Introduction
Any country has its specific constitutional history. Particularly, the constitutional order that formed the normative basis of each country may have its own context and story. In terms of a founding moment of a new constitutional order, the cause, subject, and process of creating the first constitution may vary.1 Nevertheless, the conventional study of constitution-making has been preoccupied with the constitutional traditions and contexts of the countries - especially in Western Europe from ancient to the early modern era - that have developed basic notions and theories of constitutionalism.
In this sense, it is very encouraging that recent scholarship is increasingly broadening the epistemic range of constitutionalism,2 and exploring diverse cases of constitution-making based on each specific historical context and experience.The first modern constitution of Korea was also built on a unique historical background and pathway. If one assumes constitution-making as constitutionalising of a new legal order decided by a constituent power, the first Korean Constitution was made in 1919.3 However, if constitution-making is limited to establishing an enforceable order on its territory, then the first Korean Constitution was that made in 1948.4 Additionally, the definition of the founding
1 Richard Albert and Menaka Guruswamy, ‘Introduction' in Richard Albert et al (eds), Founding Moments in Constitutionalism (Hart Publishing, 2019) 1.
2eg Mark Tushnet, Editorial, ‘Varieties of Constitutionalism' (2016) 14 International Journal of Constitutional Law 1; Thio Li-ann, ‘Varieties of Constitutionalism in Asia' (2021) Asian Journal of Comparative Law 1.
3 See, eg, Noriko Kokubun, ‘The Rise of Korean Constitutional Thought (1875-1945): An East Asian Perspective' in Marie Seong-Hak Kim (ed), The Spirit of Korean Law: Korean Legal History in Context (Brill, 2016) 108.
4See, eg, Chaihark Hahm, ‘Thirty Years Old at Birth? The Constitutional Founding of the Republic of Korea' in Kevin YL Tan and Michael Ng (eds), Constitutional Foundings in Northeast Asia (Hart Publishing, 2021) 154.
Hahm recognises the 1948 Constitution as the only ‘Founding Constitution' from a perception that Korea's constitutional founding of a republic actually took place through the 1948 Constitution. constitution gets more complicated when it comes to ‘South Korea', not just Korea. The Preamble of the Constitution of the Republic of Korea of 1948, the allegedly founding constitution of South Korea, explicitly states that it re-establishes the Republic of Korea that had been established in 1919.One might then ask when the first constitution of South Korea was exactly made and, in turn, what the first constitution actually created, and what the constitutional text and context specifically say about both. In this chapter, to answer these questions and provide a better understanding of historical and normative aspects of constitution-making in South Korea, I will demonstrate the making of the first modern constitution in South Korea could be properly explained only by closely reconsidering the series of constitutional episodes since 1919 and the relationship between the 1919 and 1948 Constitutions.
Accordingly, section II describes the underlying context of Korean constitutional history under the interaction with internal and external factors, and clarifies what motivated the writing of a modern constitution in Korea. It spells out what the 1919 and 1948 Constitutions called for respectively. Section III focuses on the actual process of constitution-making in 1948 and its features, and section IV analyses the core principles and substances of the 1948 Constitution. Section V finally reviews how the 1948 Constitution operated in its time and what it has left to Korean constitutionalism.
II.