South Korea’s 1987 constitutional transition has received ample and well-deserved scholarly attention, being hailed as the point of departure of both democracy and the rule of law in the country. By contrast, the decades running back to the founding of the state in 1948 are typically associated with authoritarianism and rule by law, having brought about repression and human rights violations primarily through the arrests, trials, and imprisonments suffered by generations of political dissidents. This incontrovertible reality has bred “the oversimplified view that the courts were inoperative, even irrelevant, before democratization” as stated by legal historian Marie Seong-Hak Kim (p. 15). Her book therefore revisits what the judiciary did under the successive regimes marking South Korea’s contemporary history.
Kim compellingly contributes to and engages with the comparative literature on courts in autocratic contexts by her in-depth case-study research. Empirically, she examines judicial arrangements and rulings for the entire period since the end of Korea’s colonization by Japan in 1945. Following the introduction, Chapter 2 is dedicated to the post-liberation years (including the 1948–60 First Republic under Rhee Syngman as well as the shortly lived 1960–61 Second Republic), Chapter 3 to Park Chung Hee’s Third Republic (1962–72), Chapters 4, 5, and 6 to Park’s Fourth Republic (1972–79, also known as the Yusin or “revitalization” era), Chapter 7 to Chun Doo Hwan’s Fifth Republic (1980–87), and Chapter 8 to the Sixth Republic (from 1987 to the present day).
Conceptually, Kim borrows from the extant literature the idea that “the rule of law exists in authoritarianism”: “In an authoritarian rule of law, the regime in power resorts to an instrumental use of laws as it tries to engender a stable legal and economic environment” (pp. 5– 6). She finds that the rule of law in this formal rather than substantive sense subsisted in South Korea even when dictatorship reached its apex with the Yusin system, which constitutionally enabled the president to issue emergency decrees that could suspend individual rights and escape judicial oversight. Yet, the book’s main claim does not lie there but in the role that ordinary judges played under this framework that institutionally, legally, and politically constrained them.
In a nutshell, Kim contends that “the courts continued in their basic function of interpreting the law faithfully and consistently” after 1948 (p. 320). They thus perpetuated a long-standing tradition of judicial restraint according to which “impartiality meant abiding by the law” (p. 25). This conception of their duty did not entail that judges were either passive or submissive. Instead, they “sought autonomy within the bounds imposed by the law,” preferring to check the implementation over the validity of existing norms (p. 20). Adhering to legal positivism was a matter not only of professionalism but also of survival in a context in which threats to judicial independence could concretize themselves in an abrupt way.
Until democratization, the separation of powers enshrined in South Korea’s original Constitution clearly translated into a hierarchy with the executive at the top and the judiciary at the bottom. In these conditions, “the successive governments did not hesitate to exploit the limited power of the courts to their advantage” (p. 20). As Kim points out, “the main instrument that allowed the executive branch to control judges was the judicial reappointment system,” which required presidential approval to renew their ten-year term (p. 45). “It was through this process that politically motivated judicial purges took place in 1961, 1973, and 1981” (p. 50). Under this light, the courts’ deference to the other branches comes as no surprise, but Kim does not simply interpret it as strategic.
Her analysis importantly unveils that judicial restraint remained favoured even when judges enjoyed greater than lesser room for manoeuvre. Variations in this respect can indeed be observed as the power to review legislation was differently entrusted and exercised during the First Republic (whose Constitutional Committee invalidated two laws in 1952), the Second Republic (whose Constitutional Court never came into being), the Third Republic (when the power of judicial review was granted to the Supreme Court before being used twice in 1971), and the Fourth as well as Fifth Republics (whose Constitutional Committee was never asked to intervene).
As Kim underlines, judges were at the same time constrained and committed to acting cautiously before the advent of democracy. To her, this does not imply that the courts renounced their task. While they avoided confrontation with the two political branches by not openly challenging the norms both adopted, the executive and legislature were not given free rein either. Deference did not amount to subservience each time judges “defeated the application of the law as intended by the government without striking it down,” which happened with the Martial Law Act in the 1950s and the Anticommunist Act in the 1960s (p. 59).
Focusing on the next decade, Kim mobilizes Ernst Fraenkel’s concept of the dual state (prerogative and normative) to describe South Korea in the 1970s and draw a distinction between the criminal and civil realms. More than any era in contemporary history, the Yusin period confronted judges with the dilemma of applying unjust laws. As Kim explains, this is a classical problem that nonetheless “comes in many different shades,” members of the South Korean judiciary having “faced a dilemma of legality rather than of the inner morality of laws” as existed in Nazi Germany or apartheid South Africa (p. 214). Kim shows that judges “persisted in the belief that they were bound by the duty to uphold the constitution and apply the existing laws” even when they lacked faith in them (p. 159). This did not prevent the courts from actively “resolving private conflicts and protecting the property rights of the citizen,” which did not ignite backlash from the government given its concern for economic development (p. 191).
In Kim’s assessment, South Korean judges in the 1970s ultimately performed the only role they could—maintaining legality. Her conclusion, however, goes beyond recognizing that the profession had tied hands both externally (due to the limits under which it operated) and internally (due to its members’ own sense of duty). As she asserts, “by upholding the less-than-ideal constitutional authority, the courts helped sustain the idea that the government—whether authoritarian or progressive, whether President Park’s or someone else’s—must remain beholden to the foundation of the nation’s liberal constitutional order” (p. 318). Put differently, the judiciary’s commitment to the will of law may have engendered negative effects in the short term but positive ones over the long run.
The last chapter addresses post-1987 developments, focusing on the Supreme Court’s and Constitutional Court’s respective decisions to declare Park Chung Hee’s emergency decrees unconstitutional in 2010 and 2013. Kim sees in both rulings a shift away from “traditional legal positivism” that is not without danger (p. 286). According to her, following the will of the public as the two highest courts did in this and other instances departs from the function of judges. Chapter 8 thus contrasts the courts’ abidance by the will of law before democratization with their deviation from it since. This thought-provoking argument is worth considering even if one may not fully subscribe to it.
One reservation comes from the evidence provided by Kim’s own work as it reveals several continuities before and after 1987 that the last chapter brushes over. Among them is a “pattern of jurisprudence” still marked by deference as “the courts, then and now, refer basically to the same mechanism in order to avoid striking down challenged statutes” (p. 79). This mechanism consists in rendering decisions of conditional constitutionality—an approach originating from the 1950s and frequently resorted to by the current Constitutional Court since the 1980s. Such an element should have been taken into consideration to nuance the idea of double rupture—not only with the past but also with the rule of law—emphasized to characterize the present time.
Two minor regrets might finally be expressed. First, the notion of “liberal democratic basic order” could have been explored further as it represents a legacy from the Yusin Constitution in whose name today’s courts rule, using this terminology to define South Korea’s identity as a polity. Second, the claim that judges’ apoliticism under authoritarianism was primarily an outgrowth of their professionalism would have deserved to have been empirically substantiated. Kim asserts more than she demonstrates that “the judiciary had no distinct social or economic class interest to protect and no sociopolitical legitimacy to perpetuate” (p. 220). Introducing the biographies of at least some judges would have been helpful to support that point, which illustrates the importance of conducting more research of this book’s calibre on South Korean courts and their members especially before 1987.
