Lecture 10 | Confucianism legal tradition

Question 1

how does the legal system of the asian legal culture look like and what influences that system?

Answer 1

Asian countries have adopted constitutions influenced by Western legal standards. Confucianism has impacted the legal systems in several Asian countries, blending philosophical ideologies with legal principles.

Question 2

what does the confucian legal tradition mean (characteristics + qualities)

Answer 2

• Characteristics:
  o Not based on written laws or punishment
  o Rooted in moral and philosophical principles
  o Emphasized ethical behaviour in human relationships
  o Goal: harmony in both public and private life
• Focus not on laws, but on moral/ethical development of people
• Moral development starts in the family
• Two important defining features:
  o Collective good  society over self
  o Sense of duty  roles fulfilled through responsibility on ethical behaviour
• Hierarchical relationships.
• A leader should be a moral ethical example.

Question 3

What is the role of law in the asian legal culture?

Answer 3

• Law is not the foundation of society but plays a secondary role (safety net).
  o Law is not central to society as in Western traditions. Instead, ethical values and personal virtue are the main tools for governing behaviour. Law only is used when internal moral cultivation fails.

Question 4

What are the asian values in one sentence?

Answer 4

he development of the whole society is more important than individual rights, freedoms etc

Question 5

what are the constitutions of asian countries?

Answer 5

Many Asian countries adopt constitutions that include core elements of Western constitutionalism (fundamental rights, rule of law, separation of powers), but with a different application. Their function is shaped by traditional values, for example Confucianism.

Question 6

what does the korean legal system mean?

Answer 6

Korean legal system: is a hybrid system with formal legal structures (Western) and cultural/moral foundations (Eastern). Promotes legal modernization while preserving cultural identity.

Question 7

What role does the constitutional court in Korea play?

Answer 7

Constitutional court has a bit of a dual role in Korea:
* Acts as a guardian of constitutional values and democratic rights (moral rights)
* Acts as a guardian of Confucian norms
It tries to balance between this. Constitution is a tool to uphold the rule of law and individual rights and on the other hand the Confucian tradition.

Question 8

what 2 cases are there and which role did the constitutional court play?

Answer 8

• Case 1: Confucian Family Code (1998) -> The constitutional court acts as a guardian of Confucian norms here.
• Case 2: Hoju System (2005) -> The constitutional court acts as a guardian of constitutional values and democratic rights (moral rights)