다수결의 원리는 법치주의를 지지하는가?

Abstract

This paper delves into the intricate relationship between majority rule, the cornerstone of democratic decision-making, and the rule of law. Within communities, we generally accept the majority's voice in crucial matters. In essence, majority rule is considered a fundamental principle for arriving at democratic decisions. The legal sphere operates similarly. When a case with potentially significant societal consequences arises, legal judgments may reflect the majority opinion of the presiding judges. Furthermore, since the modern era, democracy has evolved to prioritize the protection of citizens' rights, which are enshrined and safeguarded within the constitution. Consequently, it might seem intuitive that legal judgments align with democratic principles. However, a key distinction exists: democracy signifies “rule by the majority”, while the rule of law (constitutionalism) embodies “rule by minority”, creating an inherent tension between the two domain. To explore this tension within the context of majority rule-based democracy and the rule of law, this paper will first analyze the conditions necessary for majority rule to function effectively within a democracy, thereby elucidating its significance and value. Then it will examine the potential pitfalls of majority-based legal judgments. A thought experiment will be employed to illustrate how such judgments can lead to disparate outcomes for the same case. Finally, it discusses the issue of judicialization of politics by analyzing the formal problems in the broad framework and the problems of the adjudicating subject in the narrow framework.