The Fragility of Liberal Democracy: A Schmittian Response to the Constitutional Crisis in South Korea (1948–79)

Abstract

AbstractWhat is the legal source of legitimacy in political authority? This pressing question made a striking appearance on the South Korean scene when, since its inception in 1948, a popular backlash against a liberal democracy perceived as foreign and unjuridical erupted in the forms of terror, insurgency, mutiny, and putsch. Park Chung Hee's successful assumption of power through his 1961 coup d’état provided an implicit response, recasting the Korean concepts of legality and legitimacy. Han T'ae Yŏn was a key figure in this national dispute. Armed with Carl Schmitt's canon, Han gave a decisive verdict on how Korean liberal democracy had been eclipsed under the two spuriously liberal governments of Syngman Rhee and Chang Myŏn. His legal apology for Park's authoritarian constitutional regime echoed Schmitt's defense of the Führer by invoking the president as an incarnation of the will of the people as a whole. This article intends to revisit Schmitt's accusation of judicial positivism for its failure to deliver a genuine voice of the people in the case of a non-Western society.