Conceptualizing Confucian Constitutionalism Between Foreign Transplant and Indigenous Tradition: The Role of Culture in Political and Legal Systems in East Asia

Concettualizzare il costituzionalismo confuciano fra trapianto giuridico e tradizione indigena: il ruolo della cultura nei sistemi politici e giuridici in Asia orientale

Abstract

In 1998, by holding unconstitutional a provision contained in the Law of Family Ritual Standards which criminalized some ritual practices, Korean Constitutional Court criticized the government for attempting to rule and limit traditions. On the occasion, the Court noted the importance that rituals played in society, and how much unwritten legal tradition affects the roots and the sources of national law. Meanwhile, during ‘90s and 2000s, Confucianism began to be greatly promoted as an important element in Chinese legal tradition in order to modernize political strategies and institutions of the Republic. Even if deeply connected to a long history of Confucian political philosophy, the legal discourse about (Korean) ye and (Chinese) li is a constitutional discourse, but not in the classical Western approach. In East Asia, Confucian political philosophy is deeply connected to the discipline of rule and constitutes the legal tradition for modern constitutional roots. This attitude generates a political and legal system that mitigates indigenous tradition with foreign transplant derived from the imprinting with the Western norms. The essay aims to introduce the concept of Confucian constitutionalism as a cultural parameter of interpretation, reconstructing the traditional legal roots of some East Asian countries and their importance in the actual political and legal system. 

Keywords: Confucianism; Constitutional Law (sources of); Constitutionalism (theory of); Tradition(s); East Asia