From remonstrance to impeachment: A curious case of “confucian constitutionalism” in South Korea

Abstract

In his path-breaking essay that investigates the rise of judicial review in democratic Taiwan and South Korea, Tom Ginsburg presents the distinctive style of judicial review practiced by both countries in terms of “Confucian constitutionalism,” at the core of which is the practice of constitutional review as remonstrance. This Article examines whether the model of Confucian constitutionalism is still relevant in Korea, especially in light of the Constitutional Court's recent decision to uphold the motion to impeach the president rather than merely offering remonstrance or warning. By associating the Court's jurisprudence characterized by highly moralistic language and style of reasoning with Confucian constitutionalism, this Article presents Confucian constitutionalism as indirect constitutionalism, a mode of constitutionalism that aims to shape the polity's constitutional identity in a way that achieves a meaningful congruence between liberal constitutional principles and the underlying public culture that defines the polity as a distinctive moral community.