From Confucianism to Modern Constitutionalism

It is mostly believed that the history of constitutionalism in Korea began with the enactment of the first constitution of the Republic of Korea in 1948 after liberation, but in fact, the implementation of the concept of constitutionalism in the country had begun long before this date. A more nationalistic historical narrative accepts the Constitution of the Provisional Government of the Republic of Korea of 1919 as the starting point of Korea’s constitutional history as this constitution proclaimed the first republican form of government of Korea.[1] It is also a remarkable matter that the preamble of the current 1987 Constitution of the Republic of Korea declares itself as the successor of the Provisional Government’s Constitution.[2] On the other hand, some look back even further, and accept the Gabo Reforms of 1894 as the origin of Korean constitutionalism with its proclamation of Korea’s independence from China.[3] Lastly, there is another view pointing out the Constitution of the Great Han Empire of 1899 that was declared two years after the establishment of the Empire and drew an outline of the imperial system, as Korea’s first modern Constitution.[4] Regardless of which of these historical narratives reflects the correct starting point of constitutionalism in Korea, it is a fact that all these years marked an important break with the past in terms of Korean political and legal development.

It is believed that Korean history began in 2333 BCE when Gojoseon, the first dynasty, was founded. The legal tradition of Korea can be traced back to that era as Gojoseon had its own statutory law.[5] Ever since then, Korean dynasties throughout history have had their own legal systems and written laws, showing the nation was not unfamiliar with the tradition of law. Still, the vast majority of these rules could be included in the scope of administrative law rather than the constitutional one, as they were not to discipline the power of the ruler, but to organize the administration of the government bureaucracy.[6] Before having fallen under the influence of modern constitutionalism in the late nineteenth century, Confucianism was dominant in the Korean law system throughout centuries following its adoption by the Kingdom of Joseon (1392-1897), the last dynasty of Korea, as the supreme guidelines for both government administration and social system.[7] Largely influencing the way of thinking, society, religion and governance in Korea, Confucian worldview saw the notion of law as an instrument of effective governance, rather than a device to constrain government.[8] With the aim of good governance, power was indivisible in the Confucian tradition. Benevolent and virtuous rulers in whom all power was concentrated were responsible for guiding the people by means of virtue and keeping them in line with propriety to bring peace and harmony to the society.[9] Although Confucian law did not provide any rule applied directly to the emperor to restrain his power, it also did not give a completely unconstrained sovereignty, as there were some limits on the ruling power coming from the ancient teachings of the Confucian tradition.[10] In accordance with the principle of the Mandate of Heaven, it was the emperor’s duty to rule in an ethical and moral fashion while obeying ritual norms as the Son of the Heaven.[11]

With witnessing an influx of the Western culture beginning from the mid-nineteenth century, the legal system in Korea went through significant changes. Adopting modern constitutionalism later, Korea headed towards reform movements in constitution such as the Gabo Reforms of 1894, the Constitution of the Great Han Empire of 1899, and the Constitution of the Provisional Government of the Republic of Korea of 1919. Half a century after the beginning of these reforms, the Republic of Korea was established with its first constitution in 1948, which was amended nine times until today.[12]

 

[1] Hahm, “Conceptualizing Korean Constitutionalism,” 157.

[2] Constitution of the Republic of Korea (1987), Preamble.

[3] Hahm, “Conceptualizing Korean Constitutionalism,” 157.

[4] Kwon, “Korea Bridging the gap between Korean substance and Western form,” 154.

Kwon, Constitutional Law: A Textbook, 91.

[5] Korea Legislation Research Institute, Introduction to Korean Law, 2.

[6] Hahm, “Conceptualizing Korean Constitutionalism,” 170.

[7] Hahm, “Yugyojŏk Ip’ŏnjuŭiwa Han’gugŭi Hŏnjŏngsa” (Confucian Constitutionalism and Korean Constitutional History), 128-129.

[8] Ginsburg, “Confucian Constitutionalism?, 767.

[9] The second chapter third verse of the Analects of Confucius that is a collection of sayings and ideas attributed to Confucius and his contemporaries, and believed to have been compiled and written by Confucius’ followers during 475 BCE-221 BCE, says Lead through policies, discipline through punishments, and the people may be restrained but without a sense of shame. Lead through virtue, discipline through the rites, and there will be a sense of shame and conscientious improvements.

See Young, “Retracing the Roots and Ideals of Confucian Principles of Governance.”

[10] Ginsburg, “Confucian Constitutionalism?,” 766.

[11] Ebrey, The Cambridge Illustrated History of China, 179.

[12] Technically, there has been one constitution, the Constitution of 1948, which has been repeatedly amended. Still, they are mostly treated as different constitutions.

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