S-Space College of Law/Law School (법과대학/대학원) The Law Research Institute (법학연구소) 법학 법학 Volume 47, Number 1/4 (2006)
영미에서의 공익개념과 공익의 법문제화 -행정법의 변화와 대응- : The Anglo-American Concept of Public Interest and Its Legal Argumentation: Paradigm Shift and Confrontation of Administrative Law
- Issue Date
- 서울대학교 법학연구소
- 법학, Vol.47 No.3, pp. 52-88
- Deliberation ; Preponderance Theory ; 우세공익론 ; 신공공관리 ; 행정법의 패러다임 변화 ; 공공의사결정 ; Civic Republicanism ; Interpretive Principles ; Public Decision-making ; New Governance ; The New Public ; 공익법 ; 시민공화주의
- Like other value concepts of mankind, public interest has shown a broad
range of argumentations. However, when we focus on the ruling ideas of public
interest in our society, we recognize that understanding the concept of public
interest in the Republic of Korea has been affected by that of Anglo-Americans.
For this reason, the Anglo-American concept of public interest is an important
issue not only in the U.K. and the U.S.A. but also in our country. Traditionally,
Benthamite's interest theories of public interest have been dominant in
Anglo-American societies even though there has been criticism from the common
interest theorists, emergent interest theorists and the unitary interest theorists, the
ruling ideas of public interest in the Anglo-American world have been generated by
Benthamite's utilitarian perspectives. Recently, these ideas have greatly influenced
the paradigm shift of public management and public law concepts in the U.K., the
U.S.A. and our country. For instance, the Government of R.O.K. shares in the
values and methodologies of the deregulatory agenda of Reagan era, Clinton's
attempt to reinvent government and Bush's return to deregulatory agenda.
However, these modern forms of Benthamite utilitarianism have been
condemned as serving only the dominant interest groups in society due to the
absence of identifiable normative content which can defend or advance
fundamental democratic values such as citizenship, political deliberation and
political accountability. Because of this absence, it has been hard to resolve social
conflicts and bipolarization, which are all very urgent and constant problems.
Under these circumstances, we should not adopt the preponderance theories of...