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초록· 키워드
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Today, the Constitutional Court has emerged as the final judge of society. In our society policy-making of the Constitutional Court of Korea is expanding. This phenomenon is because especially Korean politics in gridlock has shifted responsibility on the Court to avoid the risk in solving the constitutional issues connected with democracy. The Court has invalidated some decisions and legislations of the President and the National Assembly. It seems to be understood as judicialization of politics and the politicization.
However, a critical perspective criticizes this phenomenon by pointing out that the countermajoritan nature of policy-making through constitutional adjudication ultimately destroys the democratic representative system and self-governance. In other words, the theory criticize the deficiency of the democratic legitimacy of the Court.
The common approach against this criticism is that the mission of the constitutional adjudication conducts as a protector of the constitutional rights of the minority against the tyranny of the majority. Another approach argues that the role of the constitutional adjudication shall complete democracy by promoting deliberation and debate through the institutional dialogue.
Nevertheless, what is left unexplained in all of these accounts is how popular majorities or other powerful political actors successfully commit themselves to Constitutional law. No matter how legitimate or beneficial these constraints (Constitutional law) might be, they will not be effective unless they are accepted by the very actors who are making political decisions in the present - acting in the heat of the moment, in the fallen state of ordinary politics, and through flawed political processes.
Therefore, I think we should explain reasons to observe the Constitution, apart from the legitimacy of the Constitutional Court. In order to approach this problem, I will analyze the Constitutional Court‘s decision by Daryl Levinson’s Public Choice Theory.
This discussion will help us achieve the realistic answer to the normativity of Constitutional Law, It is further necessary for us more than the U.S., especially because we have provisions on the judicial review unlike in the U.S.
However, a critical perspective criticizes this phenomenon by pointing out that the countermajoritan nature of policy-making through constitutional adjudication ultimately destroys the democratic representative system and self-governance. In other words, the theory criticize the deficiency of the democratic legitimacy of the Court.
The common approach against this criticism is that the mission of the constitutional adjudication conducts as a protector of the constitutional rights of the minority against the tyranny of the majority. Another approach argues that the role of the constitutional adjudication shall complete democracy by promoting deliberation and debate through the institutional dialogue.
Nevertheless, what is left unexplained in all of these accounts is how popular majorities or other powerful political actors successfully commit themselves to Constitutional law. No matter how legitimate or beneficial these constraints (Constitutional law) might be, they will not be effective unless they are accepted by the very actors who are making political decisions in the present - acting in the heat of the moment, in the fallen state of ordinary politics, and through flawed political processes.
Therefore, I think we should explain reasons to observe the Constitution, apart from the legitimacy of the Constitutional Court. In order to approach this problem, I will analyze the Constitutional Court‘s decision by Daryl Levinson’s Public Choice Theory.
This discussion will help us achieve the realistic answer to the normativity of Constitutional Law, It is further necessary for us more than the U.S., especially because we have provisions on the judicial review unlike in the U.S.
목차
Ⅰ. 서론
Ⅱ. 헌법의 자기보장 규범성
Ⅲ. Daryl Levinson의 이론
Ⅳ. 헌법재판소 결정에 대한 공공선택이론의 적용
Ⅴ. Daryl Levinson 이론의 한계
Ⅵ. 결론
【참고문헌】
【Abstract】
참고문헌 (2)
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헌법재판소 2004. 10. 21. 선고 2004헌마554·566(병합) 전원재판부
가.일반적으로 한 나라의 수도는 국가권력의 핵심적 사항을 수행하는 국가기관들이 집중 소재하여 정치·행정의 중추적 기능을 실현하고 대외적으로 그 국가를 상징하는 곳을 의미한다. 헌법기관들 중에서 국민의 대표기관으로서 국민의 정치적 의사를 결정하는 국회와 행정을 통할하며 국가를 대표하는 대통령의 소재지가 어디인가 하는 것은 수도를 결정하는데 있
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