Constitutional Transition and the Travail of Judges: The Courts of South Korea

Abstract

Professor Marie Seong-Hak Kim has written an excellent book, one that should be read by everyone interested in South Korea’s legal system, as well as those interested in the complex and multifarious roles courts play in authoritarian political regimes everywhere. Some will take issue with Professor Kim’s overall assessment, that during South Korea’s authoritarian era the courts generally performed admirably, given the political constraints under which they operated. Her arguments are clear and reasoned, however, and she refers regularly to possible counterarguments as she presents her analysis. This Review will present a general description of the book’s contents, followed by a discussion of some of Professor Kim’s specific arguments. In Chapter 1, Professor Kim places her study of South Korea within the growing scholarly literature on courts in authoritarian regimes. Korea was ruled by Japan from the early 1900s until 1945, and South Korea was then under U.S. military occupation until 1948, so South Korea’s own authoritarian period runs from roughly 1948 through 1987, a period which saw democratization and the enactment of the current constitution. In terms of typology, South Korea’s particular authoritarianism was heavily influenced by the Cold War, opposition to communist North Korea, and the country’s status as a key ally of the United States. These circumstances were reflected in an authoritarianism that generally respected private property and an expansive role for markets, despite noted efforts at industrial policy, while the political sphere included multiple parties, periodic elections, an active press, and promises that eventually democracy, the rule of law, and liberal legality would be achieved. South Korea is also among the exemplars of authoritarian legality that has successfully transitioned to democracy, and one of Professor Kim’s interests is how the behavior of the courts during the authoritarian era affected both how democratization occurred, and how law has functioned subsequently.