현대자유주의에서 법의 지배와 민주주의의 관계:입헌민주주의의 스펙트럼

다국어 초록 (Multilingual Abstract)

The Rule of Law and Democracy in Modern Liberalism:
A Spectrum of Constitutional Democracy

Bi-Hwan Kim


In modern liberal societies, democratic politics supported by the rule of law principle has been considered the only legitimate political ideal. The rule of law and democracy, however, may form different relations with each other in line with the way in which we understand or define the two principles. With these possible different relations in mind, this paper tries to construct a spectrum of constitutional democratic theories in modern liberalism.
I classify three forms of constitutional democracy as follows. Firstly, there is a form, supported by Dicey and Hayek, that lays special emphasis on liberal individual rights plus a minimalist conception of democracy. The second form of liberal constitutional democracy, which is based on a substantive conception of the rule of law suggested by Rawls and Dworkin, places a greater weight on democratic element than the first one preferred by Dicey and Hayek. This one, however, tends to strongly restrict the radical and creative character of democratic politics, resorting to judicial institutional devices like judicial review. The third one, suggested by Ackerman and Bellamy, lays the greatest weight on democratic political element among the three forms, and stresses that as much constitutional essentials as possible should be subjected to democratic public deliberation in order for them to be determined.
It is almost impossible to evaluate objectively which one is the best among these three, and is argued that more context specific inquiries are needed, together with universalistic ones, in order to construct the most suitable one for the country concerned.