[VIEWPOINT]Laws, Legality and Korea's DemocracyA foreign law scholar sent me the draft of an academic report he had written on the status of legal professionals in Korea. What was of particular note in the report was its conclusion that in Korea, legal professionals have high status, but little power. Unlike the politician-scholars of the Choson dynasty, authority and power are separated. These days, legal professionals have a bark, but not much of a bite.
When Korea was developing, law and legal professionals were outsiders. Policies of economic development were implemented not through the universally valid power of law but by developing close relationships between political and economic entities. The law and legal professionals were outside this.
However, change is afoot. Globalization is knocking at the door. Old practices of personal connections and favoritism are no longer accepted. Behavioral standards are mandated at the global level, and transparency and responsibility are emphasized. What does this mean? The principle of rule by law is no longer just a decorative appendage to a reality that is in fact the opposite of the rule of law, but is becoming a fundamental of our affairs. It is thus inevitable that legal professionals will move to center stage.
In this context, the declaration by the Korean Bar Association on July 23 that the government is ignoring legal procedures in its reform policies, and the ensuing controversy over the rule of law, assume greater significance. Perhaps the bar group was signaling groundbreaking changes in the perception of legal practices. Unfortunately, there were deficiencies in the association's declaration that the discussion it prompted also failed to touch on.
There were disputes over the process of creating the declaration and possible influence of partisan politics, but that was not its primary failing. The controversy failed to touch on the core issues not only due to political distractions but also because of a confusion over the meaning of the law. Often mentioned in the declaration is "real rule of law," as in this passage, for example: "The reform drive of the government was a conspicuous retreat from the real rule of law."
The term "real rule of law" means ruling by laws based on freedom, equality and justice; that is ruling by "good laws." To say we should rule with the use of good laws, not bad laws, should go without saying. Naturally, we should aim for the "real rule of law." However, when we evaluate the phrase realistically, "real rule of law" loses its meaning. More attention is paid to "real" rather than, simply, "rule of law."
What a "good" law constitutes depends on political decisions and the people's attitude. We don't need legal professionals to tell us what a "good law" is. Ordinary people can tell you whether limiting ownership of newspaper agencies or implementing a five-day workweek are good laws. What the job of legal professionals should be, in the first place, is to pay attention to the rule of law itself, prior to rule by "good laws."
Formal legal work － interpreting the form of the law － should not be looked down on. It has a precious and inherent virtue in the regulation of the voluntary exercise of power. It is completely different from the ancient Chinese philosophy of legalism, which uses the law solely as an instrument of power.
When comprehending the principle of the rule of law in a formal way, the core elements can be summarized as follows: First, the law has to be enacted through prescribed steps. Second, laws must be framed in an understandable way before we ask people to abide by it. Third, judicial power must be independent and application of the law has to be just.
The controversy over the law could have been more productive if the discussion had focused on the voluntary exercise of power, especially the fairness of the application of the law. Moreover, conflicts in the Korean Bar Association could have been avoided. I hope the association can sufficiently debate issues such as whether the application of the law by the current government is fair.
Legal professionals should raise their political influence by measuring the rule of law. Then they will be able to force considerations of the law to the center of decision-making.
The writer is a professor of law at Hanyang University.
by Yang Kun