행정권의 제한으로서의 법률 그리고 합헌적 행정권 : 로렌츠 폰 슈타인(Lorenz von Stein)의 법치국가론

This study reviews the 19th century national law scholar (Staatsrechtslehrer) Lorenz von Stein’s theory, which recognizes administrative legislation as well as parliamentary legislation based on a clear distinction between state and society. Stein’s postulation that the internal administration by a government is as necessary as the legislative function of a parliamentary representative body in addressing issues arising within a modern civil industrial society was largely grounded on two premises. First was the understanding that the parliamentary representative body exercising legislative authority in Germany at that time did not represent the state but rather society. Second was the theory of liberty that “personal liberty (persönliche Freiheit),” or independence of a person for one’s self-perfection, is as important as the political and legal freedoms that had been acquired since the French Revolution. The parliamentary representative body, as the representative of society, mediates conflicts over interests through legislation while the government, as the representative of the state, supports the realization of personal liberty through public administration. The parliamentary representative body and the government enacting legislation and administrative orders, respectively, are in a parallel relationship, and administrative authority is autonomous from legislative authority to a certain extent. The foundation and limitation of administrative authority is the “idea of the state (Staatsidee)” that a state must support the realization of individual personal liberty. However, Stein argued that maintaining autonomy in public administration is difficult in a community that lacks the ability to philosophically and culturally construct and politically build through the system of democracy the i dea of t he s tate u pon w hich s uch autonomy i s based.