생명윤리 · 여성주의 · 법

박은정(Pak Un Jong) 한국법철학회 1999 법철학연구 Vol.2 No.-

법관과 법철학

박은정 ( Un Jong Pak ) 서울대학교 법학연구소 2012 서울대학교 法學 Vol.53 No.1

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.

정치의 사법화(司法化)와 민주주의

박은정 ( Un Jong Pak ) 서울대학교 법학연구소 2010 서울대학교 法學 Vol.51 No.1

This paper analyzes the phenomenon of the expansion of judicial power from the perspective of `judicialization of politics` and critically looks at the effect `judicialization of politics` has on democracy. Our society is burdened with carrying out `democracy after democratization`. In such a society as ours, the phenomenon of `judicialization of politics` in society is being treated by scholars as an issue of conflict between rule of law and democracy. Important policy decisions being resolved through judicial processes rather than by political processes has its advantages and drawbacks, and therefore the effect of this phenomenon on democracy is also a double-edged sword. In this paper in order to understand this phenomenon which appears at a time where the constitutional law is taking root as a normative part of our daily lives, firstly we need to appreciate the change and expansion in the status of judiciary, the change in the role of the judges according to the social changes taking place, the diverse background on which `judicialization of politics` is built on, the characteristics of judicial decision model, and especially the characteristics of constitutional trials, and I emphasize that these must be studied in detail. On the basis of this analysis I evaluate the contribution of `judicialization of politics` to democracy taking into account the problem of representative democracy, the extent to which the civil society is activated, the capabilities of the judiciary, etc. While examining `judicialization of politics` and the issue of democracy, this paper delves deeper into the relationship between law and politics, especially the political characteristics of judiciary, the democratic character of judgments. Finally, as judicialization under the system of democracy is not simply a phenomenon which occurs due to a single factor, I assert that the appropriate countermeasure to overextensive judicialization of politics is not easy to find, and ask that judicial coordination is made into a task which must be continually carried out.

지구화와 법이론

박은정 ( Un Jong Pak ) 서울대학교 법학연구소 2007 서울대학교 法學 Vol.48 No.3

This article approaches the issue of globalization within a realm of legal theory and legal philosophy, and beyond investigation of its effect on the constituents of law. Discussion on the background and significance of globalization will be followed by exploration on how globalization influences the ``rule of Law``, the role of a nation, and how it challenges the main-stream legal theory. From thereon, a new legal theory in the globalization era will be speculated. Instead of a theoretical explanation on the relationship of global trend and law, here the emphasis would be put on interpreting diverse stream and contradiction of the phenomena. In addition, globalization will not be simplified into concepts such as interdependence, unification, universalism, or convergence. In a traditional point of view, the influence of the economic globalization on law appears to be alleviation of legalism or legal formalism, and a trend toward legal unification. Alleviation of formalism and impairment of Legal stability due to global increase in mobility increases the legal uncertainty. However, this does not directly cause retrogression of rule of law. It is rather probable that legal regulation will be more requested with increased threat from growing national and international mobility and market uncertainty. Furthermore the global distrust against supranational convergence of power and hierarchical authority may also call for a legal support for individual`s human right. The mainstream legal theory is being challenged by the wave of globalization these days. Globalization raises question on the so called ``black box theory``, which focuses on the analysis of the legal system that is regarded as independent and unified on its own. State law can no longer be treated as isolated from external influence or external regulation. The new global issues necessitates new construction of legal theories concerning ``non-state law`` that assumes separation of law from state. Considering these points, the author maintains that in order to discuss the legal issues in the viewpoint of globalization and to construct a new paradigm in Legal theory, the 7 basic principles should be accomplished.

세계화시대의 인권문제

박은정 ( Un Jong Pak ) 세계헌법학회 한국학회 2009 世界憲法硏究 Vol.15 No.3

The human rights issues of today cannot be but analyzed and reevaluated according to the tide of globalization. The past century was one in which the international society passionately clung to the criterion of human rights. Rights discourse prevailed over distributive justices, solidarity, and common good. It is said that human rights constitute `a common language of humanity`. However human rights statutes poured out by mainly the UN show the gaps between `law in the books` and `law of the streets.` The retreat of state law centrism, the advent of legal particularism, the alleviation of law formalism and the growing emphasis on `soft law` result in the weakening of the managerial abilities of state law, rendering the state`s regulatory abilities secondary, and the asymmetrical relationship between the state law and non-state law. On the basis of a critical analysis of the above mentioned phenomenon, this paper examines challenging questions such as these: Is human rights truly universal? Do human rights clash with democracy or the principle of decision by majority? Are human rights the political `trump` card? Can the liberty rights reconcile with social rights? Can the tension ever be resolved between human rights and the principle of state sovereignty? Can human rights coexist with cultural diversity? I believe that all these questions can be resolved both theoretically and in practice.

법적 제재와 과학의 새로운 연합? -인지신경과학으로부터의 도전-

박은정 ( Un Jong Pak ) 서울대학교 법학연구소 2013 서울대학교 法學 Vol.54 No.3

This article aims to discuss the impact that scientific research, more specifically the scientific endeavor to understand human cognitive process, has on the discussion of justifying legal sanctions. With the expansion in experimental research on human judgment and decision making, there is a tendency of diminishing normoriented attitude. With this in mind, I will discuss the interface between law and science in the current era. First, with a focus on some of the key results from cognitive neuroscience, the characteristics of classical legal sanctions and the influence that cognitive neuroscience has on them will be reviewed. In particular, I will discuss the following: the relationship between the danger of reductionism in traditional legal thought and the cognitive neuroscience, the limits of the interpretations of cognitive neuroscience on the free will, and the problems that scientism brings on the responsibility of individuals. In summary, I suggest that results of cognitive science research should be viewed in an integrative point of view rather than a reductive one. The ideal contribution of scientific investigations for the legitimacy of legal sanctions should be in the direction of harmonizing the ‘utility’ and the ‘legitimacy’. Therefore, I am apposed to some of the academic trend such as ‘the naturalization of jurisprudence’ or the so called ‘naturalistic turn of legal philosophy’. ‘Naturalistic normativity’, if at all possible, should only be interpreted as that any theory that can give some predictions on sanctions is better than a perfectly uncertain normative theory.

생명: 과학과 윤리 사이

박은정(Pak Un-jong) 한국생명윤리학회 2015 생명윤리 Vol.16 No.2

이 글에서 필자는 오늘날 생명 문제가 과학지식담론에 의해 그 외연이 정해질 수 있는 문제로 바뀌고 있음에 주목한다. 그리고 생명에 관한 과학지식 담론의 우위 속에서 인간의 체험적 삶에 대한 서사(敍事)에서 목적론적 의미 추구가 줄어들고 인과적 설명방식이 늘어난다는 점을 지적한다. 생명과학지식의 생산 및 그 축적과 함께 생명 문제를 둘러싼 불확실성이 증대하고 있다는 점, 생명현상과 생명 이슈를 바라보는 관점이 바뀌고 있다는 점에 대해 살펴본다. 이를 바탕으로, 생명현상에 개입하는 과학기술의 증대가 가져오는 불확실성 문제를 다루는데 있어서 과학적 판단과 윤리적 규범적 판단의 차이점을 분석해 본다. 마지막으로, 한 분과과학 진영에 속해있는 연구자로서 우리가 이 불확실성 문제에 어떻게 접근하고 생명 문제를 둘러싼 갈등해결을 위해 어떤 의미의 바람직한 협력을 할 수 있을지 묻는다. 필자는 지난 2000년대 수년 동안 ELSI 프로그램에 참여한 경험을 통해, 과학기술 연구 분야에서의 ELSI 프로그램은 단순히 실험실에 대한 모니터링이나 평가, 공동연구 요청을 넘어서는 수준에서 기획되어야 한다는 생각을 갖게 되었다. 이런 문제의식 하에 필자는 대안적 ELSI 모델에 대한 기대를 가지고 생명과학기술영역에서 사전예방원칙의 중요성, 내러티브의 생명윤리적 역할, 과학에서 인문학 교육의 제도화 필요성, 자연과학과 정신과학 내지 사회과학의 새로운 파트너십 조건 등에 대해 몇 가지 제안을 하고자 한다. In this thesis I focus on the fact that the bio and life related conception changes from being an essential and inevitable issue to an issue of which its denotation can be decided by the discourse of scientific knowledge. I stress that with the production of the scientific knowledge and its accumulation there is increasing uncertainty surrounding bio and life related issues. And furthermore I persue the differences between scientific judgment and normative ethical judgment in dealing with the problems of uncertainty due to the increase of science and technologies that meddle with phenomena of life. Based on this, my object is to ponder upon how we can approach this uncertainty as researchers who work in separate fields of science. Through the ELSI program which I participated in the 2000’s, I felt strongly that there is need to surpass simply monitoring or evaluating laboratories, conducting joint researches, etc, and move towards questioning the direction in which we aim to foster science and scientists. With the awareness of this pressing problem on my mind and with hopes of an alternative ELSI model, I purport to make proposals on the importance of the principle of prevention, the role of the narrative in bioethics, the need for institutionalization of humanities education in science fields, and the new partnership between bioscience and social science.

의료윤리와 법 -첨단의학기술 발전에 따른 문제점을 중심으로-

박은정 ( Un Jong Pak ) 한국의료윤리학회 1998 한국의료윤리학회지 Vol.1 No.1

북한법이론과 여성주의

박은정(Pak Un Jong) 한국여성학회 1997 한국여성학 Vol.13 No.1

신경과학과 법을 둘러싼 논쟁

박은정 ( Un Jong Pak ),장하원 ( Ha Won Chang ) 법과사회이론학회 2011 법과 사회 Vol.0 No.41

Recently, enormous progress in neuroscience has been made to enhance our understanding of the human brain and its functions, but this progress also provokes various controversies and debates concerning the implications of neuroscience on legal and ethical issues. Scholars with different disciplinary backgrounds such as neuroscience, neuroethics, philosophy, and law have participated in such controversies and debates. In order for legal scholars to find legal implications from them, it is necessary not only to embrace novel neuroscientific information but to understand various points in such disputes more analytically. For this purpose, this paper classifies complex issues emerging from the interactions between neuroscience and law into three topics: 1) the problematization of the concept of free will as a prerequisite for legal responsibility, 2) the disagreement of the legal efficacy of PET or fMRI brain images in court, and 3) the desirable relationship between neuroscience and the law in moral, legal and social senses. By analyzing and discussing these three important topics, this study will elucidate various ways in which new brain science interacts with law, and help to develop an appropriate criteria for the adoption neuroscience into the legal system of our society.