POLITICAL BACKGROUND

In July 2016, allegations emerged that Korean President Park Geun-hye abused her power by forcing several major conglomerates, better known as chaebŏl, to donate millions of dollars to the foundations recently created to promote Korean culture and sports. In the yearly National Assembly audit that took place in the following September, this issue was raised by opposition party members but soon dismissed when both the Blue House (the Korean equivalent of the American White House) and leaders of the conglomerates (either alleged victims of extortion or culprits of bribes, depending on how the case was to be judged) staunchly denied these allegations. The issue resurfaced and caught public attention in late October when it was revealed in a series of special news coverage that not only did Park indeed exercise her power illegally by extorting large amounts of money from the conglomerates but she did so in order to help the foundations created by Choi Soon-sil, her longtime personal friend. The Korean public was in even greater uproar when they further learned that the president had relied on Choi for important presidential decisions, who, allegedly associated with a religious cult and with no experience in public affairs, reviewed and even authorized a number of government documents, many of them classified, that concerned matters spanning from foreign policy to appointment of the national intelligence director.

Outraged by the president’s legal violations and her utter incompetence as the country’s leader, hundreds of thousands of Koreans took to the streets and gathered by candlelight in central Seoul every Saturday (for twenty consecutive weeks as it turned out) to protest against Park and demand her resignation. In a series of massive public protests, only comparable, in terms of size and public zeal, to the June Uprising of 1987 that eventually brought about democratization of Korea, the most important outcomes of which were direct election of the president and the establishment of the Constitutional Court (Yoon Reference Yoon2010), Korean citizens demonstrated remarkable self-discipline and respect of order, causing none to be injured or imprisoned despite active participation of ordinary citizens including middle and high school students, young mothers holding babies or pushing strollers, and senior citizens who would otherwise view a massive political protest as a fearful symptom of social unrest and pro-North Korea sentiments. In fact, Koreans turned these public gatherings that they voluntarily organized under no institutionalized political leadership or master plans into a sort of “festival” in which they could speak out freely and engage in a variety of forms of social protests involving visual arts, pop and traditional music, poetry and other literary writings, and, of course, public speeches and collective singing, with full respect of public order and civility (Kim Reference Kim2017; Kim and Lim Reference Kim and Lim2017).

The public enthusiasm to take down the president, and, more importantly, to reform Korean politics and Korean society at large, started to build staggering pressure for the opposition parties that initially showed no active interest in joining the public rallies in their prudential calculation of political interest in the midst of political uncertainty as the next presidential election was to be held a year later. Soon, however, they joined the citizens in the streets and this citizen-led grand alliance between civil society and political society built even more pressure on Park’s ruling party, resulting in the creation of a new conservative party by those who decided to secede from Park’s party and participate in the public protest. As the protests continued, and as Park neither explicitly acknowledged her legal violations nor showed her intent to step down despite several public apologies, citizens pushed for the political parties to formally initiate impeachment prosecution in the parliament, for which two-thirds of the votes (i.e., two hundred out of three hundred total votes) would be required.

On December 9, 2016, after nearly fifty days of public rallies and civil protests, the National Assembly of Korea officially passed, with 234 supporting votes, the motion to impeach Park, the nation’s first female president and daughter of Park Chung-hee, the former military dictator and icon of Korean conservativism, for “extensive and serious violations of the Constitution and the law.” More specifically, the motion passed by the National Assembly contained eight main accusations under two rubrics—first, violation of the Constitution and second, violation of the statutory laws. Under the first rubric, Park was accused of violations of (1) popular sovereignty and other duties to uphold the Constitution, (2) the constitutional principle of equality and the president’s right to appoint or dismiss public officials, (3) the presidential duty to uphold free market order and the right to private property, (4) the right to freedom of speech, and (5) protection of the right to life.Footnote ⁷ Under the second rubric, the charges consisted of (a) abuse of power, (b) extortion, and (c) leakage of confidential documents.

Following a successful impeachment prosecution in the National Assembly, the president’s powers were immediately suspended and handed over to the prime minister, one of her stalwarts, until the Court would make a decision within 180 days as to whether or not to uphold the motion.Footnote ⁸ While the Court was busy investigating the case in order to bring the constitutional crisis to an end, tens of thousands of people continued to rally in downtown Seoul to advocate that the Court make the “right” decision, one that would fully respect the sovereign power that they exercise collectively as democratic citizens.

TWO JUSTIFICATORY CONDITIONS

On March 10, 2017, three months after the National Assembly’s successful prosecution of the impeachment, the Court, modeled after the Federal Constitutional Court of Germany with the authority to adjudicate five key constitutional matters,Footnote ⁹ announced its landmark decision, upholding the motion to impeach the president for the first time in Korean history. The Court, at the time consisting of only eight members due to one justice’s recent retirement,Footnote ¹⁰ investigated, via two trial-like hearings, whether there had been violations by the president in the following four areas—(1) whether she had allowed Choi to interfere with state affairs, thereby abusing her powers, (2) whether she had abused her power by arbitrarily dismissing public officials, (3) whether she had violated the news media’s right to freedom of speech, and (4) whether she had failed in her duty to protect the citizens’ right to life. Though finding no compelling evidence to support violations in areas of (2), (3), and (4), the Court concluded that Park clearly had committed violations in the area of (1), grave enough to warrant her removal. In this section, let us examine the justificatory conditions that the Court set for itself in adjudicating the impeachment motion, against the backdrop of which we can assess its decision more clearly.

The Court began its decision by reaffirming the two conditions that had been introduced in its previous decision of President Roh’s impeachment, which together justified the presidential impeachment. The first condition stipulates that the president must have violated either the Constitution or statutes in exercising his or her official duties. The Court further explicated this condition as the following:

Worth noting here is the Court’s underlying assumption that normative decision making can be severed from political decision making when the highest court adjudicates what Rawls calls “constitutional essentials.” Rawls (Reference Rawls1993) famously distinguishes public matters concerning constitutional essentials, only to which public reason applies, from other political questions in formal and nonformal public forums and justifies a purely political form of liberalism, namely political liberalism, as the most compelling form of normative liberalism under the fact of pluralism. For Rawls (and for political liberals generally), political liberalism gives rise to a special mode of normative decision making that relies solely on public reason, from which comprehensive doctrines are completely disentangled, with a view to arriving at an overlapping consensus on the principles of justice that undergird a liberal democratic basic structure.

What is interesting about the Court’s reasoning is that while revealing a profound political commitment to a liberal democratic basic order, it presents its decision as a matter of a purely normative question solely concerned with the politically neutral principle of the rule of law. Like Rawls, the Court does not want its constitutional decision to be affiliated with a specific political group’s sectarian interests (and this seems to be what they meant by “the political”) but unlike Rawls, it does not clarify how the decision’s purely normative nature undergirds its political and nonneutral commitment to a liberal democratic basic order. These ambiguities notwithstanding, what seems to be certain from the statement is that the Court upholds liberal constitutionalism, and, accordingly, its jurisprudence is expected to revolve around liberal rights and associated values.

The second justificatory condition to which the Court drew attention—which we will call the gravity condition—is what in the Korean constitutional jurisprudence is known as “the principle of proportionality” (pŏbik hyŏngnyang ŭi wŏnch’ik). It is important to note that this principle was first introduced during the previous Roh Moo-hyun impeachment and in the present case the Court has this particular version of the principle of proportionality in mind, although, quite surprisingly, it did not mention this principle in the original Korean text of the decision.Footnote ¹² In the Roh impeachment case, the Court invoked the principle of proportionality in the course of clarifying the intention of Article 53(1) of the Korean Constitutional Court Act, which provides that “when there is a valid ground for the petition for impeachment adjudication, the Constitutional Court shall issue a decision removing the respondent from office.” According to the Court, the principle of proportionality stipulates that the mere presence of crimes or misdemeanors committed by the president does not automatically justify his or her impeachment. What counts additionally (and necessarily) is the requirement that the gravity of the wrong clearly overrides the public costs likely to incur from the impeachment. By introducing the principle of proportionality, the Court of the Roh impeachment case required “punishment under the Constitution proportionally correspond to the obligation owed by the respondent.”Footnote ¹³ In the present case, the Court illuminates the principle in the following way:

Two points are worth mentioning here. First, it should be noted that in appealing to the principle of proportionality, the Court set criminal procedure as a model in adjudicating impeachment.Footnote ¹⁵ Admittedly, the principle of proportionality plays a crucial role in criminal adjudication in determining the degree of punishment that fits the criminal’s desert. Though it is a matter of controversy among scholars whether desert in criminal justice can be determined apolitically (Brettschneider Reference Brettschneider2007), it is less controversial that in criminal adjudication proportionality provides a politically neutral principle for normative balancing. In contrast, it is highly controversial whether the principle of proportionality can assume a similar neutralist posture in the context of constitutional jurisprudence, especially one concerning a presidential impeachment, wherein normative balancing that determines the gravity (or desert) of the president’s constitutional or legal violation takes place between the expected public interests and the likely public costs that could result from the impeachment in relation to the entire political system. Unlike the criminal determination of desert and punishment, the constitutional determination of the gravity of the wrongdoing can hardly preclude political judgment as the decision must take into account such morally controversial questions as what the public interests consist of, what sorts of public costs can be reasonably expected, to what extent the putative public costs are bearable, and precisely how to balance public interests and public costs, both of which are mere estimated values, subject to moral disagreement and political debate. Apparently, the second justificatory condition for impeachment, which allows the Court extensive adjudicative space in morally controversial and politically polemical questions, does not seem to sit comfortably with the Court’s ambition, revealed in the first condition, to be politically neutral in dealing with constitutional essentials.

Second and relatedly, it is unclear how the second consideration for determining the gravity of the president’s constitutional or legal violation can be justified by the Constitution in a similar way that the first consideration can. Notice that the Constitution does not specify precisely what sorts of violations are subject to impeachment when it states that “[i]n case the President …. ha[s] violated the Constitution or other Acts in the performance of official duties, the National Assembly may pass motions for [his or her] impeachment.”Footnote ¹⁶ Nor does the Court see its task as “automatically mak[ing] a decision of removal from office in all cases where there is any valid ground for impeachment as set forth in Article 65(1) of the Constitution.”Footnote ¹⁷ The problem is that it is unclear whether the second consideration can be derived from Article 65(1) that defines the (grave) wrongdoing strictly in terms of legal violations in the performance of the president’s official duties and only in which the ground of impeachment is provided. Rather than directly appealing to the relevant clause of the Constitution, the Court here establishes the second consideration by drawing on the president’s democratic legitimacy. At the heart of the Court’s reasoning seems to be a series of propositions: (1) Korea is a democratic republic and the sovereign power resides in the people; (2) democratic election is a procedure by which one is authorized by the people to become and act as the president; (3) this authorization is underpinned on public trust expressed through free and equal voting; (4) the president’s (grave) legal violations seriously betray public trust democratically conferred; and (5) impeachment is to officially deprive the president of public trust (and by implication his or her democratic ruling legitimacy). However, there are two problems with this reasoning insomuch as impeachment adjudication is a purely normative or (apolitical) legal decision making, as claimed by the Court.

First, the relation between the first and second considerations is ambiguous. If, as stipulated in Article 65(1), there are grounds for impeachment only when the president has committed a legal violation in the performance of his or her official duties and the gravity of the violation is determined by the principle of proportionality and if this amounts to the betrayal of the trust of the people, there is no reason to establish the second consideration in addition to the first. The Court, however, is completely silent on this important question, that is, whether the second consideration is independent of or the logical corollary to the first consideration. This silence is quite surprising given the way the Court stipulated the two justificatory conditions for impeachment, only by meeting both of which, it claimed, the case of impeachment can be constituted.

Second, a more serious problem would occur if the Court’s intent is indeed to establish the second consideration as an independent ground for impeachment with equal normative force as the first consideration. The problem in this case is that it is far from obvious what is precisely meant by “betrayal of the trust of the people” or what it consists of independent of the president’s legal violation. If the normative power of impeachment does not necessarily come from the president’s violation of the Constitution or other statutory laws, where does it come from? If our reconstruction of the Court’s reasoning above captures what went through the minds of the justices more or less accurately, the Court must have derived the legal and normative ground for the second consideration from the principle of popular sovereignty as stipulated by Article 1 of the Constitution.Footnote ¹⁸ That is to say, the president’s breach of the democratic mandate creates a new normative basis on which the gravity of his or her crimes ought to be measured.Footnote ¹⁹

The underlying assumption here is that legal violation per se does not necessarily validate impeachment of the president who symbolically personifies rule of law for the entire nation, hence is more than merely the chief of the executive branch. It is additionally required that the violation in question must seriously breach the trust of the people, enough to nullify his or her democratic mandate. However, this reasoning brings the Court back to its own predicament noted earlier, that is, its ineluctable politicization. How can the Court justify the president’s breach of the trust of the people in a politically neutral manner, especially when the legal violation does not automatically and sufficiently constitute such a breach? This is not to say that breach of public trust should not be employed as a normative reason by which to determine the gravity of the president’s crime or misconduct. My point is that the Court’s explicit denial notwithstanding, it actively invites its own politicization by interpreting its task too extensively and in a way that is difficult to justify in purely liberal terms. If the president’s legal violation does not automatically give rise to sufficient reason for cancelling his or her democratic mandate and betrayal of the people’s trust is additionally required to satisfy the gravity condition of impeachment, what is the normative source of this additional requirement? The principle of rule of law alone does not seem to help here, nor does liberalism.

THE COURT’S DECISION

As noted, the Court supported the motion to impeach President Park by finding that she had critically violated her duty to uphold the Constitution by letting her private confidant interfere in the government and allowing her to access and edit confidential public documents, and that she had executed her power in ways that repeatedly and systematically helped her personal friend to serve her private interests, even though the Court judged the other charges brought by the National Assembly to lack legal grounds for impeachment prosecution. The Court presented its decision in three parts:

1. The president whose democratic legitimacy derives directly from the people and to whom the authority of popular sovereignty is delegated ought to exercise his or her powers legally in accordance with the Constitution and other statutes and his or her conduct of all of the public duties, except for ones that by nature require confidentiality, must be publicly transparent and subject to the people’s assessment. … [However,] whenever allegations were made that the respondent conducted state affairs by taking advice from the so-called shadowy powers instead of formal public organizations such as the executive branch and the Office of the President, she denied them and accused those who had raised suspicions. … Although both the National Assembly and the press had pointed out this problem, the respondent … [continued to] allow for Choi’s meddling in state affairs, abused the power delegated to her by the people by helping Choi and company to seek their private interests, and tried to conceal all of this completely [from public scrutiny]. This is a critical violation of the President’s duty to uphold the public good as it undermines the principle of representative democracy and the spirit of the rule of law.

2. Though the respondent made an apology to the people in her first public statement made on October 25, 2016, when Choi’s meddling in state affairs was first brought to public attention, it lacked sincerity as it did not tell the truth about the exact period during which Choi’s meddling had taken place and what she had done during that period. In her second public statement that soon followed, the respondent pledged to make her best effort to cooperate with the investigation on all suspicions [regarding her misconduct] and further expressed her willingness to accept any form of state investigation, by the Public Prosecutor’s Office or the Independent Counsel. However, [as it turned out,] not only did the respondent avoid inquiries by public prosecutors and the independent counsel but she also refused the seizure-and-search on the Office of the President, thereby obstructing an investigation on her. As such, instead of trying to regain the trust of the people that had been lost upon her violations of the Constitution and laws, the respondent rather made insincere public apologies and failed to keep her promise to the people. Given the respondent’s speech and conduct … it is hard to verify whether she has a sincere commitment to the preservation of the Constitution.

3. In sum, it is concluded that the respondent’s conduct in violation of the Constitution and laws reveal her betrayal of the trust of the people, involving grave violations of the law, which cannot be tolerated from the standpoint of the preservation of the Constitution. Since the negative impact of the respondent’s legal violations on the constitutional order is grave and also considering its further-reaching [negative] implications, it is determined that the interest of preserving the Constitution, which can be gained from removing the respondent who holds democratic legitimacy directly from the people from office overrides the national losses that may incur upon her removal. [Therefore, the Court orders that] the respondent be removed from her presidency.Footnote ²⁰

THE MODEL OF CONFUCIAN CONSTITUTIONALISM REVISITED

Earlier, I captured Ginsburg’s idea of Confucian constitutionalism in terms of both the highest court’s structural relation vis-à-vis the president and the normative model that it generates, namely the rule by “the elite guardians of fundamental values.” Of course, in suggesting the model of Confucian constitutionalism, Ginsburg’s guiding passion was neither to empirically demonstrate the legal reality of constitutionalism in Korea and Taiwan that is directly undergirded by Confucian philosophical doctrines or moral values nor to advocate the model as a moral vision after which the existing constitutional structures of Korea or Taiwan ought to be reconstructed. Rather, Ginsburg had quite a modest goal, namely, to suggest the model of Confucian constitutionalism as an explanatory framework to make sense of the unexpected rise of judicial review (and the judicialization of politics in the case of Korea) in societies whose Confucian political culture has long been associated with authoritarianism of various sorts (Ginsburg Reference Ginsburg2011). Does our case affirm Ginsburg’s model?

At the core of “the distinctive style of judicial review” that Ginsburg attributes to the Korean Constitutional Court is the role that it has been playing in relation to the president, the modern-day equivalent of the emperor, similar to that played by the Confucian ministers “remonstrating the emperor, sometimes suggesting or advising but not demanding action” (Ginsburg Reference Ginsburg2002, 792).Footnote ²⁸ According to Ginsburg, “constitutional law as remonstrance” has been most evident in political cases in Korea in which the Court had to adjudicate cases that involve serious conflict of interest between the president and the legislature and thus would likely challenge the president’s authority. In such cases, argues Ginsburg, the Court’s “ability to ‘remonstrance’ [has been] facilitated by the adoption of the German institution of levels of unconstitutionality” (Ginsburg Reference Ginsburg2002, 792), which helps it to avoid a black-and-white decision that may intensify the conflict between the president and the legislature. One of these different levels of unconstitutionality is to find the act “nonconforming with the Constitution” (Unvereinbar or hŏnpŏp pulhapch’i in Korean), which “essentially is to recognize the unconstitutionality of the law in question but let it stand until a given deadline for the legislature to enact a new legislation compatible with the Constitution” (Hahm Reference Hahm2015, 44 n. 8). The original rationale of this decision is twofold: first, to avoid a legal vacuum that can be created by a sudden invalidation of a law, and second, to ensure the principle of separation of powers “requir[ing] the Court to respect the National Assembly’s power and freedom to legislate” (ibid.). In controversial political decisions that involve the conflict between the president and the legislature, this mode of decision can convey to the president that his or her siding with the law in question is wrong without directly challenging him or her by returning the case to the legislature and allowing it to enact a new law. In this way, the president can save face in front of the public. In Ginsburg’s view, therefore, decisions like “nonconforming with the Constitution” have this additional—i.e., Confucian constitutional—effect other than what was originally intended by the liberal constitutional rationales.

At first glance, our case markedly differs from “constitutional review as remonstrance” (which may perfectly explain the case of President Roh’s impeachment as mentioned at the beginning of this Article) in that the Court went so far as to remove the president from office rather than merely admonishing her. However, it would be too quick to conclude that the model of Confucian constitutionalism does not hold because then it would structurally preclude from Confucian constitutionalism an institutional option of removing the president who committed a legal violation from office, which is against the Korean Constitution as well as the principle of separation of powers. In the present case, we have noted that both the Court’s decision appealing to the (unwritten) sincerity provision and the supplementary statement provided by Justices Kim and Yi that drew attention to the president’s violation of the faithfulness provision fulfilled the constitutional function of moral admonishment, not only chastising the incumbent president who is now being removed, but also warning future presidents.

Now, it is worth mentioning that the second supplementary opinion offered by Justice An Ch’ang-ho, which we have not discussed so far, also took part in the Court’s admonishing role, both by chastising the incumbent president, like the Court’s decision and the first supplementary opinion, and more interestingly, by critiquing the entrenched political structure of “imperial presidency” that had long bedeviled Korean politics and offering specific suggestions for constitutional reforms, a highly unconventional move for a Constitutional Court Justice to take. As was the case with the first supplementary statement, what is noteworthy about Justice An’s statement is his underlying motivation and the mode in which he presents his critical reflection on the Korean constitutional structure and Korean politics in general.

Given the Court’s purely legal self-understanding, it is surprising that Justice An’s concern is not with impeachment adjudication as such. Rather, his much deeper concern lies in the diagnosis of the institutional origin of the current constitutional crisis and the search for a new normative standard for constitutional order and culture that can guide the future of Korea. Thus understood, the justice’s statement is more a comprehensive moral critique of Korean politics than a legal judgment.Footnote ³⁰

Justice An’s ostensible interest in constitutional reforms notwithstanding, what makes the moral nature of his statement more salient is his firm belief that it is on the political leader’s moral character that the quality of constitutional order and culture critically hangs, when he cited a saying by an anonymous ancient worthy, which emphasizes the crucial importance of the ruler’s willingness to abide by the law as one crucial aspect of his moral character and its moral impact on the ordinary people and the moral climate of the society. Although Justice An did not provide the exact reference of the quote,Footnote ³¹ his intent was clear enough and it was undoubtedly Confucian. Consider the following statement by Xunzi, one of the ancient Confucian masters:

The point Xunzi is trying to make is that the rules and legal categories (fa 法), however important they are in ordering the state, cannot stand alone independent of the “right person” who can operate them properly. Likewise, Mencius, another ancient Confucian master, submitted essentially the same argument when he stated that “[g]oodness alone does not suffice for the conduct of government; laws alone do not implement themselves” (Mencius 4A1).Footnote ³³ That is, for Mencius, both laws and the ruler’s moral character require each other and together they constitute what can be called “Confucian virtue politics,” a unique mode of politics that relies on the ruler’s moral character for its effective operation. Therefore, noting the fundamental importance of the ruler’s moral character in operating the legal and political institutions, Eric Hutton captures the gist of Confucian politics in terms of “virtue ethics,” at the core of which is the stipulation that “[i]f there are people who do have robust character traits and are resistant to situational variation, they can design and reliably maintain the broad range of institutions and situations that facilitate good behavior for everyone else” (Hutton Reference Hutton2006, 50).

In Confucian virtue politics, the purpose of politics is understood to be the enhancement of the well-being of the people and the proper political leadership for this task is captured in terms of the ruler’s ability to extend his care to the people. According to Mencius, a good government can be achieved by “treating the elders in [the ruler’s] own family as elders should be treated and extending this to the elders of other families, and by treating the young of one’s own family as the young ought to be treated and extending this to the young of other people’s families” (Mencius 1A7). As Mencius sees it, the key to the ruler’s ability to “extend” his care to others is his capacity of empathy. Most tellingly, in his conversation with one of the rulers of his time, Mencius notes that the fact that the king, in seeing an ox being taken to serve as a blood sacrifice, ordered to spare it because he could not bear its trembling, powerfully revealed his innate goodness in the sense of possessing a commiserating heart and in order for him to become a good ruler all that was required of him was to extend this heart, namely the capacity of empathy, to the people (ibid.).Footnote ³⁴

Though Confucius did not articulate his idea of virtue politics under the philosophical assumption of the goodness of human nature, he, too, was strongly convinced that the locomotive of Confucian virtue politics is the ruler’s self-rectification in goodness. Thus, Confucius famously said, “To ‘govern’ (zheng 政) means to be ‘correct’ (zheng 正). If you set an example by being correct yourself, who will dare to be incorrect?” (Analects 12.17)Footnote ³⁵ A ruler who has been morally corrected by, as Mencius later elaborates, developing his or her nascent moral sentiments and extending them to others through empathetic engagement does not prioritize sufficient food or sufficient armaments, which many consider essential for a strong state. For Confucius (and Confucians), “a state cannot stand once it has lost the trust [xin 信] of the people” and it is the ruler’s trustworthiness that garners the confidence of the people in the government and thus makes the state well-ordered.

Seen in this way, Confucian virtue politics is predicated on several core propositions that give rise to distinctive constitutional principles and practices. First, the state exists to serve the well-being of the people. Second, in order to commit himself to the well-being of the people rather than his own self-interest, the ruler ought to develop a formidable moral character, at the heart of which lies care for the people. Third, a good ruler who relies on his (empathetic) moral character for effective government resorts only minimally to penal code, punishment, and other coercive measures, and this helps elicit voluntary compliance from the people.Footnote ³⁶ And finally fourth, political order can be achieved when there is trust between the ruler and the ruled and only if each member, starting with the ruler, fulfills his ritually ordered social roles and obligations faithfully.Footnote ³⁷

The kernel of classical Confucian constitutionalism consists in the creative intersection between “rule by virtue” (dezhi 德治), stressing the critical importance of the ruler’s moral character (benevolence or ren 仁 in particular) for good government, and “rule by ritual” (lizhi 禮治), focused, above all, on the moral and institutional constraint of the ruler’s arbitrary use of power,Footnote ³⁸ and this intersection creates what Bui Ngoc Son calls (the principle of) constitutional rectification (Bui Reference Bui2016, 61). As Hahm’s pioneering study on Confucian constitutionalism powerfully shows, during Korea’s Chosŏn dynasty (1392–1910) Confucian rituals (li 禮) played a pivotal political role as the source of constitutional norms and they were frequently invoked by the Confucian scholar-officials whenever they attempted to discipline (or rectify) the ruler (Hahm Reference Hahm2015).

Though both Bui and Hahm pay special attention to various discursive sources that facilitated rule by ritual in the premodern Confucian polity such as the way of the former kings, Confucian classics, and the ancestral precedents, they tend to gloss over the critical importance of Korean Neo-Confucianism that provided (ritual-based) Confucian constitutionalism with a deeper metaphysical foundation. Roughly stated, Korean Neo-Confucians believed that ritual order is and ought to be grounded in the moral and cosmological principle—called Heavenly Principle (tianli 天理)—that interconnects all things in the universe into a seamless whole, rejecting the separation between politics and ethics, and that ritual order, as pivoted on the all-encompassing moral principle representing the Public Way (gong dao 公道), should not be understood as a mere political convention that is subject to the ruler’s capricious will and private interest (si yu 私慾). In Korean Neo-Confucianism, therefore, the state was far from the ruler’s private possession; rather, it was envisioned as the political embodiment of the Public Way, committing the polity directly (i.e., passing the ruler’s private interest) to the well-being of the people, the telos of Confucian virtue politics.

When reformulated by Neo-Confucianism, Confucian virtue politics gains a firmer constitutional foundation which consists of the following core stipulations: (1) a Confucian polity exists to serve the well-being of the people; (2) the state is predicated on the Public Way, hence not the ruler’s private possession; (3) as a public entity, the state should be responsive to the need of the people who vicariously represent the will of Heaven; (4) in order to enhance such public responsiveness as well as to prevent the state from becoming a mere means to satisfy the ruler’s private interest, political power ought to be shared by the king and the Confucian scholar-officials, who, immersed in Confucian classics and moral self-cultivation, collectively represent the “public opinion” (gonglun 公論), an opinion embodying the Heavenly Principle; and (5) there should be supplementary institutional mechanisms such as the Royal Lecture and the Censorate through which the Confucian scholar-officials can educate, remonstrate with, and hold accountable the ruler in the name of the Public Way (Mo, Reference Mo, Bell and Hahm2003).Footnote ³⁹

This brief excursion to Confucian virtue politics and traditional Confucian constitutionalism enables us to see strong resonance between the core stipulations of Confucian virtue politics and Justice An’s moral reasoning. In fact, similar resonance is generally found between traditional Confucian constitutionalism and the Korean Constitutional Court’s overall moral reasoning (including the first supplementary opinion), which, as we have seen, is difficult to make sense of in purely legal terms and from the perspective of “the liberal democratic basic order.”

First, the Court’s repeated but somewhat ambiguous appeal to the people’s trust can be perfectly understood with reference to Confucianism’s strong emphasis of the ruler’s virtue of trustworthiness as an ability to draw confidence from the people. Recall that the gist of ambiguity in the Court’s appeal to the people’s trust from both legal and liberal-democratic viewpoints had to do with whether the president’s legal violation, which signals a betrayal of the democratic mandate by the people, refers to the betrayal of the people’s trust or has an independent moral weight to determine the gravity of the president’s wrongdoing. From the Confucian standpoint, however, the president’s unlawful conduct gives rise to a serious normative violation because they betray both the people’s democratic trust, conferred via free and equal election, and their moral trust in her as the moral exemplar who deserves their respect and allegiance.

Second, the Court’s sincerity provision (as I named it) can be explained by the justices’ unspoken subscription to the core assumption of Confucian virtue politics. As noted, the problem with the Court’s appeal to the president’s insincerity in her public apologies as the evidence attesting to her “grave” betrayal of the people’s trust was that there was no clear statutory ground for it. The trouble was that from a purely legal perspective, it was difficult to understand how the president’s “insincerity” in her public apologies, which are not even part of her official duties, has anything to do with her legal culpability and how it weighs in the calculation of proportionality. We remain untold precisely how the president’s insincerity made her legal violation grave, sufficient to override the public costs reasonably expected from her impeachment. Confucianism provides the very source of the unspoken legal provision that, at least partly, determines the gravity of the president’s betrayal of the people’s trust. From the viewpoint of Confucian virtue politics, the president’s insincerity repeatedly found in her public statements intended to apologize to the people for her misconduct powerfully demonstrates her utter failure in moral self-cultivation, disqualifying her from the heavy responsibility of the presidency.

Finally, third, the Confucian paradigm of virtue politics helps us to understand the moral ground on which Justices Kim and Yi paid special attention regarding the ideal of political leadership in their supplementary statement. Again, political leadership idealized by the justices had little to do with liberal constitutional values and norms; rather, it was conceived primarily in terms of the leader’s moral ability to engage empathetically with others, not only the victims of disasters and their families but also the entire nation. While liberal democratic leadership rarely draws attention to the importance of the capacity of empathy, the proper operation of Confucian virtue politics is practically inconceivable without the presence of political leaders equipped with it. Mencius vilified rulers who were callous to the suffering of the people as “nonbenevolent” (bu ren 不仁) and found them no different than tyrants who actively harmed the people (Mencius 4A2; 1A3).Footnote ⁴⁰ For the justices, although the president’s failure to live up to the moral ideal of political leadership did not create sufficient grounds for impeachment, they thought that it was worth mentioning because it involved a critical violation of what good government stands for, which Mencius captured in terms of “benevolent government” (ren zheng 仁政).

Seen in this way, the Court’s decision and the two supplementary opinions affirm the model of Confucian constitutionalism not only from the standpoint of the Court’s structural relation to the president as the office of remonstrance, but as just revealed, in terms of the substance of their argument and the mode of moral reasoning. This leads to our final question, whether the Confucian style of judicial review in Korea, as confirmed thus far, also vindicates Ginsburg’s observation of the justices of the Korean Constitutional Court as the “elite guardians of fundamental values,” or, put differently, whether the justices’ self-imposed role as the guardians of fundamental values gave rise to Confucian constitutionalism.

But what values are we talking about? Interestingly, in capturing judicial review in Korea (and Taiwan) from the perspective of Confucian constitutionalism, Ginsburg does not answer this important question, merely assuming that “the fundamental values” that the Court aims to protect or promote are the constitutional values to which the Korean polity is formally and directly committed. In this assumption, the fundamental values signify liberal democratic values, mainly consisting of liberal rights, liberties, and political equality. However, as we have seen, the values that the Court aimed to promote were not limited to liberal democratic values. In fact, it upheld with equal enthusiasm key Confucian values such as benevolence (ren), capacity of empathy (ce yin zhi xin 惻隱之心), sincerity or faithfulness (cheng 誠), and trustworthiness (xin 信), although it never mentioned “Confucianism” in so doing or made it its formal task to explicitly promote Confucian values. In a sense, it is by appealing to Confucian values that the Court was able to protect Korea’s democratic constitution that is liberal in its formal structure.Footnote ⁴¹

Likewise, the Court’s self-imposed role as the elite guardians of fundamental values can be better understood against the backdrop of its strong, albeit informal, influence by Confucianism. That is to say, just as the Court’s moral reasoning was importantly informed by Confucianism, so was its self-understanding inspired by the Confucian ideal of elite intellectuals. At the heart of this ideal is what Thomas Metzger aptly calls “optimistic epistemology” which posits that “the objective public good can be fully known” (Metzger Reference Metzger, Kaviraj and Khilnani2001, 211). Recall that the Court upheld the legislative motion to impeach the president on the basis of public interests resulting from such a decision without demonstrating precisely what they consist of and how they override the expected public costs to be incurred by the same decision. The Court did not even ask the prosecutor (the chairman of the National Assembly’s Legislation and Judiciary Committee) and his team made up of several members of the National Assembly to articulate the expected public benefits of the impeachment, as if the question of the public good was beyond the “political,” which was in their view nothing but sectarian controversy. In the same vein, when Justices Kim and Yi chastised the president in light of the moral ideal of a good political leader, they proceeded as if that ideal is taken for granted, hence dismissing the possibility that it can be subject to moral controversy. All the more puzzling, Justice An’s second supplementary opinion justified its recommendation of constitutional reforms as a moral demand from “the spirit of our time” (Zeitgeist), without acknowledging its moral contestability under the circumstances in which people subscribe to different interpretations of what the guiding historical spirit is or ought to be in the present time. Metzger’s illumination of optimistic epistemology that characterized traditional Confucian China seems to be directly germane to our Korean case.

On this account, the justices of the Korean Constitutional Court (Justice An in particular) “look[ed] down on the degeneration of state institutions” and the president’s and her confidant’s pursuit of “private profits” from the perspective of “super-citizens claiming to embody the [public] conscience of society.” The only difference between traditional Chinese (or Confucian) elites and the Korean justices is that for the latter, liberal values as well as Confucian values constitute the fundamental values that undergird the conscience of Korean democratic society. As “super-citizens,” constitutional justices in Korea could define the moral ideal of political leadership, appeal to Zeitgeist, call for constitutional reforms (seemingly transgressing the legal and political authority of the legislature), chastise the president’s insincerity, lack of empathy toward the people, and her (moral as well as legal) betrayal of public trust, and, ultimately, remove the president from office on the grounds of her legal violations as well as moral failures that made the former more serious and wrong.

In the end, what we find here is a lingering influence of traditional (Neo-)Confucian constitutionalism on constitutional jurisprudence in contemporary Korea.Footnote ⁴³ Both the fact that the Court did not explicitly cite terms such as “Heavenly Principle, “the Public Way,” and “the Public Opinion” and the fact that none of the justices were formally trained in or self-consciously committed to Neo-Confucian moral metaphysics and political theory may likely lead one to deny this surprising continuity between traditional Confucian constitutionalism and contemporary Korean, otherwise liberal, constitutionalism. After all, it is commonly noted that in the course of democratic consolidation the Court has actively nullified statutes that critically violate Korea’s core constitutional values such as human dignity, gender equality, and the pursuit of (individual) happiness, thereby asserting itself as a bulwark of liberal progressivism. In many of its landmark decisions including the abolition of the family head (2005), often characterized as the grand showdown between liberal individualism (or liberal feminism) and traditionalist Confucianism, it was almost always the former that won the legal victory. Or so has been the common observation (Hahm Reference Hahm, Bell and Hahm2003; Yang Reference Yang2006). As recent scholarship forcefully attests, however, it was not so much a one-sided victory but rather cultural reinterpretations and contestations in which, as Chaihark Hahm puts it, “the very definition of Confucian civility [has been] renegotiated through legal discourse” (Hahm Reference Hahm2004, 284). In the 2005 case of abolition of the family head, for instance, what actually happened can be better described as the negotiation between formal constitutional principles such as human dignity and gender equality, commonly understood as liberal values, and Confucian values such as ancestor worship, respect for elders, filial piety, and harmony in family, thus producing a “Confucian yet democratic” citizenship (Kim Reference Kim2016, 124), a mode of hybrid citizenship in which traditional Confucianism has been adapted to democratic principles and social conditions while liberal values of the Western provenance have likewise been accommodated to the Confucian conception of the good life.

What makes such cultural negotiations more or less successful in constitutional jurisprudence in Korea is the special normative position that the constitutional justices occupy not only in Korea’s legal system but, more importantly, in the Korean cultural atmosphere deeply embedded in Neo-Confucian mores and values. Though their formal training is hardly Confucian, like Neo-Confucian scholar-officials in premodern Korea, the constitutional justices successfully passed the national bar examination, admittedly the contemporary equivalent of the civil examination, and their nonpartisan stance and supposedly impartial commitment to the common good strongly echo “super-citizenship” of the kind exercised by their Neo-Confucian predecessors struggling to uphold the Public Way, especially those in the Censorate whose main task was to put the ruler back in the right track (i.e., the Way or dao 道) of the government when he went astray from it by communicating to him what they deem to be the “true public interest.” In fact, and as Ginsburg’s model suggests, albeit implicitly, the relative ease with which the Court has been able to establish itself rapidly as the most trusted public institution in post-democratic Korea, which is in marked contrast with the deplorably low public trust in political parties,Footnote ⁴⁴ can be made more intelligible when approached against this cultural backdrop.

The “true public interest” in question, however, has not been singularly dictated by concerns with liberal rights, freedoms, and opportunities that drive liberal constitutionalism in the West. Even when the Court abolished the notorious family-head system, it never disowned traditional Confucian values including filial piety and respect for elders wholesale; quite the contrary, it publicly reclaimed the pivotal importance of such (and related) values by noting, to some radical feminists’ dismay, that they would (and should) remain intact even after the abolition of the family-head system.Footnote ⁴⁵ The point is that if high public trust in the Court in Korea is based on its pronounced impartiality and commitment to true public interest, as far as actual constitutional jurisprudence is concerned, what constitutes the very content of impartiality or public interest is not determined by liberal values alone. Rather, as our case reveals, it is often the creative amalgam between liberal values and Confucian values that has guided the Court’s so-called impartial public judgment.

Here arises a question. If Korean constitutionalism, despite its formal commitment to liberal constitutional norms and values, is not solely propelled by liberalism as such but also motivated by Confucian values and moral reasoning, how can we make sense of this curious cohabitation? How can we make sense of the Confucian side of Korean constitutional jurisprudence that coexists with the Court’s liberal commitment? I conclude this Article by turning to this puzzling question.

CONCLUSION: INDIRECT CONSTITUTIONALISM?

The fact that Ginsburg focused only on the Korean Constitutional Court’s structural relation with the president (and to a less degree, the legislature) or its distinctive style of judicial review, but not on the nature of the fundamental values that it was committed to guarding, suggests that he did not understand Confucian constitutionalism as a normative alternative to liberal constitutionalism. However, the findings that the Korean Constitutional Court is committed to Confucian values as much as to liberal values and that liberal values that formally inform the constitution are protected by means of Confucian-inspired moral reasoning and intellectualism (or optimistic epistemology) raise an important theoretical question as to how we should understand Confucian constitutionalism in the context of formal liberal democratic constitutionalism. Should it be understood as an element, a regrettable relic of Confucianism of the past, that only interferes in the coherent operation of liberal constitutionalism in Korea? Or, since Confucian constitutionalism is the factor that significantly contributes to judicial activism in Korea via its reliance on the few super-citizens’ optimistic epistemology, should it be discouraged or eliminated so that the Korean polity can be more robustly democratic?

Indeed, throughout this Article I attributed several ambiguities that the Korean Constitutional Court revealed—its oscillations between its purely neutral task and its overtly political judgment and suggestions, between its purely legal task and its moral(istic) reasoning and conclusions, between its commitment to a liberal democratic basic order and its anti-liberal and non-democratic epistemic stance, among other things—to its tacit commitment to Confucianism. In this regard, it can be said that Korean constitutionalism is marked by a curious juxtaposition between liberal constitutionalism on a formal level and Confucian constitutionalism as an informal practice. Instead of finding this incongruence between two incommensurable modes of constitutionalism troublesome, I propose that we understand Confucian constitutionalism operative in tandem with liberal constitutionalism, to which the Korean polity is formally and directly committed, as what can be called indirect constitutionalism, a mode of constitutionalism that aims to shape the polity’s constitutional identity in a way that achieves a meaningful, if not full, congruence between liberal constitutional principles and the underlying moral tradition and public culture that mark the polity as a distinctive moral community (Kim Reference Kim2016, 122–24).

The idea of indirect constitutionalism helps us to translate what may be deemed to be a case of legal incoherence or a clash of two constitutional aims and practices into a curious cultural communication between the polity’s formal constitutional values and principles and the background culture of civil society that is not embedded in such principles and values. Indirect constitutionalism makes sense especially in societies like Korea and Taiwan that have recently undergone liberal democratic transitions and their highest courts were produced or significantly reinstitutionalized as a result. In such societies, there is a notable gap between the polity’s formal liberal constitutional identity and the Confucian public culture that still importantly influences the citizenry’s moral sentiments, values, reasoning, and practices. Indirect constitutionalism encourages a constitutional practice that bridges the cultural and normative gap between liberal values and principles on the one side and local values and practices on the other, thereby giving rise to a constitutional practice that is neither Western-liberal nor traditionally local but one that is robustly democratic, sufficiently liberal, and moderately cultural. If we understand local cultural values, to which the constitutional court is implicitly committed to promoting, as “quasi-constitutional values,” indirect constitutionalism can be redefined simply as a mode (or dimension) of constitutionalism aimed to promote or engage in quasi-constitutional values within the formal liberal constitutional framework.

When understood in terms of indirect constitutionalism, therefore, Confucian constitutionalism does not aim to replace or directly compete with liberal constitutionalism. And this is the most important feature of Confucian constitutionalism that I am discussing and proposing in this Article in comparison with its various suggestions currently explored by many Chinese scholars including Jiang Qing (Reference Jiang and Ryden2013) who understands “Confucianism” in a comprehensive religious sense and thus presents Confucian constitutionalism, underpinned on distinctively Confucian institutions, as a stark alternative to liberal constitutionalism.Footnote ⁴⁶

Of course, it is not an easy task to achieve a constitutional balance among democratic, liberal, and cultural components that undergird a single constitutional practice and it cannot be predetermined by a philosophical fiat exactly what sort of balance should be pursued or prescribed for a given society, which can only be determined in consideration of the society’s specific cultural, social, and political circumstances. In this regard, it is open to debate whether the version of Confucian constitutionalism that implicitly informed the Korean Constitutional Court’s jurisprudence and decision was the most optimal or desirable one. And it is equally debatable whether the justices’ self-imposed role of super-citizenship would continue to contribute to democratic consolidation that the Korean polity has been painstakingly pursuing in the past three decades. What is certain, however, is that Confucian constitutionalism as indirect constitutionalism has successfully helped to protect Korea’s otherwise liberal-democratic constitutional order and largely lived up to the moral and political aspirations of Korean civil society that is itself “ethical” by character (Cho Reference Cho1997; Kim Reference Kim2018). At any rate, it would be premature or even reckless to attempt to get rid of Confucian constitutionalism in Korea in order to achieve a pure, more internally coherent, form of liberal constitutionalism.