법관과 법철학 = The Judge and Legal Philosophy

다국어 초록 (Multilingual Abstract)

Seen from the practical point of view, every difficult theoretical problem of legal philosophy is concerned with the question, what judgments and decisions made by judges are correct ones? A good answer to this question can be given by legal philosophy as ``integrative jurisprudence``. By ``integrative jurisprudence``, I mean that (i) it analyzes the basic concepts of law; (ii) it explores how these basic concepts are associated with legal institutions as an authoritative coercive order; (iii) it legitimates legal ought or norms of the society in one way or another. Given this, the integration is possible only within judge``s ``activities``; in this sense, judicial activities are integrative activities. Under the rubric of integrative jurisprudence, judges`` process of reasoning for legitimating their judgments should be deemed to be more than merely meeting the requirements of necessary and sufficient conditions or principled consistency. It rather should be understood in terms of the extended human rationality and objectivity. In this regard, special attention needs to be paid to the cognitive models and ``embodied rationality`` that burgeon from human experiences including those of ordinary language. This attention enables us to explain legal conceptualization or categorization better than does the so-called Blackbox Theory or Rule-rationalism. This explanation requires specifying a model case and its relationship with the extended ones. This specification, central to legal reasoning, is basically made through the concept of ``radial category.`` In addition, the role of analogy-the functional similarity or internal correlations among complex phenomena-should be stressed in elucidating the dynamicity of legal reasoning. Next, judges need to be concerned with the role of metaphors in legal thinking and the narrative structure that consists in the combinations or sequences of words and propositions. Lastly, it should be noted that judges` ``correct reasoning`` lies in ``phronesis``-i.e., the realm of practical wisdom that recognizes the importance of ``contexts`` as well as that of the general rules or principles.

참고문헌 (Reference)

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