한국에서의 법의 지배 : 법과 자유 -법가치로서의 자유에 관한 한 고찰-

Abstract

In law the liberty is no less highly aspired as its value than the value of

peace or justice. The legal order without any regard to freedom is regarded as

a kind of suppression. Liberty is the bulwark as well as the cause of the rule

of law. This article tackles with four important problems of legal liberty.

The first problem concerns the concept of liberty. There are many

conceptions of freedom(ancient and modern, republican and liberal, negative

and positive, democratic and idealistic, formal and material, etc). But they are

families of ideas held together by a family resemblance among them. The full

concept of liberty must also draw on all sides of its main conceptions. So the

liberty must mean that the people must live under social arrangements that he

has helped to make, and he must enjoy an extensive sphere of activity within

which he is free from external and internal constraints, and he must decide

himself how he is to live.

The second problem is related to the principle of distribution of legal

freedom. The freedom like other legal values is not enough, but scarce.

Therefore we must think about how freedom should be distributed among

individuals, and to what extent they should be free. With regard to this

problem the thinkers of western enlightenment thought that all men are born

as free and equal beings and, therefore, that nobody by nature is subject to

another person. This conception of liberty is in fact a normative one that all

people should enjoy equal liberty and that everyone should get the greatest

equal liberty which is compatible with the same freedom for all others. The

best known formulation of the principle is Kant's normative definition of the...