S-Space College of Law/Law School (법과대학/대학원) The Law Research Institute (법학연구소) Journal of Korean Law (JKL) Journal of Korean Law Volume 01 Number 1/2 (2001)
Conceptualizing Korean Constitutionalism: Foreign Transplant or Indigenous Tradition?
- Hahm, Chaihark
- Issue Date
- BK 21 law
- Journal of Korean Law, Vol.1 No.2, pp. 151-196
- The premise of this article is that a nation constitutional norms must ultimately be supported by its cultural values and political tradition. Although this is one of the basic precepts of constitutional theory,
in the case of Korea, the demand for modernization has generally caused Koreans to reject, if not despise, their cultural traditions. By interpreting the political discourse of pre-modern Korea (Chosn) as a form of constitutional discourse, this article attempts to provide a corrective to this situation. It first argues that our conception of constitutionalism must be modified to incorporate non-Western/pre-modern political norms and discursive practices which made it possible to discipline whoever held political power. Next, it shows what the sources of such constitutional norms were in Korea, and in the process, it clarifies the structure of pre-modern East Asian law codes. It then goes on to elucidate the constitutional principles
which Chosn bureaucrats and politicians regarded as binding and which they could invoke to discipline their rulers.
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