Constitutional Populism in Korea: A Case of a Constitutional Scholar | Hang Kim

by Critical Asia

by Hang Kim, June 2021】

There exists a familiar scenario of being born in colonial Korea, receiving a college education in the Japanese empire, and settling at the center of political, business or academic circles after liberation. In particular, it is impossible to comprehend without the protagonists of this scenario how Korean society from the 1950s to 1970s established its national framework. Their importance becomes all the more prominent if the scope is narrowed down to the realm of intellectual history. The influence of those who studied in the Japanese empire on early academia cannot be overemphasized, even if one turns to humanities and social sciences or even natural science. Among them, constitutional scholar Han Taeyeon holds an unrivalled position. This is true in terms of his vigorous writing activities and outstanding achievements from the 1950s to the end of the 1990s, but also true in terms of his deep involvement in the formation of a legal system as an engaging intellectual amid the tumult of modern history. Han participated in the enactment of the Constitution of the Second Republic, the Third Republic and the Yushin Constitution, served as a politician during the May 16 coup d’état to the Yushin regime, and later served as the chief editor of a newspaper company, exercising vast influence across the society. In this sense, Han’s life can be said to provide a unique example of how knowledge and politics are implicated in modern Korea.

Of course, like Han Taeyeon, there are many intellectuals who form close relations with the regime and “engage” in reality. The reason why I would like to pay close attention to Han Taeyeon, in particular, is to gain a historical view of modern Korea’s populism. As known well, populism is a concept that refers to the phenomenon of developing politics or governance through appeals and mobilization to the public by dissolving parliamentary-centered institutional democracy. Populism has appeared in various forms in the political history of the 20th century at a global level, and Korea, of course, is no exception. The establishment of the Rhee Seungman regime was made possible by a thoroughly populist mass mobilization and the military regime since Park Junghee formed its governance in a direct combination of the president and the people by neutralizing the power of parliament. From this context, it appears that the governing paradigm of modern Korea has been government-manufactured populism.

Han Taeyeon’s intellectual pursuit took place in the middle of this trend. He tried to demonstrate the development of government-manufactured populism through the concept and category of constitutional theory and also designed a legal system for such a governing paradigm. The following scene, reminisced by Han himself, is an example that dramatically exhibits his intellectual pursuit.

This gentleman [Lieutenant colonel Lee Seokjae: citator] came in his uniform, armed with a pistol. He told me to make a revolutionary constitution. [When I replied that it wasn’t possible: citator] he asked what could be done. So I said I’d study it the next time as an alternative and sent him back. After sending him back, no ideas came to mind. Then, one idea was hitting me, that is, the process Hitler encroached upon the Weimar Constitution after he took power: it was so-called “the enabling law” which was to remove the authority of the people and the state. This law, so to speak, is known among scholars as the Weimar Republic, having enacted a law by which the Nazi demolished the Constitution. With this, Hitler began to complete the dictatorship. That law was my hint, and I started to work alone for a week at a small hotel, which is now gone. … The law of emergency for state restoration is what was created from this.

This scene may be regarded as a shameless retrospection of a government-patronized scholar who collaborated in a coup d’état. However, the scene also stimulates a strong imagination set in the modern and intellectual history of the Korean Peninsula. Born in 1916 in South Hamgyong Province, Han Taeyeon moved to Japan in the late 1930s, graduated from Waseda University in 1943 and passed the high-level civil service exam. He served as director of the North Hamgyong Province Agricultural Bureau before defecting to South Korea in 1946. He later served as a professor at Sungkyunkwan University, Seoul National University and Dongguk University, served as a member of the National Assembly in 1963 and 1973, and as president of the Yushin National Book Center Association in 1974. When Han Taeyeon’s background is overlapped with modern Korean history up until May 16, the above scene can be interpreted as a display of how a military coup is demonstrated by German public law that went by way of Japan’s ‘emergency’ in the 1930s, rather than as mere opportunistic cooperation of an intellectual.

Han Taeyeon was greatly influenced by Japanese Constitutional scholar Kuroda Satoru (黒田覚) when he studied in Japan in the 1930s. In particular, Han confessed in post-liberation lectures to have relied heavily on the constitutional textbooks of Kuroda, who had created his own constitutional theory by being baptized by Carl Schmitt’s decisionist law after commencing with Hans Kelsen’s legal positivism. At the heart of the Kuroda Constitution theory in the 1930s was the question of the grounds for the legitimacy of sovereignty. According to Kuroda, while Kelsen transcendentalizes the legitimacy of sovereignty as a presumption (as if), Schmitt experimentalizes through political interpretation. In other words, neither side can explain the rationale behind the establishment of sovereignty with the logic of law.

It is such influence of Kuroda that Han Taeyeon’s constitutional theory persistently discussed what makes sovereignty sovereign instead of simply presupposing sovereignty. Han does not merely presuppose the theory of people’s sovereignty, which argues that sovereignty lies in the people; rather, his main point is in identifying the condition for the people to remain sovereign. That is why he unintendedly inclined to populism in the concept and category of constitutional theory: he believed that the people as an ideal unity should be the practical force that supports the governing power.

It was in this context that Han Taeyeon actively stood as the guardian of the regime while supporting the May 16 coup. His academic career could be regarded as a typical case of how the populism of modern Korea took place by linking it to Constitutional theory, which was possible under the experience of a global ‘total mobilization system’ in the 1930s.

Hang Kim, Yonsei University, South Korea

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