The Period of Conversion

Han was born in 1916 in Yŏngŭng, a remote village in southern Hamgyŏng Province in the northeast part of the Korean peninsula. He read law at Waseda University from 1939 to 1943 and passed the Higher Civil Service Examination (Kō Tōbun Kanshi Ken) of the Japanese government in 1944. Since academic posts in law schools in liberated Korea were predominantly filled by those who had worked as legal bureaucrats in the Japanese colonial government, after passing this examination, he began his academic career as a lecturer at Sungkyungwan University in 1949. He became a professor at Seoul National University in the same year. After six years’ prolific academic life, he published his first book, On Constitution, in 1955. The book earned him an impressive intellectual reputation for his masterly and comprehensive assessment of contemporary legal philosophies and its complete integrity. Han (Reference Han1955, 69) wrote in the book's preamble that “constitutional law is the art of liberty. To deny the constitutional law means the end of liberty. This is the eternal raison d’être of constitutional law as the ultimate purpose of the modern Rechtsstaat.” What prompted Han's lifelong commitment to law was his sense of the indispensability of order and public security as an immediate political imperative and prerequisite for national prosperity.

Beneath his staunch commitment to law as the best means to fulfill these goals, Han's firm conviction in law as the supreme power emanated unmistakably from his reading of Hans Kelsen and Carl Schmitt. This orientation in his early scholarship can be traced to his education in law at Waseda University in the early 1940s. The Japanese political climate at that time was marked by the repercussions from militarism that arose in the aftermath of the Showa Restoration movement of the 1930s (Skya Reference Skya2009, 131–52). Amid growing conflict with China, the great economic depression in 1929 stirred a militaristic chauvinism. Playing on dissatisfaction within the army over the tardiness of political reform under Okada Keisuke's government, the rightist factions in the army, among politicians, and in the public insisted on a militaristic solution to the Chinese crisis (Skya Reference Skya2009, 131–52). They also insisted on the need to bolster the monarchy.

Amid the ferment of political upheaval in the 1940s, Japanese jurisprudence underwent a sharp shift in its approach to the state and law, from the dominant normativism of Kelsen to Schmitt's crown legal theory. Schmitt's novel notion of Großraum, advanced in his 1939 Großraum versus Universalism: The International Legal Struggle over Monroe Doctrine (Schmitt [1939] Reference Schmitt and Legg2011, 46–53), more than any of his other concepts, rose to prominence in Japan, where it was associated with the pressing need to provide an ideological source for Japan's imperialistic doctrine of a Greater East Asia Co-Prosperity Sphere beginning in the late 1930s. Initiated in the mid-nineteenth century as a doctrine of Asian solidarity in the face of Western imperialists’ invasion of Asia, the Japanese international doctrine in the 1900s served the imperialistic vision of Japan's colonial rule, particularly in relation to China. The doctrine was variously known as “Asian Solidarity” and “A New Order in East Asia.” Beyond these forerunners, the doctrine of a Greater East Asia Co-Prosperity Sphere formulated by right-wing militarists in 1938 had a clear political aim: to justify Japan's impending invasion of the southern Asian countries. What promoted this drastic change in Japan's geopolitical strategy toward southern Asia was the power vacuum in that area caused by the sudden withdrawal of the Western colonial authorities (Kim Reference Kim and Su2017, 133). To lay the ideological foundation to support the suzerainty of the Japanese Empire in Asia from 1931, Schmitt's idea of Großraum gained potency.

The intellectual climate in 1940s Japan nurtured young Han's scholarship. He first appeared on the scene as an ardent adherent of Kelsen's legal theory, hopeful, along with many Korean jurists, that law's normative power invoked by Kelsen's rigorous legal reasoning could provide his fatherland with lawfulness and order. But Han's conversion to Schmitt's viewpoint took little time, since he came to see Kelsen's theory as useless as a corrective to the constitutional reality he faced. Departing from Kelsen's worldview, Han (Reference Han1995, 82) noted retrospectively that “the validity of the constitution rests not in the norms it inherits but in the political entity it produces in totality.” He made this point frankly in his 1960 work The New Constitution: “Kelsen's concept of Grundnorm as an ultimate source of constitutional legitimacy remains as a mere premise within his theoretical world, so that the scope of the applicability of the Kelsen's legal theory to Korean legal reality was unmistakably narrow” (Han Reference Han1960a, 39). He also accused the integration theory formulated by Rudolf Smend, which also enjoyed wide acceptance in Korean jurisprudence, of failure to tackle social conflicts by optimistically exaggerating law's coordinating nature. To veer toward Schmitt's intellectual world did not prove painful for Han, since no effective rival in addressing the Korean constitutional reality could emerge but Schmitt's legal and political thinking, which cast law as a historical concrete order.

Establishing a Plebiscitary Presidency against a Liberal Constitution

In liberated Korea, the writing of the 1948 inaugural constitution represented an untainted sovereign act in the wake of nation-state building. Amid the zeal and passion for building a modern state, the launching of the constitution was seen as a priority, and all political forces worked together to draft the new constitution. With the inauguration of two separate governments on the Korean peninsula, an immense evacuation of the left wing from the political scene in the southern part of the peninsula gave rise to a sharp compression in the scope of the popular mandate for the inaugural constitution. The resulting drafting process proved a fierce battlefield for the Korean right wing, in particular for two hardened right-wing survivors: Syngman Rhee (1875–1965) and the Korea Democracy Party (KDP), a landowner-based nationalist party and the dominant group in the Constituent National Assembly. Placed in a political rivalry, the two became embroiled in an intense power struggle as they vied to restrict one another's constitutional power. When they reached a hasty agreement in the immediate aftermath of Rhee's bid for power to modify the power structure by adopting the president as the head of the state, the constitution lacked a coordinating mechanism between the presidential office and the legislative.

Born out of the political bargaining between Rhee and the KDP in this way, the 1948 inaugural constitution proved defective at coordinating the two government offices. The legislative had a right to declare no confidence in the cabinet in case of a disagreement with the executive but no right to impeach the president. And the president had no right to dissolve the parliament. The loopholes in the 1948 constitution proved to be its fatal flaw, creating a vulnerability to autocratic abuse that was exploited in the hands of President Syngman Rhee. What rendered Rhee so disloyal to the 1948 constitution was, ironically, his weak power base. Characteristically, his weak popular support at the grassroots level during his incipient presidency mattered deeply. Institutionally, his constitutional inferiority to the parliament emanated primarily from the fact that the president was chosen by parliament. To overcome his constitutional handicap, he fiercely sought power outside the constitution. In doing so, he broke two rudimentary constitutional principles: respect for citizens’ rights and checks and balances within government offices.

Rhee's violation of the principle of separation of powers between his presidential office and the legislative surfaced early in his presidential tenure. By dividing and ruling in the Constituent National Assembly (1948–50), he delayed and frustrated the delivery of progressive articles in the inaugural constitution (Park Reference Park1998). Capitalizing on the antagonism between two of his opponents, the KDP and a group of Sojangp'a, nonpartisan independents who were nationalist, reformist, and hostile to the Cold War, he maneuvered masterfully, allying with one group or the other from one bill to next (Kim Reference Kim2010, 63; Park Reference Park1998).

The enacting of the bill to punish colonial collaborators offers a vivid example. When the Assembly cast its votes on this bill, Rhee allied himself briefly with the KDP in an effort to prevent the bill from being passed (but the assembly nevertheless passed it by a large majority and established a Special Committee for the Probing of Anti-National Deeds) (Kim Reference Kim2010, 63; Park Reference Park1998). The bills for local autonomy and securing the withdrawal of the US Army proceeded along similar lines, and eventually went unfulfilled (Kim Reference Kim2010, 63; Park Reference Park1998). As the assembly remained incapable of fulfilling the constitutional pledges inscribed in the articles of the 1948 inaugural constitution in this way, the national aspiration to establish a democratic and independent nation was damagingly eroded. The constitutional fiascos of 1950 and 1952 were also tied intimately to Rhee's strategy to bypass the legislative (Shim Reference Shim2013).

The second manner in which Rhee was disloyal to the 1948 constitution was his lack of respect for citizens’ basic rights. In the wake of national statehood, the inaugural constitution attempted to deliver sovereign power to the nascent Korean people by reconciling the popular sovereignty of the people with the authority of the state. The 1948 constitution's adoption of Kungmin (국민, literally, state-person) as the conception of constitutional subjectivity, defeating its rival Inmin (인민, the people as a natural collectivity), best exemplified this (Guichard Reference Guichard2017). Meaning juridically full citizens and active members of their own state, Kungmin originated from a translation of the Japanese term Kokumin, which itself emanated from the German equivalent, Staattvolk (Guichard Reference Guichard2017). When Article 8 of the 1948 constitution stated that “All Kungmin shall be equal before the law. No discrimination as to political, economic or social life, based upon sex, religion, or social status shall occur,” it represented a remarkable synthesis of the liberal doctrine of the Korean people with state supremacy.

Yet, there was an underlying worry in the minds of the drafters of the inaugural constitution concerning the nation's prospects for realizing full democracy. Yu Chin O, the prime architect of the 1948 constitution, judged that the Korean people were not yet capable of appreciating the full scope of their basic rights (Yu Reference Yu1949) and gave a decisive verdict: “The 20th-century constitution enshrined basic rights that resided within the state, in the sense that the state and its legislations were placed prior to the recognition of the rights of the individual. This gave the state the irrefutable power to interfere with a citizen's rights in order to secure public needs via its legislation” (Yu Reference Yu1954, 110–14). Echoing the Weimar constitution, in which citizens’ basic rights were curbed with the expression “remaining within the law,” the 1948 constitution defined citizens’ liberal rights in a similar vein. Premised upon the idea that citizens’ inalienable rights were fully in harmony with the state's public needs and good, a legislative deferral stating that “the nature and scope of the rights shall be defined by law” was attached to the catalog of basic rights in the 1948 constitution.

This legislative proviso made room for exploiting the vulnerability of rights within this constitutional vacuum, as decision-making on constitutional issues could be postponed to the future and deferred to the legislative or executive branches of government (Dull Reference Dull1948, 206; Henderson Reference Henderson1968, 158–59; Park Reference Park1998). Rhee made good use of this proviso to exercise his executive fiat; the National Security Law promulgated in 1949 represented a prominent example. Amid the turbulent period of ideological struggles with the communist residue in the southern part of the peninsula, Rhee used this to impose strict limitations on the people's liberal rights, which led to a detrimental curtailing of citizens’ liberties. Rhee's approach to the government proved eventually presidential autocracy, and the constitutional doctrine of popular sovereignty remained purely notional.

“Neutral Power” as Liberal Residue

President Rhee's monopoly over executive power through his control of the police and his governing party gradually weakened the Korean state under his presidency. Han's central objection to Rhee was the personalized foundation of the state apparatus in its hands and his commitment principally to consolidating his own personal power and political resources. Seeing Rhee's approach as the exact antithesis of liberal democracy, Han charged Rhee with misgoverning and impairing the sovereignty of the Korean state. Han's purpose from then on was to prevent the Korean state, and its executive branch in particular, from being captured by private interests by pressing the need to establish strong administrative powers. To do this, he invoked a new conception of “neutral power.” In his 1956 article “The Neutral Powers of a Modern Nation: On the Lack of Modernity of the Korean State,” Han spelled out the urgent need to overcome the partisan nature of Rhee's government, accusing the country's political parties, especially Rhee's Liberty Party, of undermining the neutrality of the Korean state:

The immediate horizon for his recasting of “neutral power” in Schmitt's terminology was to attribute the Korean state's bitter partisanship to Rhee. Schmitt had invoked the term “neutral power” in his debate with Kelsen over the issue of who should be the guardian of the constitution: the constitutional court or the president. Objecting to Kelsen's advocacy for the constitutional court, Schmitt (Reference Schmitt and Vinx2015, 8) defended instead the guardianship of a president entitled to undertake executive action in times of crisis. Echoing Benjamin Constant's concept of pouvoir neutre, which formulated it as an independent power intermediating conflicts between the legislature and the executive, Schmitt propounded the president as a neutral power independent of the majority of the parliament, acting, as head of the executive, as a counterweight to the parliamentary majority.

Appealing overtly to Schmitt's concept of the “neutral power,” Han's understanding of neutral power fell back on conceptualizing the executive branch of the Korean state as carrying out the ultimate aim of safeguarding South Korea from despotic presidential power. His championship of the executive office in the Korean state was reaffirmed in his work of the following year, “Administration Is the Art of Modern Statecraft.” He placed residual hope in the administrative branch as the fulcrum of the sound democratic operation of the Korean state: “The greatest virtue of the modern state was administrative rationality, which had been achieved in its nascent formation, in which civil society, its forerunner, had struggled against the absolute monarchical state for the protection of the individual's rights. Therefore, the governing motif of the modern state is twofold: to sustain checks and balances among the governing offices and to protect the individual's rights” (Han Reference Han1957, 23). He then described the Korean state: “since the emergence of a civil society as the resulting historical development of its struggle against the monarchical state had not occurred in our national landscape, it is painfully true that the Korean state has a severe dearth of administrative rationality” (Han Reference Han1957, 24). Deploring this lack of administrative rationality, Han intended to recast the executive branch as a bulwark against political paralysis or its anarchical dissolution by personified political power or by social groups.

The Meaning of Korean Liberty

Han's concept of “Korean liberty,” propounded in his 1958 work “The Meaning of Korean Liberty,” represented a final element in his sympathetic advocacy of Rhee's government and the liberal order. In it, he analyzed the constitutional reality of contemporary Asia, insisting that “the Asian people have been struggling for their survival and sustenance rather than for the existential basis of their liberty. . . . [but] it is scarcely true at the same time to say that the Asian states have their own self-fulfilling sense of liberty” (Han Reference Han1958a, 19). Deploring contemporary Asia's underdeveloped political consciousness and lack of a sense of liberty, he recast the Korean constitution as an instance of Asian particularity: “The geographical relocation of Korean constitutionalism must be posited in Asia, in narrower geographical categories” (Han Reference Han1958a, 21).

The real significance of the events of 1948, for Han, lay in the fact that the nation had made the correct decision to erect a liberal-based state in the south and endorsed the supremacy of liberal democracy over communism. He recast Schmitt's decisionism as an index to prove that the establishment of an independent Republic of Korea in the south was unmistakably a great political victory.

Schmitt's conception of decisionism appeared in his 1922 work, Political Theology: Four Chapters on the Concept of Sovereignty, attacking Kelsen's normativism. “Every legal order is based on a decision, and also the concept of the legal order contains within it the contrast of the two distinct elements of the juristic—norm and decision. Like every other order, the legal order rests on a decision and not on a norm” (Schmitt [1922] Reference Schmitt and Schwab2005, 10).

Although Han began to identify himself as an anti-liberal, in the terms of a distinctively Schmittian decisionist vocabulary, his unswerving conviction in the superiority of liberal democracy over communism—his northern enemy's doctrine—made him hesitant to voice a definitive rejection of the liberal constitutional order and led him initially to support the 1948 constitution and sympathize openly with Syngman Rhee's government. But President Rhee's severe abuse of the liberal constitution and his insatiable appetite for power made Han gradually dissatisfied with the suitability of the liberal democratic constitution in his fatherland. He manifested instead a developing attitude of anti-parliamentarism in a fresh political setting.

The Fictive Sovereign Nature of the People under Electoral Democracy

At the high tide of Rhee's presidency, his plebiscitary approach to governance left him only electoral fraud as a tool of government. Witnessing that the popular will was severely encroached upon, Han began to question the meaning of popular sovereignty. In his 1958 article “Central Questions of the Modern Constitution: The Survival and Values of the Constitution,” Han discussed how to form a legitimate political power in the modern state (Han Reference Han1958b). Employing Schmitt's mocking characterization of liberalism, “mathematical mythology” (McCormick Reference McCormick1997, 216), he challenged the liberal employment of elections as the best technique to garner and deliver the popular will and argued instead that the will of the people is just the result of a system of equivalencies or even a fiction (Han Reference Han1958b).

Han seemed initially to be showing more sympathy for the role of the people, since he appealed directly to them; however, the central theme of this article was a denunciation of electoral democracy, the sole means under liberal democracy to aggregate private individual wills, but incapable of generating a stable and reliable form of power. On these grounds, Han denied the sovereign nature of the people.

For Han, the secularized form of political power was the triumphant majority in an election. Following Schmitt, he then characterized liberal constitutionalism as pluralism:

Denouncing the liberal employment of elections as the best technique to gather and deliver the popular will, Han became convinced that the people's will under the liberal order was ungenuine. Losing entirely his faith in liberal democracy because of the havoc it had wreaked on his country, Han's conversion to anti-liberalism augmented with anti-parliamentarism led him to readdress his belief in the cardinal liberal tenet of popular sovereignty.

Against a Pluralistic Foundation for Liberal Democracy

The Korean people's cumulative experience of the electoral fraudulence of Syngman Rhee's government led to widespread calls for him to step down during the April uprising of 1960. In the end, Syngman Rhee was dethroned. Chang Myŏn's government (1960–61) of the majority party in the parliament, with a landslide victory in the post–April uprising election of July 1960, gaining 175 seats out of 233, was brought into existence by courtesy of the April uprising of 1960. But Chang's government (1960–61) proved a vehement reaction against Syngman Rhee, and it failed to break clearly with the old regime. A scant month after its inauguration, Chang's government modified the constitution in the direction of accommodating a parliamentary system (this was the 1960 constitution). The decisiveness and enthusiasm of Chang's Democracy Party government in adopting a parliamentary system in the 1960 constitution reflected a national loathing of Rhee's presidential autocracy (Han Reference Han1974, 17–22). But the choice of a parliamentary system was itself determined by the circumstances of the Democracy Party's formation. The party was born as the product of a compromise between two competing factions that had no common goal except to oppose Rhee (Han Reference Han1974, 17–22). Under the fresh constitutional setting of the 1960 constitution, the two groups pursued their own interests in sharing the government by dividing the leading government posts into two separate roles, the president and the prime minister (Han Reference Han1974, 17–22).

The intrinsic division in the ruling party led to a fierce outburst of factional struggles upon the inauguration of Chang's government (Kim Reference Kim2004, 167–200). Chang, who had assumed the prime ministership, broke his initial pledge to include members of the opposition in his cabinet, staffing it solely with members of his own faction. Greatly dismayed, the opposition announced the withdrawal of its support for the Chang government, which resulted in a sharp division within Chang's government from its birth, with an executive that was supported by neither the legislative nor the president (Kim Reference Kim2004). The resulting political development in Chang's government was a severe and damaging administrative paralysis in the face of rampant left-wing nationalist activism (Kim Reference Kim2004, 167–200). Beginning in late 1960, the public showed increasing suspicion and disappointment with the slow pace of social reforms. As a bundle of reconciliatory actions, announced hurriedly to appease an anxious and hostile public, proved ineffective, the public took to the streets demanding Chang's resignation. Chang's government was on the verge of dissolution (Kim Reference Kim2004, 167–200).

In Han's eyes, the fatal vulnerability of Chang's government was not wholly attributable to the failure of Chang's leadership, but to immature parliamentary politics. This solidified Han's long-standing distrust of the liberal political order, and he accused Chang's government of demonstrating the failure of the parliament as a representative sovereign body. Han's article “Parliamentary Questions” represented his decisive shift from a mere skepticism about the liberal political order to a sharp rejection of it. Drawing heavily on Schmitt—“According to Schmitt, the parliamentary system consists of three political elements: the first is the monarchist principle, in which the bolstered executive is seeking a balance with the legislative, the second is the aristocratic element of bicameralism, and the last one is democracy, to use the plebiscitary system to garner popular opinion” (Han Reference Han1960b, 16)—he developed a historical analysis of the evolution of the parliamentary system: “Seen in this light, the parliamentary system retains not a monolithic method of generating political power but various elements of each political system in order to maintain the political balance within the polity” (Han Reference Han1960b, 16).

Unlike the two earlier parliamentary models, the monarchist and the aristocratic, the modern parliament's foundation was divided and torn between organized social groups. To remedy this weakness, Han sought to combat the pluralistic disintegration of its sovereignty:

At the core of the modern parliament's capacity to resist degenerating into despotism lay its sole valuable function: to produce compromise and generate a political majority. Its key innovation—the political party—and its core technique—generating political compromise—were effective at reducing parliament's pluralistic nature, but each carried intrinsic hazards:

The failure of the parties to reach a viable compromise under Chang's government convinced Han that parties fractured and distorted the people's will and degraded democracy. At the core of his argument lay a vehement attack on the parliament for its harmful representative deficiencies, one that led him to abandon a liberal understanding of democracy. Challenging its pluralism, he argued that “the popular will is not the product of the parties but is itself the embodiment of the homogeneity of the constituted polity” (Han Reference Han1960b, 20).

Han's rejection of the liberal assumption that popular will is simply fair representation in an assembly was heavily indebted to Schmitt. In his 1923 The Crisis of Parliamentary Democracy, Schmitt challenged frontally the liberal equation of popular will with discussion and compromise in a legislative assembly. Instead, he propounded the concept of a democratic identity of the people that needed some medium to establish itself by evoking homogeneity based upon culture, history, language, or ethnicity (Schmitt [1923] Reference Schmitt and Kennedy1985, 25–27).

Han's nationalist reading of Schmitt denounced representative democracy as electoral majoritarianism, a pluralism that was far from conveying the real voice of the people. Han identified homogeneity with the nationalist elements of sharing tradition, language, and culture and saw it as a prerequisite for establishing a political entity. Schmitt's concept of “the political” gave Han a compelling reason to deepen his profound antagonism to parliamentary government and to intensify his mistrust of liberal democracy. The assumption of national homogeneity, in Han's hands, was employed against liberal democracy. In the end, he came to insist that “the great homogeneity of Korea, with her long-standing history, deep-rooted tradition and rich culture, removed the need for a unifying legislative body in his fatherland” (Han Reference Han1973, 31–39). Han's scathing indictment of liberal democracy best served the fact that Chang's government was dissolved with surprising ease by Park Chung Hee's coup d’état and soon found its political outlet in the subsequent political landscape in the wake of Park's government.

Where Law Withdraws, the State Thrives

No sooner had Park Chung Hee and his followers assumed governmental power with the successful coup d’état in May 1961 than the Emergency Law on the National Reconstruction, an enabling act, was proclaimed, nullifying the 1960 constitution. In the constitutional vacuum that ensued, a national dispute over the question of how far the Korean constitution would incorporate the May coup filled the horizon of Korean politics. To treat the insurgent nature of the new government, however, appeared problematic, since the juristic nature of the Korean state and constitution had remained a remarkable lacuna in the wake of the legal positivism that dominated postliberation Korean jurisprudence. Yu Chin O wholeheartedly endorsed “the normative force of the factual Korean state,” echoing Georg Jellinek, but remained deliberately silent on the where the authority of the Korean state emanated from (Yu and Korea University Museum Reference Yu2009, 328).

As the political cauldron began to boil furiously in the late 1950s, the tide turned decisively. The terms “the right to resistance” and “the constituent power” circulated in the public discursive space. Hwang San Tŏk (Reference Hwang1961, 68) stated that, “given the unfailing fact that the constitution is founded by the political will to establish it, this constituent power is supreme and needs no legitimation. The constituent power therefore exists only as or with the normative power of this fact, which places it beyond the question of legitimacy.” Many polemicists strove to reconcile the people's natural power with the authority of the government, but this enterprise eventually came to naught. Instead, the constitutional upheavals took place in the ensuing year: the April uprising of 1960 and the May coup of 1961. The former was celebrated as civil disobedience against Rhee's autocracy, invoking the people's intrinsic right to resistance, a right that was perfectly compatible with the nation's crowning principle of popular sovereignty. The latter, however, had no proper place within the search for a normative grounding of a new government, since the act of coup d’état juridically belonged nowhere in the constitutional structure. The unbridgeable political and legal rupture caused by these two events was to be filled with a new approach to the Korean state and constitution.

The appearance of the term Staatsnotrecht (state emergency right) in this linguistic milieu served as its foreground. One corpus of constitutional scholars saw the May coup as an exercise of Staatsnotrecht. Positioning the coup as compatible with the people's innate right to resistance, Kang Pyŏng Tu, a law professor at Kukmin University, claimed that the coup exemplified the Korean state's right to life through resisting its northern enemy (Kang Reference Kang1961, 45–46). Han Tong Sŏp (Reference Han1962, 22–28), a law professor at Korea University, defended the legitimate power of the new government: “regardless of its form, i.e. revolution or the exercise of Staatsnotrecht or coup d’état, it is definitely true that the law in this situation is annulled and ignored. But the very power to create a new law emanates unmistakably from the loophole created by breaking the old one. Seen so, breaking a law gives the breaker the power to create a new one.”

As the author of the Emergency Law on the National Reconstruction, it naturally fell to Han to supply a legal definition of the May coup. In his 1962 work On the Emergency Law on National Reconstruction, he assumed an unyielding stance and theorized the May coup as an exercise of the “state of emergency”: “Given that our constitution states explicitly the right of emergency, super-constitutional rights exercised by the president or the governmental offices in times of deep crisis, the May coup appeared rightly so” (Han Reference Han1962b). Echoing the moves whereby the Nazis had assumed power by suspending the Weimar constitution, Han recast the May coup as an exercise of the state emergency right. To unpack Han's argument in treating the illegal nature of the May coup, Schmitt's novel notion of dictatorship is required.

Schmitt's conceptual oeuvre, which attempted to ascribe to dictatorship a sovereign nature, provided Han with the room to safeguard the power of Park's new government without the reduction of its sovereignty to absurdity. Stressing the context of the May coup, Han claimed that the national prerogative to save the country from social and political dissolution and from the imminent threat from the northern enemy was so compelling as to constitute an ontological justification for the coup. With his elucidation of the May coup's defining character as an exercise of the state of emergency, the government it installed was described as a dictatorship. He then deployed Schmitt's notion of dictatorship in describing the May coup: “As far as the May coup exercised the executive prerogative to restore or create a normal situation, it proved sovereign regardless of who exercised the state right of emergency” (Han Reference Han1962b, 83).

This train of thought was in a manner reminiscent of Schmitt's novel concept of dictatorship. In Dictatorship, Schmitt turned the concept of dictatorship on its head by accusing the liberal notion of dictatorship, a view that considers it merely the arbitrary exercise of power by a dictator, of a failure to grasp the intrinsic sovereign nature of dictatorship (McCormick Reference McCormick1997, 343–33). By its unorganized and amorphous nature as natura naturans, in Spinoza's terms, the constituent power, Schmitt ([1928] Reference Schmitt, Hoelzl and Ward2014) insisted, evokes the need for sovereign dictatorship, by which it artificially creates a concrete situation to articulate the constituent power in the constitution.

Kungmin in Jural Recognition

In Rhee's vision of governing, the Korean people were merely presented as passive and obedient objects to mobilize in order to endow his government with authority. With no definite conception of the relationship between the government and its subject, the state under Rhee had remained an assemblage of governmental machinery to be obeyed without question. Accusing the 1948 constitution of naivete in its approach to citizens’ rights and in its failure to fulfill the notion of popular sovereignty, the 1962 constitution set out its political nostrum with a fresh and clear mandate from the people to forge a link between state and people. To achieve the juristic reshaping of the Korean state, the 1962 constitution reconceived the Korean state as the sole source of law and legitimate force within its own territory.

When Kungmin reappeared in the 1962 constitution—“All Kungmin have dignity and value as human beings and it shall be the duty of the State to guarantee the basic human rights of the Kungmin to the utmost” (Article 8), it represented a complete triumph for statism in its struggle against the natural law tradition. To seek to align citizens’ interests with those of the state, by casting the state as the sole means of realising the people's liberty, its drafters believed that citizens’ liberty could be fulfilled only within and through the state. Its prominent verdict was found in the discussions of the drafting committee of the 1962 constitution over the issue of how far the people's liberty was delimited by the state. Committee member Kang Pyŏng Tu (1921–71) argued forcibly, “No citizen's liberty is limitless so long as they engage and participate in state life” (National Assembly Secretariat 1962, 157).

The sovereign power of the Korean people having been reduced drastically in this way, the debate over how sovereign the Korean people are flourished. Kim Ch’ŏl Su (Reference Kim1964, 77–85), a law professor at Seoul National University, took a stand for the people's sovereign power, drawing a distinction between the people as the natural bearers of sovereign power and the people as its exercisers. Whereas the former, according to him, touched on its existential form, the latter was largely born out to a greater degree in practice, as seen in the existence of state apparatuses through which the people were served (Kim Reference Kim1964, 77–85). The most far-reaching challenge to Kim came from Pak Il Kyŏng, a politics professor from the same institution. Repudiating the people's innate sovereign power, he advanced the notion of “legal personality”: “It is absurdly nonsensical to see the people as a reservoir of sovereignty, since sovereignty is not a natural property of the people as a whole. To realize sovereignty, it requires a juridical form of ‘legal personality’ that in our time finds its best expression in the name of right-holders” (Park Reference Park1964, 24–30).

In Han's eyes, this misguided and outmoded ideological dispute between the natural law jurist and the legal positivist was recast afresh, to be merged with discussion about how to reconcile the people's sovereign power with the authority of the state. The immediate backdrop, he insisted, was the rise of industrialized society occasioned at the turn of the twentieth century (Han Reference Han1963). The constitutional inventory propounded by Han was social rights, a fulcrum that aimed to commit the Korean state to reforging its link with the people (Han Reference Han1963). In the wake of the national economic drive to launch a labor-intensive industrialization plan, creating, expanding, and managing a national workforce was central to Park's approach to government. The new salience and emerging political presence of the working population was given jural recognition in the new 1962 constitution in an enhanced catalog of rights. This normative commitment of the state was deepened by its recognition of two new citizens’ rights: the right to participate in political activities (Article 29) and right to social security and welfare in Article 30, which stipulated that “all citizens shall be entitled to a life worthy of a human being. The State shall have the duty to endeavour to promote social security and welfare.”

Casting social rights as a vehicle to fulfill the Korean people's sovereign power, Han (Reference Han1963) advanced the partisan foundation of the modern constitution in his article “On Social Rights”: “The bourgeoisie, the third group who have most benefited from the fresh constitutional order upon which the modern constitution has founded, has risen to prominence as a new holder of constituent power. It now is the working class, the fourth group which appears so in the aftermath of the nineteenth century's industrialisation.” With this novel historiography, he formulated a new concept of liberty: “Unlike the old notion of liberty, one achieved without state intervention, the new one saw the state as a chief guarantor in the sense that it provided the ground to fulfil liberty” (Han Reference Han1963). The underlying intent of this polemical venture was to invoke a new form of the Korean state, social Rechtsstaat, the point of which was to reforge a link between the people and the state that would pave the way for the fully-fledged Korean welfare state. Yet, before long, Han's argument underwent a theoretical overhaul, as Park's nationalist appeal to the Korean state waned dramatically.

Sovereign Dictator as Life-Giver to the Korean Constitution

The beginning of superpower détente increased Cold War conflict in the Third World, and South Korea, too, witnessed far-reaching transformation in the new world order. US president Richard Nixon, in a meeting with Park in San Francisco in 1968, denied that American troops would be removed from the Korean peninsula, but he broke this undertaking within six months (Ma Reference Ma2014, 193–224). Worse still, dark clouds hung on the horizon of Park's government politically and economically: his marginal victory in the 1971 presidential election, compounded by Korea's faltering economic performance in the US market (caused by the protectionist removal of its comparative advantages) in the late 1960s (Ma Reference Ma2014, 193–224). A drastically deepening sense of crisis absorbed Park. He germinated a fresh perception of the northern authority coexisting beneficially on the peninsula and presented a vision of reconciliation en route to national unification (Park and Yang Reference Park and Hahm2010). Kim Il Sung, head of the North Korean state, also welcomed the thaw as a boost to his regime's credibility as a normal state within international society, hoping to join the United Nations, as China had done a year earlier (Park and Yang Reference Park and Hahm2010). The two leaders’ pressing political purposes found a decisive outlet in the propaganda machine of a confected overarching national imperative: the challenge to reunify Korea peacefully (Park and Yang Reference Park and Hahm2010). The announcement of a Joint Statement between the South and the North in 1970 and the July 4 North-South Korea Joint Statement of 1972 were its sequel (Park and Yang Reference Park and Hahm2010).

This changing political climate was clearly seen in the emergence of the term “crisis government,” coined primarily by Clinton Rossiter ([1948] Reference Rossiter2017). It was Han (Reference Han1978, 89–91) who brought this to the fore by counterexemplifying Japan, with a critique couched in political nihilism: “Japanese democracy represents the political nihilism in our time, since its exorbitant dispersion of political power and frail political leadership render its political life ineffective and stagnant.” “The political remedy to this,” he insisted, “is the constitutional dictatorship formulated by Rossiter, a twin regime to emulate the enemy's approach to governing” (Han Reference Han1978, 89–91). He then set out the teeth of his argument: “Since our fatherland has been placed upon the front line of the liberal world's battle against communism, a dictatorship is the ineluctable but optimal shape of the government to which our fatherland is committed” (Han Reference Han1978, 89–91). Yang Wŏn Hyŏng (Reference Yang1973), a literary critic, wrote, “Modern constitutions have long been hostile to emergency measures since it ruined the rule of law. But, as Rossiter takes care to stress, given that crisis government is prevalent in the modern political setting, emergency decree has been incorporated into the normal working of the presidential emergency prerogative, as the prophylactic action of the state is so essential that it even overrules le pouvoir démocratique which the legislature and the executive retains.”

This vast shift in political orientation provided the political backdrop against which Park made his next bid to launch a full-blown authoritarian constitutional regime in 1972. It was dubbed the Yushin (renewal), connoting a stage of drastic renewal of the relationship between nature and society in a manner reminiscent of Heidegger (Suh Reference Suh2020, 785–881). Named the “Harvest Project,” the making of the Yushin constitution was initially led by a mere handful of professionals, including justice ministry officials and presidential secretaries.Footnote ¹ After around a year of formative drafting, two jurists, Han T'ae Yŏn and Kal Pong Kŭn, a law professor at Chung Ang University, were recruited to finalize the text. Its hectic sequence and covert maneuvers left its actual making in a murky labyrinth (and their sharply discordant subsequent verdicts on the process intensified it). But it was widely recognized that Park's rigid tutelage throughout this whole process occupied a prominent position.

The president was at the heart of the Yushin constitution. Three suppositions were employed to set out the nature of its authority. The first, which appealed directly to the population, was an authoritarian assumption of the efficacy of one-man rule in a situation of emergency, premised upon the supremacy of the president's resolute decisiveness over a tardy legislative process (Kim Reference Kim2003, 75–88). Its point of reference was the Fifth French Republic's 1958 constitution, Article 16, which gave the president the authority to declare a state of emergency. Behind this lay the fact that Park was a student of Charles de Gaulle (Suh Reference Suh2020, 785–881). Kal Pong Kŭn's theoretical elaboration of the Yushin president helped legitimize this authority, portraying the president as the personalisation du pouvoir and mounting a scathing attack on parliamentary democracy: “Parliamentary democracy is irreparably defective in fulfilling popular sovereignty, because it realises at best only half of the whole nation's sovereignty in the name of mass democracy” (Kal Reference Kal1974, 52–66). He continued, “Since the best form of modern democracy, insofar as it concerns only the relation between leader and mass, is the personification of power, the president is the best vehicle to deliver popular sovereignty” (Kal Reference Kal1974, 52–66).

In the second place, the nation's deep penchant for an executive presidency constituted the second motif. Attacking the parliament vehemently for its harmful representative deficiencies, induced by the dominance of regional interests, a pamphlet from the Ministry of Home Affairs stated that “the party system, a relentless western replica, has been harmful to the polity and led to an exorbitant waste of national power and a dissolution of national unity drawn from the steady will of the people. Worse still, the confrontation between the Executive and the Legislature has led to a constitutional debacle” (Ministry of Home Affairs 1972, 97–111). Based upon this reflection, the pamphlet advocated the Yushin president's power: “To bridge the link between the People and the President as an incarnation of the People's will requires an institution, the National Conference for Unification” (Ministry of Home Affairs 1972, 97–111). Han, in his English-language article “The Task of [the] Yushin System in Korea,” rebuked the party system for its malicious manipulation of the popular will in the polity: “The heavy dosage of party-structure into the polity gave rise to an intense factionalism within it. And the popular voting for the President had a detrimental effect in causing national division” (Han Reference Han1976, 44).

The third reigning tenet of the Yushin's portrayal of the president was Schmitt's concept of the sovereign dictator, a recurrent ideological leitmotif employed by the Yushin propagandists. In the footsteps of Han's earlier ideological vindication of Park's government in the wake of the May 1961 coup, Kim Ki Ch'un, a middle-echelon bureaucrat in the Justice Ministry, recast the Yushin president as a sovereign dictatorship. He advanced that the president, by virtue of (de)limiting the boundaries of citizens’ liberties with his decisions in a time of national crisis, was able to create freedom for citizens (Kim Reference Kim1972, 37–113). In practice, the presidential power embodied in Park's obstruction of citizens’ rights and disrespect for the judiciary and the legislature proved a formidable liberticidal political weapon for silencing his political enemies.

Reaching the pinnacle of his political career as a cabinet member in Park's government, the home secretary's advisor (1961–63), a member of the Assembly (1963–67), and a core drafter of the Yushin constitution, Han remained reticent in addressing the perplexing juridical question of the Yushin's legitimacy. He instead took up a cultural angle in his ideological vindication of the Yushin regime to recharacterize the nature of the Korean democracy. In The Theoretical Development of Korean Democracy, he insisted that the Korean concept of democracy was ill-defined, plagued heavily by the erroneous notion that democracy was merely an American product. He claimed that this harmful misconception, prevalent in Korean political and legal life, had eventually led the country into the havoc of the Second Republic, through the fatal mistake of identifying parliamentary immaturity with democracy (Han Reference Han1973).

A preoccupation with American democracy, according to Han, emanated from the historical geography of the international order in which South Korea had been located: “Our nation's infertile soil for democracy is caused by the fact that, in the wake of nation-state building, it has undergone only oriental despotism and Japanese colonialism. Given our illiberal historical milieu, it is therefore painfully true that democracy itself appears strange and alien in the minds of the Korean people” (Han Reference Han1976, 32). He intensified his argument: “[as] our fatherland is now regrettably at the very forefront of the Cold War, democracy itself appears on the horizon not as a mere ideology or a political system, but vitally as the bedrock protecting our life and property from the potential threat of communism” (Han Reference Han1976, 32). Criticizing the placelessness of Korean democracy in its conceptual acceptance within the Korean political community in this way, he advanced the concept of democracy not merely as a form of political system, but more substantially as a way of political life, which echoed the Nazi theory of Lebensraum.