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인간이 없는 인권이론? ―루만의 체계이론과 인권―A Human Rights Theory without Human Beings? ―Luhmann’s Systems Theory and Human Rights―

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A Human Rights Theory without Human Beings? ―Luhmann’s Systems Theory and Human Rights―
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루만(Luhmann); 토이브너(Teubner); 체계이론(Systems Theory); 기능적 분화(functional differentiation); 인권(human rights); 인권이론(human rights theory)
법철학연구, v.13, no.3, pp.243 - 272
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This article deals with human rights theory of Nikilas Luhmann. Luhmann’s systems theory is a social theory whose theoretical analysis is not based on human beings, human consciousness or human communities; in this sense, this is called a social theory without human beings. Rather, the unit of his analysis is social systems which consist of communications. Luhmann considers contemporary society as a functionally differentiated society. Society consists of differentiated subsystems, each of which reproduces its own value and order; for example, subsystems of modern society are economy, science, politics, art, and law. In this differentiated society, human rights is understood as an institution which has specific functions. From Luhmann’s explanation, the functions of human rights are to preserve system’s differentiation and to make sure that individuals can access to systems. However, according to Luhmann, human rights, in fact, do not play a role in performing these functions and this is put forward in terms of the problem of inclusion and exclusion. Teubner, who has applied Luhmann’s systems theory to legal theories, provides human rights theory from the system's theoretical approaches. According to Teubner, human rights violators today are no longer refined to private actors, but the anonymous matrix of an autonomised communicative medium emerges as a new violators. Then, he tries to see the problems as an ‘ecological’ problem. From this point of view, the function of rights is to protect the autonomy of social discourses against the totalising tendencies of the communicative matrix. Form system theory’s human rights theory, we can understand that human rights violation are not initiated by an individual or group, but by anonymous communicative processes. This is more persuasive to approach new human rights phenomenon today. Although it can be accepted that systems theory is not so useful from the viewpoint of other traditional human rights theories, it is meaningful and suggestive that systems theory actively points out the weakpoint and limitations of existing other human rights theory, and persuasively shows new aspects of human rights violations today.
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