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Tradition and Transgression in the Korean Legal System

Yong-Sung (Jonathan) Kang (University of Washington)

Law defines the boundaries of transgression, and law is in turn pushed and molded by transgressive acts over time. However, in contemporary Korea, it is often uncritically accepted that the legal system is an entirely modern, "western," and "secular" institution. This understanding applies a fortiori to the Korean Constitutional Court, which enjoys broad public support and is touted as a success story of democratic consolidation. In this context, do violations of the law and challenges to the legal system necessarily represent transgressive acts? Are all transgressive acts "illegal" or "extra-legal" in nature? Or does the legal system, and the system of constitutional structures and rights in particular, help guarantee a sphere of freedom and autonomy in which transgressions are permissible.

In the fields of comparative law and law and development studies, the Korean legal system is widely understood as having successfully incorporated and developed "secular" rule of law characteristics since 1987. Often neglected is the fact that the legal system containsmultiple incorporations of traditional Confucian and customary norms, ranging from the criminalization of adultery and aggravated punishment for crimes against lineal ascendants to the recognition of customary property rights and the prosecution of defamatory statements against the dead. In this paper, I will examine the legal challenges to tradition and custom and the debates surrounding these challenges. Focusing on the jurisprudence of the Constitutional Court, I analyze the legal, empirical and moral claims made by the Court in reaffirming and reinventing Confucian norms and customs against "progressive" challenges in the name of "traditional legal culture". By understanding the legal system's role in setting the boundaries that define tradition, I hope to explore the question of how secular, paternalistic, traditional, or "moral" the Korean legal system is and perhaps should be.