Beyond "law vs. politics"in constitutional adjudication: Lessons from South Korea

Abstract

Taking its cue from Michel Rosenfeld's formulation of a paradox arising from comparison of American and European constitutional adjudication systems, this article seeks to situate the development of constitutional adjudication in Korea within a global context. The growing influence of Korea's Constitutional Court has attracted the charge that it is acting too politically, as well as judicializing politics. One symptom of this was the recent political row over the appointment of the Court's president. The Korean debate thus has much in common with the global discussions on judicialization and politicization triggered by the recent trend toward "court-centered"constitutionalism-a phenomenon with which our vocabulary and framework for discussing constitutionalism have yet to catch up. In order, however, to fully understand the sources of the debates surrounding the Korean Court, certain institutional settings and practices must be noted: procedures for appointing the Court's members, obligation to publicize dissents, absence of abstract/a priori review, and difficulty of constitutional amendments. Such factors conspire to create an environment in which a putatively "European-style"court is made to appear and operate more like the US Supreme Court, thereby generating talks of politicization and judicialization. © The Author 2012. Oxford University Press and New York University School of Law. All rights reserved.