S-Space College of Law/Law School (법과대학/대학원) The Law Research Institute (법학연구소) Journal of Korean Law Journal of Korean Law Volume 14 Number 1/2 (2014/2015)
The Discord between the Rule of Law and Justice
- Pak, Un Jong
- Issue Date
- School of Law, Seoul National University
- Journal of Korean Law, Vol.14 No.1, pp. 61-80
- The Rule of Law; Legal Philosophy; Justice; Autonomy of Law; Legal Form and Legal Substance; Normativity
- This article is a modified version of the paper presented as a keynote speech in the 9th East Asian Conference on Philosophy of Law on Aug. 21. 2014.
- Modern legal philosophy is caught in a frame where it is forced to accept the discord between the rule of law and justice. The return of justice in legal philosophy is unachievable without reconciliation with the Rule of Law. Keeping ‘legal philosophy of reconciliation’ in mind, this paper provides an overview how we can reduce the tension between the rule of law and justice. Through the introspective reflection on the weak and impoverished state modern legal philosophy finds itself in, this paper attempts to characterize the tendency of the question of justice being marginalized in the environment of legal positivism which is the product of the combination of scientific rationality and legal knowledge. Firstly, the autonomy of the actor as the subject being replaced by the autonomy of the legal system resulting in a kind of mechanism design, secondly, legal perception of form being contrasted to substance, thirdly, the problem of legal professionalism in which all views from outsiders are discounted, fourthly, by separating legal knowledge from political and social power encroaching upon law’s potential emancipatory ability, fifthly, the clash between the Rule of Law and democracy.