판결의 합리성에 관한 소고 －법대화이론비판의 서론적 고찰－

A Study on the Rationality of Judgment - Introduction to Critique of Legal Discourse Theory -

This study is the subject of rationality of judgment. In the traditional methodology, the rationality of judgment was regarded as the syllogism. However, since the study of legal hermeneutics, it has been revealed that the rationality of judgment is not a syllogism. This study examines the rationality of judgment in two aspects. One is within the judgement, and the other is that the judgement decides on a case. The former is a matter of choice of rules and principles. The latter is a matter of discerning unexpected case. The former is a problem common to all judgments, and the latter is different in accordance with different legal theories. It aims to clarify the advantages and disadvantages of how various judicial perspectives look at the rationality of judgment. In this study examines, in detail, how the various legal philosophical positions view the rationality of judgment. In this way, this article conducts introductory work to reconstruct the rationality of judgment in terms of legal discourse theory.