자유주의자들의 법치주의관

Abstract

Liberalism and the rule of law, along with democracy, are among the essential ideals of the KoreanConstitution and constitutional government. Hence, to figure out the contents of those two ideals and therelationship between them is very important in light of proper understanding of the constitution as well as theadministration of constitutional government. However, as the concepts of such ideals have often been highlycontested and they are also historical ones, it is not easy to comprehend them in a principled way. In this paper, I have tried to find out a correlation between the two ideals through investigating andcomparing three liberal thinkers; F. A. Hayek, John Rawls, and Joseph Raz. Hayek, a prominent libertarian who emphasized the importance of spontaneous orders including the freemarket system, advocated a substantial view of the rule of law which protects negative freedom. On thecontrary, Rawls who suggested an egalitarian theory of social justice supported another substantive concept ofthe rule of law putting the egalitarian social justice above negative freedom. Raz advocates a perfectionistliberalism based on the importance of individual autonomy. On the rule of law, he supported a formalconception to avoid abuse of it. Nonetheless, his conception may be regarded as liberal one and not universalone which can be applicable to all political systems. Each of the three liberalists has suggested his conception of the rule of law based on and related to his ownidea on liberalism. Further, the formal conception of the rule of law is a background of the substantial one. Sothe correlation between the former and the latter is complementary, not conflicting. Lastly, the rule of lawdemands a closed legal system which has an area of liberty. Therefore, the rule of law has an impetus forliberalism.