시민불복종의 헌법적 정당화 가능성에 관한 연구

Abstract

A Study on the Possibility of the Constitutional Justification of Civil Disobedience

Seok-won Suh

Constitutional Law, Department of Law, The Graduate School, Pukyong National University

Abstract Only the government with the legitimacy rightfully requires the submission to the people. Theorists ranging from Rousseau to Rawls have based the legitimacy of the government on the consent of the ruled. According to the social compact made ​​between the ruler and the ruled, people should be subject to the sovereignty of the government. And we are bound to the laws that are not completely just, provided that they do not exceed certain limits of injustice. As the law or policy of the government seriously violated the ethics, should we wait until the law and policy is improved? When legislation or policy made by representative system sometimes contains the serious injustices and thus the democratic values are seriously damaged, an effective countermeasure including political rights and constitutional adjudication system is generally provided in law-governed countries. Even in a democratic country, however, there have been and will be the special circumstances in which these tools are of no use and it is clear that such a situation cannot be tolerated. At this points, civil disobedience is required. Civil disobedience is an act of disobedience which acknowledges the legitimacy of the sovereign and it is a form of protest which knowingly violates a public norm considered binding by authorities but which, a disobedient believes, may ultimateiy be invalidated by the constitutional court. The concept of civil disobedience has historically made in the United States. Few Americans now regret the civil rights and antiwar movements of the 1960s and people concede that these acts did engage the collective moral sense of the community. Generally, civil obedience has been used to remedy injustices by going outside established mechanisms yet without seeking to overthrow those mechanisms. This study is intended to connect the issue of civil disobedience thus far discussed mainly in the political philosophy with the area of the law as far as possible. And it is necessary to look back to the history of civil disobedience because it is an empirical concept that emerged in the history. After examining the historical development of civil disobedience, this paper looks into the major philosophical discussions about it and then reviews civil disobedience in point of law. In chapter 2, after examining the historical and theoretical background of civil disobedience, this thesis reviews the justification of civil disobedience argued by the leading writers of today, who are John Rawls, Ronald Dworkin, Jürgen Habermas, and Peter Singer. Correspondingly, the arguments that civil disobedience is unjustifiable is to be discussed. In chapter 3, the concept of civil disobedience is analized by the situation, method, subject, and target of the movement. And then the civil disobedience employed by the German anti-missile sit-down demonstrations of the 1980s is to be examined. Here the classification by type of civil disobedience is put forward and the possibility of the justification of civil obedience is to be examined. In chapter 4, the constitutional justification of civil disobedience that is the purpose of this paper will be discussed. First, the acceptability of civil disobedience is to be discussed in terms of constitutional principles such as the rule of law and parliamentarism. And I will consider a link between civil disobedience and right of resistance that are non-constitutional rights in common with each other to seek the possibility of integrating the two. Then this study is to find ways to get to the possibility of the constitutional justification of the civil disobedience, focusing on the theory of Ralph Drier and the discussion of the German court. In addition to the substantive approach so far, the paper examines the issue from the perspective of a procedure of constitutional litigation, and discusses conscientious refusal in relation to the constitutional justification of civil disobedience. This study concludes that it is required, albeit limited, to justify civil disobedience.