사법부의 판결경향 및 구조에 대한 분석도구로서의 부르디외 사회학 이론
/ 이호영

[국문 주제어]

부르디외, 판결경향, 사법부의 구조

Bourdieu's Sociological Theory as an Instrument of Analysis about the Tendency of Judicial Decision and the Structure of the Judicature

Lee, Ho-Yung
PhD Candidate, Konkuk Univ.

Many people including jurists in charge of practical affairs about law consider that the law is objective and its values are neutral. But as we observe our reality of the law, there are certain distance between them. Other forces besides the legislature have influenced the process of the establishment and the revision of law, so the Judicature, which is in charge of trials, didn't play the role as a fair arbitrator. Particularly, preceded studies on the judicial decision of the Judicature prove there is the tendency that the case relevant to the right of citizenship is given decision favorable to nation or a claimee while the case on the property right is given decision in favor of the rich or a demander.

Then why this tendency is made? It appears to result from the bureaucratic organization structure of the Judicature, yet it can't explain all of these. And because behaviorism can't explain a repetitive action of human, there is theoretically the limitation. In order to analyze this, it needs to borrow the integrated theory to overcome structuralism and behavioralism at the same time. Also in this study I wish to demonstrate whether the theory of Bourdieu, 'Habitus' and 'Champ' fits the analysis of the tendency of judicial decision and the structure of the judicature or not.

'Habitus' is the taste that appears in accordance with each group. It is formed by social conditions. Usually each person's behaviors follow this 'Habitus', but there is exceptional cases, too. And 'Champ' is the space that the locations are structured, it has relative autonomy. Particularly, Habitus and the tendency of judicial decision is similar in the forming process and the function. Also Champ theory explains how the judge is related with the prosecution, the lawyer, the jurist, the legislature and the press.

To inspect the social status of superintendent judges of high court of justice and new judges, I analyzed their total amount of economic capital, culture capital and so on. As a result, they possess quite a lot of capital, so it can be told that their social status is high. In the end the judges, the member of the Judicature, show the tendency to hold the existing social order. So we can reason by analogy it can affect the tendency of decision.

Finally, we can know that the tendency of decision is affected by the social position of judges and that the core of real reform of judicature is to break the existing trial system in accordance with Bourdieu's sociologic theory.

[Keywords]

Bourdieu, the tendency of judicial decisions, the structure of judicature