법 구성에 있어서 타자와의 두 가지 관계방식: 배제와 공존

The author has approached the discussion of legal construction based on our communal life. To discuss legal construction grounded in communal life overcomes the limitations of the idealistic approach to legal norms (issues of normative validity or legitimacy). This is because laws established on the basis of 'communal life' are founded on the acceptance or agreement of the community members regarding ways of life. In other words, if the idealistic approach to legal construction cannot escape the issue of value diversity, a discussion on legal construction based on communal life supports a legal framework grounded in the agreement on the ways of life of community members from an ethical perspective. Legal norms constructed in this manner resonate so closely with all members of the community that they are not questioned. In this way, the normativity or legitimacy of the law is determined not by a priori universal values, but by the identity of our communal life, which is established through the relationship with heterogeneous others. On one hand, if community members define heterogeneous others as 'enemies,' our new 'communal life identity' is bound to exhibit a conservative tendency that aims to return to the original state, and the law that guarantees such an identity will also secure its legitimacy within the context of an adversarial relationship with others. On the other hand, if community members consider and respect heterogeneous others, our new 'communal life identity' will exhibit a deconstructive and progressive nature. The law that guarantees such an identity will also seek its legitimacy through the assurance of equal participation of heterogeneous others.