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Philosophy of Law in Korea When Korea began as a newly independent state in 1948, its economy was very underdeveloped, and the rule of law was just established. The journey of democratization in Korea was not without challenges. This book traces the history of the legal philosophy development in Korea and highlights Korea’s unique experience. This book shows how Western legal philosophy has been accepted in Korea, a non-Western country that has newly introduced the Western legal system, and what role the legal philosophy has played in social context. The book also examines academic scholars’ intellectual activities in a historical context and how their intellectual products are yielded through their continuous response to the circumstances of the time. It specifically looks at the many challenging tasks legal philosophers had to overcome in a society when the rule of law and democracy had not yet settled. The book explores how Korean legal philosophers coped during such unique historical situations. It also illustrates how Korean scholars accepted German and Anglo-American legal philosophies and integrated them to change social realities of Korea. Through Korea’s experience, this book will provide insights into how modern legal philosophy develops in a new state and what legal philosophers’ responses would be like during such a process. The developing process of legal philosophy in Korean society will interest not only readers in countries who have had similar experiences to Korea, but also readers in the West. Jeong-Oh Kim is Professor at Law School, Yonsei University. He received B.A. and M.A. in law from Yonsei University in Korea and S.J.D. degree from University of Wisconsin-Madison. He served as the president of the Korean Association of Legal Philosophy and as the president of the Korean Association of Legal Sociology. Also, he was a dean of Yonsei Law School. He published many articles on critical legal studies and social theories of law and conducted empirical research on civil litigation and public litigation to reveal the changing trend of Korean legal culture. Hak-Tai Kim is Professor at Law School, Hankuk University of Foreign Studies. He received Dr. iur. from University of Saarbruecken in Germany. He served as the president of the Korean Association of Legal Philosophy and as Senior Vice President of Financial and External Affairs at Hankuk University of Foreign Studies. He published several books in Korea: Time of Life and Human Dignity in Modern Medical Science; Interpretation and Application of Law; and Law and Truth. Joon-Seok Park is Professor at Law School, Jeonbuk National University. He received Ph.D. from Seoul National University and served as research director of the Korean Association of Legal Philosophy. He published several books in Korea: Making Law Intelligible – Essays in Legal Ideas and The Concept of Authority. Dong-Ryong Shin is Professor at School of Law, Kangwon National University. He received Ph.D. from Yonsei University. He served as the general secretary of the Korean Association of Legal Philosophy. He spent a year as a visiting scholar at College of Law, Exeter University in the United Kingdom. He published articles on communitarianism, copyright, and western legal philosophy of middle age. Routledge Studies in Asian Law Civil Unrest and Governance in Hong Kong Law and Order from Historical and Cultural Perspectives Edited by Michael H.K. Ng and John D. Wong Writing Chinese Laws The Form and Function of Legal Statutes Found in the Qin Shuihudi Corpus Ernest Caldwell National Identity and Japanese revisionism Abe Shinzō’s vision of a beautiful Japan and its limits Michal Kolmaš Constitutional Remedies in Asia Edited by Po Jen Yap Chinese Legal Culture and Constitutional Order Shiping Hua Land Law and Disputes in Asia In Search of an Alternative for Development Edited by Brian Z. Tamanaha, Narufumi Kadomatsu and Yuka Kaneko China’s Foreign Investment Legal Regime Progress and Limitations Yuwen Li and Cheng Bian Philosophy of Law in Korea Acceptance, Engagement and Social Change Jeong-Oh Kim, Hak-Tai Kim, Joon-Seok Park, Dong-Ryong Shin For more information about this series, please visit: www.routledge.com/asian studies/series/RSIAL Philosophy of Law in Korea Acceptance, Engagement and Social Change Jeong-Oh Kim, Hak-Tai Kim, Joon-Seok Park and Dong-Ryong Shin First published 2023 by Routledge 4 Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 605 Third Avenue, New York, NY 10158 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2023 Jeong-Oh Kim, Hak-Tai Kim, Joon-Seok Park, Dong-Ryong Shin The right of Jeong-Oh Kim, Hak-Tai Kim, Joon-Seok Park, Dong- Ryong Shin to be identified as authors of this work has been asserted in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library ISBN: 978-0-367-74178-5 (hbk) ISBN: 978-0-367-74179-2 (pbk) ISBN: 978-1-003-15643-7 (ebk) DOI: 10.4324/9781003156437 Typeset in Galliard by Apex CoVantage, LLC Contents Acknowledgments x Introduction 1 JEONG-OH KIM 1 Understanding the Philosophy of Law 1 2 Korea’s Modern History 2 3 Philosophy of Law in a Social Context 6 4 Reception of Continental and Anglo-American Legal Philosophies 9 1 Legal Philosophy and Social Change in Korea 20 DONG-RYONG SHIN AND JEONG-OH KIM 1 Introduction 20 2 Korean Legal Philosophy: Colonization, Liberation, and the Korean War 21 2.1 Liberation from Japanese Imperialism 21 2.2 Judicial Practice During the Korean War 22 3 Korean Legal Philosophy During Authoritarianism 23 3.1 A History of Oppression and Resistance 23 3.1.1 Rhee’s Authoritarianism and the April Revolution 23 3.1.2 Park’s Dictatorship and the Yushin Constitution 24 3.1.3 Chun’s Military Coup and the 5.18 Gwangju Democratization Movement 24 3.2 A Dark Age for Natural Law Theory 25 3.3 Blind or Critical Legal Positivism 27 3.4 What is a Korean Legal Culture? 29 3.5 Korean-Style Natural Law Theory: Pungto Theory and Gikbun Ethics 30 viii Contents 4 Korean Legal Philosophy During Civil Revolution 32 4.1 Longing for Democracy 32 4.1.1 The New Resistance Movement 32 4.1.2 The Civil Revolution of 1987 33 4.2 For Human Dignity and Democracy 33 4.3 Abolishing Evil Laws 35 4.4 Revealing Capitalist Ideology 36 4.5 Punishing Dictators 37 5 Korean Legal Philosophy in the Age of Liberalism and Value Pluralism 40 5.1 New Missions 40 5.2 Institutionalizing Civil Democracy 41 5.2.1 The Convergence of Legal Positivism and Natural Law Theory 41 5.2.2 Institutional Natural Law Theory 42 5.2.3 Anthropological Natural Law Theory 42 5.3 A Litigation Society 43 5.4 Researching Justice 45 5.5 Rationalizing Judicial Practices 46 5.6 Researching Applied Legal Philosophy 47 2 Korea’s Reception of German Philosophy of Law 59 HAK-TAI KIM 1 Introduction 59 2 German Philosophy of Law and Post-War Trends 59 2.1 Radbruch’s Formula 59 2.1.1 Statutory Lawlessness and Supra-Statutory Law 59 2.1.2 The Tension Between Justice and Legal Stability 60 2.1.3 The Radbruch Formula: An Appraisal 61 2.2 Resurrecting Natural Law 62 2.3 The Existential Philosophy of Law 64 2.4 The Border Guard Case and the Issue of Legal Effect 66 2.4.1 The Border Guard Case (Mauerschützfall) 66 2.4.2 The Legal Philosophical Basis 67 2.5 Methodology and Legal Interpretation 67 2.6 Prospects for German Legal Philosophy in the Twenty-First Century 69 3 Acceptance of German Legal Philosophy in Korea 70 3.1 The Study of the Philosophy of Law Begins (1945–1950s) 70 3.2 The Influence of Radbruch’s Thought 70 Contents ix 3.3 Natural Law Theory 71 3.4 Methodologies of Jurisprudence and Legal Interpretation 72 3.5 The Development of Legal Systems for Biotechnology Research 73 3.5.1 Introduction 73 3.5.2 The Development of Biotechnological Studies 73 3.5.3 The Development of Embryonic Stem Cell Studies 74 3.5.4 Problems with Human Cloning 75 3.5.5 Germany’s Bioethics Law 75 3.5.6 Korea’s Bioethics Law 76 4 Evaluation 78 3 Acceptance of Anglo-American Jurisprudence 85 JOON-SEOK PARK 1 Introduction 85 2 Culture and Science 85 2.1 Paul K. Ryu (1915–1998) 88 2.2 Pyong-Choon Hahm (1932–1983) 90 3 Anglo-American Jurisprudential Wave 92 3.1 British Jurisprudence 92 3.2 American Jurisprudence 94 3.3 Intersection 96 4 Concluding Remarks 97 Conclusion 113 JEONG-OH KIM Index 118