Sunstein의 ‘사법최소주의’에 대한 관견(管見)

초록

According to Cass R. Sunstein, judicial opinions on constitutional issues should be narrow and shallow rather than wide and deep. That is to say, generally, judges should try to avoid broad rules and abstract theories, and attempt to focus their attention only on what is necessary to resolve particular disputes. The judicial minimalism, by which Sunstein means this kind of practice, is recommendable to some degree, for it can minimize the costs of decision(the burden of a decision) and the costs of error(the dangers of an erroneous decision due to a court s lack of information) and allows continued space for democratic deliberation. Saying no more than necessary to justify an outcome and giving up an obsession about a complete theorization of ruling might be a good way to obviate unnecessary controversies and to reach a comprehensive agreement easily. In this regard it can be said that Sunstein s judicial minimalism has the merit of promoting the kind of integration, which André Brodocz called ‘symbolic integration’. In my opinion, the whole integration of a society is, however, a kind of multi-layered process. There might be a deeper layer of integration, which puts members of a society under an strong inward force pursuant to some clear constitutional values. However, there might also be an exterior layer of integration, which shows all the more capacity by respecting the different individual positions of members of society and by recognizing their equal status to stand against each other. I think that Sunstein s judicial minimalism could be a useful guideline rather in the latter layer than in the former.

키워드