- Elgar Korean Law series
Edited by Hyunah Yang
Chapter 2: The rule of law and forms of power: theorizing the social foundations of the rule of law in South Korea and East Asia
A quarter of a century has passed since the June Protest of 1987 ended the semi-military authoritarian rule in South Korea and opened up the gate to constitutional democracy. Much literature has been produced over the past two decades to provide empirical findings and normative appraisals of the changes in the politico-legal system and practices (for example, Ginsburg (ed.) 2004; Mo and Brady (eds) 2009). While this chapter has been inspired by the growing literature that embodies broadened comparative perspectives and nuanced assessments, it pursues a different methodological strategy. It does not address such questions as how much South Korea has achieved and what it should do to achieve its goal. Neither is it aimed at showing what has happened and is happening. This chapter offers a theoretical outline for explaining the social foundations of the rule of law in a post-authoritarian society. Its main purpose is to construct ideal types that can be used in describing and explaining socio-legal realities. The ideal types are constructed on the basis of a number of existing theoretical categories and certain experiences regarded as characterizing East Asian societies problematically subsumed under the typification ‘Confucian’. The central concept in this theoretical project is power. It is often assumed that the rule of law comes in where authoritarian political power withdraws, and that the rule of law should be implemented in order to hold power in check. This chapter objects to positing such a conceptual opposition between the rule of law and power.
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