‘자유’개념을 통하여 본 현대 법치주의의 과제

The ‘rule of law’ necessarily means different things to different people according to their particular moral or political position. It relates to the substance of the relationship between citizens and government, fundamentally, between citizens themselves. The rule of law in the pre-welfare state were shaped by the experience of living in a society which permitted few citizens to vote in parliamentary elections, and in which government performed only a limited number of functions. It opposed the increased government intervention in social and economic affairs. History shows that it resulted in dictatorship. The major concept in the rule of law in the pre-welfare state was ‘freedom’. Here arises a question. How could ‘Freedom’ make society in the rule of law autocracy. This article deals with the ‘freedom’ concept in the rule of law. It reveals that the ‘freedom’ concept in the rule of law have two elements, freedom from the dictatorship politically and freedom of competition in free market economically. And the freedom of competition in free market necessarily contains freedom of monopoly and oligopoly. It is the main cause which make society in the rule of law autocracy. It is an inevitable consequence that the rule of law contains the social regulation. Nowadays government has assumed a significant role in managing economic and social affairs. Government ought to play an extensive role in economic affairs and individuals must accept quite restrictive limits on their autonomy, if the legislature deems such restraints to be in the public interest.