자유의지론과 인식적 책무 ― 헌법적 무지를 중심으로

This paper examines whether former President Yoon Suk-yeol’s declaration of martial law on December 3, 2024, was an act of free will or ignorance and the responsibilities involved in determining its nature. To address these questions, the paper draws on theories of free will and epistemology. According to the theory of reasonability within free will theory, former President Yoon did not respond reasonably to the current level of democratic development. Instead, he maintained his own anachronistic beliefs, making him an agent who is not free. For him to be acknowledged as having even a faint degree of free will, he would have had to consider the possibility of disobeying military orders, but he did not do so. His weak normative capacity regarding deliberative democracy, as well as the national and legal views he formed throughout his life, may have rendered him incapable of choosing anything other than to declare martial law. Scanlon shifts the focus of moral responsibility from the will to psychological accuracy, such as belief and knowledge. This moves the approach to moral responsibility from the volitional to the cognitive. Akrasia can arise in both the volitional and cognitive realms. Cognitive akrasia is akin to ignorance because it easily leads to unjust excuses, self-rationalization, and self-deception in the absence of firm judgments, true knowledge, and true understanding. Even though humans learn customs within the constraints of time and environment, they can recognize the suffering of others regardless of their moral knowledge or normative systems. Furthermore, constitutional institutions are responsible for legal systems that make certain sufferings visible or invisible. Thus, they can be held accountable for their constitutional ignorance as an original responsibility, not a derivative one. Constitutional ignorance is a state of cognitive akrasia regarding the illegitimacy of constitutional institutions’ exercise of power. It arises when state institutions exercise their authority with a sense of control while pursuing invincibility yet perpetuating deliberate ignorance of their own vulnerability. Constitutional epistemological justification in the public sphere is not suitable for intrinsic epistemological justification and must be evaluated objectively based on extrinsic grounds. To overcome constitutional ignorance, constitutional institutions must not only cease verification of evidence and memory at the individual level, but also identify good sources of information that provide continuous insights into relational vulnerability from an inquisitorial perspective, and listen attentively to such sources.