드워킨의 헌법사상: 헌법적 통합성과 파트너십 민주주의 = Dworkin’s Constitutional Theory: Constitutional Integrity and Partnership Democracy

다국어 초록 (Multilingual Abstract)

The main purpose of this article is to provide an introduction to Ronald
Dworkin’s constitutional theory. While Dworkin’s debate with H.L.A. Hart
on judicial discretion and his “rights-thesis” are well-known, his views on
constitutional interpretation, democracy and judicial review have not
received proper attention from the Korean legal community. Given that he
has consistently developed his philosophy of law through active engagement
with constitutional issues, this is a gap that demands filling. The premise
of this article is that a thorough understanding of his legal philosophy
requires a command of his constitutional theory, and vice-versa.
Rather than providing detailed discussions on his views on the various
provisions of the constitution, the article focuses on two broader issues: his
theory of constitutional interpretation and his views on the judiciary’s role
in a democracy. In order to provide some historical background to Dworkin’s
views on constitutional interpretation, a brief description of the rise of
originalism as a conservative response to the liberal decisions of the Warren
Court will be given first. This will be followed by a analysis of Dworkin’s
criticism of the originalist position. Next will be an account of his argument
for the “moral reading” of the constitutional as an instance of his broader
theory of “law as integrity”.
In the part on Dworkin’s views on democracy and judicial review, the
first section discusses his criticism of John H. Ely’s theory which seeks to
confine judicial review to matters of democratic process. The second section seeks to explain why Dworkin is against both judicial activism and judicial
passivism. To him, they not only neglect the weight and authority of the
interpretative tradition of American constitutional system, but also end up
sacrificing the legal rights of the individual. The last section is a discussion
of his theory of democracy because Dworkin basically attacks all views that
presume that judicial review of legislation is difficult to justify in a
democracy. Here, the focus will be on his distinction between majoritarian
and partnership conceptions of democracy and on his understanding of
political equality.
The article will end with a brief discussion of a few selected responses
to Dworkin’s constitutional theory, as well as a description of the changed
political landscape in recent years with regard to the role of the judiciary
in the United States.

참고문헌 (Reference)

1 "가치의 통일: 2008년 제10회 석학연속강좌 세미나 자료집"

2 Ran Hirschl, "Towards Juristocracy: The Origins and Consequences of the New Constitutionalism" Harvard University Press 2004

3 Larry D. Kramer, "The People Themselves: Popular Constitutionalism and Judicial Review" Oxford University Press 2004

4 Mark Tushnet, "Taking the Constitution Away from the Courts" Princeton University Press 73-, 2000

5 "Taking Rights Seriously"

6 Robert Paul George, "Making Men Moral" Oxford University Press 1993

7 "Law’s Empire"

8 Ronald Dworkin, "Is Democracy Possible Here?" Princeton University Press 134-, 2006

9 "Is Democracy Possible Here?" 140-143,

10 Edward B. Foley, "Interpretation and Philosophy: Dworkin’s Constitution" 14 : 151-174, 1997

11 "Freedom’s Law"

12 Thomas C. Grey, "Do We Have an Unwritten Constitution?" 27 : 703-718, 1975

13 John Hart Ely, "Democracy and Distrust" Harvard University Press 1980

14 Edwin Meese III, "Address before the D.C. Chapter of the Federalist Society Lawyers Division in Interpreting Law and Literature" Northwestern University Press 25-33, 1988

15 "A Matter of Principle"

16 Ronald Dworkin, "A Matter of Principle" Harvard University Press 57-, 1985