인간의 권리와 국민의 권리 — 한나 아렌트의 인권 이해를 중심으로 —

This paper reconsiders the relationship between human rights and fundamental rights with reference to Hannah Arendt. Human rights allegedly is natural and universal rights whose idea forms the classical doctrine of the constitutional law, whereas constitutional rights is positive and institutionalized rights. The relationship between two rights, however, remains indefinite. This paper examines three forms of constitutional argumentations about this relationship: the natural rights and positive rights, moral rights and legal rights, human rights and constitutional rights. These argumentations cannot offer the firm foundation to determine that relationship. Hannah Arendt provides radical perspectives to reexamine the schema of human rights as well as constitutional rights. She carries a critique of metaphysical theories of human rights, and reverses the notion of natural human rights. According to her discourse, constitutional rights is not based on human rights, and there are no humans without the institution of the community. The destruction of constitutional rights necessarily leads to the destruction of human rights and of humans. This approach has two implications to the theory of constitutional law. The one is the problem of the constitutional subject, and the other is the problem of the constant reconstruction of constitutional institutions. The key is not to choose between the human right and the constitutional right, but to reconstruct the constitutional subject and institution.