Earticle

초록

영어

Chaihark Hahm argue we should remember that constitutionalism in America is a product of its specific history and culture. Also, he is arguing on two fronts. As against those who pay attention only to the written text of a constitution, he argue that culture should not be ignored, for it is culture that supplies the vocabulary for understanding the constitution and making it effective in its context. As against those who capitalize on "culture" to argue in favor of authoritarian politics, he argue that culture is not monolithic or static, and that culture actually contain within itself many divergent strands which enables a continuous critique and reinterpretation of itself.
According to Professor Carl J. Friedrich`s functional definition of constitutionalism as "effective regularized restraints upon the government" is instructive in this regard. Dr. Hahm depend on Carl J. Friedrich`s theory. I stand with Dr. Hahm`s thesis. My main thesis is that within the moral and
political meaning of Confucian culture, the concept of ritual propriety(禮) can function as a constitutional norm.
Although Hahm deny that there was the judicial review as legal system in chosun dynasty, I demonstrate the historical data as a proof(the argument between King Sungjong and members of cabinet as Confucian scholar on the revision of main code, Kyungkukdaejeon) of existence of legal system for the judicial review. But, some historians deny this thesis, because they have not sufficient knowledge on the legal theory. In a positivist position(considering the historical data), the appropriate evaluation on the legal system of Chosun dynasty is a necessary. In
this respect, Chosun Dynasty was the Confucian constitutional state.

목차

I. 서론
  1. 입헌주의의 의의
  2. 함재학의 유교입헌주의 테제
  3. 기능주의적 유교입헌주의
 Ⅱ. 유교입헌주의
 Ⅲ. 經國大典 度僧條 논쟁을 통해 본 조선의 위헌법률심판
  1. 경국대전의 입법과 불교탄압 법제
  2. 불교탄압 법제(法制)의 양상
 Ⅳ. 결론
 참고문헌
 

키워드

저자

• 이정훈 [ Lee, Jung-Hoon | 한국방송통신대학교 법학과 강사, 법학박사 ]

참고문헌

발행기관

간행물

표지보기 관심저널 등록

• 간행물명

  원광법학 [Journal of Law research]

• 간기

  계간

• pISSN

  1598-429X

• eISSN

  2508-4526

• 수록기간

  1962~2025

• 등재여부

  KCI 등재

• 십진분류

  KDC 360 DDC 340