儒敎立憲主義와 朝鮮의 違憲法律審判

Confucian Constitutionalism and Judicial Review in Chosun Dynasty

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.