한국 법체계에서 자유주의의 의의: 종교의 자유를 중심으로

Abstract

Freedom of Religion is a key principle that supports spiritual freedom of humans who possess divine nature and intelligence. Humankind has made many sacrifices for freedom of religion, and in the Western political history, ‘freedom’ and ‘religion’ have been settled in the liberal-democratic constitutional systems as exchanging both positive and negative effects with each other. In East Asia, especially in Korea, Buddhism and Neo-Confucianism were accepted and maintained from a nationalistic perspective before modernization. Christianity that was embraced by the Enlightenment Party also had strong nationalistic overtones due to the limitation of the embracers who were under the influence of Confucian ideas. For all ages and countries, religion has its historical background that can serve as a barometer for discussions on the freedom of a society. Accordingly, this study examined liberalism in the Korean legal system, with the keyword “religion”. As reviewed above, in its legal reality, Korean society has not experienced the Western liberalistic individualism that communitarianism targets for criticizing, historically considered. This study diagnosed that Confucian ideas that have influenced Korean society was closer to nationalism than to communitarianism, and Korean nationalism, which was influenced by Japanese ultra-statism, was reinforced by dictatorial governments after liberation and has had a strong impact on overall Korean society. This study intended to argue that the problem that the Korean legal reality is facing is not to seek an alternative to liberalism, but to expand the instrumental political order of liberalism that guarantees freedoms and rights of individuals so that it can ensure freedoms and rights of disadvantaged individuals and eliminate the shadow of nationalism from the legal reality. This study also verified that the idea “Confucian communitarianism” was unsubstantial. In addition, this study identified the shadow of nationalism as a code of illiberalism in cases of conscientious objection to military service and argued that the judiciary should aim for a liberal-democratic constitutional order through rulings based on a liberalist view of justice, going against the influence of nationalism. This study also defined that pluralism as a neutral attitude toward good can be magnified as a strength of liberalism and it should be pursued as a political value that guarantees freedoms and rights of minorities from suppression and coercion of religious groups or majorities ruling religious hegemony. The principle of tolerance for minorities, who have different thoughts and values from the majority of members of society, should be realized in the legal reality with the purpose of the assimilative national unity, which will enhance the ideological justification and superiority of liberal democracy. The morality of liberalism lies in guarantees of rights of minorities and the disadvantaged, based on the tolerance and understanding.