구성주의적 합리주의 비판과 형벌이론 - 하이에크의 사유에 기초하여 -

초록

Friedrich A. Hayek argued that social order does not arise from the deliberate design or control of a particular planner, but rather from the accumulated customs and rules that evolve over generations. From this perspective, he criticized Cartesian constructivist rationalism as inadequate, since it underestimates the complexity and unpredictability of society. While this critique has been primarily discussed in economics and political philosophy, it also carries significant implications for law and punishment. This paper applies Hayek’s insights to penal theory, seeking to re-examine the purpose and justification of punishment. The conclusions are twofold. First, deterrence theory rests on a simple input-output model that assumes punishment (input) leads directly to crime prevention (output). Such reasoning treats punishment as a tool of social engineering, relying on the constructivist illusion that social order can be adjusted according to a designer’s intentions, while ignoring the limits of human reason and knowledge. Moreover, the utilitarian logic embedded in deterrence theory—that punishment is justified if its social utility outweighs its harm—appears rational and forward-looking but suffers from the vagueness and immeasurability of utility. Reducing penal justification to a costbenefit calculation risks treating legal norms merely as instruments and anthropomorphizing society as a purposive organism. In doing so, punishment ceases to function as a normative safeguard of a free constitutional state, becoming instead a functional tool for maximizing social welfare. Second, given the limits of human knowledge and the complexity of society, punishment should not be designed for the maximization of future utility, but should be handled with extreme caution and only within the framework of rules that safeguard liberty. From this perspective, the principle of ultima ratio gains particular importance as a limiting principle of criminal legislation. It should not be reduced to a synonym for minimal intrusion, but recognized as an independent legal principle of empirical and marginalist character: punishment may only be imposed when other sanctions have actually been attempted and proven ineffective. This entails that legislators must demonstrate, through historical and empirical evidence, that alternative measures have failed to protect the legal interest at stake. By contrast, preemptive legislation based merely on the assumption that ‘other measures will likely be ineffective’ contravenes the ultima ratio principle and must be regarded as unconstitutional.

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