법치주의의 민주적 기획 문제
Conflict between the Rule of Law and Democracy?
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During the last 20 years the achievements of democratization can be summed up as the development of the rule of law in our society. At the same time, though, the rule of law and democracy is still problematic. Recent political spats have been turned over to the courts to be resolved, failing to find a compromise through democratic means(‘judicialization of politics’). Owing to such circumstances, voices have been raised over whether the rule of law is acting as a hurdle to the development of democracy. The rule of law and democracy are like a three-legged race, they are bound together. As someone who understands the relationship between the rule of law and democracy in such a way, I believe that correct understanding of the rule of law must always come first, and thereby propose to reevaluate the conceptual basis of the rule of law having in mind that our present circumstances command us to find a way to work out ‘democracy after democratization’. Furthermore on the basis of this I aim to reexamine the relationship between the rule of law and democracy, and the problem of protection of rights and protection of the majority. In order to properly establish the relationship between the rule of law and democracy, it is essential that the theory of rights is reconstructed. As I am preparing another paper on this reconstruction, in this paper I will go as far as sketching out this issue. Lastly in this paper I will emphasis that the ideal type ‘rule of law’, must go beyond the usual formal/material dichotomy and must be understood in whole as a package, and thereby, unlike other traditional liberalists, I attempt to point out that the principle of rule of law can be coupled with the principle of the social welfare state.
Abstract
During the last 20 years the achievements of democratization can be summed up as the development of the rule of law in our society. At the same time, though, the rule of law and democracy is still problematic. Recent political spats have been turned over to the courts to be resolved, failing to find a compromise through democratic means(‘judicialization of politics’). Owing to such circumstances, voices have been raised over whether the rule of law is acting as a hurdle to the development of democracy. The rule of law and democracy are like a three-legged race, they are bound together. As someone who understands the relationship between the rule of law and democracy in such a way, I believe that correct understanding of the rule of law must always come first, and thereby propose to reevaluate the conceptual basis of the rule of law having in mind that our present circumstances command us to find a way to work out ‘democracy after democratization’. Furthermore on the basis of this I aim to reexamine the relationship between the rule of law and democracy, and the problem of protection of rights and protection of the majority. In order to properly establish the relationship between the rule of law and democracy, it is essential that the theory of rights is reconstructed. As I am preparing another paper on this reconstruction, in this paper I will go as far as sketching out this issue. Lastly in this paper I will emphasis that the ideal type ‘rule of law’, must go beyond the usual formal/material dichotomy and must be understood in whole as a package, and thereby, unlike other traditional liberalists, I attempt to point out that the principle of rule of law can be coupled with the principle of the social welfare state.
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