헌법학에서 이론의 의미와 역할

Abstract

It has been over 30 years since the Constitutional Court was established under the 1987 Constitution. In the meantime, constitutional precedents have achieved remarkable growth not only quantitatively but also qualitatively. As the constitutional precedents accumulated, side effects also appeared. Constitutional practice, developed by absorbing knowledge from constitutional law scholarship, began to self-reproduce its precedents through the self-citation of previous precedents and gradually came to secure its own status independent of constitutional law scholarship. Due to this, the aspect of constitutional law scholarship is also changing. Now, constitutional law scholarship is stepping back from its role of providing knowledge before constitutional practice and changing its main role to commentary on constitutional precedents. In order to overcome this phenomenon, the revitalization of constitutional theory is advocated in constitutional academia, but it is very ambiguous what constitutional theory means. In this regard, this article explored the meaning and role of constitutional theory in constitutional law scholarship, with reference to related discussions in Germany. This paper defines constitutional theory as a field of constitutional jurisprudence that aims to reflect on the constitution and constitutional dogmatics by utilizing knowledge outside the viewpoint of constitutional dogmatics. It concludes that it has the character of bridging basic scientific concepts or theories into constitutional dogmatics discussions. The article is composed as follows. Firstly, the context in which the revitalization of constitutional theory is discussed in Germany is reviewed. (Ⅱ) Then, the meaning and role of constitutional theory and its relationship with constitutional dogmatics are reviewed. (Ⅲ) Finally, this article suggests implications for our constitutional law scholarship. (Ⅳ)