선한 사회의 조건: 법치주의를 위한 담론

Abstract

What is good society? How do you define it? At the outset, we are remined of

the Neo-Kantian proposition that a normative statement can proceed only from

another normative statement, not from a factual statement. We assume that

there are two ways in which good society is defined. One is to start from moral

dictates such as Christian neighborly love, human dignity, or Confucian filial

duty which everyone would readily accept as good and thus over whose moral

goodness nobody casts a doubt. Another way is to start from communal

necessities for survival or betterment. For example, what is necessary for

communal survival in a wartime situation is a strong-case standard by which to

define goodness. Weber's Protestant ethic is doubly good since it is from

Christian teachings and also instrumental in the rise of Capitalism. It became

clear under the present IMF bailout financing regime that transparency in

business transactions and corporation accountings is good for Korean world

market survival. From the same perspective the rule of law is reappreciated as

necessary and thus good for Korean economic and political betterment.

Traditionally in Korean society, the law is equated with penal law, which is

repressive in its nature. The law is needed to the extent that it combats what

is bad. Otherwise, it has nothing to do with what is moral-ethical. Thus a

good neighbor is still perceived as one who can live without the law. In this

stereo-typed dichotomy the law is perceived as earthly and distasteful, and

talks about what is good conjure up things moral-ethical and ethereal alone.

The kind of dichotomy, however, should be discarded for Korean society to be

good. In a large measure the law should be made moral-ethical in its contents.

At least it should and can be justified in moral-ethical terms including the

sense of justice. Otherwise, the law can be repressive and irrelevant, even