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The erosion of the rule of law

Published: 19 Feb. 2025, 00:01

Yom Jae-ho

The author is President of Taejae University and Vice Chairman of the National AI Commission.

During my time as a law student in the Yushin era, I found it difficult to understand the constitutional law professors who actively promoted the Yushin Constitution. Their argument — that Korean-style democracy required a constitution suited to the nation's unique conditions — was logically structured, yet I could not shake the feeling that they were merely serving the military regime. I believed that the law should be equal for all, just and an objective criterion for judgment, yet I came to realize how easily it could be used as a political tool.

In philosophy of law classes, I encountered natural law theory and understood the limits of positive law. Positive law is merely a means of interpreting crime and punishment and can be manipulated to fit any political agenda as long as it follows a logical framework. This realization affirmed that judges must interpret laws not for personal or political gain but according to their conscience. This is the essence of natural law.

The rulings of legal professionals significantly impact individual lives and society. Therefore, they must act with great caution, adhering to both the letter and the spirit of the law. A judge must not simply apply the law as a rigid set of rules but also heed the voice of conscience. It is this high moral expectation — comparable to that of religious leaders — that makes society respect the judiciary.

Today, the rule of law is crumbling. Protests from both extreme right- and left-wing groups outside the Constitutional Court include direct threats against justices. Political parties selectively respect or reject court rulings based on their interests. When first- and second-instance verdicts differ significantly, people are more inclined to suspect judicial bias than to trust judicial independence.

The Constitutional Court in Jongno District, central Seoul, on Dec. 23,2024 [NEWS1]

Under the previous administration, judicial reform became a top policy priority, turning the judicial system into a political battleground. The Justice Minister clashed with the Prosecutor General, while judges and prosecutors-turned-politicians led political struggles. Even presidents with legal backgrounds used the judiciary as a political tool. The appointment of a Supreme Court Chief Justice with ties to the Korean Society of Law and the International Human Rights Law Research Society resulted in 7 of 14 Supreme Court justices and 5 of 9 Constitutional Court justices being members of these groups. This deepened the politicization of the judiciary and compromised judicial independence. When political considerations dictate judicial appointments, the credibility of the courts is inevitably eroded.

Allegations such as the "50 Billion Won Club" scandal involving judges and prosecutors paint a grim picture of Korea’s legal profession. The idealism of aspiring law students, once centered on serving justice, has given way to pragmatism, with many prioritizing high-paying law firm careers. The judiciary’s loss of public trust is largely due to the perception that legal professionals prioritize personal advancement over the public good.

The principle of the separation of powers is also deteriorating. Legislative, executive and judicial branches should maintain checks and balances, yet concerns over "legislative dictatorship" have emerged. The National Assembly, wielding significant political influence over the executive and judicial branches, uses confirmation hearings, state investigations and impeachment as control mechanisms. Partisan judicial appointments further entrench political influence within the courts. When politics infiltrates the judiciary, legal objectivity and trust inevitably collapse.

Montesquieu, in “The Spirit of Law”(1748), emphasized that natural law precedes all other laws and that peace, rather than conflict, is its foremost principle. However, in the realm of politics, the instinct to dominate often takes precedence. This is why the rule of law is compromised when politics encroaches upon the judiciary.

Supporters of President Yoon Suk Yeol protest near the Constitutional Court in Jongno District, central Seoul, as the court holds an impeachment trial hearing on Jan. 21. [YONHAP]

The judiciary, as the ultimate arbiter of societal disputes, must remain a sacrosanct institution, shielded from political interference. Institutional safeguards are needed to prevent political encroachment in judicial appointments. First, the practice of appointing Constitutional Court justices based on political party recommendations must be abolished. Additionally, judicial appointments, including those of Supreme Court justices, must be insulated from political influence. Furthermore, judges and prosecutors should be barred from entering politics for a designated period after leaving office. When judges resign and immediately become lawmakers representing partisan interests, the judiciary's credibility collapses. Moreover, factional legal societies within the judiciary should be disbanded. One of former President Kim Young-sam’s most significant achievements was not just implementing the Real-Name Financial System but dismantling Hanahoe, the military’s secret faction.

Han Feizi, a key figure in Legalist philosophy, once said, “It is futile to hope that a nation will not collapse when both its rulers and officials commit grave misdeeds.” Given that most of Korea’s political leaders hail from legal backgrounds, the erosion of the rule of law should be seen as a national crisis. To ignore this reality would be folly.

Translated using generative AI and edited by Korea JoongAng Daily staff.