복지국가에서 법에 의한 자유의 보장과 박탈: 하버마스의 비판과 대안

This study deals with the crisis of the welfare state in terms of Habermas’ thesis, “the colonization of the lifeworld”. While much of previous research has mainly approached the crisis of the welfare state from the political or economic point of view, this study focuses on the problem of law itself; exactly, the juridification process in the welfare state has the tendency to threaten the freedom which the modern state had aimed to secure. This is a kind of double-faced aspect of the welfare state. The law of the welfare state aims to protect freedom but at the same time deprive freedom. Habermas, as an alternative to tackle this problem, suggests the reflexive version of the welfare state and proceduralist understanding of law. This is an attempt to revive the autonomy of life for people and to provide law with a function of a transmission belt or a transformer to promote communicatively formed and lifeworld-based will against the systems. In other words, law makes a contribution to change communicative power coming from lifeworld based on civil society into administrative power. This idea makes state-led welfare policy be instituted and controlled by citizens’ participation. This study also tackles this from the area of political power: the legislation, the administration, and the judiciary. In each area, democratic participation is the key to realise the proceduralist understanding of law. In addition, so-called ‘reflexive law’ should be provided as an alternative form of law. Lastly, this approach provides an insight to a debate on which types of the welfare state are preferred or which policies, i.e. universal welfare or selective welfare, are more appropriate. The points are related not only to which politics and political system should be pursued but only to which law and law practices should be aimed at. This is why Habermas pointed out that law and politics have the same origin.