S-Space College of Law/Law School (법과대학/대학원) The Law Research Institute (법학연구소) 법학 법학 Volume 42, Number 1/4 (2001)
한국에서의 법의 지배 : 법과 자유 -법가치로서의 자유에 관한 한 고찰-
Law and Liberty -A Study on the Liberty as the Value of Law-
- Issue Date
- 서울대학교 법학연구소
- 법학, Vol.42 No.4, pp. 1-26
- 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...