodology by saying, ‘Jurisprudence is the general part of adjudication, silent prologue to any decision at law.’ Legal methodology is a part of applied legal philosophy. To be more precise, legal philosophy is the prologue and epilogue of legal methodology. If the substructure of legal methodology is legal philosophy, and the essence of legal philosophy is analysis and critics, then legal methodology should not stop at analysis but must also include critical reflection. In addition, major issues must be comprehensively addressed not only from the perspective of interpretation but also from the perspective of legislation, in other words, not only through a descriptive approach but also through a normative approach. Legal methodology can never be limited to a descriptive methodology but must aim at a normative methodology. Legal methodology in the modern sense is a justification theory (Legitimationslehre) to justify decisions of judges and limit the judge's judicial power, and at the same time an argumentation theory(Argumentationslehre) to base legal decisions, and furthermore, a request for definition of the content of legal method. It is a value-related theory of justification and argumentation. In addition, legal methodology aims to apply legal norms in a reasonable and reviewable manner in accordance with the Constitution. Since legal thinking dominates and is dominated by both jurisprudence and legal practice, jurisprudence and legal practice are not opposed to each other in their methodologies. The methodology for jurisprudence and the methodology for legal practice cannot be different. As von Savigny pointed out long ago, if theory and practice are completely separated, theory inevitably degenerates into empty play and practice into simple manual work. Theory must be practical, and practice must be academic. Legal scholars need a practice-oriented methodology, and lawyers need a theory-oriented methodology. Legal methodology can develop as these intersect and converge.

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