존 롤즈의 원초적 입장의 조건과 헌법해석의 지침

Misconception about Rawls’ theory of justice reduces the whole form of Rawls’s theory to a social contract device called original position, and again equates original position with veil of ignorance and rational choice for the greatest benefit. So his two principles of justice is misunderstood as a result of an individual’s rational choice to secure the maximal profit with peculiarly risk averse preference. This misunderstanding unduly separates the interpretation of the Constitution from Rawls’s theory of justice in two ways. First, as it is understood as just discussion of hypothetical contract, it is thought that it is irrelevant to the interpretation and application of the constitution, which is a legal norm that is actually enacted and enforced by the real people. Second, the two principles of justice are considered to have no serious normative implications as they are merely expressing the special preferences of risk-averse subjects who are primarily interested in avoiding the worst case scenario while trying to rationally maximize their own interests. This paper seeks to pursue two purposes. First, it corrects misconception mentioned above, and argue that what are embodied in various conditions of the original position are practically undeniable background premises, basic ideas and decision principles in a constitutional democratic society. Second, rules of general and practical discussion derived from those premises, ideas and priciples embodied in each condition of the original position, can serve to specify and constrain the interpretation of the constitutional norms in the cases which have a logical possibility to derive different specific norms. And this is a role that can be properly incorporated into constitutional interpretation through systematic examination in a broad sense in Constitutional Dogmatics.