[OUTLOOK]A Legalistic Society Is Not Ruled by LawWhat is the rule of law? How can we define it? Does it mean a state where all citizens abide strictly by the law, and the government administers affairs strictly by the law. No.
Not to confuse the reader, and to make clear the distinction, that is not what rule of law is. Doing things absolutely by the law is the "rule of legislation," not a "rule of law." And this is something we should distinguish.
Then what really is the rule of law? For the rule of law to take root, three conditions must be met. First, the law has to be a fair criterion of social action to which everybody can agree and abide by. It must be a general principle (or rule) that is applied equally to everyone.
Second, this fair criterion should have in its content the ability to check against a ruler's arbitrary and discretionary exercise of power.
Third, implementation of the law should be done sternly, in a fair and transparent manner. Acceding to exceptions, discrimination, targeted implementation and arbitrariness cuts into the rule of law, even if the content of the law itself may be justified.
Then, what is "rule of legislation"? The rule of legislation does not question the content of the law or of the way it is implemented. It doggedly insists that everything should be executed strictly according to the clauses of the law. It does not ask whether the law may infringe on citizen's freedom or human rights. It does not ask whether there may have been injustices of discrimination in implementation. It is something we witnessed during the Japanese colonial period and the military regimes of the past. And in those periods in history, there was no "rule of law."
At this point, we have to ask ourselves the basic question of why rule of law is important.
First, the rule of law is necessary for a real democracy. Many countries have succeeded in electoral democracy, or a change of power through peaceful elections, but few democracies enjoy real democracy resting on the pillars of "rule of law."
Second, the rule of law activates the market economy and makes possible economic growth. For the market economy to blossom, companies and individual citizens must feel safe to compete in the free and fair market. An investment for the future will not take place when there is a threat that an arbitrary exercise of power may violate private ownership and freedom of commerce can be curbed.
Looming threats result in competition not for technology development and quality improvement but for favor in the eyes of the politically powerful. Collusion between business and politics results; there is a government-managed economy and cash-dictated elections and consequently a demise of democracy and the market economy.
Third, without a firm-standing rule of law, the moral fiber of society will disintegrate. An absence of the rule of law can easily show that the moneyed are likely to buy their way out of legal liability while those without money are likely to pay up, irrespective of their liability.
Stacked up against these conditions, a society will run a course to a state where anti-social crimes are condoned, and conscience is shoved into the dark corner of our minds.
Under such a state, people will scream all the harder after having violated laws in an attempt to escape; public authority is thrashed and the mafia rages. In the political arena, politics will no longer serve as a public forum where policies compete for better lives of the people, but will become a private forum of high-stakes competition among individual politicians. This is a vulgarization of politics and society.
Those in power, once enthroned in positions of power, will inevitably feel a strong attraction to the rule of legislation. Thus, democracy needs leaders with strong convictions and a commitment to the rule of law. But these leaders must be truly respected and loved by the people.
There are some in our society who love leaders who depend on the rule of legislation, lauding such leaders as having a strong drive and saying they are unfolding a "politics of scale." These same people disparage true democratic leaders as feeble, timid and lacking strong leadership.
All things considered, realization of the rule of law looks grim at this point. It is something we should all give some serious thought to.
The writer is a professor of law at Seoul National University.
by Park Se-il