이사야 벌린의 소극적 자유론과 한국헌법 제10조 = Isaiah Berlin’s Two Concepts of Liberty and Article 10 of the Korean Constitution

다국어 초록 (Multilingual Abstract)

The division into the negative concept of liberty as “the absence of interference” and the positive concept of liberty as “self-government” which Berlin has given the main role in the concepts of liberty has a classical meaning among the modern theories and debates on liberty.
There are critics who suggest the single concept of liberty as one and the same triadic relation of agents, preventing conditions, and aims, or as the negative freedom which designates the positive one for its own value. However, first, the negative concept of liberty is an opportunity-concept, whereas the positive one is an exercise-concept. Secondly, we can admit both as concepts of liberty according to our ordinary and general linguistic usage. Thus, individuality and validity as a concept of liberty can be applied to both concepts. Moreover, one can argue that it does not matter whether there exists one, two or even more concepts of liberty. What is important is that there are differing concepts(or conceptions) of liberty representing different views of the man and the world. Accordingly, Berlin's two concepts of liberty are beneficial to understanding the differing positions on liberty.
Berlin has accentuated the rivalry of the two concepts, but the relation between the negative and the positive liberty cannot be conceived wholly opposed to each other. Both concepts are interdependent and complementary since the negative liberty is a condition of the positive liberty whereas the positive liberty can and must be the value of the negative liberty to some extent. So a synthetic concept of liberty is the appropriate one.
The debates on the concept of freedom relate to the value of freedom. The differing positions on the value of freedom may be divided broadly into two distinct categories. One category views it as a means to want-satisfaction, and the other as a condition of autonomy. In general, negative liberty relates to the former, and positive liberty relates to the latter. Berlin has found the value of freedom in the human condition in which a man transforms himself through choices among incommensurable and absolute claims. Thus, Berlin’s view can be read to belong to the want-satisfaction theory, but his unique contribution to the theory is his emphasis on the value of freedom as a condition of the human being’s self-determination. The autonomy- based doctrine of freedom allows discrimination between more valuable and less valuable freedoms, according to their contribution to the ideal of autonomy. But it cannot accept the various kinds of human lives as broadly as the want-satisfaction doctrine does. Thus, the basic value of liberty must be seen as a means to want-satisfaction. Thereafter, the autonomy theory can and should play the secondary role of making the freedoms orderly. This can be viewed as a two-step theory on the value of freedom.
Article 10 of the Korean Constitution provides “Human dignity and worth”. It is the leading ideal of the constitution, and the other constitutional rights serve to guarantee it. Thus the interpretation of “human dignity and worth” relates to the debate on the value of freedom. In Korea, some autonomy-based interpretations have been raised. But according to the conclusions above-mentioned, it is appropriate to interpret the clause basically as meaning that human “self-determination” which conceives the autonomy as an option for choices and permits even irrational choices. This makes the clause more effective by permitting broader ranges of human lives to be acceptable. The autonomy can and should be the secondary criterion which makes the various human lives thus accepted orderly.

참고문헌 (Reference)

1 권영성, "헌법학원론" 법문사 2008

2 성낙인, "헌법학" 법문사 2009

3 김철수, "학설판례 헌법학 (上)" 박영사 2008

4 심헌섭, "법과 자유" 서울대학교 42 (42): 2001

5 Charles Taylor, "What’s wrong with Negative Liberty? Contemporary Political Philosophy: an anthology" Blackwell Publishers 1997

6 Joseph Raz, "The Morality of Freedom" Clarendon Press 1990

7 Christopher Megone, "One Concept of Liberty" 35 : 1987

8 Gerald C. MacCallum, "Negative and Positive Freedom, Liberty" Oxford University Press 1991

9 John Gray, "Isaiah Berlin" Princeton University Press 1996

10 David Miller, "Introduction, Liberty" Oxford University Press 1991

11 Isaiah Berlin, "From Hope and Fear Set Free, Liberty" Oxford University Press 2002

12 Isaiah Berlin, "Four Essays on Liberty" Oxford University Press 1969