노동헌법의 의미와 역사적 전개

This article examines the historical origins and development of the concept of labour constitution as formulated by Hugo Sinzheimer. It critically investigates how this idea was received within the framework of positive law and the constitutional order, and what limitations emerged in that process. Sinzheimer emphasized that under a capitalist market economy, labour should not be regarded merely as the object of a private contract but as a public actor participating in the realization of democracy and the formation of community order. Seeking to extend the structure of rights and participation guaranteed by the political constitution into the economic realm—particularly the sphere of labour—he aimed to incorporate autonomous collective rights of workers into the constitutional order. However, his project was ultimately frustrated by the collapse of the Weimar Republic. Against this backdrop, Otto Kahn-Freund critically engaged with the structural tensions in Sinzheimer’s state-centred model. This article explores how Kahn-Freund’s theory of collective laissez-faire inherited and reformulated key elements of Sinzheimer’s thought, and assesses the extent to which this reformulation achieved its objectives. Furthermore, the study critiques the labour market-centred approach, which tends to reduce the constitutional status of fundamental labour rights to instruments of economic efficiency and flexibility. It analyzes how this trend undermines the institutional legitimacy and participatory structure of labour rights as grounded in the idea of the labour constitution. In conclusion, the article argues that the idea of the labour constitution is not merely a legacy of the past but remains a relevant theoretical resource for re-establishing labour as a central actor in the community amidst rapid changes in the world of work—such as digital transformation, the rise of platform labour, and the decline in union density. The question posed by Sinzheimer—how to position labour within the constitution—continues to be a vital challenge in our current moment of crisis, offering crucial insights for reimagining the social construction of law and the normative imagination of the constitution.