Abstract
The description of positive law as a “hierarchy of norms” in which a “basic” one (grundnorm, or constitution in common parlance) enjoys preeminence has imposed itself in legal theory since Hans Kelsen proposed it in the 1930s.1 In South Korea, the argument that “the higher normative law that supersedes all other laws” is not the constitution but the National Security Act has been formulated by scholars such as Choi Jang Jip, whereas others have suggested that constitutional review has had the effect of “domesticating” the security legislation, depicted as “the single most egregious law associated with military rule.”2 Focusing on rulings delivered by the Constitutional Court of Korea in relation to the controversial National Security Act, this chapter precisely interrogates how the notion of enmity has been reshaped by the institution in the aftermath of the transition.
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Notes
Hans Kelsen, Pure Theory of Law (Berkeley: University of California Press, 1967).
See respectively Jang-Jip Choi, Democracy after Democratization: The Korean Experience (Stanford: Walter H. Shorenstein Asia-Pacific Research Center, 2012), p. 48.
and Tom Ginsburg, Judicial Review in New Democracies: Constitutional Courts in Asian Cases (Cambridge: Cambridge University Press, 2003), p. 236.
Dae-Sook Suh, The Korean Communist Movement: 1918–1948 (Princeton, NJ: Princeton University Press, 1967), p. 132.
Gregory Henderson, “Human Rights in South Korea: 1945–1953,” in Human Rights in Korea: Historical and Policy Perspectives, ed. William Shaw (Cambridge, MA: Harvard University Press, 1991), p. 127.
Bruce Cumings, The Origins of the Korean War, Vol.1: Liberation and the Emergence of Separate Regimes, 1945–1947 (Princeton, NJ: Princeton University Press, 1981).
Namhee Lee, “Anticommunism, North Korea, and Human Rights in South Korea: ‘Orientalist’ Discourse and Construction of South Korean Identity,” in Truth Claims: Representation and Human Rights, ed. Mark Philip Bradley and Patrice Petro (New Brunswick: Rutgers University Press, 2002), p. 45.
Seungsook Moon, Militarized Modernity and Gendered Citizenship in South Korea (Durham: Duke University Press, 2005), p. 2.
Constitutional Court of Korea, Twenty Years of the Constitutional Court of Korea (Seoul: Constitutional Court of Korea, 2008), p. 215.
Amnesty International, Prisoners Heldfor National Security Offences (ASA 25/25/91, London: Amnesty International, 1991), p. 6.
See, for instance, David Kretzmer, The Occupation of Justice: The Supreme Court of Israel and the Occupied Territories (Albany: State University of New York Press, 2002);
Nimer Sultany, “The Legacy of Justice Aharon Barak: A Critical Review,” Harvard International Law Journal 48, no. 43 (2007): 83–92;
George Bisharat, “Courting Justice? Legitimation in Lawyering Under Israeli Occupation,” Law and Social Inquiry 20, no. 2 (1995): 349–405.
James M. West and Edward J. Baker, “The 1987 Constitutional Reforms in South Korea: Electoral Processes and Judicial Independence,” Harvard Human Rights Yearbook 1 (1988): 246.
Dae-Kyu Yoon, Law and Political Authority in South Korea (Boulder: Westview Press, Seoul: Kyungnam University Press, 1990), p. 140.
Amnesty International, Summary of Concerns for 1999 (ASA 25/01/99, London: Amnesty International, 1999), p. 1.
Patricia Goedde, “From Dissidents to Institution-Builders: The Transformation of Public Interest Lawyers in South Korea,” East Asia Law Review 4, no. 1 (2009): 83.
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© 2016 Justine Guichard
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Guichard, J. (2016). Reviewing How the Enemy is Defined: From the Security of the State to the “Basic Order of Free Democracy”. In: Regime Transition and the Judicial Politics of Enmity. The Sciences Po Series in International Relations and Political Economy. Palgrave Macmillan, New York. https://doi.org/10.1057/9781137531575_4
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DOI: https://doi.org/10.1057/9781137531575_4
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