법담론에 있어서 자유주의와 공동체주의

Liberalism-communitarianism debate has continued throughout history. It has many effects on the legal discourse. Liberalism is different from communitarianism in many conceptions: happiness, human nature, society and morality. Liberalism has an idea that human being is the individual, the possessive, the ecocentric, and the autonomous being. He has a power to pursuit of some happiness by himself. But he is not able to optimalize his happiness without the society, political community and law. Classical and Modern Liberalism detach the right from the good. And they separate the law from the morality. But communitarianism regards human being as the social being. In this reason, communitarianism think that the common good is enshrined in social practices and thus we are able to find sources of the principles of justice from it, while liberalism considers principles of justice as products of contracts among individuals of a society. This article studies how the legal discouses are connected with the liberalism and the communitarianism’s reasoning. For this work, I analyze ① legal reasoning’s patterns, ② the case of adultery, ③ a freedon of conscience and a conscientious objector, ④ the liberalist’s and com- munitarianist’s pre-understanding for legal interpretation, ⑤ the case of abortion and the bad Samaritan.