Korean post-1987 experience saw the ambivalent advancement of democracy with the rise of human rights standards and with a still oppressive tendency toward enmity. It epitomizes both achieved formal democracy and antagonistic policy toward a defined enemy. The aim of Regime Transition and the Judicial Politics of Enmity is to capture the double-edged role of Korean courts, particularly that of the Constitutional Court, in transitory democracy. Thus, as Justine Guichard argues, the book's primary contribution “lies in comparative constitutional politics” where legal scholars have given heightened attention to non-Western societies and new democratic countries (p. 2). It aims to refine the previous scholarship.Footnote 1 Regarding Korea, although several scholars have dealt with democracy and the Korean Constitutional Court, focusing on civil society, political contingencies, and several legal issues, very little attention has been drawn to comparative perspectives.Footnote 2 The major concern of this book is how the Korean Constitutional Court has delineated the boundaries of democratic community members—by dealing with inclusion and exclusion of South Korean constitutional justice, as the subtitle shows. Thus, it is no surprise that it heavily analyzes court cases, with comparisons to other countries.
In addition to the brief prologues and epilogue, Regime Transition and the Judicial Politics of Enmity is composed of seven chapters. The first chapter introduces the theoretical frameworks used in writing about new democratic countries and constitutionalism. Specifically, in transitory democracy, the two approaches of “thick” and “thin” strategic explanations complement each other: the former focuses on “the role of partisan interest and electoral competition in constitution-making” while the latter instead shows “a bargain among political parties that are not sure of winning the first elections after the change of regime” (p. 8).
The second chapter is devoted to the origins of the Constitutional Court, to which the above-mentioned “strategic explanations” may apply to Korean politicians’ compromise in the 1987 Korean Constitution. It is noteworthy that the Korean Constitutional Court was modeled selectively after the Federal Constitutional Court of Germany (p. 36). Considering the national division of the Korean peninsula and ongoing tensions, the Korean Constitutional Court has used the concept of “militant democracy” in its sessions, a concept developed in 1937 by German political scientist Karl Loewenstein when he argued that democracies needed to become “militant” to defend themselves from enemies, such as extremist political parties like the National Socialists, that would seek to undermine the system from within (pp. 41–42).
The third chapter shows how much Korean social zeal for democracy in the 1990s was realized in the punishment of former Korean presidents Chun Doo-hwan and Roh Tae-woo, who were perpetrators of the Kwangju massacres in 1980. Guichard also sheds light on the Korean public law association, Minbyŏn, or the Coalition of Lawyers for a Democratic Society. The court also has been involved in disputing “the construction of enmity in relation to South Korea's authoritarian past” (p. 67).
The fourth and fifth chapters are central to the book's theme: they seek to delineate the boundaries of Korean-ness by analyzing cases relating to the Korean National Security Law and ethnic Koreans.
Chapter 6 examines the role of the Constitutional Court regarding law enforcement issues, such as police investigations, prosecutors’ interrogations, and habeas corpus.
The last chapter deals with highly contested issues, such as the military's participation in the Iraq War (2003–8) and the right to conscientious objection. The Constitutional Court took very conservative stances on these issues.
Thus, Regime Transition and the Judicial Politics of Enmity covers the most important Korean public issues. Overall, it is successful in terms of the mixture between comparative and legal case analysis. However, the book leaves several things to be desired. Although a new constitution in 1987 was a politicians’ compromise, citizens still played a role in settling the constitutional jurisprudence. Also, when Guichard discusses the “contours of the national community” (p. 95), the national boundary could be more clearly understood if, rather than focusing on current government policy toward ethnic Koreans living outside Korea, issues of historical nationality were addressed. It would be interesting to explore why Korean courts deemed the Korean ethnic group in China to be “foreigners” (i.e., not Korean nationals) who obtained Chinese nationality, while Korean residents in Japan were considered to be Koreans. The Korean ethnic group in Central Asia is also considered to be “foreigners.”
Moreover, this book would be better if it explained why the Korean Constitutional Court was accepted by the Korean people as a problem solver. It is noteworthy that two 2004 cases, the impeachment case against President Rho Moo-hyun (16-1 KCCR 609, 2004 Hun Na1, May 14, 2004) and a case on the movement of Korean Capital (16-2(B) KCCR 1, 2004 Hun-Ma554, October 21, 2004), were perceived by the Korean public as having the most importance for the court. Also, in terms of boundary making, the Korean Supreme Court and the Constitutional Court are similar in their stances (p. 83). However, there is also tension between the two organizations due to a unique Korean legal culture, particularly judicial elite competition.
It seems that there are very few factual errors here. The “US provisional government in Japan” (p. 111) would be more accurately phrased as the “Allied Occupation of Japan” or the “US Military Occupation in Japan.” Regime Transition and the Judicial Politics of Enmity, however, remains a great introduction to Korean contemporary society since 1987 with minute analysis of current Korean public law, constitutional law, and law and society.
