Marie Kim

This book project sets forth a comparative study of the role of the courts in political transitions, focusing on the judicial process and jurisprudence in constitutional authoritarianism. Of late, scholars have noted the emergence of a kind of transnational constitutionalism, in which the courts claim the right of judicial review of constitutional amendments in order to protect the constitution’s substantive core of basic norms. The positivist dilemma of unjust laws and the subsequent rise of attention to human rights have led to a growing tendency to resort to the notions of natural law. It originated from postwar German jurisprudence that recognized the idea of superior constitutional norms, distinguished from other constitutional norms. The trend quickly spread to other countries, even to those that did not share Germany’s tortured past under the Nazis. The resulting shift toward judicial activism has prompted questions about the nature of constitutionalism, giving rise to the problem of an "unconstitutional constitution". Can the courts, institutions created by the constitution, declare void constitutional amendments on the grounds that they violate the superior norms of the constitution or fundamental rights?

The developments in South Korea present a reference point of particular poignancy. Having recently undergone a transition from authoritarianism to democracy, South Korea, the only country still mired in the Cold War conflict, presents a critical arena in which one can reflect on important theoretical issues in a concrete historical setting. President Park Chung Hee ruled with broad emergency powers from 1972 until his assassination in 1979. The constitutional state of emergency caused serious predicaments for judges faced with the task of balancing individual rights and national security. Following democratization in 1987, the courts have come under much backlash. The tides of transitional justice have in turn led the judiciary to shift to judicial activism, largely in line with the global trend to resort to natural law and claim the power to review constitutional amendments. The South Korean experience captures the dilemma of judges caught between the duties of implementing law and pursuing justice, the resolution of which, if ever possible, would require a reasoned reflection of law, the constitution, and judicial role.