소극적 공리주의와 사회적 약자 보호 : 법이념에 관한 시론(試論)

Abstract

If we work on the premise that law is “the reality the meaning of which is to serve the legal value, the idea of law” (Gustav Radbruch), then we could say that the idea of law (Rechtsidee) may only be justice (Gerechtigkeit). And the essence of justice is nothing but equality (Gleichheit). Justice calls for treating equal things equally and unequal things unequally. But justice, as Radbruch has said, “leaves open the two questions, whom to consider equal or different, and how to treat them.” To answer this questions, justice should be thus complemented by another idea of law, utility or purposiveness (Zweckmasigkeit). However, due to different views of the state, there is no general agreement on the question of what the final aim of law is. In the debate about the purpose of law, ethical theories compete with one another, and one of the most preferred ethical theories in this field is utilitarianism which tries to promote the greatest happiness of the greatest number. The Principle of Greatest-Happiness meets our right intuition and can be easily put into practice. It can also be harmonized not only with individualism, but also with communitarianism, because it treats all individuals equally on the one hand, and attempts to maximize the happiness of the community on the other hand. Despite this, utilitarianism can hardly be the guiding principle of law, for the following reasons: The Greatest-Happiness Principle cannot be applied universally, since the meaning of happiness varies from person to person. And utilitarianism focuses only on maximizing utility of society and pays no attention to the question of how the optimized utility should be shared within society. As a result, utilitarianism tends to ignore minorities; it tends to forget the fact that the happiness of majorities are often achieved at the cost of the suffering of minorities. If, on the other hand, we recast classical utilitarianism as an ethical theory that aims not at increasing happiness, but at reducing suffering, utilitarianism (negative utilitarianism) could serve as a guiding principle of law. Reducing suffering could be a universal purpose of law, since suffering is easier recognized than happiness and, as Popper stated, “human suffering makes a direct moral appeal, namely, the appeal for help, while there is no similar call to increase the happiness of a man who is doing well anyway.” Negative Utilitarianism is mainly concerned about minorities who are in trouble, so that it is naturally able to fulfill Rawls’ Principles of Justice, especially the difference principle which says that social and economic inequalities should be arranged so that they are to the greatest benefit of the least advantaged persons.