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- 저자 : 李在承(Lee Jae-Seung) (검색결과 2 건)
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李在承(Lee Jae-Seung) 국민대학교 법학연구소 2002 법학논총 Vol.14 No.-
This article aims at defining conscience and taking validity claim of conscience into account. It has been recognized in the Universal Declaration of Human Rights(1948) and the International Covenant on Civil and Political Rights(l968) that everyone has the right to freedom of conscience. Thus that right has been regarded as a fundamental human right in the liberal states. Conscience can be defined as human being's innate moral sense of right or wrong. The origin and essence of conscience has been elucidated from the theological, philosophical or psychological viewpoint. Philosophical concepts of conscience are summarized as the Kantian subjectivist and the Hegelian objectivist version. But if we adopt the latter, individual conscience should be simply submitted to the ethical horizon of the dominant majority or community. Therefore, only the subjectivist version of conscience is adequate for supporting freedom of conscience. To begin with, this article separates concept of conscience from its validity claim. lf the absolute freedom is permitted to the conscience in the subjectivist form, then conscience would be degraded into the principle of ethical anarchy. Secondarily, we evaluate the concrete contents of conscience from the viewpoint of universalizability. In that case the universalizability test should not be reduced to the dominant ethical view of majority or legal order. To the contrary, universalizability presupposes ethical pluralism and a inviolable fundamental right to differ from the dominant moral standards. In conclusion, the universalizability principle demands open society. The open society is the community which extends the ethical horizon of the majority in order to include ethical minority within the community without interruption. In the open society a prima-facie crime which is contrary to positive law may be justified as an exercise of right to freedom of conscience, if the intent and performance of such crime is universalizable. At present, recognition of conscientious objection to military service is the first step towards open society in Korea.
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