인간의 존엄과 책임원칙

Human Dignity and Culpability Principle

Today, there is an overlapping consensus on human dignity in the legal academia. However, as the science and technology is more and more developing, some kinds of scientific determinism begin to pose a question about the reality of free will of human beings and thus become a threat to not only human dignity and liberalism, but also culpability principle. This paper argues that the contemporary science such as neuroscience and quantum physics supports the possibility of free will refuting scientific determinism through the theoretical efforts of P.U. Tse and Roger Penrose. Though, the value of human dignity could be reaffirmed by the view point of modern science, modern technology such as the human enhancement including the moral neuroenhancement starts to cause a new kind of legal problems. The problem is about the ‘fair application of culpability principle’ and ‘fair revelation of a free will’ and the paper shows a legal implication of this problem. Human dignity could be used as a supplementary interpretative principle of criminal law in some cases. For example, according to the Supreme Court a conscientiously motivated objector could be innocent because the liberalistic interpretation based on human dignity necessarily permits and tolerate the different thoughts of conscientious objector from majority. The paper also suggests that the concept of ‘original position’ which originated from John Rawls, could be a important method of a supplementary interpretation for the purpose of a fair application of criminal law.