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오병선 한국법철학회 2010 법철학연구 Vol.13 No.3
This paper attempts to analyse the idea of liberalism enshrined in legal codes and practised in current Korean legal system. Liberalism has been adopted as a pivotal principle of Korean law under which Korean society was designed to be organized and operated since the launching of the Korean Constitution in 1948. Embodiment of various liberty rights, separation of power among different government branches, and protection of liberal market order and creative entrepreneurship in economic arena are salient characteristics of liberalism enshrined in Korean constitutional order. However, in everyday life many kinds of legal dispute and conflict of interests have been arisen concerning what would be the proper contour of liberalism in Korean society. Disputes with regard to the proper extent of liberalism in state practices and social life have been mainly dealt with and effectively cleared through the apparatus of constitutional and statutory interpretation under the principle of the rule of law. Thus the issue of liberalism in Korean legal system may be approached by an analysis of what is current upholding by constitutional adjudication concerning the meaning and limits of liberalism in Korean society as well as what should be a more appropriate way of understanding of that idea of liberalism. In this paper after introducing the historical background of liberalism and methodology of liberal philosophy of law in general, the challenge of communitarianism as to an alternative understanding of social fabric and relations has been examined and thereafter a compromising approach between liberalism and communitarianism has been suggested as a viable way of resolving the problems entailed from contemporary complexity of social fabric and relations. The common good-oriented liberalism has been suggested to a proper target of liberal philosophy of law. In order to promote this way of understanding of liberalism, emphasis was made on the necessity to shed a light to essential ingredients of that line of principle, namely, reconciliation between liberty and equality, complementarity between liberalism and perfectionism, and harmony between private liberty and the common good of society. Korean society is now confronting with new kinds of challenge to the path toward a more fledged stage of democratic and developed state. The challenges to overcome are, on the one hand, diversity of opinions and plural values spawning in the society in the wake of deepening process of globalization and the gradual increase of multi-cultural family units are to be tolerated, and also the wide disparity between the rich and the poor in society largely flowing from fierce competition in the liberal market should be narrowed by a way of strengthening the social security network. However, on the other hand, social disintegration and fragmentation arising from hyper-individualistic pursuit of self-interest and atomic indulgence in private pleasure should be regulated in order to preserve the basic value of liberal democratic system and promote the common good of the society. This paper attempts to analyse the idea of liberalism enshrined in legal codes and practised in current Korean legal system. Liberalism has been adopted as a pivotal principle of Korean law under which Korean society was designed to be organized and operated since the launching of the Korean Constitution in 1948. Embodiment of various liberty rights, separation of power among different government branches, and protection of liberal market order and creative entrepreneurship in economic arena are salient characteristics of liberalism enshrined in Korean constitutional order. However, in everyday life many kinds of legal dispute and conflict of interests have been arisen concerning what would be the proper contour of liberalism in Korean society. Disputes with regard to the proper extent of liberalism in state practices and social life have been mainly dealt with and effectively cleared through the apparatus of constitutional and statutory interpretation under the principle of the rule of law. Thus the issue of liberalism in Korean legal system may be approached by an analysis of what is current upholding by constitutional adjudication concerning the meaning and limits of liberalism in Korean society as well as what should be a more appropriate way of understanding of that idea of liberalism. In this paper after introducing the historical background of liberalism and methodology of liberal philosophy of law in general, the challenge of communitarianism as to an alternative understanding of social fabric and relations has been examined and thereafter a compromising approach between liberalism and communitarianism has been suggested as a viable way of resolving the problems entailed from contemporary complexity of social fabric and relations. The common good-oriented liberalism has been suggested to a proper target of liberal philosophy of law. In order to promote this way of understanding of liberalism, emphasis was made on the necessity to shed a light to essential ingredients of that line of principle, namely, reconciliation between liberty and equality, complementarity between liberalism and perfectionism, and harmony between private liberty and the common good of society. Korean society is now confronting with new kinds of challenge to the path toward a more fledged stage of democratic and developed state. The challenges to overcome are, on the one hand, diversity of opinions and plural values spawning in the society in the wake of deepening process of globalization and the gradual increase of multi-cultural family units are to be tolerated, and also the wide disparity between the rich and the poor in society largely flowing from fierce competition in the liberal market should be narrowed by a way of strengthening the social security network. However, on the other hand, social disintegration and fragmentation arising from hyper-individualistic pursuit of self-interest and atomic indulgence in private pleasure should be regulated in order to preserve the basic value of liberal democratic system and promote the common good of the society.
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