약자의 구성주의

• 영문명: Constructivism of the weak
• 발행기관: 충북대학교 법학연구소
• 저자명: 고봉진(Ko, Bong Jin)
• 간행물 정보: 『법학연구』第32卷 第1號, 35~58쪽, 전체 24쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2021.06.30

영문 초록

In this paper, I argue that equality-oriented liberalism is also possible through the union of freedom and public utility. The union of freedom and public utility has the advantage of constructing a theory. First, the “union of freedom and public utility” has the merit that it is based on the reality of modern society and the people living in it. Modern society is a complex, diversified, and functionally differentiated society. In such a society, it is difficult to expect a formative politics based on the common good of communitarianism and the virtue of the citizens emphasized by the republican theory. Rather, there is a better point in setting a feasible goal to construct a theory based on individual liberties rather than the common good of the community, and individual interests rather than civic virtues. Second, “the union of freedom and public utility” is suitable to cope with the ills of modern capitalist society at a realistic level. While communitarianism or republicanism has a high goal but is not feasible, the goal pursued by the union of freedom and public utility is lower than that of communitarianism or republicanism, but I think it is not feasible. As can be seen in the expression of “the totality of capitalism,” in modern capitalism, the power of capital and market extends not only to the economic realm, but also to all fields such as politics, science, and art. In this situation, society is increasingly divided into a minority, which is the strongest economically, and the majority, which are economically weak. Utilitarianism has a history of improving many ills of aristocratic society in the early days, representing the interests of the majority. There is ample room for utilitarianism, which represents the interests of the majority, to emerge in the modern capitalist society divided into minorities and majority. We need a second constructivism and a second natural law. The second constructivism refers to the theory that the socially weak forms from their own point of view (actually, the theory that elite scholars form from the socially weaker’s point of view). The second natural law I’m talking about is the natural law of natural human rights. The first natural law that I assume is the natural law of the strong, such as Plato s theory of ideology and medieval Christianity s new law. The second constructivism and the second natural law take a model for the weak. However, the power is weak compared to the first constructivism and the first natural law asserted by the strong, so it is often pushed back from the social-led theory. In a way, this may be the fate of the second constructivism and the second natural law. That s how the world works. Nevertheless, it is clear that the second constructivism and the second natural law will be achieved one by one in human history. A theory construction is needed for the weak among the weak (for example, non-regular workers and refugees), but the construction of the theory for them is difficult in nature and difficult not only in practice but also in theory. This is why the second natural law based on the theory of natural human rights is still valid. No matter how much the modern society is in the era of constructivism, the theory of natural law based on the theory of natural human rights still has strong power.

목차

Ⅰ. 구성주의

Ⅱ. 사회과학에서 구성주의의 명암(明暗)

Ⅲ. 약자의 구성주의

Ⅳ. 나가며

키워드

자연법 구성주의 모델 의존적 실재론 동양 사상 자유 공공성 Natural law constructivism model-dependent realism oriental thought freedom publicity