법원에 관한 동아시아적 이해

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.