법의 침식과 현대성의 위기 ―루만(N. Luhmann)의 체계이론을 통한 진단―

Abstract

The world society of 21st century started with the mega-terrorism and the so-called ‘just’ war. But just war has broken the international law. In Asia, the constitutional court of Korea judged the political decision for the shift of administrative capital as illegal, but this judge has disregarded the positive constitutional law of Korea. I regard these cases and another cases which occur in several regions of world society as the symptom of law being undermined(das Unterminiertwerden des Rechts). In the last chapter of his last work of legal sociology(Das Recht der Gesellschaft), Niklas Luhmann focussed on the relation of the current tendency of societal evolution and the positional shift of law in society. By Luhmann, the globalization of purpose­oriented systems(economy, politics, science), the increasing individual self­assertions and the meta­code of inclusion/ exclusion are undermining the normative expectations and further the functional differentiation of society. He regards society’s legal system (Rechtssystem) which has the function of stabilizing normative expectations as the immune system of modern society. In particular, the constitutional fundamental rights protect the structure of modern society, i.e., the form of functional differentiation. Therefore, his explanations of law being undermined implicate the crisis of modernity, if we stand on the perspective of modern observer. I think that this diagnosis of the crisis could be connected to the critique of the current world society. Because the observer who describes modernity as functional differentiation can criticize the meta­code that is undermining law and modernity.