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A Basic Structure and Problems of Theory of State in Contemporary Legal Philosophy through Consideration of the Position of Freedom and Equality in Justice Theory

  • Legal Theory & Practice Review
  • Abbr : LTPR
  • 2020, 8(3), pp.185-225
  • Publisher : The Korea Society for Legal Theory and Practice Inc.
  • Research Area : Social Science > Law
  • Received : July 9, 2020
  • Accepted : August 22, 2020
  • Published : August 31, 2020

Jongho Kim 1

1호서대학교

Candidate

ABSTRACT

In general, freedom and equality are trade-offs. If we place too much emphasis on freedom, the gap between individuals increases and the gap eventually becomes inequality. On the other hand, if we value equality, we will have to limit our free activities. In today’s society, it can be said that social norm is necessary because in all social problems, such as discrimination between men and women, generation gaps, education and medical systems, and welfare systems, that anyone can understand how to balance freedom and equality, and a social norm that can draw answers. This article discusses the direction of this social norm. For discussion, we will refer to the “justice theory” written by American philosopher John Rolls in 1971. Rolls’s theory of justice is the normative principle of society aiming at the balance of freedom and equality. Today, various discussions are taking place from the standpoint of advocacy and criticism by various critics. In this article, I would like to examine the desirable positions of freedom and equality based on the explanation of Rolls’ theory of justice. To this end, first, the difference between the general meaning of definition and the definition covered in the text is summarized. In addition, the background or significance of Rolls’ theory of justice is explained, and the theoretical framework of the theory of justice is presented in summary form. Next, in Rolls’ theory of justice, the central concept, the two principles of justice, the original state, and the veil of ignorance will be explained in detail. In addition, it presents Robert Nozick’s theory, mainly national theory, and the theory of power, which criticized from the standpoint of Libertarianism about Rolls’s theory of justice that has been explained so far. Lastly, I will examine Rolls and Nozick’s theory of justice through Immanuel Kant’s personality theory. Then, it concludes which definition theory is superior in terms of Kant’s interpretation. Rolls’s theory of justice is widely regarded as having received various criticisms since its publication. The reason for debating justice is that the subjects who exist as members of society in the country are personally recognized. The debate on justice is meaningful because it is possible to construct a debate in which a subject belonging to a community of members of the state and society cannot be dismissed as being a person who is differently recognized as a person. I think the purpose of exploring justice is to understand this point. Considering that their own claims are never arbitrary and that others’ claims are justified, and it is to understand that the possibility of an open society that liberates humans from certain religious and political stigma and evaluates them in the universal values ​​of freedom, equality, fairness, and justice. This function is the academic value implied by the theory of justice, and the point in the practical benefit of the discussion is that we can recognize and overcome productive and rational discussions without quarreling between differences of thought that can’t be resolved at first glance.

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