주권 개념의 본질과 근대주권론에 대한 비판적 고찰 - 법철학적 주권론을 향하여 -

Among the contradictory coexistence phenomenon of so-called “post-sovereignty” and “sovereignty surplus”, the issue of sovereignty emerges as a significant topic from various perspectives these days. Sovereignty, the fundamental concept of modern legal order and public law, is a social composition created by political and social needs in a specific period during the formation of the modern state. As a modern product, the concept of sovereignty has been defined as ‘permanent supreme ruling power’, characterized by supremacy, absoluteness, finality, and permanence. However, various phenomena that challenge this absolutist view of sovereignty have emerged around the world, and accordingly, there is an active debate over the concept of sovereignty and the fate of the modern theory of sovereignty. Most of the sovereignty debates focus on whether the modern view of sovereignty is still valid and its utility. In addition, the author insists on focusing on the potential dangers or harms of having the concept of sovereignty. This article consists of the background and awareness of the problem as follows. First of all, chapter #2 clarifies that “sovereignty” is “essentially contested concept” and “cluster concept” and has vagueness in itself. Through this, it is pointed out that the sovereignty debate can be based on different meanings of the concept of sovereignty or commit an “error of ambiguity”, and the solution is also complex. Chapter #3 discusses the extreme reductionism of the legalist position, which treats the concept of sovereignty as a political fact, and argues that sovereignty is a political-legal complex concept. Chapter #4 deals with an objective review of modern sovereignty theory. Through the process, we discuss the possibility and necessity of the ‘theory of sovereignty’ while dealing with the ‘paradox of sovereignty’ and the ‘paradox of sovereignty theory’. In terms of exploring alternatives, three theoretical models of sovereignty theory; ‘substantial theory of sovereignty’, ‘justification theory of governance’, and ‘fiduciary theory of sovereignty’ are proposed. In conclusion, the author proposes ‘sovereignty as a symbolic form’ as another way to raise this problem, emphasizing the importance of a value-relational approach to sovereignty. This is a valuable perspective that can show that the concept of sovereignty and modern sovereignty fundamentally have problems of dominance-submission and injustice, as well as cover the phenomenon of ‘privatization of the concept of sovereignty’. Chapter #5 points out that the aspect of the recent sovereignty debate is eventually trapped in the frame of revisionist transformation of modern sovereignty concepts and theories, and calls this phenomenon the “sovereignty sting”. In this article, the author proposes the theme of ‘sovereignty as a political-legal concept’ (Thesis 1) ‘sovereignty as a value-relational function’ (Thesis 2) and ‘sovereignty as symbolic form’ (Thesis 3). Through these three thsis on sovereignty, the author discussed the essence and limitations of the concept of sovereignty and modern sovereignty theory in a multidimensional way. Finally, it concludes by emphasizing that a complete and alternative theory of sovereignty should be developed into a ‘jurisprudential theory of sovereignty’.