국제개발협력의 관점에서 본 법치주의의 개념
"Rule of Law" Concept in International Development Cooperation Context
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Many developed countries and international development institutions are managing legal assistance to developing countries. Korea is one of these countries, which are actively involved in thess projects as a donor country. In these projects, "rule of law" is crucial concept. However, the exact meaning of "rule of law" is not clear. This paper intends to clarify "rule of law" concept from two perspectives: Comparative Law and "Law & Development" (L&D)From comparative law perspective, two kinds of "rule of law"concept can be found: substantial one ("thick" version) and instrumental one ("thin" version). Many commentators argue institutional one should be replaced by substantial one. However,substantial one cannot successfully be rooted without the basis of institutional one. Bridging the gap between legal norm and legal reality, which shows the level of rule of law in each country, is essential element of institutional one. And many pros and cons on "legal transplant" should be consulted. Legal cooperation should be accessed in respecting cultural diversity. For example, we should understand "socialist" rule of law concept in legal cooperation with transition countries such as Vietnam. From "law & development" perspective, we should see critically when emphasis is solely laid on "instrumental" concept of rule of law. In international development cooperation, the role of law in economic development is focused. Therefore, there is a tendency that "instrumental" concept of rule of law is solely emphasized. However,this tendency should be critically evaluated in that it lacks considering "intrinsic" concept of rule of law. In cooperating with many international development institutions, Korea should have knowledge on various rule of law concept. It is important to review developmental history of Korean "rule of law" concept. To this end, liberalism/ communitarianism concept of "rule of law" can be very useful. We can agree with some scholars'comment that it is important to view communitarianism concept in the center stage after experiencing series of liberalism concept. Korea should make effort to find areas in which Korea has comparative advantage through reviewing our own history in liberalism/ communitarianism context.
Abstract
Many developed countries and international development institutions are managing legal assistance to developing countries. Korea is one of these countries, which are actively involved in thess projects as a donor country. In these projects, "rule of law" is crucial concept. However, the exact meaning of "rule of law" is not clear. This paper intends to clarify "rule of law" concept from two perspectives: Comparative Law and "Law & Development" (L&D)From comparative law perspective, two kinds of "rule of law"concept can be found: substantial one ("thick" version) and instrumental one ("thin" version). Many commentators argue institutional one should be replaced by substantial one. However,substantial one cannot successfully be rooted without the basis of institutional one. Bridging the gap between legal norm and legal reality, which shows the level of rule of law in each country, is essential element of institutional one. And many pros and cons on "legal transplant" should be consulted. Legal cooperation should be accessed in respecting cultural diversity. For example, we should understand "socialist" rule of law concept in legal cooperation with transition countries such as Vietnam. From "law & development" perspective, we should see critically when emphasis is solely laid on "instrumental" concept of rule of law. In international development cooperation, the role of law in economic development is focused. Therefore, there is a tendency that "instrumental" concept of rule of law is solely emphasized. However,this tendency should be critically evaluated in that it lacks considering "intrinsic" concept of rule of law. In cooperating with many international development institutions, Korea should have knowledge on various rule of law concept. It is important to review developmental history of Korean "rule of law" concept. To this end, liberalism/ communitarianism concept of "rule of law" can be very useful. We can agree with some scholars'comment that it is important to view communitarianism concept in the center stage after experiencing series of liberalism concept. Korea should make effort to find areas in which Korea has comparative advantage through reviewing our own history in liberalism/ communitarianism context.
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