SHERP

법원에 관한 동아시아적 이해
Ancient and New Sources of Law: An East Asian Perspective

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Authors
최종고
Issue Date
1995
Publisher
서울대학교 법학연구소
Citation
법학, Vol.36 No.2 pp.235-251
Keywords
source of law; 서구의 법원론; 유교국가의 법규범; 동아시아의 법과 국가
Abstract
It is symbolic irony that here in Bologna, the "birthplace" of world jurisprudence, a discussion
on the ancient and new sources of law would include a legal scholar from the
"Far East". As we all know, Roman law as practiced in Bologna was founded on the dictates
of usus modernus pandectarum (modern use of the pandect). The use of this legal
treatise was in force for over three centuries in Europe, with its influence stretching as
far as China, Korea, and Japan up to the 20th century. This phenomenon known as "reception",
that is the integration of the Roman civil legal system by East Asian spheres of
influence, is by no means a wonder to our legal professionals. The law, like water that
flows from high to low or the evangelism that "must be witnessed from Samaria to the
end of the world", displayed the dynamic movement of a developed system of law as it
was spread and accepted in disparate places around the world. As a result of this legal Diaspora,
the term "sources of law" takes on a more ambiguous meaning in this age of
globalization. It is a term that presents a significant challenge to those of us examining
the world map of legal history. In this discussion, I would like to use the concept of "sources
of law" in a more flexible sense, thus avoiding the potential pitfalls of a rigid, technical
interpretation.
As law is primarily a device for regulating and ordering relations in society, any system
of law should be able to answer clearly the question of what the law means or where the
interpretation of the law can be found. Thus, the issue of a "source" is fundamental to
any system of law, be it municipal or international.
ISSN
1598-222X
Language
English
URI
http://hdl.handle.net/10371/4894
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College of Law/Law School (법과대학/대학원)The Law Research Institute (법학연구소) 법학법학 Volume 36, Number 2 (1995)
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