Which People? Whose Constitution? A Comparative Look at Constitutional Founding in Korea and Japan

Professor Hahm examines the process of constitutional founding in South Korea and Japan after World War II. His lecture revisits a number of legal and political issues that were hotly contested by the drafters at the time. Professor Hahm also highlights a more general theoretical problem that confronted efforts to establish democratic constitutional orders for the first time. The lecture raises questions about our received understanding regarding a number of issues, including ideas about the legitimacy of a constitution, assumptions regarding the identity of the sovereign people, and the role of the past in the creation of a new constitutional order. Runtime: 01:12:2

Which People? Whose Constitution? A Comparative Look at Constitutional Founding in Korea and Japan

Professor Hahm examines the process of constitutional founding in South Korea and Japan after World War II. His lecture revisits a number of legal and political issues that were hotly contested by the drafters at the time. Professor Hahm also highlights a more general theoretical problem that confronted efforts to establish democratic constitutional orders for the first time. The lecture raises questions about our received understanding regarding a number of issues, including ideas about the legitimacy of a constitution, assumptions regarding the identity of the sovereign people, and the role of the past in the creation of a new constitutional order. Runtime: 01:12:2

Conceptualizing Korean Constitutionalism: Foreign Transplant or Indigenous Tradition?

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

Law, Culture, and the Politics of Confucianism

A paper that deals with law, culture, and Confucianism is perhaps doomed to be a collection of vague and general platitudes. This is because all three of these terms are notoriously plagued with definitional problems. Legal theorists continue to disagree about the nature and scope of the concept of law, while anthropologists and sociologists constantly argue about the utility of the concept of culture. Similarly, philosophers, historians, journalists, politicians-indeed, almost anyone with a voice-seem to have different ideas about what Confucianism means. One of the main reasons for such disagreements, in my opinion, is an all-too-human tendency to want neat and simple categories that can encompass, represent, and take the place of the messy and intractable realities of life. We are all too familiar with the problem that "law" in modern life encompasses vastly different norms and institutions which cannot be easily grouped under the same rubric without in some sense straining the usefulness of the term "law."' The same is true of "culture" and "Confucianism"-with each term, it is often difficult to engage in any discussion beyond the most preliminary stages without being forced to ask, "culture in what sense of the term?" or, "Confucianism according to whose interpretation?' This shows that all these terms are very elastic and that different practices and ideas are often subsumed under the same concept, which in turn aggravates the lack of conceptual clarity

The Constitution of South Korea ::a contextual analysis /

"The current South Korean Constitution of 1987 is the culmination of decades-long efforts by the South Korean people to achieve democratic self-government. It is the fruition of untold sacrifices made by dedicated citizens who tirelessly fought to rein in the power of the government under some form of constitutional rule. In that sense, it should be understood against the backdrop of South Korea's experimentation with constitutionalism that began at the turn of the last century. Yet, it also represents a radical break, the beginning of a new era which ended a long political history of 'constitution without constitutionalism.' For the first time in the history of the South Korean nation, the constitution has become a living norm rather than an ornament, or a façade, for illegitimate or ineffectual governments. It is proving to be a binding law that matters for not only the government leaders but also private individuals. With the adoption, especially, of a system that allowed for the adjudication of constitutional issues at an independent court, the people are realizing that the constitution can actually be invoked to protect their rights and advance their interests. As a result, the South Korean Constitutional Court is being stretched to its limits with so many cases filed at its docket. This means that the constitutional system of South Korea is very much a work-in-progress, whose shape and contours are still being hammered out. The primary goal of this volume will be to flesh out, and make intelligible to foreign readers, that process within the specific political and historical context of modern South Korea."-

Law, Culture, and the Politics of Confucianism

A paper that deals with law, culture, and Confucianism is perhaps doomed to be a collection of vague and general platitudes. This is because all three of these terms are notoriously plagued with definitional problems. Legal theorists continue to disagree about the nature and scope of the concept of law, while anthropologists and sociologists constantly argue about the utility of the concept of culture. Similarly, philosophers, historians, journalists, politicians-indeed, almost anyone with a voice-seem to have different ideas about what Confucianism means. One of the main reasons for such disagreements, in my opinion, is an all-too-human tendency to want neat and simple categories that can encompass, represent, and take the place of the messy and intractable realities of life. We are all too familiar with the problem that "law" in modern life encompasses vastly different norms and institutions which cannot be easily grouped under the same rubric without in some sense straining the usefulness of the term "law."' The same is true of "culture" and "Confucianism"-with each term, it is often difficult to engage in any discussion beyond the most preliminary stages without being forced to ask, "culture in what sense of the term?" or, "Confucianism according to whose interpretation?' This shows that all these terms are very elastic and that different practices and ideas are often subsumed under the same concept, which in turn aggravates the lack of conceptual clarity