헌법사의 의의와 접근방법

Abstract

In order to properly understand the Constitutional Law, which determines the national foundation, it is important to study the Constitutional history. By examining how ideology and system of the Constitutional Law have formed and developed, one can understand the current Constitutional Law properly as well as plan the prospective revision of the Constitutional Law. In other words, the purpose of Constitutional History is to rightly understand and realize the ‘current’ Constitutional Law. For this reason, it is not only important to understand the provisions of past Constitutional Law but also th examine how the provisions have formed, how they established the regulatory power, and if failed, reexamining the cause of failure of those provisions is required. However, these examinations can be considered ineffective and dysfunctional if they do not link the Constitutional History to the nature of today’s Constitutional Law. Accordingly, it is necessary to clearly present the connection between past and present Constitutional Law to allow meaningful inference. Therefore, the subject of Constitutional History can be considered as comparative jurisprudence as it provides understanding of the current Constitutional Law and the knowledge necessary to prepare for prospective changes through diachronic comparison and examination of the Constitutional Law. Although the range may vary due to array of perspectives in regards to the point when the modern Constitutional History actually began; however, in researching of Constitutional History of Korea, one cannot disregard the Constitutional History under the latter era of the Choson Dynasty and Provisional Government of the Republic of Korea during Japanese Occupation because of their indirect influence in shaping the current laws. Nevertheless, th main focus of the research should be on Constitutional History after the establishment of Constitutional Law in 1948 while the criterion of phasing in chronology is controversial. What is clear is that the Constitutional History has brought forth legal explanation through ist formation of history and it serves as a window to the prospective laws. Even if Constitutional History is not at the heart of Constitutional study, the history will provide the key to in-depth understanding of the Constitution. In that note, the Constitutional History–like the general importance of history in mankind’s knowledge and wisdom- is a window which serves to the better understanding of today with hindsight of yesterday and also helps form what is to be for tomorrow.