법치 개념의 재구성: 형사처벌의 도덕적 정당화 문제에 관하여

Abstract

The traditional distinction between formal and substantive conceptions of rule of law can be blurred when the formal conception of rule of law per se is modified to include legitimate ends, such as the protection of liberties and rights. While the conventional substantive conception rule of law focuses on the protection of individual rights and freedoms, it is conceptually open-ended, so in the case of criminal law, it is more just to address the effectiveness of penal statutes in the realm of modified legality rather than legitimacy to prevent excessive punishment. In the era of so-called functional law, which calls for the expansion of punishment, a theory of punishment that can legitimize the scope of punishment in a consequentialist manner while retaining the essence of punishment as retribution is practically required. The structure of such a penal theory has some analogy to the nature of the modified concept of legality. If we redefine the concept of the rule of law based on the relationship between law and freedom into a formal rule of law that promotes freedom through law and a substantive rule of law that constitutes freedom as the content of law, the implications of the rule of law for penal theory become clearer. According to Kant’s and Rawls’ conception of deontological freedom, punishment is only legitimized in retributive terms because the abuse of free will violates the equal freedom of others. However, since retributivism is based on metaphysical notions of human dignity and does not guarantee the minimization of punishment, a consequentialist justification is called for. The main dilemma of this consequentialist penal theory is though that it is ultimately based on utilitarianism, which involves sacrificing one’s freedom for the greatest good for all. Feinberg and Pettit therefore attempt to overcome the utilitarian limitations by reconciling consequentialist and retributive perspectives. For example, Feinberg conceives of the liberty limitation principle and the harm principle, and Pettit conceives of neo-republican non-domination, to attempt to justify punishment in a consequentialist way while still serving retributive purposes. Taken together, this discussion reaffirms that a modified view of the formal rule of law, in which legal stability and justice can be reconciled to continue to promote the value of liberty while enhancing the law’s conflict resolution capacity, appears in criminal law as a complementary structure of the consequentialist penal theory to the retribution. These ideological foundations allow us to counter the danger of a functional society in which punitiveness can be arbitrarily expanded by treating state coercion simply in terms of legitimacy.