1950년대 『사상계』의 법담론 구성과 법치주의 국가 구상

Abstract

This paper discussed the composition of the legal discourse of Sasangkye before and after April 19 in the 1950s and 1960. The composition of the legal discourse of Sasangkye was a search for how to overcome the limitations of the constitutional change by those in power in a new country. Sasangkye tried to establish the identity of an anti-communist state and the establishment of a democratic state through law. Amid the post-colonial and post-depression, and the solidification of the Cold War in East Asia, the revision of the Constitution and the National Security Law was recognized that the law could change the national system and national identity. Sasangkye reflected the bias of anti-communism and formed a counter-display by conceiving the national identity of democratic identity based on the Constitution and discussing it as a basic premise of the model of the rule of law through Kelsen's theory of legal stage and legal positivism. In the 1950s, amid the crisis equivalent to the emergency martial law, Sasangkye trusted the absoluteness of the constitution as the supreme law of the constitution and also had a romantic expectation that the constitution would control the limits of power. Amid the unconstitutional claudication of the Constitution and the National Security Law, the desire for the rule of law was the driving force behind the composition of the 『Sasangkye』 legal discourse in the 1950s. The legal discourse in Sasangkye has a counter-characteristic of undermining national identity and legal stability, was able to change as a discourse of resistance, and was the result of efforts to establish the ideal of democratic state ideology and rule of law as an attempt to establish national identity as a legal system.